Advice for building a new Court Challenges Program

Canada’s Court Challenges Program has a pulse, thanks to the son of its founder.

Originally established by former prime minister Pierre Trudeau in 1978 and twice struck from the books, new Prime Minister Justin Trudeau has deemed it a priority to kick-start the legal program that the Conservatives scrapped.

The potential rebirth has members of the legal community excited to see what the new version will entail.
Many hope it will be at least as effective, if not go beyond its previous focus on language and equality rights.

“The Canadian Bar Association was a longtime supporter of the Court Challenges Program, has always supported it, and has seen it as a fundamental institution in Canadian democracy,” says Sarah Lugtig, chairwoman of the Canadian Bar Association’s standing committee for access to justice.

Lugtig knows the program well. She is the director of experiential learning with the University of Manitoba’s faculty of law and a former director of the equality rights program portion of the Court Challenges Program.

She says if reintroduced, the CBA hopes the program maintains its original power “to support the effectiveness of constitutional rights, official language rights, minorities, and historically disadvantaged individuals and groups who are seeking equality in Canada.”

In his mandate letter to Attorney General and Minister of Justice Jody Wilson-Raybould, Trudeau requested that the minister work with the Ministry of Canadian Heritage in re-inventing a modern version of the program killed by the Harper government in 2006. It had also been struck down in 1992 by Brian Mulroney’s government when it was deemed too expensive and not necessarily vital to maintain as it had successfully seen to the initiation of a significant number of cases.

The subsequent Liberal government once again reinstated the program in the mid-1990s until it was canned in 2006. It was first created in the late 1970s to provide funding for official minority-language
Constitution Act challenges. With the Charter of Rights and Freedoms replacing the Constitution Act and the eventual addition of the Charter’s s. 15 equality rights in 1985, the program’s mandate was expanded to support Charter challenges based on equality and multiculturalism rights.

“The reason it’s so important is that the way our system is set up, our democracy, constitutional rights are enforced by the courts and it’s the courts that hold the government accountable for those rights,” Lugtig says.

She says the challenges program recognizes that some people are more vulnerable than others within a society and because “there’s certain basic rights that we as a society want to protect to have a flourishing community.

“These two kinds of rights [equality and language] are ones where if people aren’t given financial means and other supports, they won’t be able to go to court, and if nobody is holding government accountable, it’s quickly obvious that the rights aren’t meaningful,” Lugtig says.  

Canadian Defence Lawyers president David Bertschi says his organization also welcomes a re-invented challenges program created with a clear mandate and operated by independent oversight. He says some of the opposition to the previous versions were based on concerns of governmental bias toward organizations that supported the political wills of the governments in charge at the time.

“There was a lot of discussion [in 2006] about the government funding providing unequal access to justice for certain groups and the alleged bias and I think that’s why the mandate will be very important,” he says. “When you’re dealing with a program that is predicated on assisting and providing access to justice and essentially a review or testing of federal legislation, there has to be a balanced approach to it and, lastly, it has to be independent.”

Prior to the its 2006 demise, the CBA had been lobbying for additional funding for it and for an increased mandate on the equality rights side to include challenges to provincial and territorial laws. Lugtig says that if reintroduced, the CBA would hope the increased mandate proposal would be reconsidered as well.

“The program was really innovative and seen as a model around the world because it had at its base the involvement and voices of the very communities whose rights were being advanced,” she adds.

It also assisted by providing case research, educational assistance for people to better understand their language or equality rights, and how to access the program to advance those, and she hopes those aspects remain if not expand.

Bertschi says he, too, hopes the new version includes the opportunity to “enhance the role of provincial and territorial governments” in a co-operative, equally accessible forum for all.

“When you look at it, it had its shortcomings in the past; a lot of the poverty and social access to justice issues relate to provincial matters,” he says. “Society is enhanced by it [providing funding for provincial challenges] as opposed to restricted by it.”

Just before the program was revoked, it expanded funding for equality rights negotiations to build policy and law through dialogue, rather than through the court, says Lugtig — an important element to ensure continues in a new vision of the program.

Law Society of Upper Canada Treasurer Janet Minor says her organization welcomes any policy that increases access to justice.

“I’m quite aware of the expenses involved in complicated constitutional cases and the difficulty present for individual litigants,” she says. “We anticipate that it’ll be an important contribution in enhancing access to justice and a positive step; we’re looking forward to hearing about the details ourselves.”

Minor says it will be up to the government to decide what, if any, new elements or focus the challenges program may take, but adds that in determining what matters to fund, there must be “at least some degree of independence in the assessment.”

Lugtig notes “there continues to exist all manner of equality issues that arise with respect to government policies and practices. If you don’t have an effective mechanism for people to raise these questions in the courts, then when government is setting policy they are not necessarily as strongly tuned to the potential impact.” She adds there are ample opportunities for the program to be effective in dealing with burgeoning refugee and immigration issues, racism, sexual equality rights, and indigenous community rights.

“I wish I could say we’re a completely just and equal society in Canada, but we’re not and no one is around the world.”

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