Two years after its abrupt cancellation by the Conservatives, funding for the Court Challenges Program is still being debated.
The program granted funding to Canadians who sought to challenge laws they saw as unconstitutional at the highest judicial levels. The money was divided between cases dealing with the minority-language rights and equality rights guaranteed under the Charter of Rights.
Egale leveraged Court Challenges money to fight for gay marriage through the courts. Parliament approved same-sex marriage in 2005, but only after legal victories in Ontario, BC, Quebec and six other jurisdictions.
In 2006, the Tories cut the program as part of a cost-cutting exercise.
Ottawa-Vanier Liberal MP Mauril Bélanger said that the Tory decision to cut Court Challenges was purely ideological, and the decision to reopen funding only to minority-language cases was irresponsible.
“The Prime Minister’s Chief of Staff [Ian Brodie] was on the record for hating that program for the equality provisions,” he says.
University of Ottawa law professor Sébastien Grammond says that the Canadian public might not be “sufficiently aware of the importance” of the equality-rights provisions of the old Court Challenges Program.
“When the program was cut some years ago, it was mostly Francophone groups who appeared in media to contest the cut, and so the fact that it also helped victims of breaches of equality rights bring their claims to court was overlooked,” he says.
For their part, the Liberals have committed to fully reinstating both the program’s language and equality rights funding. They would also boost its overall budget to $6 million — double the program’s funding in 2006, the last year it was active.
The NDP have admonished the Conservatives for scrapping the program. Leader Jack Layton says his party favours its full reinstatement.
Their platform, released on Sep 28, promises to “restore the court challenges program, eliminated by the Harper government, which funded equality seeking groups to go to court to protect their rights and establish fair jurisprudence.”
Egale Canada executive director Helen Kennedy repeated a longstanding call for a renewal of the mandate of Court Challenges.
“We’re hoping that if there is a change in government that it will be one of the first things that will happen, and we’ll have [Court Challenges] reinstated,” she says.
In 2006, former heritage minister Bev Oda told a parliamentary committee that the program was simply unnecessary.
“We believe it is our responsibility as legislators to ensure that the laws that are passed are constitutional, and our government takes this responsibility seriously,” she said.
Meanwhile, John Baird, then-president of the Treasury Board, said that program was counterintuitive because it “subsidizes lawyers to challenge the government’s own laws in court.”
Oda assured the committee that her government would do all it could to ensure language rights were respected. But she had nothing to say about equality rights. In fact, the word ‘equality’ wasn’t mentioned even once during the whole meeting.
The Conservatives reinstated part of Court Challenges’ old funding when they announced a re-branded Program to Support Linguistic Rights last June.
There was no new funding for equality rights.