‘Court Challenges Program’ a political football that’s back in play

  • January 27, 2016

One of the 15 top priorities laid out for Canada’s new Justice Minister in her mandate letter is a directive to bring back the Court Challenges Program.

We could maybe have seen this coming.

The Court Challenges Program has been a political football kicked back and forth by successive Liberal and Conservative governments. Introduced by Pierre Trudeau’s Liberals in 1978, it was first expanded (1985) then cancelled (1992) by the Progressive Conservatives under Brian Mulroney. Jean Chretien’s Liberals resurrected it in 1994, establishing it as a not-for-profit independent body; and Stephen Harper’s Conservatives killed it again in 2006, declaring it wasn’t providing value for money. The program was still winding down nine years later – the Conservatives made a commitment that all of the cases in the queue at the time of the program’s official death would be allowed to proceed to their natural conclusions.

And now the Liberals under Trudeau fils are bringing it back.

This is good news for equality seeking groups and other marginalized peoples who lack the financial resources to challenge governmental authority.

The CBA wrote to the chair of the Standing Committee on Justice and Human Rights in 2006 to say that the elimination of the Court Challenges Program, along with the Law Commission of Canada, “will have a serious impact on the rule of law and the administration of justice in our country.”

The letter continued:

It is inconceivable to think that democratically elected representatives enacted the Canadian Charter of Rights and Freedoms without the expectation that Canadians would exercise these rights and challenge laws that violated them. However, without the assistance of the Court Challenges Program, there is a real risk that these rights will simply become “rights on paper.”

In a separate letter to the prime minister and several members of his cabinet, the CBA said, “Your government rationalized the elimination of the Court Challenges Program on the basis that it did not provide ‘good value for money.’ With respect, this rationale fundamentally misconstrues the purpose and operation of the program.”

Claimants who have benefited from the program include the disabled, French-speaking minority groups, victims of sexual assault, aboriginal groups and homosexuals, the letter said.

“Characterizing these groups as ‘third parties’ suggests an ‘us versus them’ mentality that has no place in Canadian society,” it continued.

“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.”