SAVE COURT CHALLENGES
Leading Canadian non-governmental organizations are calling on Prime Minister Stephen Harper to restore funding to the Court Challenges Program immediately.Read or download the documents:
Press Release: Leading organizations call for reinstatement of the Court Challenges Program of Canada (read below) (download the doc)
Letter to the Prime Minister (read below) (list of signatories) (download the doc)
The Court Challenges Program of Canada: An Important Access to Justice Institution (read below) (download the doc)
The Court Challenges Program of Canada: An Effective and Accountable Institution (read below) (download the doc)
History of the Court Challenges Program (read below) (download the doc)
The Court Challenges Program of Canada: Structure (read below) (download the doc)
Cases Supported by the Court Challenges Program (read below) (download the doc)
the Court Challenges Program of Canada
For immediate release – October 4, 2006
(Ottawa) Leading Canadian non-governmental organizations are calling on Prime Minister Stephen Harper to restore funding to the Court Challenges Program immediately. Jim Flaherty, Minister of Finance, and John Baird, President of the Treasury Board, announced on September 26 that the entire budget of the Program would be cut.
The Court Challenges Program, created in 1978, provides funds to support test cases of national significance to clarify the constitutional rights of official language minorities, and the right of everyone in Canada to live free from discrimination based on sex, race, disability, age, sexual orientation, and other similar grounds. It has provided the only access to the use of constitutional rights for most Canadians.
“The cancellation of the Court Challenges Program is an attack on the Charter itself and the human rights of everyone in Canada,” said Bonnie Morton of the Charter Committee on Poverty Issues. “When a country like Canada enacts constitutional rights it takes for granted that residents, when they believe the government is violating their rights, can and will challenge any offending law or policy. If residents cannot ensure respect of their rights because of financial barriers, Canada’s constitutional democracy is hollow. We turn the Charter into a paper guarantee, with no real meaning.”
“Without the Court Challenges Program, Canada’s constitutional rights are real only for the wealthy. This offends basic fairness. And it does not comply with the rule of law, which is a fundamental principle of our Constitution,” said Yvonne Peters of the Council of Canadians with Disabilities.
“Commitment to the protection of the Charter rights of disadvantaged individuals and groups is one of Canada’s core values,” said Avvy Go of the Metro Toronto Chinese and South Asian Legal Clinic. “Stephen Harper recognized this during the last election campaign, and he said then that if elected a Conservative government would ‘articulate Canada’s core values on the world stage,’ including ‘the rule of law’, ‘human rights’ and ‘compassion for the less fortunate.’ The cancellation of the Court Challenges Program belies this promise.”
“Cancelling the Program shows profound disrespect for the French-speaking Canadians who live outside of Quebec, the English-speaking Canadians who live in Quebec, and for all Canadian residents who may need the protection of equality rights,” said Jean-Guy Rioux of the Fédération des communautés francophones et acadienne (FCFA) du Canada. “The CCP has notably given means to French-speaking minorities to ensure that their rights to education in their language are respected. We are asking for immediate reinstatement of the Program.”
Contact: Bonnie Morton: 306-522-5419 or cell: 306-591-7863
Avvy Go: 416-971-9674
Yvonne Peters: 204-832-0681
Serge Quinty & Jean-Guy Rioux: 613-241-7600
October 4, 2006
Rt. Hon. Stephen Harper
Prime Minister of Canada
80 Wellington Street, Ottawa,
K1A 0A2
Dear Prime Minister,
We write today to ask you to reinstate the Court Challenges Program. Only by reinstating the Program can you demonstrate that your government intends to respect the human rights of Canada’s people.
The Canadian Constitution establishes important constitutional rights, including the rights of official language minority groups to education and government services in their primary language and the rights of everyone to equality before and under the law and to equal protection and equal benefit of the law without discrimination. However, these rights are empty unless the individuals and groups they are designed to protect can exercise and enforce them.
Since the Charter was adopted 25 years ago, successive federal governments have recognized that they have a responsibility to ensure that disadvantaged minorities have funding to take Charter cases forward.
The Court Challenges Program, by providing modest contributions to the cost of important test cases dealing with language and equality rights, has made these constitutional rights accessible to Canadians. Without the Court Challenges Program, Canada’s constitutional rights are real only for the wealthy. This is unfair. And it does not comply with the rule of law, which is a fundamental principle of our Constitution.
The Honourable John Baird has been quoted in the press as saying that it does not make sense “for the government to subsidize lawyers to challenge the government’s own laws in court.” This statement implies that: 1) lawyers are the prime beneficiaries of the Program and 2) the government should not support challenges to its own laws. On both counts, deeper analysis is needed.
First, the beneficiaries of the CCP are individuals and groups who believe that laws and policies discriminate against them or deny them their language rights. They cannot go forward without lawyers to represent them, since constitutional challenges are legally complex. Secondly, when a country like Canada enacts constitutional rights it takes for granted that residents, when they believe the government is violating their rights, can and will challenge the offending law or policy. If residents cannot use their rights because of financial barriers, then Canada’s constitutional democracy is hollow. Governments must care that the rights they embrace are not meaningless, and the CCP has provided a simple and modest way of ensuring that they are not. We should emphasize that what the CCP provides is far from universal access to the exercise of constitutional equality and language rights. The CCP provides only limited funds for selected test cases.
Critics of the CCP dislike some of the cases that it has supported: cases related to same sex marriage, voting rights for federal prisoners, criminal law provisions regarding hitting children. The fact that some individuals or groups do not agree with some of the test cases funded by the Program is not a reason to cancel it. No one among us is likely to agree with every single test case that appears. The point of a constitutional human rights regime is to ensure that diverse claims, perspectives and life experiences are respected and taken into account in the design of laws and policies. The equality guarantee and the language rights in the Constitution were designed to help minorities, whose views and needs may not be reflected by governments, to be heard on issues that affect them closely. Cancelling the Court Challenges Program mutes their voices further, and makes Canada a meaner, less tolerant society.
The Minister of Justice, the Honourable Vic Toews, has questioned the accountability of the Court Challenges Program. This is not a sustainable objection. The Court Challenges Program has an established track record as an effective and accountable institution that promotes access to justice. It provides quarterly reports on its activities to the government and publishes an annual report with statistics on the number and types of cases that it has funded. The annual reports are public documents and are available on the CCP’s website: www.ccppcj.ca . It has been evaluated on three separate occasions by independent evaluators, most recently in 2003-2004, and received an extremely positive report each time.
The CCP is subject to some legal restrictions on disclosing information about cases that are before the courts. This information is protected by solicitor-client privilege and cannot be released by CCP, in the same way that legal aid organizations cannot divulge information about their clients. The CCP’s responsibility to protect this information was affirmed by a Federal Court ruling in 2000 (L’Hirondelle v. The Queen).
In short, Prime Minister, criticisms of the Court Challenges Program are feeble, and the need for the Program is strong. It is disturbing that your Government, in a budget-cutting exercise, would take the step of cancelling this Program that is considered by many Canadians a cornerstone of our justice system.
Commitment to the protection of the Charter rights of disadvantaged individuals and groups is one of Canada’s core values. Prime Minister, you recognized this commitment in the last election campaign, when you stated that if elected, a Conservative government would “articulate Canada’s core values on the world stage,” including “the rule of law”, “human rights” and “compassion for the less fortunate.”
In May, 2006, your Government appeared before a UN Committee in Geneva to defend its commitment to human rights in Canada, and described the Court Challenges Program as evidence of this commitment. Your Government wrote to the UN Committee:
The Court Challenges Program (CCP) provides funding for test cases of national significance in order to clarify the understanding of the rights of official language minority communities and the equality rights of disadvantaged groups. …
It is not possible for the government to support all court challenges, but this uniquely Canadian program has been successful in supporting a number of important court cases that have had direct impacts on the implementation of linguistic and equality rights in Canada. A recent evaluation found that there remain dimensions of the constitutional provisions currently covered by the CCP that still require clarification and the current program was extended to March 2009.
The cancellation of the Program stands in contradiction to the position that you and your Government have taken publicly on the Charter and human rights.
Finally, cancelling the Program shows profound disrespect for the francophones who live in provinces outside of Quebec, the anglophones in Quebec, and for all Canadian residents who may need the protection of equality rights, including women, Aboriginal peoples, people with disabilities, members of racialized minorities, immigrants, refugees, lesbians and gay men, children and seniors.
The laws of Canada are never perfect. Those who need to point out the imperfections in our laws, in order that they may live on an equal footing with others, deserve to be heard. By cancelling the Court Challenges Program, your Government has indicated that they will not be and do not deserve to be.
Please reverse this decision and give us back a Canada that supports human rights.
Sincerely,
Nathalie Des Rosiers
La doyenne
Faculte de droit civil
Universite d’Ottawa
A. Wayne McKay
Professor of Law
Dalhousie Law School
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On behalf of
Action Canada for Population and Development
Action ontarienne contre la violence faite aux femmes (AOcVF)
African Canadian Legal Clinic
Alberta Association for Community Living
Alliance for Equality of Blind Canadians / L'Alliance pour l'ÉgalitÉ des Personnes
Aveugles du Canada (AEBC)
ARCH Disability Law Centre/ ARCH Centre du droit des personnes handicapées
Association des juristes d'expression française de la Colombie-Britannique
Association des juristes d'expression française du Nouveau-Brunswick - AJEFNB
Association of Chinese Canadian Lawyers of Ontario
B.C. Human Rights Coalition
BC Coalition of People with Disabilities
Brain Injury Association Network (B.I.A.N.)
Breast Cancer Action Montreal
Canadian Arab Federation
Canadian Association for Community Living
Canadian Association of Elizabeth Fry Societies (CAEFS)
Canadian Association of Law Teachers (CALT)
Canadian Association of the Deaf / L'Association des Sourds du Canada
Canadian Auto Workers Union CAW-TCA CANADA
Canadian Bar Association/ L’Association du Barreau Canadien
Canadian Council for Refugees/ Conseil canadien pour les réfugiés
Canadian Council of Muslim Women
Canadian Federation of Students/Fédération canadienne des étudiantes et étudiants
Canadian Feminist Alliance for International Action
Canadian Hard of Hearing Association
Canadian Health Coalition
Canadian Internet Policy and Public Interest Clinic (CIPPIC) University of Ottawa,
Faculty of Law
Canadian Research Institute for the Advancement of Women (CRIAW)/
Canadian Union of Public Employees / Syndicat canadien de la fonction publique
Canadian Union of Public Employees Local 2204
Canadian Union of Public Employees Local 3260
Canadian Women's Health Network
Canadians for Equal Families
Canadians for Equal Marriage / Canadiens et Canadiennes pour le droit égal au mariage
Centre d'aide et de lutte contre les agressions à caractére sexuel (Calacs) région Côte-Nord
Centre d'aide et de lutte contre les agressions à caractère sexuel (CALACS) de Rimouski
Centre de Communication Adaptée (CCA)
Centre de femmes l'Éclaircie
Centre d'éducation des femmes
Centre Entre-Femmes de Rouyn-Noranda
Centre québécois de la déficience auditive / Quebec Centre for the Hearing Impaired
CFT French Legal Aid Services/Services d'aide juridique du CFT
Charter Committee on Poverty Issues
Child Care Advocacy Association of Canada
Child Care Workers of Eastern Ontario
Chinese Canadian National Council, Ottawa Chapter
Coalition of Persons with Disabilities (COD) - NL
Community Advocates Network
Community Business and Professional Association of Canada
Confédération des organismes de personnes handicapées du Québec (COPHAN)
Congress of Black Women of Canada, Manitoba Chapter
Council of Canadians with Disabilities (CCD)/ Conseil des Canadiens avec Déficiences
Cross-Disabilities, Genders, and Sexualities Working Group
Dalhousie Legal Aid Service
DisAbled Women's Network (DAWN) Ontario/Le Réseau des femmes handicapées de l'Ontario
DisAbled Women's Network Canada (DAWN Canada)
Disabled Workers' Complex Case Network Inc.
Dundurn Community Legal Services
East Toronto Community Legal Services Inc.
Egale Canada
Elementary Teachers' Federation of Ontario - Bluewater Local
Elizabeth Fry Society of Manitoba
Ethno Racial People with Disabilities Coalition of Ontario (ERDCO)
Excalibur Learning Resource Centre Canada Corp
Family Alliance Ontario
Fédération des communautés francophones et acadienne du Canada (FCFA)
Fédération des associations de juristes d’expression française de common law inc.
Fédération des femmes du Québec
Federation of Post-Secondary Educators of BC
Feminist Coalition of Newfoundland and Labrador
Feminists for Just and Equitable Public Policy (FemJEPP)
Front d'action populaire en réaménagement urbain (FRAPRU)
Greater Vancouver Association of the Deaf
Grey-Bruce Community Legal Clinic
Halton Community Legal Services
Hamilton Mountain Legal & Community Services
Income Security Advocacy Centre
Institut Canadien De Recherches Sur Le Femmes (ICREF)
Jamaican Canadian Association, Toronto
Jesuit Centre for Social Faith and Justice
John Howard Society of Manitoba Inc.
Justice for Girls
Kamloops and District Elizabeth Fry Society
Kelowna Women's Resource Centre
Kenora Community Legal Clinic Suite
Kensington Bellwoods Community Legal Services
Kitchen Table Collective (KTC)
La Table Régionale des Organismes Volontaires d'Éducation Populaire de la Montérégie (TROVEPM)
L'Association multi-ethnique pour l'intégration des personnes handicapées
Law Office of Mary Eberts
Law Union of Ontario
Le Centre francophone de Toronto
Le Comité des langues officielles de l’Association du Barreau de l’Ontario /The
Official Languages Committee of the Ontario Bar Association
Le Front commun des personnes assistées sociales du Québec
Le Mouvement Action Chômage Pabok Inc
Le Regroupement des comités logement et associations de locataires du Québec (RCLALQ)
Les Centres d’Accueil Héritage, Toronto
Les Frères et Soeurs d'Émile-Nelligan
Let's Teach About Women
LIFT - Low Income Families Together
Ligue des droits et libertés du Québec
Mad Student's Society
Maison l'Océane
Malaspina Faculty Association
MATCH International
Metro Toronto Chinese & Southeast Asian Legal Clinic
Mokami Status of Women Council
Mouvement d'éducation populaire autonome de Lanaudière (MÉPAL)
Mouvement d'education populaire et d'action communautaire du Québec
National Action Committee on the Status of Women(NAC)/Le Comité Canadien
D'Action Sur le Statut de la Femme(CCA)
National Association of Women and the Law/Association nationale Femmes et droit
National Council of Women of Canada/Le Conseil national des femmes du Canada
National Eating Disorder Information Centre
Newfoundland and Labrador Provincial Advisory Council on the Status of Women
Nipissing Community Legal Clinic/La Clinique Juridique Communitaire de Nipissing
North Bay & District Labour Council
North Bay Network for Social Action
Northern Society for Domestic Peace
Nouveau Départ National
Okanagan Advocacy and Resource Society (OARS)
Ontario Council of Agencies Serving Immigrants (OCASI)
Osgoode Hall Law Union
Pacific DisAbled Women's Network (Pacific DAWN)
Parkdale Community Legal Services
PEI Council of the Disabled
PRAXIS Conflict Consulting
Promotion handicap Estrie Inc.
Provincial Association of Transition Houses and Services of Saskatchewan
Provincial Council of Women of Manitoba, Inc.
Public Service Alliance of Canada/Alliance de la Fonction publique du Canada
Quebec Community Groups Network
Quebec English School Boards Association (Association des commissions scolaires anglophones du Québec)
Quebec Native Women/Femmes Autochtones du Québec
Refugee Law Office, Toronto
Registered Nurses' Association of Ontario
Regroupement des centres de femmes du Québec
Regroupement de femmes de l'Abitibi-Témiscamingue
Regroupement des associations de personnes traumatisées cranio-cérébrales du Qubébec (RAPTCCQ)
Regroupement provincial des maisons d'hébergement et de transition pour femmes victimes de violence conjugale
Regroupement québécois des Centres d'aide et de lutte contre les agressions à caractère sexuel (RQCALACS)
Response: A Thousand Voices
Roach, Schwartz and Associates
Saskatchewan Voice of People with Disabilities
Selkirk College Faculty Association
Smith & Hughes Law Firm
Social Planning and Research Council of British Columbia (SPARC BC Society)
Société Logique
South Ottawa Community Legal Services
South-East Ottawa Centre for a Healthy Community /Centre du sud-est d'Ottawa
pour une communauté en santé
Students, Recent Graduates, and Legal Workers working group (Law Union of Ontario)
The Canadian Hearing Society/ La Société Canadienne de l' Ouïe
The North Shore Women's Centre
Toronto Disaster Relief Committee
Toronto Women for a Just and Healthy Planet
Toronto Women's Call to Action
Transportation Action Now
United in Marriage (a program of the United Church of Canada)
University of Victoria Association for Women
University of Western Ontario Faculty Association
Urban Alliance on Race Relation
Vancouver Rape Relief and Women's Shelter
Victoria Youth Empowerment Society
West Coast Women's Legal Education & Action Fund (LEAF)
Women Elders in Action (WE*ACT)
Women for a Just and Healthy Planet
Women of Halton Action Movement, WHAM
Women’s Legal Education and Action Fund (LEAF), Toronto Chapter
Women’s Legal Education and Action Fund Inc. (LEAF)
Women's Health Clinic, Winnipeg
Womenspace
Yukon Status of Women Council
AN IMPORTANT ACCESS TO JUSTICE INSTITUTION
• The Court Challenges Program of Canada (CCP) provides access to justice in language and equality rights constitutional test cases.
• The Canadian Constitution establishes important constitutional rights, including the rights of official language minority groups to education and government services in their primary language and the rights of everyone to equality before and under the law and to equal protection and equal benefit of the law without discrimination. However, these rights are only paper guarantees unless the individuals and groups they are designed to protect have the means to access the courts in order to enforce their rights.
• To be meaningful, rights have to be exercised. But many individuals and groups cannot access the courts without financial assistance. Without the CCP in place to provide this assistance, the interpretation and application of constitutional rights will only be available to those with deep pockets. Unequal access to constitutional rights adjudication must be a concern for all.
• Canadian courts have long recognized that it would be “practically perverse” to expect governments to simultaneously enforce and challenge legislation. As a result, our justice system has recognized and accommodated public interest litigation to fill this void. The CCP plays an important role in facilitating public interest litigation in its mandate areas.
• In a constitutional democracy like Canada, constitutional rights litigation is an essential part of democratic dialogue and the exercise of citizenship. Constitutional test cases examine the meaning of rights and their limits. As a society, we suffer when constitutional wrongs go unchecked.
• The amounts provided by CCP are a fraction of the full cost of a constitutional test case. Individuals and groups also contribute to these cases and lawyers carry out the legal work on a reduced fee scale or in some cases for free. Yet, the CCP’s contribution is vital – without it, these important rights would remain out of reach. Without CCP funding many worthy cases will never be launched and constitutional violations will continue unchecked.
• In addition to funding cases, the CCP has made a significant contribution to the quality of these cases by developing resources to assist litigants and by taking other steps that help to build the capacity to undertake these complex, novel cases.
• The Government of Canada has repeatedly informed United Nations treaty bodies that it funds the CCP in order to meet its obligation to ensure equal access to the courts and to provide effective remedies under international human rights treaties. These United Nations treaty bodies have recognized the Court Challenges Program as a vital means of implementing treaty rights, and have praised Canada for it.
• Our justice system fails radically when individuals and groups whose constitutional rights are violated are denied access to justice. The CCP plays an important role in ensuring our justice system is fair.
AN EFFECTIVE AND ACCOUNTABLE INSTITUTION
• The Court Challenges Program of Canada (CCP) has an established track record as an effective and accountable institution that promotes access to justice.
• The CCP has existed in a number of different institutional forms since 1978. It has made a remarkable contribution to the development of constitutional law and to the rights of Canadians over the last 28 years. More work remains to be done.
• In 1994, the CCP was established as an independent not-for profit corporation. To date, it has been funded solely through a contribution agreement with the Government of Canada.
• The CCP is fully accountable to the Government of Canada. It provides quarterly reports on its activities to the government and publishes an annual report with statistics on the number and types of cases that it has funded. The annual reports are public documents and are available on the CCP’s website: www.ccppcj.ca .
• The CCP is subject to some legal restrictions on reporting on funding in cases that are before the courts. This information is protected by solicitor-client privilege and cannot be released by CCP, in the same way that legal aid organizations cannot divulge information about their clients. The CCP’s responsibility to protect this information was affirmed by a Federal Court ruling in 2000 (L’Hirondelle v. The Queen).
• The CCP is subject to a full and independent evaluation of its activities every five years. Since 1994, the CCP has been evaluated three times. On each occasion the independent evaluators found that the CCP was meeting the objectives set by the Government of Canada in a cost-effective manner and made unqualified recommendations that the CCP should continue to carry out its mandate.
• The last independent evaluation of the CCP was carried out in 2003-2004 and as a result of that evaluation government funding for the CCP was extended until March 2009.
• 1978
The Court Challenges Program was established in 1978 to provide funding for official minority language cases based on sections 93 and 133 of the Constitution Act, 1867. In the period preceding the establishment of the Program, there had been challenges to the Manitoba Official Languages Act and Quebec’s Charte de la langue française. The federal government, then Liberal, decided that it would fund selected language minority cases that challenged the constitutionality of provincial laws through a Court Challenges Program administered by the Human Rights Directorate of the Department of the Secretary of State. Challenges to federal laws were not included in the scope of the Program. Cases funded had to be of substantial importance, have legal merit, and affect more than one person. The federal government decided which cases would be funded.
• 1982
The mandate of the Court Challenges Program was expanded to include the language rights provisions of the new Charter of Rights and Freedoms, namely sections 16 to 23. These sections set out the right of qualified parents to have their children educated in the official minority language of the province in which they live, where numbers warrant; the right to legislative bilingualism; the right to receive services in official minority languages; and the right to use French or English in courts.
• 1985
In 1985, section 15 of the new Charter of Rights and Freedoms came into effect, providing Canada’s first constitutional guarantee of equality. A Parliamentary Committee on Equality Rights, chaired by Patrick Boyer, held hearings across Canada and recommended in its report Equality For All that “funds …be provided to assist those involved in equality litigation.” 1
Parliamentary Committee on Equality Rights
At the same time, the Committee noted a major weakness in the existing Court Challenges Program, namely that the federal government could be in a position of a conflict, because it both determined who would receive financial assistance to initiate Charter challenges and represented the challenged departments or agencies in that litigation. 2
The federal government responded quickly to the recommendations and observations of the Committee. The Program’s mandate was expanded again, this time to include challenges to federal laws, policies or practices based on sections 15 (equality), 27 (multiculturalism) or 28 (sex equality) of the Charter. Also, the federal government entered into a five-year contribution agreement with the Canadian Council on Social Development, so that the Program could be administered independently.
• 1989
As 31 March 1990, the end of the 5 year contribution agreement with CCSD approached, the government reviewed the Program to decide whether to continue it. From June to November 1989 the Standing Committee on Human Rights and the Status of Disabled Persons carried out an intensive study of the Program, hearing from 62 witnesses. The Committee concluded unanimously that there were “not merely sufficient, but compelling reasons” for continuing the Program. 3 The Committee recommended that it be renewed for a ten year period. 4
Regarding the mandate of the Program, the Committee recommended:
- that the bar to funding equality cases that challenge provincial legislation, policies and practices be removed; and
- that the federal government consult with minority language groups about the possibility of funding cases based on statutory language rights guarantees, such as the Official Languages Act, as well as the Charter and other constitutional provisions. 5
• 1990
In July 1990 the Minister of State for Multiculturalism and Citizenship entered into an agreement with the Human Rights Centre at the University of Ottawa renewing the Program from 1 August 1990 to March 31, 1995. The Minister confirmed that “there are still significant areas of language and equality rights which require clarification.” 6 However, on the issue of expanding the mandate to include cases of national significance which do not fall within federal jurisdiction, the Government stated in its response to the Standing Committee’s report that this would generate numerous applications in areas such as education, health, housing, welfare, transportation, and social services. As a result, the resources of the Program would be overburdened. 7
• 1992
In February 1992, in the Budget Estimates, the Government of Canada announced the cancellation of the Court Challenges Program. Two reasons were given. Since the Program had made it possible for a significant number of cases to be initiated, it was no longer needed. Also, it would be less costly for the Department of Justice to manage the funding of court challenges on an ad hoc basis. The Standing Committee on Human Rights and the Status of Disabled Persons met again in emergency session to study the issue of the Program’s survival.
Paying Too Dearly, Standing Committee on Human Rights and the Status of Disabled Persons
In its June 1992 report, Paying Too Dearly, the Committee concluded that the Program played an essential role in giving Canadians access to the courts, and that it had become indispensable to the development of constitutional case law. The Committee noted that many experts testified that the courts’ interpretation of constitutional rights was in its early stages. The Committee also concluded that the closure of the Program would not save money and that the Program had managed its funds soundly and efficiently. In the Committee’s view, a lack of access to justice was too high a price to pay when compared to the modest cost of the Program. Finally, the Committee decided unanimously that the Program should be retained and restructured so that it would be protected from “the vagaries of the fiscal and financial imperatives of any government in the future.” 8
• 1993
Responding to widespread public concern about the Program’s cancellation, Kim Campbell, then Minister of Justice, announced in August 1993, prior to the fall election, that the government would reinstate the Program if elected. The Liberal Party also promised in its election Red Book to reinstate the Program.
• 1994
In order to decide on a structure for the reinstated Program, a consultation was held under the supervision of Price Waterhouse with participation from groups working in the equality rights field, minority official language communities, academia, and the Canadian Bar Association. With a remarkable unity of purpose, participants agreed on a new structure and mandate. A new not-for-profit organization, completely independent from government, was established, incorporating into its by-laws a collaborative relationship among equality rights and language rights groups, academia, and the bar. The organization was registered under the Canada Corporations Act as the Court Challenges Program of Canada/Programme de contestation judiciaire du Canada. The founders of this new organization agreed that its mandate should permit the Program to fund equality rights challenges to provincial laws, policies and practices, and to fund language rights challenges under the Official Languages Act. The objects of the new Court Challenges Program Corporation are:
Despite this broad language, the Court Challenges Program’s ability to fund cases continues to be circumscribed by the contribution agreements it has signed with its sole funder, the Government of Canada.
The Government of Canada signed a four year contribution agreement with the new Court Challenges Program in October 1994.
•1997
The Program was evaluated by an independent agency, which recommended renewal of the contribution agreement. It also noted that there was a consensus among the members of the Program that the mandate restrictions which arise from the terms of the contribution agreements limit the Program’s impact.
The contribution agreement was renewed with Canadian Heritage for a five-year term, which ends in March 2003 .
•2001
The new Court Challenges Program has been remarkably successful. It has attracted highly skilled and dedicated staff. The Program also benefits from the unwavering support of those who use the Program, and of the many Canadians who are committed to the goal of making rights accessible.
•2006
In September 2006, the Government of Canada, cancelled the Court Challenges Program once more, despite an independent evaluation done in 2003 that endorsed the Program’s purpose and operation, and despite the renewal of the contribution agreement with Heritage Canada until March 2009.
Endnotes:
1. Equality For All: Report of the Parliamentary Committee on Equality Rights, (Ottawa: House of Commons, 1985) at 133
2. Ibid.
3. Court Challenges Program, First Report of the Standing Committee on Human Rights and the Status of Disabled Persons, (Ottawa: House of Commons, 1989) at 23.
4. Ibid. at 28.
5. Ibid at 32 and 33.
6. Response to the First Report of the Standing Committee on Human Rights and the Status of Disabled Persons, in Paying Too Dearly: Report of the Standing Committee on Human Rights and the Status of Disabled Persons, Minutes of Proceedings and Evidence of the Standing Committee on Human Rights and the Status of Disabled Persons, House of Commons, Issue No. 23, June 11, 1992, Third Session of the Thirty-fourth Parliament, 1991-92, Appendix A, at 3.
7. Response, ibid. at 20.
8. Paying Too Dearly: Report of the Standing Committee on Human Rights and the Status of Disabled Persons, (Ottawa: House of Commons, 1992).
STRUCTURE
The Court Challenges Program of Canada/Programme de Contestation Judiciaire du Canada is a non-profit corporation and a registered charity. It was founded in 1994. It administers funding for equality rights and language rights test cases.
Objects
The objects of the Court Challenges Program of Canada, set out in its letters patent, are:
Funding
To date, the Government of Canada is the sole funder of the Court Challenges Program. Contribution agreements between the Program and Heritage Canada set the terms of the funding that the Program can provide. Although the objects of the corporation are broader, the contribution agreements restrict the Program to funding equality rights cases which challenge the constitutionality of federal laws, policies and practices, and to language rights cases based on sections 16 to 23 of the Charter, sections 93 and 133 of the Constitution Act, 1867, and section 23 of the Manitoba Act, 1870..
Members
The Corporation has equality rights members and language rights members. Organizations whose primary mandate is to promote the substantive equality rights of disadvantaged groups, or the language rights of Canada’s official language minority communities are eligible to become members of the corporation. Individuals and other organizations can become associate members. Members of the Program participate in the election of the Board of Directors and submit nominations for appointments to the Equality Rights and Language Rights Panels.
Board of Directors
The Court Challenges Program Corporation is administered by a seven-member Board of Directors. The equality members and the language members each elect two Directors; the Chairs of the Equality Rights Panel and Language Rights Panel sit as Directors; and one Director is appointed jointly by the Canadian Association of Law Deans and the Canadian Bar Association. The Chairperson of the Board is chosen by the other Directors.
The Board of Directors is responsible for the overall management of the Program, for setting policy, for hiring and directing staff, for overseeing the financial affairs of the corporation, and for negotiating funding agreements with government.
Panels
There are two Panels, a seven-member Equality Rights Panel and a five-member Language Rights Panel. These Panels review applications to the Program, and decide which cases and projects meet the terms of the contribution agreement, and are likely to advance substantive equality rights and language rights in Canada.
When there are vacancies on the Panels, equality members and language members of the Program are invited to submit nominations. Panel members are appointed by two blue-ribbon Selection Committees, composed of leading Canadians with broad knowledge in the equality rights and language rights fields. It is their job to ensure that the Panels are representative and that they are composed of members with expertise, experience, and vision.
Advisory Committees
There is an Equality Advisory Committee and a Language Advisory Committee. Members of these Committees are chosen respectively by the equality members and the language members of the corporation. The function of these Committees is to advise the Board of concerns the members may have about the administration of the Program, and to disseminate information about the Program to the wider community.
Since its inception, the Court Challenges Program has funded parties or intervenors in many significant cases. In some cases, there were victories for official language minorities or for disadvantaged groups. In all cases, groups and individuals funded by the Court Challenges Program have made a significant contribution to the understanding and further clarification of rights in Canada, bringing voices into Canadian court rooms that would not otherwise be heard. Here are just a few of the cases in which the Court Challenges Program has funded a party or an intervenor.
LANGUAGE RIGHTS
Education Rights
Section 23 of the Charter confers two levels of rights on official language minority parents. At the first level, parents have the general right to have their children receive instruction in their official minority language. This right applies when “numbers warrant”. When this number is high enough, it can trigger the right provided for in s. 23(3)(b) to have children receive instruction “in minority language educational facilities.”
Mahe v. Alberta, [1990] 1. S.C.R. 342.
In Mahe the Supreme Court of Canada took an important step forward for official language minority parents. The Court recognized that section 23 parents have a right to a degree of management and control of those “minority language educational facilities.”
The factual background to Mahe was that the Alberta government announced its intention not to create any French school jurisdictions. Parents whose children were entitled to the benefits of s. 23 were encouraged to take their proposals to school boards. In short, constitutional commitments were left to the fortune of negotiations between parents and school boards. Central to the claim of the Francophone parents was that the term "minority language educational facilities" referred to in s. 23(3)(b) included the administration by district school boards. For its part, the Province of Alberta took the position that the word "facilities" meant a school building.
The Court rejected Alberta’s approach, finding that s. 23 parents have the right to participate in school administration. The degree of management necessary to ensure appropriate parental control can range from guaranteed representation of the minority on a mixed school board to the creation of an independent school board.
The Court indicated that the overall purpose of s. 23 is to preserve and promote the language and culture of official language minorities throughout Canada. To achieve this objective, the Court decided that it is essential that “the minority language group have control over those aspects of education which pertain to or have an effect on their language and culture.”
L'association des Parents Francophones de la Colombie-Britannique v. Her Majesty the Queen in Right of the Province of British Columbia, August 19, 1996, B.C. Supreme Court No. A890762.
In this case, the British Columbia Supreme Court directed the government of British Columbia to introduce legislation providing for management and control of French language education that would give effect to section 23 of the Charter.
The Court found that the existing Francophone Education Regulation under the B.C. Schools Act did not put French language schools on them same footing as other schools with respect to funding, spending, leasing arrangements or dispute resolution mechanisms. The Court found that the Regulation did not comply with section 23, and that legislation rather than regulation was the appropriate means of addressing French language education rights.
Susan Abbey v. Essex County Board of Education
An important Ontario case tested the meaning of section 23(2) of the Charter. That section gives Canadian citizens the right to have all of their children receive either French or English language instruction if any of their children has received it. The issue in this appeal was whether this right extends to a parent whose first language is not that of the linguistic minority population of the province in which that parent lives.
English-speaking parents, Susan Abbey and her husband, had enrolled their three children in a French-language school at the start of the children’s education. When the family moved to another community, Mrs. Abbey enrolled her children in an immersion school, but quickly realized that the immersion program did not meet her children’s needs. The school board rejected her request to have her children enrolled in a French school and to have it pay the applicable tuition fees as, in its opinion, the plaintiff had no rights under section 23.
In the Ontario Court of Appeal, the question was: can a parent acquire the right to have his or her child receive instruction in the minority language through Charter subsection 23(2) when the child has received instruction in the minority language?
The Ontario Court of Appeal ruled that s. 23(1) and 23(2) set out separate entitlements which are conceptually related, but independent from each other. Section 23(1) provides that citizens whose first language is that of the English or French linguistic minority population of the province in which they reside, or who received their primary school education in that language, have the right to have their children educated in the official minority language.
Under 23(2), however, the Court determined that educational rights are also available to all the children of a Canadian citizen if any of that citizen's children has received primary or secondary school instruction in English or French in Canada. Not only do children who have received - or are receiving- their education in the language of the linguistic minority have the right to continue receiving their primary and secondary school education in that language, their siblings enjoy the same continuous right.
The Court ordered the Essex County School Board to provide French language education to Susan Abbey’s children, and to pay the applicable tuition fees for this education.
Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3
In this case, French-speaking parents in Summerside, Prince Edward Island, and the organization representing them – the Federation des parents francophones de l’Ile-du-Prince Edouard – demanded that a French language school be set up in their community. The Minister of Education, citing the low number of children involved, offered to bus them to L’Evangeline, a French language school located 30 kilometres from Summerside.
The Supreme Court of Canada upheld the right of the Summerside parents to a French language school, reiterating that s. 23 must be interpreted according to its true purpose. The Court said:
A purposive interpretation of section 23 rights is based on the true purpose of redressing past injustices and providing the official language minority with equal access to high quality education in its own language, in circumstances where community development will be enhanced.
JUDICIAL RIGHTS
In judicial matters, language rights are guaranteed under section 133 of the Constitution Act, 1867, section 23 of the Manitoba Act, 1870, and section 19 of the Charter. These provisions allow French or English to be used in any case before courts established in Quebec, New Brunswick and Manitoba, or by the Parliament of Canada. In the judicial area, language rights pertain mainly to the choice of the language of proceedings and the right to address the court in the language of one’s choice.
R. v. Beaulac , [1999] 1 S.C.R. 768
This is a ground-breaking case in the development of judicial rights.
Jean Victor Beaulac was charged with first degree murder. He made an application, pursuant to section 530 of the Criminal Code, for a trial before a judge and jury who speak both official languages. His application was refused. His trial proceeded in English and Beaulac was convicted.
The Supreme Court of Canada ruled that Section 530(1) of the Criminal Code creates an absolute right of the accused to equal access to designated courts in his own official language. The courts called upon to deal with criminal matters are required to be institutionally bilingual in order to provide for the equal use of the two official languages of Canada. This is a substantive right and not a procedural one that can be interfered with.
The Court ordered a new trial to be held before a judge and jury who speak both official languages.
PUBLIC SERVICES
Section 20 of the Charter grants the right, without exception or limitation, to communicate with the head or central office of institutions of the Parliament and government of Canada, and the legislature and government of New Brunswick, in the official language of one’s choice. It also grants the right to communicate with and receive services from any other office of these institutions in the official language of one’s choice, although the right can be restricted in these situations by the test of significant demand and by the nature of the office.
Lalonde v. Ontario (Commission de restructuration des services de santé) [2002] O.J. No. 388
In Gisèle Lalonde, Michelle de Courville-Nicol and Montfort Hospital v. Health Services Restructuring Commission of Ontario the plaintiffs challenged the Ontario government's decision regarding Montfort Hospital, the only hospital in Ontario where French was the language of operations and where French-language health services were available at all times. This establishment also played a unique role in the areas of education and training for French-speaking health professionals in Ontario.
One of the arguments brought forward by Montfort Hospital lawyers and interveners who supported their position was that the underlying or unwritten constitutional principle of protection of minorities set out in the Reference re. Secession of Québec did not allow governmental authorities to close down an institution of such importance to the French-speaking community.
In a decision of moment for language rights in Ontario and elsewhere in Canada, the Ontario Court of Appeal confirmed the trial court decision and ruled in favour of Montfort Hospital, in December 2001.
This decision contains many important principles that are useful in the protection of official language minorities across Canada:
The Court reiterated the importance of language rights, noting that "the protection of linguistic minorities is essential to our country". The Court quotes Justice La Forest's comments in R. v. Mercure, stating that "rights regarding the English and French languages are basic to the continued viability of the nation".
Although, in this matter, there was no violation of a written constitutional guarantee, the Court states that "unwritten constitutional norms may, in certain circumstances, provide a basis for judicial review of discretionary decisions", such as the decision made by the Health Services Restructuring Commission. The Court also stated that the case "involves a situation with profound implications for Ontario's francophone minority community that engages the constitutional principle of respect for and protection of minorities". The Court added that:
Fundamental constitutional values have normative legal force. Even if the text of the Constitution falls short of creating a specific constitutionally enforceable right, the values of the Constitution must be considered in assessing the validity or legality of actions taken by government.
The Court agreed with the statements of the Divisional Court, which concluded that the language and culture of the francophone minority in Ontario "hold a special place in the Canadian fabric as one of the founding communities of Canada and as one of the two official language groups whose rights are entrenched in the Constitution". The Court further noted that:
If implemented, the Commission's directions would greatly impair Montfort's role as an important linguistic, cultural and educational institution, vital to the minority francophone population of Ontario. This would be contrary to the fundamental constitutional principle of respect for and protection of minorities.
Federation Franco-Tenoise v. Canada [2001] 1 F.C. 241
In an important preliminary ruling on a challenge brought by Francophone residents of the Northwest Territories, the Federal Court ruled that the government of the NWT is an institution of the government of Canada for the purposes of section 20 of the Charter.
The Federation Franco-Tenoise sought a declaration that Her Majesty the Queen in Right of Canada, the Commissioner of the Northwest Territories, the Speaker of the Legislature of the Northwest Territories and the Official Languages Commissioner of the Northwest Territories have failed to meet their obligations to ensure equality for linguistic minorities as mandated by the Charter, the federal Official Languages Act and the Northwest Territories' Official Languages Act.
The Federal Court determined that it had jurisdiction to hear the challenge from the Federation Franco-Tenoise because “territorial law” is “federal law” and officials of the Northwest Territories are officials of the federal Crown.
By extension, this ruling will have implications for language rights in all of the territories.
The unwritten and underlying principle related to the protection of minorities stated in Reference re. Secession of Quebec, and further clarified by the Court of Appeal for Ontario in Montfort, still contributes to the advancement of language rights. The Court of Appeal for Ontario indicated that even in the absence of a violation of a written constitutional guarantee, “unwritten constitutional norms may, in certain circumstances, provide a basis for judicial review of discretionary decisions”. This constitutional principle comes into force when circumstances involve serious implications for the minority in question.
EQUALITY RIGHTS
Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122
This early case was important to sexual assault complainants. A man was charged with sexually assaulting his wife. The woman applied for an order under section 442(3) of the Criminal Code banning publication of her name or any information that would identify her.
Canadian Newspapers Co. took the position that section 442(3) of the Criminal Code contravened the guarantee of freedom of the press in section 2(b) of the Charter.
The Supreme Court of Canada ruled that while section 442(3) infringes the freedom of the press guaranteed by section 2(b) of the Charter, the limit is justifiable. Section 442(3) is designed to encourage victims of sexual assault to come forward by protecting them from the trauma of wide-spread publication resulting in embarrassment and humiliation.
Owen Lloyd Swain v. Her Majesty the Queen, [1991] 1 S.C.R. 933
Swain was the first case to be heard by the Supreme Court of Canada regarding the Charter rights of persons with disabilities. A coalition of three groups representing persons with disabilities was granted intervenor status.
This case challenged the constitutionality of the criminal law as it pertained to persons found “not guilty by reason of insanity.” At issue in this case was: 1) whether the defence of insanity could be imposed on an accused against his or her wishes; and 2) whether a person found not guilty by reason of insanity should automatically be imprisoned in a psychiatric facility for an indefinite period of time.
The Court recognized that:”…for centuries persons with a mental disability have been systematically isolated, segregated from the mainstream of society, devalued, ridiculed, and excluded from ordinary social and political processes.”
In light of important Charter values and the historical context of discriminatory treatment of disabled persons, the Supreme Court of Canada held that the common law rule permitting the Crown to present evidence of insanity contrary to the accused’s wishes violated Charter rights. The Court also held that the requirement of automatic, indefinite confinement of accused persons who are acquitted by reason of insanity was not constitutionally valid.
R. v. Butler, [1992] 1 S.C.R. 452
In another case considered key to women’s equality, the Supreme Court of Canada dealt with the constitutional validity of the definition of obscenity in section 163 of the Criminal Code. For the first time the Court articulated a contextualized, harms-based test for determining when material should be considered obscene.
Section 163(8) of the Criminal Code provides that "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of . . . crime, horror, cruelty and violence, shall be deemed to be obscene".
The Supreme Court of Canada determined that the most important test of when the exploitation of sex is "undue" is the "community standard of tolerance" test. This test is concerned not with what Canadians would not tolerate being exposed to themselves, but with what they would not tolerate other Canadians being exposed to. The Court found that material which may be said to exploit sex in a "degrading or dehumanizing" manner will necessarily fail the community standards test, not because it offends against morals but because it is perceived by public opinion to be harmful to society, particularly women. In the view of the Court, the portrayal of sex coupled with violence will almost always constitute undue exploitation of sex.
R. v. Prosper, [1994] 3 S.C.R. 236.
In this case, the Supreme Court of Canada considered whether an impoverished accused, upon arrest, has a right to state funded counsel. An intervener in the case argued that depriving poor people of access to counsel would result in inequality in access to justice that would be inconsistent with section 15 of the Charter. The Court held that where an arrested person requests counsel, the police must desist from attempting to obtain a statement until counsel has been provided. Justice McLachlin, in a concurring judgment, noted that “the Charter right to counsel cannot be denied to some Canadian citizens merely because their financial situation prevents them from being able to afford private legal assistance. The poor are not constitutional castaways.”
Egan v. Canada, [1995] 2 S.C.R. 513
In this case a gay couple from British Columbia challenged the definition of spouse in the Old Age Security Act, which denied Nesbit, the younger of the two, a spousal benefit available to opposite sex partners. Egan and Nesbit were not successful in obtaining access to the spousal benefit. Nonetheless, the majority of the Supreme Court of Canada for the first time ruled that discrimination on the basis of sexual orientation is prohibited by section 15 of the Charter. Because of that ruling, this was a breakthrough case for lesbians and gay men seeking legal protection from discrimination.
R. v. S. (R.D.), [1997] 3 S.C.R. 484
In this important case about judicial bias, at issue were remarks made by a black Nova Scotia judge in considering the credibility of both a police officer and R.D.S., an African-Canadian youth. The police had charged R.D.S. with a number of criminal offences relating to an altercation between the officer and the boy. The youth and the police officer each gave a very different account of the events leading up to the charges.
Judge Sparks weighed the evidence of the two witnesses. She then determined that the youth should be acquitted, as the evidence raised a “reasonable doubt” as to R.D.S.’s guilt. In her oral reasons Judge Sparks observed that in some situations “police officers do overreact, particularly when they are dealing with non-white groups.” The Crown challenged her remarks as raising a reasonable apprehension of bias. In its view, a reasonable person would think she had prejudged the case without giving proper consideration to all of the evidence.
The Supreme Court of Canada decided that Judge Sparks had not acted in a biased manner. Moreover, according to Justices L’Heureux-Dube and McLachlin, by paying attention to the racial dynamic in the case, Judge Sparks was simply engaging in the process of contextualized judging. As they stated, it is perfectly acceptable for judges to take into account not only the facts of a case, but also the social and psychological context within which the case arises. They recognized that judges are members of communities, have particular knowledge of such communities and are often guided by this knowledge. Consequently, as a person familiar with the racial dynamic of Halifax, particularly where the police are concerned, it was reasonable for Judge Sparks to apply this knowledge.
R. v. Williams, [1998] 1 S.C.R. 1128
This ruling is of particular importance to those who have experienced the effects of racism within the Canadian justice system. The central issue in Williams was whether prospective jurors could be questioned about their racial bias to ensure a fair trial before an impartial jury.
The accused was an Aboriginal man charged with robbery. He requested permission to question potential jury members about their ability to judge evidence in the case free from racial prejudices and biases about “Indians”. He argued that such questioning was necessary in light of widespread racism in Canadian society.
The Supreme Court of Canada ruled that where there is a realistic potential of bias, it is reasonable for the accused to have the opportunity to challenge the impartiality of jurors.
Rosenberg. v. Canada (Attorney General) (1998), 38 O.R. (3d) 577 (Ont. C.A.)
In 1992, C.U.P.E. amended its pension plan for its own employees to provide pension benefits to partners in same-sex relationships. Revenue Canada refused to register the amended plan because it no longer complied with the definition of spouse in the Income Tax Act. The Income Tax Act permitted the registration of a private pension plan with Revenue Canada only if the plan restricted survivor benefits to spouses of the opposite sex. If a plan provided survivor benefits to same sex partners, the plan could not be registered and could not receive the tax benefits enjoyed by registered plans.
The plaintiffs in this case sought a declaration that the definition of spouse contained in the Income Tax Act as it applied to registered pension plans violated section 15 of the Charter.
The Ontario Court of Appeal considered the particular objective of the limitation in the Income Tax Act, and observed that “aging and retirement are not unique to heterosexuals and…there is nothing about being heterosexual that warrants the government’s preferential attention to the possibility of economic insecurity.” On that basis, the Court of Appeal found that the government could not justify its decision to exclude same sex partners from benefiting from registration of pension plans.
Corbiere et al v. The Queen and Batchewana Indian Band, [1999] 2 S.C.R. 203
This case challenged Indian Act provisions that prohibit band members who do not live on reserve from participating in Band elections. Due to a shortage of land and housing, many members of the Batchewana Indian Band must live off-reserve. Particularly affected by the voting bar are women and their adult children who regained their Indian status under Bill C-31 and who have never had the opportunity to live on the reserve. A number of persons in this position challenged the residency requirement as contrary to the equality guarantees in section 15 of the Charter.
In its decision on this case, all members of the Supreme Court of Canada agreed that the Indian Act residency requirement violated the equality rights of Aboriginal band members living off reserve.
In reaching this conclusion, the Court recognized that Aboriginal people living off-reserve have suffered long-standing disadvantage in society which was perpetuated by their being prevented from participating in the political governance of their communities. Members of the Court also recognized that Aboriginal women were particularly affected, due to the many barriers faced by women who have recently regained status under the Indian Act.
R. v. Mills, [1999] 3 S.C.R. 668
Mr. Mills, who was accused of sexually assaulting a 13-year-old girl, wanted to obtain records of visits she made to a counseling agency and a psychiatrist, for use in his court case. He did not want to follow the procedures for accessing these records which are imposed by Bill C-46, arguing that these sections of the Criminal Code violated his right to a fair criminal process. Bill C-46 sets out the process and the factors that a judge must use when an accused person goes to court to ask for a victim’s private records. The provisions attempt to balance the accused person’s right to know the case against him and make a full defence with the complainant’s rights to privacy and equality. The Alberta Court of Queen’s Bench agreed with Mr. Mills that the provisions went too far in protecting victims’ rights and declared Bill C-46 unconstitutional.
The victim, L.C., was permitted to appeal this ruling directly to the Supreme Court of Canada. Groups representing women, children, service providers and mental health consumers intervened in the case to explain why Bill C-46 is needed to protect the equality rights of sexual assault victims.
A majority of the Supreme Court of Canada found that the provisions of Bill C-46 do not interfere with an accused person’s right to a fair criminal process under sections 7 and 11(d) of the Charter.
The Court pointed out that the scope of these rights is not unlimited and must take into account the rights and interests of other people involved in the process, namely the survivors of sexual assault who must report the crime and testify in court. Sexual assault victims, who are primarily women and children, have historically been subject to bias and stereotype within sexual assault trials. The Court made it clear that equality is an integral component of the concepts of fairness and justice, particularly in the criminal law.
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817
Many decisions affecting people in Canada are made by government officials who exercise considerable discretion. This judgment encourages the consideration of human rights values in such determinations.
This case involved a challenge by Ms Baker, a Jamaican-born woman, who worked illegally in Canada as a domestic worker for a number of years. After the birth of her fourth Canadian-born child, she suffered post-partum psychosis and was diagnosed as a paranoid schizophrenic. After undergoing treatment at a mental health facility for one year, she applied for landed immigrant status on humanitarian and compassionate grounds. Her application was denied and she was ordered deported. The Immigration Officer noted that she would be a “tremendous strain” on the social welfare system for the rest of her life.
The Supreme Court of Canada stated at the outset that it was deciding this case in light of the duty of fairness and the principles of natural justice which govern public officials in their everyday dealings with the public. Nonetheless, the Court’s approach provided an opportunity to address many of the equality considerations at play in the case. In reviewing the fairness of the decision-making process, the Court found that the immigration official showed an impermissible bias against single mothers and women with a psychiatric history. Additionally, at least in the immigration context, the Court found that officials whose exercise of discretion has a serious impact on the lives of the people involved, must make “reasonable” decisions which take into consideration the values expressed in domestic and international human rights. In Ms Baker’s case this meant that when deciding whether she, as a mother, may remain in Canada on humanitarian and compassionate grounds, the Immigration Officer should have given very serious consideration to the impact of his decision on her children.
Citizenship and Immigration Canada was ordered to reconsider Ms Baker’s application in light of this ruling. Ms Baker was granted permission to remain in Canada.
R. v. Latimer, [2001] 1 S.C.R. 3
Robert Latimer was found guilty of murdering his severely disabled daughter. In 1997, Mr. Justice Noble granted Mr. Latimer a constitutional exemption from the mandatory minimum sentence of ten years incarceration for second-degree murder, on the grounds that, in Mr. Latimer’s circumstances, this minimum was a cruel and unusual punishment that violated section 12 of the Charter. The judge sentenced Mr. Latimer to two years less a day, with one year to be served in a correctional facility and one year confined to his farm. The Saskatchewan Court of Appeal overturned this sentence, imposing the minimum ten year sentence.
The Supreme Court of Canada considered the validity of the ten year minimum sentence. Mr. Latimer argued that it was not constitutional because he was not permitted to avail himself of the defence of necessity and because the sentence constituted cruel and unusual punishment.
Groups representing persons with disabilities intervened in this case to argue that a reduced sentence would constitute a form of discrimination against persons with disabilities and would increase their vulnerability to physical harm.
The Supreme Court ruled unanimously that the defence of necessity was not available to Mr. Latimer. The Court said that the trial judge was correct to remove the defence from the deliberations of the jury since there was no air of reality to such a defence in this case. Mr. Latimer did not himself face any peril, and his daughter’s ongoing pain did not constitute an emergency.
The Court also found that the minimum sentence of ten years was not cruel and unusual punishment. Considered together, the personal characteristics of Mr. Latimer and the particular circumstances of this case did not displace the gravity of the crime of murder. The Court determined that the mandatory minimum sentence of ten years plays an important role in denouncing murder.
Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429
This was a section 15 and section 7 challenge to a conditional social assistance regulation in Québec that resulted in many young adults under 30 receiving only$170 per month due to their inability to participate in a workfare program. The Court found that the appellant had not proven that young people’s dignity had been negatively affected by this program, which differentiated on the basis of age. She noted that the youth were not disadvantaged vis-à-vis older social assistance recipients and that age distinctions are generally acceptable in social benefit programs. More importantly, in her view, the scheme was designed to meet young people’s needs and to reintegrate them into the labour market. If they received less assistance per month, it was due to their own choice not to participate in the work programs.
The majority also found that Ms.Gosselin had failed to prove that the scheme violated her right to life, liberty or personal security as protected by section 7 of the Charter, given that young people could access sufficient assistance provided they participated in the workfare program. The majority did not, however, close the door to section 7 protecting some type of right to have one’s basic needs (e.g., for housing, food, etc.) met.
Mack v. Canada, [2002] O.J. No. 3488 (C.A.).
Federal immigration law and policy which was in effect from the late 1880's to the 1940's resulted in immigrants from China having to pay an exorbitant "head tax" to immigrate and eventually being prohibited completely from immigrating to Canada from China. The people who started this class action argued that the repeal of the acts without remedying any of their resulting and ongoing discriminatory effects violates section 15 (equality) of the Charter. The head tax payers and their families also argue that the government was "unjustly enriched" by these policies and that the Charter does not allow the government to hold on to a benefit today that was obtained from a discriminatory and racist law even if that law was repealed before the Charter came into effect.
The Court of Appeal confirmed an earlier finding that the Charter claim could not succeed because the Charter could not be retroactively applied to the time when the legislation was in place. The Court of Appeal also agreed that conventional international law did not prohibit the legislation when it was in place, and went on to consider the impact of customary international law prohibiting racial discrimination at the time in question. The Court concluded that, even if such law existed, it would have been overridden by Canadian law, specifically the Chinese exclusion and head tax legislation itself. Furthermore, the Court of Appeal agreed with the first judge that if the challenge to the legislation could not succeed on Charter grounds or on international law, it could not be said to meet the test for unjust enrichment. The Supreme Court of Canada denied the appellants leave to appeal.
R. v. Wu, [2003] 3 S.C.R. 530.
Mr. Wu was disabled and reliant on social assistance, with a dependent daughter. He was convicted of possession of contraband cigarettes, an offence which is subject to a mandatory minimum fine under the Excise Act. Ontario had no fine options program through which impoverished offenders could work off fines. The trial judge imposed the mandatory minimum fine, but finding that the offender was unable to pay it, provided no time to pay and ordered a conditional sentence of 75 days in default of payment to be served in the community. The Supreme Court accepted submissions of an intervener representing poor people and found that those living in poverty should not face any form of incarceration solely because of their inability to pay a fine.
Lesiuk v. Canada, 2003 F.C.A. 3.
When Ms. Lesiuk, a mother and a part-time nurse, tried to claim Employment Insurance benefits, the Employment Insurance Commission turned down her claim because the hours she had worked fell slightly below the 700 hours she required. Under the weeks worked system of the previous legislation, she would have qualified for benefits. Under the hours-based system in the new law however, Ms. Lesiuk, who worked part-time due to her unpaid time spent caring for her children, had not worked enough hours to qualify.
The Federal Court of Appeal ruled that Ms. Lesiuk had not proven the negative impact of the legislative change on mothers in general, but held that it was sufficient for her to show that it had a negative impact on her as an individual mother of young children. He also agreed with the umpire’s finding that sex and parental status constituted intersecting analogous and enumerated grounds. However, when he considered the contextual factors outlined in Law and applied in Gosselin, he found that a) she had not proven that women had suffered pre-existing disadvantage in the EI regime; b) her evidence showed if anything that the hours-based regime was meant to correspond with her and other women’s needs as opposed to ignoring them; c) the legislation was generally ameliorative even if it were true that she was not a “more advantaged person” challenging a targeted ameliorative program; and finally, d) the impact of the denial of benefits was not localized. The Court went on to consider section 1 in the event that it was incorrect on section 15. The Supreme Court of Canada has denied leave to appeal this decision.
Périgny c. Canada (Attorney General), 2003 F.C.A. 94
Lyne Périgny worked as a teacher for many years. After the birth of her child, she moved to join her spouse and was not employed for one year while she took care of the baby. When she attempted to re-enter the labour force, she could only find short-term employment that failed to qualify her for employment benefits under the concept of “new entrant or re-entrant” under the (now amended) Unemployment Insurance Act.
The applicant unsuccessfully challenged the “new entrant or re-entrant” eligibility requirement in the UI Act before the Umpire. The Umpire’s decision was appealed to the Federal Court of Appeal but the appeal was dismissed. Relying heavily on Lesiuk, the Court found that the old UI provisions created a distinction based on the analogous ground of “women in parental status”, but that the section 15 claim failed on the third branch of the Law test because the provisions do not harm a woman in parental status’ essential dignity.
Egale Canada Inc. v. Canada, [2003] B.C.J. No. 994.
The appellants, as same-sex couples, were denied marriage licenses because the common law defined marriage as the “voluntary union for life of one man and one woman”.
The B.C. Court of Appeal concluded that the common law bar to same-sex marriage violated section 15(1) of the Charter. The definition led to differential treatment on an analogous ground. Such treatment harmed human dignity because it tended “to perpetuate the stereotypical and frequently critical community view of gays and lesbians”. In its section 1 analysis, the Court’s key finding was that the traditional emphasis on procreation as the core of marriage did not account for contemporary views about the value and meaning of marriage. As a result, the Court reformulated the definition to include same-sex couples.
Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357
Betty Hodge's application for a survivor's pension under the Canada Pension Plan was denied because she had separated from her common-law spouse of twenty years about four months before his death. The CPP Review Tribunal allowed Hodge's appeal and awarded her a survivor's pension, ruling that the residency requirement in the definition of "spouse" under s. 2(1) offended s.15 of the Canadian Charter of Rights and Freedoms.
The Federal government appealed this decision up to the Supreme Court of Canada, which found that Betty Hodge was not legally a spouse and therefore was not entitled to a survivor’s pension.
Canada Mortgage and Housing Corp. v. Iness (2002) 215 D.L.R. (4th) 705; Iness v. Canada Mortgage and Housing Corporation (2004), 70 O.R. (3rd) 148 (Ont. C. A.).
Ms. Iness, a recipient of social assistance, challenged a policy in a non-profit housing co-operative of charging welfare recipients a higher rent than other subsidized tenants. The Co-operative provided evidence to the human rights tribunal that it was required by CMHC, as a condition of its funding, to charge welfare recipients a higher amount. The tribunal, on a motion by Ms. Iness, found that CMHC could be added as a respondent to the complaint. CMHC appealed the tribunal decision to Ontario’s Divisional Court, arguing that it is immunized from provincial human rights statutes, and cannot be held liable for discrimination under that legislation.
Ms. Inness argued on the basis of section 15 of the Charter that the federal government should be held accountable by courts for discrimination in housing that contravenes provincial human rights legislation. The Divisional Court and, on appeal, the Court of Appeal of Ontario found that CMHC is protected by the doctrine of inter-jurisdictional immunity even in cases where it requires provincial human rights legislation to be violated. The Tribunal subsequently upheld Ms. Iness’ complaint against the non-profit co-operative, and ordered the payment of $10,000 in damages.
These are just a few examples of the many cases in which the Court Challenges Program has provided funding to plaintiffs or interveners to support the participation of Canadians in the development of their language and equality rights.
