OTTAWA -- The federal government is reintroducing funding for those who want to launch a Charter challenge – and they’re expanding the categories of possible assistance.
The previous government cancelled the Court Challenges program, though it maintained some funding for cases regarding official languages rights. The Liberals pledged during the election to reintroduce the program, at a cost of $5 million a year, to allow individuals and organizations to apply for financial assistance to advocate for their rights.
The updated program will be expanded to allow applications for challenges based on freedom of religion, expression, association and assembly; democratic rights; and the right to life, liberty and security of the person to previous sections covering equality and official language rights. It will also include some elements of the Official Languages Act.
It will also emphasize funding for developing and litigating test cases and for legal interventions. The updated program won't fund general promotion of rights, alternate dispute resolution, impact studies or strategic meetings, according to officials who briefed journalists. This is intended to focus the money on the actual litigation, the biggest barrier to justice.
The new program will set aside at least $1.5 million for cases seeking to clarify language rights.
It is expected to be in place next fall, with as much as $1 million of the first year’s budget to be spent on administrative costs.
Justice Minister Jody Wilson-Raybould said legislation can have "unforeseen impacts" on rights, no matter how conscientious a government is or how thoroughly Parliament studies a bill.
"Protecting against these unintended consequences and ensuring that more vulnerable groups within society have the means to challenge the legislation under the Constitution and under the Official Languages Act is the right thing for a government to do," Wilson-Raybould said.
The government is now starting the process to choose the members of two expert panels -- one to evaluate the requests for official languages funding and one to evaluate the requests for funding for human rights challenges. They're looking for people with legal expertise, but that isn't limited to lawyers and judges, an official said.
The previous program eventually led to landmark cases like the Daniels decision, which clarified the relations of Metis and non-status Indians with the federal government, Wilson-Raybould said, as well as a case that challenged the definition of the marriage in Canadian law and eventually led to the recognition of same-sex marriage.
Kim Stanton, legal director of the Women's Legal Education and Action Fund, says another case supported by the original Court Challenges Program resulted in the legal standard of sexual consent being "only yes means yes," which remains an important case. Stanton says the 2006 program cancellation exacerbated Canada's access to justice problem, and the reinstatement "is an obvious, if partial, solution."
"We know that the groups that are intended to benefit from the equality guarantees in the Charter are often the least likely to have the resources to participate in litigation, and the equality rights program provided modest amounts of funding to ensure that members of marginalized groups could assert their equality rights in the courts," Stanton said at the government's press conference.
It's possible the program can be used to challenge some of the current government's legislation - particularly the Medical Assistance in Dying law, which critics say didn't meet the criteria set out by the Supreme Court when it voided the law blocking doctor-assisted dying.
"There is a potential that through the independent allocation of dollars that somebody may challenge our legislation on Medical Assistance in Dying," Wilson-Raybould said.
"We are continuing to see how that legislation unfolds. For our part, it was a really difficult decision [and] discussion with Canadians to find the right balance between personal autonomy, protecting the vulnerable, ensuring the conscience rights of medical practitioners are respected, and ensuring access."
From 1994 to 2006, the Court Challenges Program funded 575 cases, including those in which it funded an intervenor rather than one of the main parties to the case. The most it spent on a single case was $60,000.
