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Court Challenges Program
7 February, 2017—Heritage Minister Melanie Joly and Justice Minister Jody Wilson-Raybould announced the details of a renewed Court Challenges Program with a budget of $5M per year for five years as per the March 2016 federal budget. In a Backgrounder, the following details are provided.
Expanded rights eligible for funding
“The CCP will support official language rights and human rights derived from the following:
- Official language rights protected by:
- sections 93 and 133 of the Constitution Act, 1867;
- section 23 of the Manitoba Act, 1870;
- sections 16 to 23 of the Canadian Charter of Rights and Freedoms (the “Charter”);
- any parallel constitutional provisions; and
- the linguistic aspect of freedom of expression in section 2 of the Charter when invoked in an official language minority case.
- Justiciable parts of the Official Languages Act, which include:
- certain sections of Part I (Proceedings of Parliament);
- certain sections of Part II (Legislative and Other Instruments);
- Part IV (Communications with and Services to the Public);
- Part V (Language of Work);
- Part VII (Advancement of English and French); and
- section 91 (Staffing).
- Human rights protected by the Charter under:
- section 2 (fundamental freedoms, including freedom of religion, expression, assembly and association);
- section 3 (democratic rights);
- section 7 (life, liberty and the security of the person);
- section 15 (equality rights);
- section 27 (multiculturalism) – when raised in support of arguments based on equality rights; and
- section 28 (gender equality).
The CCP will be implemented and managed by a third party to avoid any real or perceived conflict of interest on the part of the Government of Canada. The identified independent organization will be responsible for the general administration and delivery of the Program, including administering two funding decision-making Expert Panels, and Program promotion. On February 7, 2017, the Department of Canadian Heritage launched a proposal assessment process to select the independent organization.
Decisions regarding CCP funding will be rendered by two independent expert panels, an Official Language Rights Expert Panel and a Human Rights Expert Panel. The seven members of each of the Expert Panels will be selected based on their expertise in the relevant legal areas and will report to the independent organization. In the coming months, an open, transparent and merit-based process will be launched to identify the members of the Expert Panels.
A panel selection committee, composed of both senior government officials and experts on official languages and human rights, will have the responsibility to recommend a short-list of qualified candidates for the two panels to the Minister of Canadian Heritage.
Under the CCP, funding will be directed toward:
- test case development;
- test case litigation; and
- legal interventions.
Of concern is the absence of any reference in this Backgrounder to the focus of the CCP being on A2J [Access to Justice] for vulnerable groups. This was the bedrock on which the previous CCP was built. Perhaps some comfort can be drawn from Justice Minister Jody Wilson-Raybould’s assertion that the renewed program will ensure that the government "promotes access to justice for Canadians who need it the most” in the February 7 press conference.
At the same time, given Justice Minister Wilson-Raybould’s stated commitment to A2J for those with the greatest needs, it is disappointing to see that Court Challenge funding will not be available for Aboriginal rights under S.35 of the constitution.
Of further concern is the Backgrounder’s reference to an independent third party to administer and deliver the program, with no mention that such organization ought to be community-based. The previous CPP was community-based. That entity, the CCPC, continues to exist with 41 current NGO members and a skeletal staff managing some 21 still-active files. The UN CEDAW Committee’s recent General Observations on Canada’s 8th and 9th reports include a recommendation that Canada “retain the Program’s community-based structure”. Such grounding in civil society NGOs is what ensured that A2J for vulnerable groups was the core idea driving the previous CCP.
A third disappointment is the Federal Government’s failure to accept the CEDAW Committee’s recommendation that the renewed CCP “include cases in provincial and territorial jurisdiction.”
23 March 2016—In the 2016 federal budget, the Canadian government announced $12 million in new funding over five years for the Court Challenges Program of Canada. Combined with existing funding, the annual funding will reach $5 million.
16 February 2016—The Liberal government has announced that it would update and reinstate the Court Challenges Program of Canada. The Ministerial Mandate letter to the Minister of Canadian Heritage directs her to "work with the Minister of Justice to update and reinstate a Court Challenges Program". Details of the program are not yet available, but the CCPC Board of Directors is consulting stakeholders as to their interests in the design of an updated mandate and contribution agreement.
The Harper government cut the entire budget of the Court Challenges Program in September 2006. As an executive decision, the funding cut did not need to be debated or ratified in the House of Commons.
The CCP was launched by the Trudeau Liberals in 1978 to help fund language rights cases. It was expanded to cover equality rights when the Canadian Charter of Rights and Freedoms took effect in 1985. The purpose of the program was simple. The provisions of the Charter could only be clarified by the courts if they were challenged by litigants. But the cost of a complex court challenge is out of reach for most individuals, especially people facing discrimination under the law because of poverty, race, disability, gender or sexual orientation. The government decided that a modest amount of public funds ($2.3 million annually) should be made available to ensure these cases would be heard in the courts – to level the playing field when individuals or nongovernmental organizations go to court against the substantial assets of the state. Without such financial support many human rights issues could not be pursued.
Although the CCP provided only limited funds for selected test cases, it achieved notable legal landmarks: confirming that Canadians accused of a crime can have a trial in their own language; reaffirming the right of official language minority groups to manage their own school boards and to higher education in their mother tongue; helping homosexual couples achieve equality protection, including secure spousal benefits; confirming that aboriginal Canadians living off reserve have the right to vote in band elections; and assisting seniors to secure employment insurance benefits, women to win pay equity cases and disabled groups to fight VIA Rail for the right to accessible trains.
In 2003, an evaluation by the department of Canadian Heritage found that the program was meeting the needs for which it was created and that “No alternative would be as efficient.” However, the CCP was not without its critics, among them Dr. Charles McVety (President, Canada Christian College and Canada Family Action Coalition) who testified against the CCP before Parliament. But the most forceful and public opponent to the program was the anti-feminist organization, REAL Women. “The federal Court Challenges Program continues to churn out generous grants to homosexual activists and feminists to assist them in their attack on traditional values in Canada,” a REAL Woman newsletter claimed in 2000. REAL Women contended that the CCP was part of a liberal campaign to social engineer Canadian culture alleging that “..the social values of Canadians are being determined by the courts through legal research and court costs paid by the taxpayers, even though, for the most part, the public does not support the values being argued and promoted.”
The CCP had also drawn the ire of the Conservatives. The Tory Party had killed the program once in 1992 only to see it revived by the Liberals. Under Stephen Harper, Conservatives alleged the court program favoured only liberal causes and not conservative ones (antiabortion, anti same sex marriage, etc). Harper’s chief of staff (2005-2008), Ian Brodie, wrote his doctoral dissertation and several papers arguing that the CCP unfairly empowered minority language groups, homosexuals and feminists. And Prime Minister Harper himself was known privately to disparage the program. In a 2009 talk to party members in Sault Ste Marie, an event closed to the media but video-taped from the audience, Harper expressed pride in having killed off the Court Challenges Program: “Instead of subsidizing court challenges, as the previous government was doing, subsidizing lawyers to bring forth court challenges by leftwing fringe groups…”
In September 2006, the Harper government cancelled the Court Challenges Program as part of other program cuts, the general explanation for which was that they did not provide value for money, did not meet the priorities of Canadians or were wasteful. No specific reasons for cutting the CCP were given other than the remark by then Treasury Board president, John Baird, that it didn’t make sense for the federal government to "subsidize lawyers to challenge the government's own laws in court." REAL Women was “delighted that the budget cuts included the elimination of the troublesome Court Challenges Program.”
After the Harper government cancelled the Program in 2006, public protests prompted the Harper government to create a small program for linguistic rights only. Equality rights remain unfunded.
- 1978: First court challenges program for language rights.
- 1985: Program expanded to cover Charter equality rights.
- 1989: Standing Committee on Human Rights and the Status of Disabled Persons carried out a study, hearing from 62 witnesses. It concluded unanimously that there were "not merely sufficient, but compelling reasons" for continuing the Program
- 1992: The program was cancelled by the Conservative government.
- 1994: Under a new Liberal government the CCP was reinstated under the Department of Canadian Heritage (it is later made into an independent nonprofit corporation)
- September 2006: Program abolished by the Harper government.
- May 15 2007: Parliament’s Official Languages committee stops functioning after the Conservative chair refuses to hear witnesses on the government's decision to axe the CCP.
- June 2008: The Harper government restores funding for the linguistic rights part of the former CCP, now operating under the name the Language Rights Support Program.
Role or Position
The Court Challenges Program (CCP) provided funds to support test cases of national significance. Specifically, court cases that clarified the constitutional rights of official language minorities and/or those pertaining to equality rights of Canadians.
Implications and Consequences
- Equality: Access to justice in equality rights cases is severely limited and is available mostly to those with the financial capacity to pursue them.
- Equality: Canada’s global reputation of being a leader in human rights is greatly diminished by the elimination of a unique program admired around the world.
- Democracy: Discriminatory laws and practices remain untouched and unchallenged for much longer.
- Equality: Programs to provide protection from government discrimination such as LEAF for women, DAWN, for women with disabilities, Egale for gays, lesbians, bisexual and trans identified people are limited in their ability to protect individuals as effectively.
- Equality: The cancellation of the CCP diminished the disability community’s access to justice.
Photo originally posted by steakpinball