The Power of Perspectives

The Canadian Bar Association

Kim Covert

A few challenges in the reinstated Court Challenges Program

June 23 2017 23 June 2017

The Canadian Bar Association is happy to see the Court Challenges Program reinstated. The program has played an important role in developing groundbreaking jurisprudence on equality and language rights in Canada.

That said, the reinstated and modernized program as proposed – particularly the decision to extend the scope of the Program and the continued exclusion of Aboriginal and treaty rights – has triggered some concerns.

In a letter to the Minister of Canadian Heritage, President René Basque says that when the CBA called in a 2016 submission for the program to be expanded, the problem wasn’t that funding was limited to claims involving equality rights. Rather, in any given case funding would only be extended to the portion involving equality rights, and not to any other part of the claim.

“Assigning funding solely to the equality rights element presented difficulties for litigants and their counsel,” President Basque wrote, noting that litigants often embed equality claims under section 15 in more involved Charter arguments for fundamental freedoms or legal rights, as was the case in, for example, Carter, Downtown Eastside Sex Workers United Against Violence and Charkaoui.

The CBA is concerned about the prospect of standalone claims under sections 2, 3 and 7 of the Charter.  “Funding non-section 15 claims under the ‘human rights’ part of the Program opens the possibility of funding for Charter claims that could seriously undermine, rather than reinforce, your government’s and our shared objective of a more diverse, inclusive and equitable Canada.”

The CBA asks the government to clarify that any claim submitted to the program must include a section 15 claim or at least be consistent with Charter equality values, as mandated by section 28 of the Charter.

“With limited resources already allocated amongst competing claims, it is particularly important that, if the Program expands beyond equality rights and official language minority rights, its specifically stated objective should be to improve access to justice for historically disadvantaged groups and official-language minority communities.” The mandate should explicitly require funding to be awarded to cases with the potential to improve social conditions for these groups.

Speaking of historically disadvantaged groups, the CBA would like to see Aboriginal and treaty rights included, along with human rights and language rights, as a branch of funding under the Program.

The CBA applauds the government’s move to have Program funding decisions left in the hands of two independent panels – an Official Languages Expert Panel and a Human Rights Expert Panel. It also supports calls for people appointed to those panels to have a demonstrated commitment to promoting equality and access to justice.

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