Hiding the Holy Grail: Manitoba’s Provincial Government Risks Reducing Access to Justice for the Most Vulnerable

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On April 19, 2018, representatives from Winnipeg Harvest, the Social Planning Council of Winnipeg, the University of Winnipeg Students’ Association, and Make Poverty History Manitoba patiently listen to discussion inside the Legislative Assembly of Manitoba. The Progressive Conservative majority government has just proposed Bill 24, entitled the Social Services Appeal Board Amendment Act. Bernadette Smith, a member of Manitoba’s New Democratic Party (NDP), asks a simple but powerful question about Bill 24. “Madam Speaker,” she implores, “last year, the Manitoba Court of Appeal found that the Charter of Rights and Freedoms is not some holy grail, that the Charter belongs to the people. Does the minister agree with that?” Scott Fielding, the Progressive Conservative Minister of Families, immediately responds by saying “we have made some changes to the social-or proposing, through legislation, some changes to the Social Services Appeal Board. We think that is in line with other provinces, as well as changes that were made under the previous NDP government, as it relates to the Workers Compensation Board.” In the rough-and-tumble nature of politics, sometimes things can be accidentally missed in good faith. But make no mistake, Scott Fielding has completely dodged a very simple question.

“The Manitoba Court of Appeal found that the Charter of Rights and Freedoms is not some holy grail, that the Charter belongs to the people. Does the minister agree with that?”

To understand the real nature of Bernadette Smith’s question it is necessary to have an understanding of Manitoba’s Social Services Appeal Board (SSAB). In the simplest of terms, the SSAB functions as an administrative body meant to give citizens who have been denied key social services a way to appeal a decision if they believe it unjust. Included in the government programs that may be appealed to the SSAB are the Employment and Income Assistance Program, Rent Assist, and the Community Living disABILITY Services Program. As a result, it is often the people who are most vulnerable that find themselves relying on the SSAB to provide them with a fair and impartial appeal process. This is important because even the best of people and administrative bodies will inevitably make mistakes in administering social services. Without the SSAB serving as a tribunal, the people who have been denied the social services they may desperately need would find themselves being required to navigate the expensive and exhaustive Canadian legal system by way of the courts. No matter how strong their case, this would simply be too great of a burden for many marginalized people to bear, and many good people would find themselves both suffering from a wrong decision and unable to challenge it.

Access to justice and legal resources is a longstanding problem in Canada. The unfortunate reality is that legal battles are expensive and not everybody has the resources to fight them. Since tribunals, commissions, and boards, like the SSAB, are often significantly faster and cheaper than the traditional court process, they serve a very important role in helping citizens access and stand up for their own legal rights. But even the law surrounding administrative bodies is notably complex. To help clarify the role of such bodies and empower them to protect the most vulnerable of citizens, the Supreme Court of Canada unanimously issued a powerful ruling in the 2010 case of R v Conway. The Conway decision granted administrative tribunals across Canada the power to consider the rights outlined in the Charter of Rights and Freedoms whenever they are relevant to the hearing of a legal issue properly before it, unless the government has explicitly withdrawn the tribunal’s ability to do so. To emphasize why this was important, the Supreme Court boldly proclaimed that “the Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people. All law and law-makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception.” The Conway decision was not some divisive legal decision that tore the Supreme Court apart. All nine of the justices unanimously agreed.

“The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people. All law and law-makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception.”

In November of 2017 the Manitoba Court of Appeal would decide Stadler v Director, St. Boniface and quote the Supreme Court’s words in finding that following the Conway decision, the SSAB also had the ability to consider Charter issues. The Charter was simply not to be a holy grail kept apart from Canadian citizens. But the Manitoba Court of Appeal went a step further in its ruling, stating that “given the strong movement towards increased access to justice, there has been a correlative movement away from approaches which lead to bifurcation of processes. A result which requires individuals, such as the appellant, to take parallel proceedings in a superior court in order to obtain a Charter remedy is to be discouraged. There has been a tendency to place Charter jurisdiction in the hands of administrative tribunals with a greater frequency and with less concern.” It is clear that the Manitoba Court of Appeal wanted to prevent people from having to use the SSAB for one part of their appeal and the courts for another, a result that would inevitably burden many vulnerable people. All five of the justices unanimously agreed.

“There has been a tendency to place Charter jurisdiction in the hands of administrative tribunals with a greater frequency and with less concern.”

Manitoba’s Progressive Conservative provincial government clearly did not like the Stadler decision. If they did, they would not have immediately drafted the Social Services Appeal Board Amendment Act, also known as Bill 24. Bill 24 is extremely short and to the point. In effect, it removes the SSAB’s jurisdiction to consider Charter issues while making a decision. That is all it does. In April of 2018, when Bernadette Smith asked Scott Fielding if he believes the Charter is or is not a holy grail, what she was really asking for was his justification for Bill 24. Bernadette Smith quickly rephrased her question, asking “why is this minister refusing to give Manitobans access to the justice they deserve?”

Bill 24 is almost certainly legal. Whether it is good public policy, however, is another question entirely. According to Scott Fielding, the Progressive Conservatives seek to implement it because “it is very similar to what other provinces are doing” and it is also “very similar, the change in legislation, to what the NDP did with the Workers Compensation Board in 2005.” Scott Fielding never gave an example of another province passing similar legislation. In his defense, however, the NDP’s Workers Compensation Amendment Act of 2005 did explicitly remove the Workers Compensation Board’s (WCB) ability to consider Charter issues. But unlike Bill 24, that was not all it did; the 2005 changes to the WCB exhaustively reformed the entire structure of the board itself. For comparison, while the Workers Compensation Amendment Act has 83 statutes, the Social Services Appeal Board Amendment Act has only 4. More important, however, is the fact that while the WCB changes occurred five years before the Supreme Court’s unanimous “holy grail” decision in Conway, Bill 24 was drafted eight years after.

But the truth is it would not even matter if every single provincial government in Canada had drafted their own version of Bill 24. In both ordinary life and as a matter of public policy, justifying one’s actions by saying that others have done it too is never a good reason at all to do anything. As it stands, all the policy reasons seem to suggest that Bill 24 should not come to pass. If it does, it risks turning the Charter into a holy grail and then hiding that holy grail from those who truly need it most. People who are already struggling financially will find themselves with even less of an ability to challenge the very decisions that further marginalize them. The most vulnerable members of our society will become even more vulnerable; their Charter rights will be pushed further away from their reach. If access to justice is to be further advanced, and if the Charter is to truly belong to the people, Bill 24 ought not to pass.

The Official Opposition, Manitoba’s NDP, managed to delay Bill 24 in AprilAs a result, Bill 24 will not pass in the current legislative session. In November of 2018, however, Bill 24 will return and could become law unless the Government of Manitoba relents.

 


As of the time of this article, an informal coalition against Bill 24 has been formed from representatives of various organizations. The represented organizations include the Manitoba Association for Rights & Liberties, the Manitoba League of Persons with Disabilities, the Canadian Federation of Students-Manitoba, Winnipeg Harvest, Social Planning Council of Winnipeg, Barrier Free Manitoba, the Low Income Intermediary Project, Inclusion Winnipeg, and Make Poverty History Manitoba.

As of the time of this article, provincial electoral candidates in the St. Boniface riding by-election from the Manitoba NDP, Manitoba Liberal Party, and the Manitoba Green Party have all denounced Bill 24. The Progressive Conservative Party candidate in the St. Boniface riding has not expressed an opinion on Bill 24. As political parties, the NDP, Liberals, and Greens have all consistently opposed Bill 24.


 

This blog post was written by a CCLA Volunteer. Opinions expressed do not necessarily reflect the views of the CCLA.

About the Author

Ryan Poirier
Ryan Poirier is a second year Law student at the University of Manitoba. He holds a Bachelor of Arts with a double major in both Political Studies and Economics.

1 Comment on "Hiding the Holy Grail: Manitoba’s Provincial Government Risks Reducing Access to Justice for the Most Vulnerable"

  1. Patrick | 17/07/2018 at 5:19 pm |

    Great article. Thanks 🙏

Comments are closed.