The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Improving the Court Challenges Program

February 16 2017 16 February 2017


Léonid Sirota sizes up the reinstated Court Challenges Program and reiterates his concern that “choosing to fund court litigation based on language and equality rights,” Parliament is in fact saying that it values those right over constitutionally protected rights.

Nicolas Hay acknowledges the argument, but writes that a well designed program still has merit. He cites the Canadian Human Rights Tribunal case upholding a discrimination complaint against the federal government by failing to provide an adequate level of child welfare on First Nations reserves, as the type of challenge that requires a financing program:

I wholeheartedly agree: privileging some rights over others can have serious implications for federalism, and a Program that treated all rights equally would be more appropriate.

The Program is undoubtedly worth saving if it were adjusted to include the changes I have outlined so far: a more accountable selection process; a more robust method of allocating subsidies; and an expansion to include all Charter rights...

In a more recent post, Sirota counters Hay’s call for more accountability in selecting those cases that the program would fund:

My point is not that we should reject Mr. Hay’s proposals for improving the accountability of the Court Challenges Program. It is, rather, that we should be skeptical of the  Program itself, and of any other mechanism that creates the need for an accountability ratchet that is likely to become counterproductive if not self-destructive. Accountability mechanisms that are part of government are still part of government, and they deserve as much skepticism as any other part of government. Their multiplication, like the growth of any other sector of government operations, creates potential for abuse, and makes government more difficult to oversee and to control. Sometimes, like other government functions, accountability mechanisms are necessary and beneficial.

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. It has also suggested that the federal government, with possible participation of provincial and territorial governments, create independent endowment funds to support each of the program mandates.

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