Court Challenges Program—Inquiry
Published on 10 December 2015 Hansard and Statements by Senator Maria ChaputHon. Maria Chaput:
Honourable senators, today I am drawing your attention to the Language Rights Support Program, which replaced the Court Challenges Program that was abolished by the Harper government in September 2006 without any consultations. The abolished program provided financial assistance to cases that were likely to advance language rights and equal treatment in the courts. Abolishing the program was unacceptable to official language minority communities in Canada.
The creation of the LRSP was announced in June 2008, and the University of Ottawa became the managing institution in September 2009. The LRSP defines its purpose as follows:
To promote awareness of constitutional language rights through public education;
To offer access to alternative dispute resolution processes to settle disputes out of court;
To support litigation that helps to advance and clarify constitutional language rights when test cases are involved and dispute resolution efforts have not resolved matters.
I want to draw your attention to the last aspect of its purpose: the importance of supporting litigation, often against the government. We need to take a look back. When the federal government decided to create a program to support litigation by official language minority communities, it did not do so out of solidarity. It was only after the Fédération des communautés francophones et acadienne du Canada took legal action in 2006 that the government finally agreed to launch this program.
Before 2006, we had the Court Challenges Program. This program had a language rights panel and an equality rights panel. Between 1994 and 2006, the language rights panel approved 304 applications for financial support, which resulted in 51 rulings on language rights. The Court Challenges Program played a direct role in the Supreme Court’s landmark decisions in Beaulac (1999), Arsenault-Cameron (2000) and Doucet-Boudreau (2003) and in the Ontario Court of Appeal’s decision in Lalonde v. Ontario, the Montfort Hospital legal saga.
The last time the federal government performed a summative evaluation of the Court Challenges Program was in 2003.
In that evaluation, the government recognized that the Court Challenges Program ensured greater access to the courts for official language minority communities.
However, in 2006, the Minister of Canadian Heritage decided to cut off financial support to the Court Challenges Program, including the language rights program. When the Fédération des communautés francophones et acadienne du Canada learned about that decision through the media, despite its many requests for consultations, it brought the matter before the courts.
After investigating that decision, the Commissioner of Official Languages, who also intervened before the Federal Court, found as follows, and I quote:
. . . the evidence is overwhelming that the Court Challenges Program directly and significantly assisted in the advancement of language rights in Canada and, in so doing, contributed to the vitality and development of our official language minority communities.
Consequently, he concludes that, and I quote:
. . . in the absence of positive measures, the termination of federal funding under the 2006 expenditure review is contrary to the Government of Canada’s commitments and obligations under Part VII of the Official Languages Act.
The Fédération des communautés francophones et acadienne du Canada was right to worry about the future of the Court Challenges Program. Here is what the Fédération des associations de juristes d’expression française had to say, and I quote:
It was thanks to the Court Challenges Program that George Forêt from Manitoba was able to take his case all the way to the Supreme Court of Canada, which recognized that Manitoba is a bilingual province in its laws, its legislative assembly and its judicial system.
My very identity, as a proud Franco-Manitoban, is closely tied to this very important program that was abolished.
This was equally true for the component of the Court Challenges Program pertaining to equality rights. Prior to 2006, the test cases funded by the equality rights panel concerned family law, immigration, accessibility, social and economic rights, Aboriginal law and access to justice, generally speaking.
In its information kit, the Court Challenges Program gave the following examples of cases that had received funding:
First Nations people opposing a section of the Indian Act that prohibited them from voting in Band Council elections if they lived off reserve;
Same-sex couples seeking the same rights to certain benefits and deductions under the Income Tax Act that are accorded opposite sex couples;
Parents of children with disabilities who were seeking employment insurance for periods when they must be off work to provide care for their children; and
The legality of the current laws that restrict the courts from admitting evidence of prior sexual activity on the part of sexual assault complainants.
Honourable senators, this is no small matter. A tally of just the cases that were supported by the equality rights panel between 1994 and 2006 shows:
96 cases dealing with Aboriginal law;
17 cases dealing with age;
14 cases in matters of citizenship;
54 cases concerning issues of colour, race, nationality or ethnicity;
59 cases dealing with disability;
28 cases involving poverty;
18 dealing with criminal records;
41 based on sex; and
44 based on sexual orientation.
These are opportunities to advance the law, to clarify it, and to allow it to represent us and protect us better.
A report drafted in February 2008 by the Standing Committee on the Status of Women at the other place referred specifically to the role that the Court Challenges Program played for Aboriginal women, and I quote:
Witnesses informed the Committee that the Native Women’s Association of Canada would not have succeeded in bringing to the public’s attention the problem of family property provisions on Indian reserves had it not been for funding of the Court Challenges Program. Furthermore, witnesses pointed to the impact that the program has had in bringing other challenges forward in relation to Aboriginal women’s equality.
The [Indian] Act itself has been challenged by women as a denial of women’s equality. It was challenged by Jeannette Corbiere-Lavell. It was challenged by Senator Sandra Lovelace Nicholas. It has been challenged by Sharon McIvor. It’s challenged by a Mohawk family from Ontario called the Perrons. There are now over 35 challenges to the Indian Act that are being brought by women, primarily in the area of Indian registration. The Court Challenges Program has had a tremendous amount to do with those challenges.
Why then get rid of such a program? The decision to eliminate funding for the Court Challenges Program was not simply a matter of economics. There was ideology behind that decision, an ideology that was very clearly expressed by the parliamentary secretary to the minister. On October 17, 2006, he said that the decision to abolish the Court Challenges Program was based on the government’s commitment to the democratic process and its belief, and I quote:
. . . Canadians should be rewarded for practising that right and to experience their hopes and beliefs become reality through laws that are created and passed by those they elect to the House.
He went on to say:
The Canadian court challenges program is inherently flawed in that it promotes and encourages special interest groups to advance causes that do not reflect the view of the majority of Canadians. It allows special interest groups to use hard-earned Canadian tax dollars to promote a public policy agenda that is not always in line with the majority of Canadian voters. This manipulation of the system is neither transparent nor accountable.
Honourable colleagues, I must express my total disagreement with that ideology. The government clearly said that, by going to court to assert their rights, vulnerable groups and communities in Canada were trying to manipulate the system. At the very least, the government said that it was not up to taxpayers to pay for that kind of access to the courts.
We must unequivocally oppose that approach. The last CCP annual report, published in 2006-07, stated:
Financial assistance under the Program promoted the clarification and assertion of language rights for official language minorities and equality rights for disadvantaged groups regarding issues of national significance. By enabling people to challenge the government using the Charter guarantees, the Program had a critical and positive impact on the protection of rights and freedoms for all Canadians. The Program’s cancellation jeopardizes the future of language and equality rights in Canada.
That is not manipulation. That is validating Canada’s constitutional system.
I would like to read from the letter that the Canadian Bar Association sent Prime Minister Stephen Harper in 2006 after the federal government decided to abolish the program:
Claimants who have benefited from the Court Challenges Program include disabled children and their families, French speaking minority groups, women who have experienced sexual assault, Aboriginal groups, and gay men and lesbians. Characterizing these groups as “third parties” suggests and “us versus them” mentality that has no place in Canadian society. The Canadian Charter of Rights and Freedoms protects the rights of all of us. All of us have a gender, a first language, a race, a nationality, a sexual orientation, and certain physical and mental abilities, among other things. Striking down discriminatory laws alleviates the historical disadvantage experienced by vulnerable groups. A more egalitarian society benefits us all.
In the recent election campaign, the Prime Minister promised to restore the Court Challenges Program. This was applauded by many, including feminist groups, who believe that this kind of program could allow some women to win pay equity cases. Legal expert Michel Doucet has also suggested that the new program be created by an act of Parliament so that it is not as easy to abolish as the Court Challenges Program was. I fully support his position. Although the LRSP has, to some extent, been able to replace the language component of the Court Challenges Program, there is no guarantee that it will not be abolished as well some day. Furthermore, our democracy has been weakened because there was no replacement for the second component of this program, which dealt with equality rights.
Some may wonder, as the federal government did in 2006, why a government should fund legal challenges against itself. It is true that this could seem strange at first glance. However, one need only think of the principles of the rule of law and access to justice to justify such a program. Any government must recognize that it can only legislate within the purview of the Constitution. It must work within the framework of the Constitution and its limits. Of course that also includes the Canadian Charter of Rights and Freedoms. Any good government must also recognize — and this is sometimes the hardest part — that even though the government may pay a political price, it is in Canada’s interests for an unconstitutional law to be declared as such by the courts.
We also know that access to justice is expensive. Even when a fundamental right is violated, it is difficult for the average person to engage in a legal battle against the government. Even community organizations and advocacy groups have a great deal of difficulty funding challenges to assert their rights.
The last annual report (2006-2007) of the Court Challenges Program that was abolished by the Harper government, drafted after the announcement that the program’s funding was being cut off, expressed this very eloquently.
What is what is the rationale behind the entrenchment of a Canadian Charter of Rights and Freedoms that protects language and equality rights, if these Charter guarantees can be bypassed without providing for meaningful remedies in support of victims? —
The Hon. the Speaker: Is more time granted to the honourable senator?
Hon. Senators: Agreed.
Senator Chaput: —
Charter rights and freedoms must be significant and purposeful. As guardians of the Constitution, courts alone are entitled to determine the scope and significance of these rights and freedoms. If affected parties cannot use courts, then what is left of access to justice or the protection of our fundamental rights and freedoms?
If the current federal government were to restore funding for the LRSP and possibly a new court challenges program, this would strengthen Canada and make it more just and equitable. A government that recognizes the difference between its own short- term political interests and the ongoing protection of fundamental rights and freedoms is a responsible government that is truly acting in the interest of its citizens.
As you know, honourable senators, I am from Manitoba’s francophone community. Our community has been able to survive and assert its rights not simply because of the goodwill of successive governments, but rather because we fought before the courts to ensure that our rights would be respected. Legal challenges are never anyone’s first choice and they are never the easy choice, but having them as an option allows minority groups and vulnerable groups to ensure that their voices are heard.
Some people think that such a program “promotes and encourages special interest groups to advance causes that do not reflect the view of the majority of Canadians.” However, I would submit that it actually shows that Canadians recognize the importance of sometimes turning to the courts to uphold the Constitution and the Charter and that we need to level the playing field. After all, the federal government has the Attorney General’s Office at its disposal. Its legal experts are always there to defend the constitutionality of a law or a decision made by the federal government. Taxpayers foot the bill for defending the case of the government of the day, even if the courts find that the government is in the wrong. Shouldn’t we give civil society some basic means to play this vital watchdog role?
The President of the Fédération des communautés francophones et acadienne du Canada, Sylviane Lanthier, stated:
During the recent federal election campaign, the Liberal Party promised to reinstate the Court Challenges Program.
It is a priority for francophone minorities to have access to a mechanism that will allow them to go to court to stand up for certain aspects of their language rights and for this mechanism to offer better financial support for such efforts.
We know that it costs a fortune to go to court. If the Liberal government plans to reinstate the Court Challenges Program, we want to participate in the discussions that will lead to the creation of this new program.
Honourable senators, a government that provides society with the means to challenge its imperfections is a mature government, one that also encourages access to justice and, above all, shows a profound respect for the Canadian constitutional order.
Thank you.
Some Hon. Senators: Hear, hear!
