Comeback for the Court Challenges Program?

The federal government is studying the possibility of bringing back the Court Challenges Program and expanding it to include areas never covered under the old program, say top government officials.

Rachel Wernick, assistant deputy minister, strategic policy, planning, and corporate affairs for the department of Canadian Heritage, says officials in the Justice and Heritage departments are already hard at work.

“It is fair to say that as part of the development of proposed options for a modernized program, we will explore — in the spirit of evolving with the times — if the scope of the program should be expanded,” Wernick told members of the House of Commons justice committee.

“I would say the areas that come back often from expert views on where it potentially could grow would be to look at some of the fundamental freedoms — freedom of association, freedom of religion, religious expression, which is an area of evolving context and applying to provincial and territorial cases, which is the case with language but not with equality.”

The Court Challenges Program, originally created in 1978, provided funding for individuals or groups to mount court challenges of laws they believed violated equality or official language minority rights guaranteed under the constitution and the Charter of Rights.

Over the years, it provided funding for 1,226 cases, some of which resulted in major Supreme Court of Canada rulings in areas ranging from access to social and economic benefits for disadvantaged groups, voting rights for prisoners, the prohibition on the deportation to torture, and access to information in minority official languages.

The most frequent grounds for test cases funded under the program were aboriginal equality rights (15.3 per cent), equality of colour/race/ethnicity/nationality (13.6 per cent), equality of those with disabilities (9.2 per cent), sexual equality (8.4 per cent), and linguistic minority education rights (12.6 per cent).

“Over the years, the Court Challenges Program has provided funding for cases related to important legislative and policy areas, including age, race, disability, family status, poverty, religion, and sexual orientation,” Wernick told MPs.

When former Conservative prime minister Stephen Harper’s government came to power in 2006, one of the first things it did was shut down the $2.8-million-a-year Court Challenges Program. However, the government agreed to honour previously approved litigation cases up to the final stage of appeal.
Currently, 28 equality and language rights cases are still making their way through the system and $1.4 million a year has been set aside to fund them.

After its decision to shut down the program was challenged by a francophone group, the government created a new Language Rights Support Program in 2009 as part of an out-of-court settlement.

The new program provides $1.5 million a year for court challenges and alternative dispute resolution in cases involving official linguistic minority rights.

In the last federal election, one of Liberal leader Justin Trudeau’s promises was to restore the Court Challenges Program, a promise that found its way into the mandate letters of both Justice Minister Jody Wilson-Raybould and Heritage Minister Mélanie Joly. Wernick says the work to bring back and update the program has already begun.

“We are leading work right now for our minister and the minister of justice to modernize the court challenges program as was a commitment in both mandate letters and of course we’re starting that work by launching a fairly extensive consultation with experts and organizations and Canadians.”

One of the options the government is examining is expanding the scope of a new Court Challenges Program, she says.

“I think it is really important to say that this is in the development phase, but we do good policy work, we look at all of the options, and we test the viability and the strength of the evidence base to go there and we consult and that work is underway already.”

Rob Nicholson, a former justice minister who now serves as the Conservative justice critic, suggested the program wasn’t needed because the Charter’s impact on Canadian laws had already been established.

However, Erin Brady, general counsel, Human Rights Law Section, Public Law and Legislative Services Sector for the Justice Department, said that while there are 30 years of jurisprudence that has built up, cases continue to make their way through the courts and major decisions on charter cases involving equality rights are being rendered about once every two years.

The briefing by government officials kicked off a study by the justice committee of the Court Challenges Program and access to justice.

Anthony Housefather, Liberal MP and chairman of the committee, said MPs wanted to look at the program and make recommendations to the government such as whether it should be expanded to other provisions of the charter or to provincial laws.

Housefather would like to hear from a wide range of witnesses, including linguistic minority groups, groups that used the equality provisions of the program before it was cut, lawyers, and civil liberties groups.

Housefather, who graduated with two law degrees from McGill University, said lawyers could be more willing to take on charter challenges if the Court Challenges Program funding was restored.

“Other than minority language rights, there is no program, so what it would mean is if we just brought back the old Court Challenges Program that allowed equality rights then people who have cases in those areas could apply for funding.”

Housefather said the committee is also planning to examine access to legal aid.

“Right now, with the decline in the amounts that are provided for legal aid, there’s more and more stalling in the system. Cases take longer where people don’t have attorneys that represent them.”