The Power of Perspectives

The Canadian Bar Association

Justin Ling

Bringing back the Court Challenges Program: What about Section 7?

April 7 2016 7 April 2016

The history of the Court Challenges Program is a tortured one. While it existed in some fashion in the late 1970s, Brian Mulroney’s government formally launched the program in 1985, before killing it just seven years later. The government of Jean Chretien brought it back in 1994, but had its funding abolished by Stephen Harper in 2006.

Now, the Liberal government wants to bring it back.

But what is the program for?

At its root, the CCP was intended to provide financial assistance to advance minority language cases. In 1985, with the coming into force of section 15 of the Charter and the legal shift towards the formal recognition of equality rights, the CCP expanded to include cases ranging from challenges to the Indian Act to the Charkaoui case, which fought against the government’s use of security certificates.

The two branches of the CCP, at the time, made sense. But as the government begins consultations on the reinstatement of the program, some lawyers worry the program is stuck in 1994.

A backgrounder provided to CBA National, sent out to the legal community and designed as a launching pad for discussions on the CCP, has basically copied the previous mandate for the decades-old program.

The CCP, the backgrounder says, will fund “court cases of national significance that had the potential to advance language and equality rights,” specifying that the program funds challenges based on the equality sections of the Charter that “are based on section 15 (equality) or section 28 (gender equality) of the Charter, or invoke section 2 (fundamental freedoms) or section 27 (multiculturalism) in support of arguments based on section 15 of the Charter.”

While the document is essentially a discussion paper, and isn’t necessarily indicative of future government policy, what was missing from the document immediately caught the attention of Kyle Kirkup, who pointed out on Twitter that the document makes no mention of s.7 whatsoever.

“SCC jurisprudence has developed significantly (Insite, Bedford, Carter, etc),” Kirkup, a post-doctoral fellow at the University of Toronto and incoming assistant professor at the University of Ottawa, told National. “These cases suggest it would be odd to hive off s. 7 when it often intersections with equality issues.”

Indeed, the document notes that linguistic cases can engage the aforementioned sections of the Charter, Constitution Act, or the Manitoba Act, or “any parallel constitutional provisions.”

The part of the document regarding equality cases makes no mention of other sections.

Carissima Mathen, a law professor at the University of Ottawa who specializes in constitutional law, says there might be some logic in leaving section 7 out.

“Section 7 is where the action has been,” she says. “But, historically, it has always been fertile ground for Charter litigation. Section 7 claims also tend to arise in (criminal) cases eligible for legal aid, as meagre as that can be. Other Charter rights are not.”

To that end, she says, it’s “not unreasonable” to put the limited money towards section 15 and 28 cases, “to avoid being swamped by legal rights claims.”

Money, though, may be less of a concern than in previous years. The program’s $2 million budget, circa 2006, has been more than doubled in its instatement. The 2016 budget dedicates $5 million a year for the program, although it’s unclear if that includes, or is on top of, the existing money for the Language Rights Support Program, which had been launched by the Harper government after he axed the CCP.

“What I find weird is that you can invoke fundamental freedoms in support of an equality claim, but not section 7,” Mathen adds. “That doesn’t make sense to me. There is just as much interplay between section 7 and section 15 as between section 2 and section 15.  Bedford and Carter being prime examples.”

In the end, she says the decision to exclude claims solely living under section 7 — if the government does, indeed, exclude section 7 — is “understandable, if not great.” She says it would be less defensible to exclude section 7 claims if they are a means to advancing equality.

“I also think it is a mistake to outright exclude challenges that go to the structure of the Charter. Things like application, standing, remedies and costs.  These are more technical, but can have a huge impact on access to constitutional rights,” Mathen adds. “They can arise in any area, but affect everything.”

Photo licensed under Creative Commons by zeevveez

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