FEWO Committee Report

The Court Challenges Program (CCP) is a funding program that was instituted in 1978.  The initial objective of the CCP was to provide funding to citizens and groups in order to assist them in bringing important linguistic challenges to the attention of the courts. The Department of the Secretary of State was initially responsible for the Program and its delivery.  With the adoption of the Canadian Charter of Rights and Freedoms in 1982, the Program was expanded to include language rights covered by the Charter. In 1985, the Program was again expanded to include challenges to federal legislation, policies, and practices related to equality rights under Section 15 of the Charter. ^[1]  The Program was abolished in 1992 and then reinstated in the fall of 1994 within the newly formed Department of Canadian Heritage. ^[2]  In September 2006, the Government of Canada announced that it will cancel funding to the Court Challenges Program. ^[3] 

During the 2nd Session of the 39th Parliament, the Standing Committee on the Status of Women undertook a study on the effects the cancellation of funding has had on women and more particularly on minority and Aboriginal women. The Committee held two meetings on December 4 and December 11, 2007 with individuals and organizations.  During these meetings, Committee members heard testimony on the benefits and importance of the CCP and the impact that the loss of funding has had on women and on groups of women. 

1. OBJECTIVES

 The Court Challenges Program is a funding program providing for “the clarification of […] constitutional rights and freedoms […] thus achieving a better understanding, respect for, and enjoyment of human rights.”^[4] To achieve this objective, the CCP provides financial assistance for “test cases of national significance” involving the following constitutional rights:

Table 1 – Constitutional Rights and Freedoms Covered by the Court Challenges Program

Source:  Contribution Agreement between the Department of Canadian Heritage and the Court Challenges Program, 2004.

A "test case" is initiated when an individual, or an organization representing this individual, challenges the constitutional validity of a law, legislation, policy, or practice, on the basis that it violates one of the rights described in Table 1. On this point, the Program makes an important distinction between language and equality test cases:

• For language test cases: the law, legislation, policy or practice may be that of any level of government, as long as the test case involves one of the rights described in Table 1 under "Linguistic".
• For equality cases: the law, legislation, policy or practice must be that of the federal government and the challenge must be based on one of the rights described in Table 1 under "Equality". ^[5]

2. ACTIVITIES

The CCP funds four types of activities that are expected to contribute to attaining the Program’s objectives. These include:

• Program promotion, access and negotiation:  Recipients may obtain funding to carry out activities providing information on participation in the CCP and to defray the cost of consultation with community representatives and jurists on specific cases.  Recipients may also obtain funding for negotiation or recourse to recognized dispute resolution methods in order to avoid court proceedings.
• Case development:  The CCP may provide funding for activities exploring potential cases.  Such activities may include a review of the case law, consultation of the appropriate individuals and organizations and other research activities.
• Case funding:  The CCP may provide financial assistance for activities undertaken in connection with legal proceedings based on a provision in the Constitution Act listed in Table 1.
• Impact studies:  The CCP may provide financial assistance to offset costs incurred by recipients for the preparation of impact studies regarding important court decisions on matters defended by the CCP.  These studies are released to the general public.

3. APPLICATIONS

Two panels of independent experts make decisions regarding funding:  the Language Panel and the Equality Panel.  These two panels are independent from the CCP Board of Directors and use their exclusive expertise for their sector of activity only.  The members of these two panels are appointed for three-year terms.  The language panel reviews funding applications and makes all decisions regarding case and project funding related to language rights test cases.  The equality panel reviews funding applications and makes all decisions regarding case and project funding that involve equality rights test cases.( ^[6])

According to the CCP’s Annual Report for 2005-2006, “the majority of applications for equality rights funding have fallen into four main grounds of historical disadvantage:  Aboriginal, race, disability and sex.  These four grounds at 18.87%, 17.30%, 12.98% and 10.35% respectively, account for 59.5% of all applications for equality rights funding received by the CCPC.”( ^[7])  (See Appendix A for Breakdown of Types of Funding by the Equality Rights Panel).

The majority of the witnesses highlighted the significance of the Program and how it served all members of society including women (as individuals and as members of groups).  They emphasized the Program’s uniqueness both domestically and internationally and its contribution to Canada’s international reputation.  During the meetings, witnesses pointed out that the Program advanced the broader public interest and discussed how specific groups of women including Aboriginal women, minority women and women with disabilities benefited from the Program.  One of the witnesses described the CCP as “an affirmative action program … for the disadvantaged in our country.” ^[8]  Some of the benefits that were highlighted by the witnesses are included below.

• The CCP assisted women in challenging unconstitutional federal legislation as well as government inaction.

There needs to be an accountability mechanism for challenges to unconstitutional federal legislation: not only government action, but more importantly government inaction. Much of the charter litigation undertaken by women's groups is not to challenge unconstitutional laws, but to challenge inaction in areas of violence, racism, poverty, child care, and employment equity, among others. ^[9]

• The CCP provided a process for those who are marginalized to challenge discriminatory practices, to guarantee their equality rights and to assert their human rights.

Contrary to the argument that funding the Court Challenges Program is about government wasting money in challenging itself, such funding reflects a process that allows the marginalized to highlight laws and practices that are discriminatory, and to do so in a manner that respects their rights. It's about a country that is willing to be a world leader in its commitment to human rights and equality rights by using a process that suggests that government is accountable and transparent in how it makes justice for all. ^[10]

It breathed life into the inert language of the Canadian Charter of Rights and Freedoms. In Canada, as you all know, bringing court challenges is the principal means by which ordinary Canadians can challenge government action that infringes on their human rights. Dismantling the Court Challenges Program has undermined the fragile system by which access to that simple remedy was made available to ordinary Canadians. ^[11]

• The CCP provided an “orderly and law-abiding approach to social change.”

It gives access to the rule of law to people who do not have advantage and who do not have the means to access law through their own resources. It is thereby accomplishing something that supports the very infrastructure of our democracy. … the various activities of the Court Challenges Program have actually served to complement rather than displace the legislative activity of the Canadian Parliament. ^[12]

• The CCP’s eligibility requirements ensured that the court challenges benefited a large number of people rather than individuals.

Court challenges funding is not given unless the litigation affects large numbers of people. It's not an individual-based type of litigation fund like legal aid. It's designed to deal with people who are suffering under the impacts of law in a broad manner. ^[13]

During the hearings, the Committee also heard specific examples of how the CCP was successful in addressing women’s equality and human rights.

Because of funding received through CCP, organizations like LEAF were able to bring cases for Canadians on a range of issues. We were able to work to uphold the rights of pregnant women. We were able to work to ensure that trials for rape would be fair and would not rely on harmful stereotypes about women's sexuality, that women would be treated fairly in divorce proceedings and settlements, that defendants in rape cases would not be allowed to troll through the private documents of victims. ^[14]

A number of major cases have been decided that were influenced by charter decisions taken after the court had the benefit of hearing from various intervenors. It affected provincial legislation interpretation. I'm thinking, for example, of cases to do with pregnancy discrimination, sexual harassment, and hate speech at the provincial level. If the Court Challenges Program hadn't existed and those cases hadn't been dealt with under the charter, we might not have had those kinds of decisions at the provincial level. ^[15]

… the financial assistance provided under the Court Challenges Program has made it possible to defend the regime introduced into the Criminal Code whereby an accused does not have automatic, unlimited access to the victim's personal file. It's important to remember that the regime that protects the rights of sexual assault victims places the rights of the victim and the accused on an equal footing. If this protection regime had not been fiercely defended, it is quite probable that many victims would not have availed themselves of their right to lay charges, for fear that the details of their private life would be laid out for all to see during the trial or for fear of having to terminate their psychological support, because of the possibility that content could automatically be used by the defence. ^[16]

… the Court Challenges Program is particularly important because it provided funding to community organizations, civil society organizations devoted to the advancement of human rights. These organizations have played a critical role in ensuring that the needs and interests of individuals from socially disadvantaged groups are represented and reinforced in their struggles to seek justice through the legal system. In my view, government support for these organizations is fundamental to ensuring a robust public infrastructure for advancing human rights. ^[17]

1. BENEFITS TO ABORIGINAL WOMEN

The Native Women's Association of Canada identified the ways in which the Court Challenges Program has assisted Aboriginal women.  Witnesses underlined the Program’s usefulness in providing a venue for bringing forth Aboriginal women’s experiences, in challenging the federal government’s legislation and policies, and its significance as a vehicle for correcting discriminatory legislation towards Aboriginal women and girls and in providing Aboriginal women and girls with access to justice.  In particular, the witnesses noted that the “Indian Act and INAC policies … disadvantage aboriginal people in general, and specifically disadvantage aboriginal women and girls.” ^[18]

The Court Challenges Program also provided an opportunity for the experiences of women to be brought to bear on government legislation and policies. This is beneficial, as those who create such legislation and policies do not generally have direct or personal experiences of the reality of aboriginal communities or of aboriginal women's specific realities in our communities, nor the understanding of the intersecting issues related to the colonialism, racism, and misogyny that continue to oppress aboriginal women today.^[19]

The Court Challenges Program provided a venue in which aboriginal women could challenge bad legislation and poor policies, and it provided support they could not obtain elsewhere. The program provided aboriginal women with a portion of the financial assistance needed to confront the otherwise overwhelming size and resources of the federal government.^[20]

While the assistance provided by the Court Challenges Program is in no way leveling the playing field, it at least provided some indication to oppressed aboriginal women that a challenge could be possible, that it was supported, and that maybe occasionally it could be successful. ^[21]

The witnesses also highlighted the program’s contribution in assisting Aboriginal women advocate against domestic violence and in creating the Sisters in Spirit program.

The Native Women's Association of Canada has received funding from Court Challenges on more than one occasion to advocate on behalf of aboriginal women victims of violence. Indeed, research funding from Court Challenges was instrumental in getting the Sisters in Spirit program launched. The key research that was done for that was funded by the Court Challenges Program.^[22]

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 w omen’s equality. ^[23]

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. ^[24]