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Fighting to restore legal funding

Program helped win same-sex marriage

A newly formed coalition is challenging the Harper government’s cancellation of the funding program that helped bring about same-sex marriage.

The government cancelled the Court Challenges program — which gave funds to group seeking to challenge the government over equality rights under Section 15 of the Charter of Rights — in September 2006.

The coalition of eight groups — which will be supported by queer lobby group Egale Canada — is seeking intervenor status in a case filed against the government by the Federation of Francophone and Acadian Communities of Canada.

“Without the Court Challenges program the current state of equality in Canada would not be where it is today,” says Faisal Bhabha, a lawyer with Toronto firm Bakerlaw, which is representing the coalition. “It’s a slap in the face to historically disadvantaged groups. It acts as a muzzle on their right to challenge the government. That becomes a right guaranteed only to the wealthy.

“The position is simply that the Charter means nothing if the people it’s supposed to protect can’t use it.”

Helen Kennedy, the executive director of Egale, says the queer group was approached after the coalition had already filed court papers and could not officially join. But she says Egale fully supports the challenge.

“Organizations like ours struggle to find the money to take on these cases,” she says. “Now we’ll have to be more selective. It’s very, very significant. It’s a big loss to us.”

The eight groups seeking intervenor status include the National Anti-Racism Council of Canada, the Canadian Feminist Alliance for International Action, the Women’s Legal Education and Action Fund, the Disabled Women’s Network of Canada and the Charter Committee on Poverty Issues.

Bhabha says that without funding under the cancelled program, sexual orientation would never have been included as a prohibited ground for discrimination. The program provided funding in the Jim Egan case, which ended up winning queer couples the right to pension benefits. The case led to the inclusion of sexual orientation as a prohibited ground for discrimination under the Charter of Rights and Freedoms.

Karen Busby, a member of the Egale board and a law professor at the University of Manitoba, says the Court Challenges program also allowed Egale to intervene in the Little Sister’s censorship case and to hold country-wide consultations on challenges to bawdyhouse laws and protection of trans rights.

Busby says the program funded challenges to marriage laws in Ontario and BC which led to the recognition of same-sex marriage. Earlier the Court Challenges program also funded Egale’s intervention in the case of M vs H, which established that queers were entitled to spousal support after a breakup. The case led to the recognition of same-sex couples in Canadian common law.

“Without the Court Challenges program program the equality of gays and lesbians in Canada would certainly look very different,” says Bhabha.

The challenge by the Federation of Francophone and Acadian Communities of Canada is scheduled to be heard in Federal Court in Fredericton, New Brunswick on Mon, Feb 25.