Coalition Fights to Bring Back Court Challenges Program

In September 2006, Finance Minister Jim Flaherty announced that the minority Conservative government was cutting over $1 billion in funding from programs funded by the National Treasury. The Conservatives did this by stripping the funding from what they referred to as “wasteful programs.” One of these allegedly wasteful programs was the Court Challenges Program – an arms-length, non-profit organization that has provided funding for some of the most significant Supreme Court of Canada decisions of the past 30 years. Last month, a coalition of eight organizations representing equality-seeking communities announced that it will file a motion in Federal Court to intervene in a case challenging the decision of the federal government to cut funding to the Court Challenges Program.

Background to the Court Challenges Program

The Court Challenges Program was introduced by the Trudeau Liberals in 1978. At the time, it was meant to help fund language rights cases based on sections 93 and 133 of the Constitution Act, 1867. In 1982, the program’s mandate was expanded to provide funding for the language rights found in sections 16 through 23 of the freshly introduced Charter.

In 1985, the program was further expanded to provide funding for litigation relating to sections 15 (equality), 27 (multiculturalism), and 28 (sex equality). This decision stemmed from a report by the Parliamentary Committee on Equality Rights, which noted that the extreme differential in resources between the government and individuals seeking a benefit under the equality sections of the Charter constituted a considerable barrier to accessing those rights.

The purpose of the program was simple. The provisions of the Constitution could only be clarified by the courts if they were challenged by litigants. Recognizing that the cost of a complex court challenge is out of reach for most individuals – especially people facing discrimination under the law – the government decided that some public funds would have to be made available to ensure these cases would be heard in the courts. The mere existence of the program demonstrated the committment the Canadian government had to language and equality rights; the government would fund people suing its own departments to reduce the financial barriers that most potential litigants would not otherwise be able to overcome.

Despite a positive review of the program in 1989 by the Standing Committee on Human Rights and the Status of Disabled Persons, the program was cancelled by the Conservative government in 1992. However, when the Liberals returned to office the next year, they brought it back in its modern form.

While operating, the program funded cases dealing with issues such as same-sex marriage, accessibility rights for people with disabilities, sex discrimination, violence against women, criminal law provisions regarding the use of disciplinary force against children, and racial discrimination in the immigration system. A more detailed list of some of the cases the program helped fund can be found here.

Court Challenges Gets Cut

The federal government was the Court Challenges Program’s sole source of funding. Therefore, the program was effectively cancelled when the Conservatives announced it would no longer provide the program with funding. As the program’s website states, the non-profit corporation has not been able to accept any applicants for funding since September 25, 2006. Conveniently for the government, since the decision to eliminate the program’s funding was made as an executive one, the funding cut did not need to be debated or ratified in the House of Commons.

The “Backgrounder – Effective Spending” released by the government to announce the government omnibus program cuts states that the program was cut because it was not providing “value for money.” However, the Conservatives did not offer a further explanation for why such a conclusion was reached. This is disturbing, considering the last evaluation of the program conducted by Heritage Canada in 2003 came to the opposite conclusion. It found that the program “meets the need that led to the Program’s creation.” The evaluation also stated that “a better understanding of the rights and freedoms covered by the Program is best achieved by funding test cases. No alternative would be as efficient.”

The Challenge to the Loss of Court Challenges

The case challenging the government’s decision to eliminate funding for the Court Challenges Program was started by the Federation of Francophone and Acadian Communities of Canada, a group representing French-speaking minorities outside of Québec. Applying to intervene are The Council of Canadians with Disabilities (CCD), the National Anti-Racism Council of Canada (NARC), the Feminist Alliance for International Action (FAFIA), the DisAbled Women’s Network of Canada (DAWN-RAFH Canada), the Metro Toronto Chinese and Southeast Asian Legal Clinic (MTCSALC), the Charter Committee on Poverty Issues (CCPI), the Women’s Legal Education and Action Fund (LEAF) and the South Asian Legal Clinic of Ontario (SALCO). Egale Canada is also offering support for the coalition. The case will be heard on February 24-25, 2008 at the Federal Court in Fredericton, New Brunswick.

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