Liberals to restore and expand Court Challenges Program

This used to be part of my former Multiculturalism and Human Rights Branch at Canadian Heritage. But the decision to scrap had been made before my time, with only the official languages component being spared given possible constitutional issues with its cancellation:

The Liberal government’s revival of the controversial Court Challenges Program will be expanded to include additional charter rights on top of equality and language rights.

The new program to fund court challenges will include cases based on freedom of religion, freedom of democratic rights, and right to liberty and security.

According to a department official, who briefed reporters Tuesday, all funding decisions will be made by two independent bodies, whose members will be selected through an “open, transparent, and merit-based” model that mirrors governor and council appointments.

Speaking at a press conference on Parliament Hill Tuesday, Heritage Minister Mélanie Joly said the new approach will ensure its “independence, integrity and longevity” of the program.

Justice Minister Jody Wilson-Raybould said the renewed program will ensure that the government “promotes access to justice for Canadians who need it the most,” adding that Canada’s justice system will need to continue to evolve.

The promise to restore the program, which was scrapped by the Stephen Harper Conservatives in 2006, was included in the 2015 Liberal campaign platform and the mandate letters for Joly and Wilson-Raybould.

Wilson-Raybould noted past successes from the scrapped program.

“The previous Court Challenges Program supported people from vulnerable and marginalized groups and official language-minority communities to challenge the compliance of Canadian laws with the constitution. It gave them a voice in defining what their constitutional rights mean.

“It was, in part, responsible for such landmark decisions as Daniels which clarified the relations of Métis and non-status Indians with the federal government,” Wilson-Raybould said.

Pardeep Singh Nagra, a boxer who successfully fought a ban against competing with a beard in court, told reporters that the Court Challenges Program isn’t just about the individual, but all of Canada as well.

“It wasn’t about me, it was about making my country, Canada, better. As athletes, when we represent Canada, we represent the maple leaf. We are ambassadors of those values, the values of diversity and equity,” he said.

Singh Nagra said the court access the programs grants allows marginalized people and groups to “get off the sideline and into the game.”

The program, which dates back to 1978, also played a role in the fight for same-sex marriage.

The 2016 budget earmarked $12 million in new funding over five years, which would bring the annual program budget up to $5 million annually when combined with existing spending on ongoing cases that the Conservatives had committed to fund through completion.

During Tuesday’s briefing, the department official noted that in the first year of the new program, a maximum of 20 per cent of the budgeted $5 million will go to administrative costs.

Before being shut down, the program’s budget was $2.8 million.

Source: Liberals to restore and expand Court Challenges Program – Politics – CBC News

An example of where the CCP could have assisted from the “Lost Canadian” crowd:

Are you familiar with the story of Lost Canadian Joe Taylor?    When I learned that I had become one of the group of LC made up of Children of War Brides,   Joe, the son of a Canadian soldier, was already involved in actively trying to get his citizenship back.    He did get as far as a Federal Court ruling in which he was found to be a Canadian citizen, with the judge warning the government officials that,  if he found Joe to be a citizen, the rest of us would also regain that status. However,  by that time Joe had practically bankrupted his family in the legal battle for citizenship.    Two weeks later,  the government under Diane Finley as Minister appealed the ruling.      Just prior to that,   the government had got rid of the Court Challenges (seemed too convenient).    Joe could not afford to go any further,  he felt he was almost financially and, I think, emotionally depleted.    So he accepted the offer of a 5.4 Grant which gave him citizenship from that day forward but did not help, of course, with anyone else.

For a contrary view of its value, see Ian Broadie’s piece in Policy Options, where he argues for a broader approach to the cases funded by the CCP:

The political agenda of the CCP and the idea of the federal government funding only one side in contentious litigation soon sapped the program’s political support.  In 1992, the Mulroney government was looking for ways to reduce government spending and closed it.  But the Liberals promised to re-establish the program during the 1993 election, turning it into a political football. The resurrected program was even more firmly married to progressive social reform groups, and it therefore ended up back on the scrap heap when the Stephen Harper Conservatives took office.  During last fall’s campaign, Justin Trudeau promised to re-resurrect the program, and discussions are now underway about how to design it.

Before the details of the new CCP are ironed out, Trudeau’s ministers should ask some fundamental questions.  Will it just be cancelled again by the next Conservative government?  Is it fated to be a political football?  Or could the Trudeau government do the country a service and set it up to survive future changes of government?  After all, the protection of human rights is supposed to be above partisan politics.  Shouldn’t a program to fund human rights litigation also be above partisan politics?

The new government’s challenge is to make the CCP less partisan than it has been in the past.

The new government’s challenge is to make the CCP broader and less partisan than it has been in the past.  The new CCP will certainly subsidize the equality rights litigation of socialreform groups. It will fund a new generation of test cases about equality rights, drawing the courts into issues around the rights of transgender Canadians.  And it will continue to finance cases about minority language rights.  But the Charter covers more than equality and language rights.  The new CCP should benefit more than just social-reform and minority-language groups.

Why not let the CCP finance free speech litigation by journalists like Ezra Levant and Mark Steyn?  After all, they have both paid a high price to highlight the oppressive provisions of federal and provincial human rights codes.  Why not let the CCP help traditional religious groups protect the rights of religious minorities in court?  Going beyond Charter issues, why not let the program finance challenges to interprovincial trade barriers?  If the CCP 3.0 had a board of directors and management team with a broader view of rights litigation, it should be able to survive a future change of government.

Whatever the Trudeau government decides about the scope of the program, it should be careful to keep it out of cases that pit one Charter right against another.  In the 21st century, human rights issues are not always as clear cut as they were in the early years after the Charter.  Back then, most rights litigation was trying to roll back oppressive government policies.  These days, the courts are often called upon to decide between two competing Charter claims in a single case.  The federal government should not be weighing in to finance one side or the other in cases like that.

Just such a case will likely come before the CCP as soon as it opens for business.  Trinity Western University, a private, evangelical university in British Columbia, is suing three provincial law societies over its right to have a law school.  Trinity Western, as befits a religious institution, expects its students to abide by traditional religious rules regarding marriage and sexuality.  Some law societies are refusing to recognize the credentials of its graduates, because they cannot tolerate an institution that does not embrace same-sex marriage.  In 2001, when ruling on a similar case about Trinity Western’s teacher training program, the Supreme Court said that neither freedom of religion nor equality on the basis of sexual orientation is absolute.  Since then, same-sex marriage became the law of the land.  The issue is therefore being litigated over again.

The new cases are on the way to the Supreme Court.  Will the resurrected CCP fund the equality rights side or the freedom of religion side?  Better to instruct the CCP to avoid this kind of case altogether.  Since the Supreme Court has recognized that in a conflict between equality rights and freedom of religion, neither side can make an absolute claim.  That, along with a broader set of directors and mandate, could relaunch the CCP without making it a political football again.

The Court Challenges Program rises once again – Policy Options

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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