Court Challenges Program reinstated and expanded
The federal government has followed through on an election promise to reinstate the Court Challenges Program, and have agreed with a chorus of lawyers that Section 7 of the Charter of Rights and Freedoms ought to be included in the program.
“I am confident that through the new court challenges program, Canadians will have greater access to justice and greater protection of their rights,” Justice Minister Jody Wilson-Raybould said at a press conference on Tuesday.
The Canadian Bar Association has released a statement in support of the reinstated programme, also calling it a win for access to justice. “This program benefits all Canadians by funding test cases and interventions that will clarify our understanding of Charter and Official language rights,” the statement reads.
CBA President René Basque says that the success of the program will depend on how it’s implemented and how it’s administered. “We wanted to see more resources going towards access to justice, and the government delivered what we consider as a good start. We look forward to further discussions with the government to ensure the program fulfills its objectives.”
The new program will provide funding for legal challenges under all the previous Charter sections covered by the previous program, with some additions. Constitutional cases and interventions involving Sections 2, 3, and 7 will now be eligible for funding under the program.
In explaining the new, expanded program, Wilson-Raybould said that, as the jurisprudence evolves, “Canada’s justice system itself, will continue to need to evolve.”
The program previously only covered Section 2 challenges as they related to minority language challenges, but will now cover all fundamental freedom cases — religion, expression, peaceful assembly, and association.
In including Section 3, democratic rights, could open the door to voting rights and political fundraising challenges.
But the big hallmark of the new program is Section 7. In April, CBA National wrote that law scholars had been concerned over the seeming lack of plan to include challenges engaging the right to life, liberty, and security of the person — the section that has become a constitutional cornerstone in recent years, winding up in Supreme Court decisions from Bedford to Insight and a host of mandatory minimum challenges.
The CBA’s position has been that coverage should extend to all meritorious cases raising important equality issues under sections other than s. 15 of the Charter. “Assigning funding solely to the equality rights element presented difficult parameters for the litigant and their counsel,” Former CBA President Janet Fuhrer wrote in a letter to the government last year.
“Section 7 is where the action has been,” pointed out University of Ottawa law professor Carissima Mathen.
Wilson-Raybould said the new grounds for a challenge will engage a “broader range of constitutional, and quasi-constitutional rights for all Canadians.”
Any hope that the program will come with a big pot of money, however, were dashed on Tuesday when the government confirmed that the new program would have the same funding cap that the old program faced — $5 million.
Josh Paterson, Executive Director of the BC Civil Liberties Association applauded the decision shortly after it was made public.
"We and many others had asked the government to expand the scope of the previous program, which prior to its cancellation in 2006, was limited to equality rights and official language rights cases,” Paterson said in a press release. “The government has listened and the modernized program will now expand to additionally cover challenges to federal laws that potentially violate democratic rights, fundamental freedoms like the freedom of expression, association and religion, and the rights to life, liberty and the security of the person.”
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