As the first applications for the newly reinstated Court Challenges Program are filed, debate remains among lawyers on whether the program will properly attend to the rights and freedoms of Canadians.
In 2015, the Liberal government ran on a campaign promise to reinstate the CCP. The program provided funding for individuals to challenge laws that affect their official language rights until it was abolished by the Stephen Harper government in 2006.
The new version of the CCP, implemented and managed by the University of Ottawa, has widened its scope to include more human rights protected by the Charter of Rights and Freedoms, including the right to freedom of religion, expression and life, liberty and security of the person.
Many lawyers, such as Karen Segal, staff counsel at the Legal Education and Action Fund in Toronto, are in favour of the new CCP. She says the program helps hold the government accountable to the individuals they govern by removing barriers to justice.
“Public litigation funding has recognized that the individuals and groups intended to benefit from the equality guarantees were often the least likely to have the resources to participate in litigation because it's so expensive,” Segal says. “The Court Challenges Program provides an avenue for Canadians to get access to the equality guarantees provided in the Charter in a way that doesn't really break the bank or render it totally inaccessible.”
The decision to reinstate the program’s four-year, $20-million budget has not been without contention. Critics of the program in the past and present have questioned both the necessity of the program and its partiality to some Charter rights and not others.
Leonid Sirota, who teaches at the Auckland University of Technology School of Law and clerked at the Federal Court of Canada, says the CCP is a problematic solution to dealing with discrepancies between legislation and the Charter.
“I think the program as it exists creates an impression that some parts of the Constitution are more important than others, that the government is more committed to some parts of the Constitution than others,” Sirota says. “I don't think that this is an impression that a government that is genuinely committed to its constitutional responsibilities should be creating.”
However, Segal says the CCP is necessary in order to give meaning to the Charter of Rights and Freedoms and ensure it accurately reflects and represents the people it protects.
“It has been important in providing the courts with the opportunity to develop the meaning of section 15 in a way that's informed by those who need it most,” Segal says. “When the Charter was passed, we gained the constitutional right to equality, but what was left outstanding was what is that going to mean in the Canadian context, and it was up to judges to give life to the meaning of the equality guarantee.”
Decisions on which cases will receive funding will be determined by two seven-member panels elected by government officials in November 2018. Funding is available in three areas, including the development of test cases (a case that raises an issue that has not yet been fully addressed by the courts), test case litigation and legal interventions. The amount of funding available depends on the type of remedy sought. Trials in human rights litigation can receive a maximum of $200,000 and language rights litigation $125,000, according to the CCP website.
“It's really for access to justice,” says Geneviève Boudreau, director of the CCP. “People who have had their Charter rights infringed don't always have the financial means to bring their cases to court. It's important that our Charter of Rights and Freedoms be respected by our government.”
The program in the past has been involved in funding a number of notable cases including, as Kim Stanton, associate at Goldblatt Partners and former legal director at LEAF, says, ones that set the standard of consent in sexual assault, notably contributing to the fight for women’s rights in Canada.
“Our democratic health is measured by our society's willingness to hear dissenting voices,” Stanton says. “The Court Challenges Program makes legal challenges to the government by disadvantaged groups possible and contributes to the health of our democracy. When the equality is achieved, it's good for everybody more broadly.”