When the new government announced last fall that it intended to reinstate the Court Challenges Program, which the previous government was in the process of winding down, the CBA was very happy with the decision. In consultations this spring, the government is asking how to make the program better.
Sarah Lugtig and Mark Power appeared on April 19 before the Parliamentary Committee on Justice and Human Rights, which is exploring how to reinstate and modernize the program. They presented a submission drafted in collaboration with representatives from the Access to Justice and Equality Committees, the Aboriginal and Constitutional Law Sections, SOGIC, and the French-Speaking Members Forum.
The CBA has long been a supporter of the Court Challenges Program, which the submission says “plays a vital role in increasing access to justice for marginalized and vulnerable groups, as well as official language minorities, and makes a unique and important contribution to democratic values in Canada.”
That said, the CBA groups had a number of ideas for expanding, modernizing and funding the program to increase its value to its intended audience.
Without the program, the submission says, people are less able to challenge laws that violate their rights, but even with the program it takes “significant resources and legal capabilities” to build their cases – resources that marginalized and disenfranchised communities rarely have.
“The CBA recommends that a renewed Program emphasize raising public awareness within, and building capacity amongst, communities best situated to bring equality and language rights claims to courts. The Program should take into account the unique needs of particular communities and groups, where appropriate.”
The CBA recommends expanding the program’s mandate in five areas to increase access to justice:
- Include s. 15 challenges to provincial and territorial laws, policies and practices
- Include language rights complaints under the Official Languages Act
- Where equality claims are coupled with sections other than s. 15 of the Charter, fund the entire claim
- Include claims of discrimination made by historically disadvantaged groups under the Canadian Human Rights Act
- Dedicate resources to support challenges that advance or clarify Aboriginal and treaty rights and the responsibilities of the federal government toward Aboriginal peoples
The CBA further suggests that “(a)ny expansion of the Program’s mandate should maintain as its focus the use of law and legal processes to improve conditions for marginalized and vulnerable groups as well as official language minorities in Canada,” the submission says.
“With limited resources already allocated amongst competing claims, the CBA recommends that any expansion of mandate beyond equality rights, official language minority rights and Aboriginal rights maintain as a precondition that funding be awarded to cases with the potential to improve social conditions for vulnerable and marginalized groups.”
The CBA also urges the government to create sustainable funding for the program – in the past it has recommended establishing endowment funds to support each of the program’s mandates – and to anchor the new program in legislation to ensure its viability.
“The Program played a distinct role in building human rights capacity and developing groundbreaking rights jurisprudence in Canada. Without assistance, disadvantaged individuals and groups are less able to challenge laws that violate their rights. The program ensures that equality and minority language rights exist not only on paper, but can result in systemic change for those in society whose voices are often ignored.”