Since the 2015 federal election, the CBA has made more than 300 submissions to government on topics as diverse as pension regulations, lawyers’ billing practices, what constitutes political activity by charities, laws surrounding temporary foreign workers, and making the Constitution bilingual.
Along with written submissions, CBA members and staff have appeared before Senate and House committees, and met with representatives from various departments, including Finance, Canada Revenue Agency, and Justice to propose changes to improve the law and press the CBA’s position on proposed legislation, amendments, regulations and government programs.
Speaking with the voice of its 36,000 members lends the CBA a degree of influence, and our submissions are often at least partly successful. While we argue on the legal merits and practical impact of a given item, any government makes its own calculations when drafting laws and regulations. We can use the power of reasoned argument to persuade the government to come to the water barrel, but we can’t always make it drink as deeply as we’d like.
We’ve looked through our advocacy initiatives from the last few years and pinpointed a number where we can reasonably claim a measure of success. Here’s a sampling of what we found:
Legal Aid
Subject: Legal aid funding has been dropping since the 1990s. Even though federal allocations have increased since 2015, there remains a significant shortfall, and a lack of overall stability in the process. More recently, with a rise in the global refugee population, Canada has seen a significant increase in asylum-seekers who are an additional burden on already-strained legal aid resources for refugees and immigrants.
What we asked for: Several times over the past few years we’ve asked the federal government to increase legal aid funding for refugees and immigrants. In July, the CBA and OBA Immigration Law Sections wrote to the federal ministers of Justice, Finance and Immigration specifically noting Ontario’s decision to end legal aid funding for this group and asking the government to fill that gap.
Result: The 2018 and 2019 federal budgets allocated new funding for legal aid for refugees and immigrants. In July the government announced a further $26 million for 2019, the bulk of which would go to Ontario to fund the shortfall there, with smaller amounts earmarked for British Columbia and Manitoba.
Court administration
Subject: The Federal Court, Court Martial Appeal Court, Tax Court and Federal Court of Appeal face budgetary pressures that put access to justice and judicial independence at risk.
What we asked for: The CBA has asked the federal government to allocate money to the Courts Administration Service, to modernize the technological infrastructure to create a fully electronic-based system for the courts, and to support necessary translation costs.
Result: Budget 2019 allocated an additional $33 million over five years, to be used in part to increase the court’s capacity to translate its decisions on a timely basis. In Aug. 2019, CAS also received $52 million over five years to implement a modern Courts and Registry Management System.
Judicial appointments
Subject: Judicial vacancies have been a chronic problem for Canada’s courts, contributing to the kind of delays that led to the Jordan decision, which set a deadline for hearing criminal cases.
What we asked for: In a 2013 resolution we called on the government to fill judicial vacancies. A second resolution, in 2016, as well as a variety of submissions, called on the government to fill vacancies and create positions where needed.
Result: Mixed. Since 2015, 78 new judicial positions have been created, including 39 new Unified Family Court positions. While some vacancies have been filled, as of Aug. 1, 2019, the Commissioner for Federal Judicial Affairs reports 36 vacant positions across the country. The appointment process remains slow and the JACs are often not named in a timely manner, meaning vacant positions remain open for a long time.
Court Challenges Program
Subject: The Court Challenges Program has been a political football kicked back and forth by successive Liberal and Conservative governments since its inception in 1985.
What we asked for: The CBA asked for the program to be reinstated.
Result: In January 2019, Justice and Canadian Heritage reinstated a modernized Court Challenges Program, which gives financial support to cases of national significance related to constitutional and quasi-constitutional official language rights and human rights cases before the courts.
Unified family courts
Subject: Unified family courts, which offer specialized services and judges under one roof, have tremendous potential to improve access to family law services.
What we asked for: The CBA has urged the current and former governments to expand the use of unified family courts, and resources for those courts.
Result: The 2018 federal budget included $77.2 million over four years to enhance unified family courts in Alberta, Ontario, Nova Scotia and Newfoundland and Labrador. Bill C-74 included amendments to the Judges Act to create 39 new family court positions.
Divorce Act
Subject: Canada’s Divorce Act had not been updated for decades and was not keeping pace with societal changes.
What we asked for: The CBA emphasized that the fundamental consideration in all custody and access determinations had to be the best interests of the child – everything else must stem from that. We also offered suggestions on clarifying the law around relocation and family violence, and updating terminology to avoid framing the proceedings in terms of winners and losers.
Result: In 2019, the Divorce Act was amended to specifically reference the best interests of the child as the only consideration for parenting orders. It also replaced the terms “custody” and “access” with “parenting orders,” and clarified issues around relocation and family violence.
Language rights
Subject: French-speaking Canadians were not entitled to bring divorce proceedings in French, or even to speak French during the hearings.
What we asked for: That language rights be recognized in Divorce Act proceedings.
Result: In 2019 the Divorce Act was amended to recognize language rights.
Further: Budget 2019 proposed $21.6 million over five years, starting in 2020-21, to support the amendments in service of increased access to family justice, and divorce proceedings in particular, in the official language of one’s choice.
Billed-basis accounting
Subject: The government caused a furore among lawyers and others with its 2017 federal budget, which announced an end to the process of billed-basis accounting, which allowed designated professionals to exclude the value of work-in-progress from income for tax purposes, instead recognizing the income only when it is billed.
What we asked for: We asked the government to change its mind about billed-basis accounting, but when it became clear that it would not, we asked it to clarify what types of deferred-payment arrangements were affected by the proposal, the principles relevant to determining the cost of work-in-progress, and also for a seven-year phase-in period instead of the two years initially proposed.
Result: The Canada Revenue Agency confirmed in April 2017 that contingency fee arrangements would not be affected, and that December the Budget Implementation Act contained a five-year phase-in period.
Missing and murdered indigenous women and girls
Subject: International human rights and indigenous organizations have recognized that Canada has neglected its international obligations to protect indigenous women and girls, who experience violent victimization at rates much higher than their non-indigenous counterparts.
What we asked for: In a 2013 resolution, the CBA joined the call for a public inquiry to take a systemic approach to the problem of missing and murdered indigenous women and girls.
Result: In 2016, the federal government launched a national public inquiry to examine systemic causes of all forms of violence – including sexual violence – against Indigenous women and girls in Canada, and institutional policies and practises implemented in response to that violence. In 2019, the inquiry’s report, Reclaiming Power and Place, called for comprehensive reform across many sectors of Canadian society.
Gender identity and expression
Subject: Gender identity and expression was not an explicitly protected ground in federal human rights law.
What we asked for: A 2010 CBA resolution called for amendments to human rights laws and the Criminal Code to protect transgender people from hate crimes and discrimination. In submissions to government in 2013 and in 2015 we expressed support for a private member’s bill seeking to add protection for transgender Canadians to federal legislation. And in 2017, CBA submissions raised concerns with rights for transgender prisoners in federal institutions.
Result: In 2017, Bill C-16 amended the Canadian Human Rights Code and the Criminal Code to reference gender identity and expression.
Immigration and refugees
Subject: A significant percentage of our submissions every year deal with issues involving immigration and refugees – including backlogs in processing applications and lack of funding.
What we asked for: We have advocated for more funding for the IRB refugee protection division.
Result: The 2018 federal budget allocated $173.2 million in funding for border security and processing asylum claimants, including funds to support the IRB’s decision-making capaci.
Pay equity
Subject: There remains a significant pay gap between men and women working in the public sector.
What we asked for: In a 2016 resolution, we asked governments to develop an action plan that would include substantive and meaningful pay equity legislation, to eradicate the gender pay gap by 2020.
Result: The federal Pay Equity Act was enacted as part of Bill C-86 and received royal assent in 2018.
Sexual harassment in the workplace
Subject: Sexual harassment in the workplace has long been an issue, but the #MeToo movement emphasized how difficult it can be for victims of harassment to come forward.
What we asked for: A 2015 CBA resolution called for governments and other workplaces to take active steps to prevent sexual harassment and sexual assault in their workplaces create and provide accessible, safe and non-threatening reporting channels for sexual harassment and sexual assault. The Women Lawyers Forum and the Labour and Employment Law Sections suggested improvements to Bill C-65 (Canada Labour Code amendments to strengthen the existing framework for the prevention of harassment and violence, including sexual harassment and sexual violence, in the workplace), including allowing reports of harassment to be made anonymously.
Result: Bill C-56, which received royal assent in 2018, incorporated a number of the CBA’s suggestions, including the one about anonymous reporting. The 2019 federal budget allocated $50.4 million over five years to help fund legal aid for victims of sexual harassment in the workplace and to establish a pan-Canadian outreach and awareness campaign.
Environmental assessment
Subject: In May 2018 the government tabled its contentious Bill C-69, Impact Assessment Act, to expand the factors for consideration beyond the biophysical environment.
What we asked for: The CBA recommended changes to strengthen the new process and respect the rights of Indigenous peoples.
Result: In 2019, the government made some of the changes the CBA had asked for, including adding the words “scientific integrity, honesty, objectivity, thoroughness and accuracy” to the principles applicable the exercise of powers under the Act.
Immunity and leniency
Subject: In May 2018 the Competition Bureau proposed changes it its immunity and leniency programs.
What we asked for: We expressed serious concern with a number of changes and recommended improvements.
Result: The Competition Bureau incorporated changes the CBA had asked for, including important changes to the independent counsel privilege protocol.
Security screening
Subject: Many CBA members were frustrated with security screening requirements at the Federal Court.
What we asked for: We suggested options to facilitate the screening of counsel such as a pre-approval process, or a special screening location for counsel.
Result: In 2018, the Federal Court and Courts Administration Service followed up on our concerns and instructed screening personnel to improve their service and, where possible, to establish a dedicated or express line for counsel.