Thank you very much for having West Coast LEAF here today.
My name is Humera, and I use she/her pronouns. I am a staff lawyer working on the homelands of the Musqueam, Squamish and Tsleil-Waututh nations.
West Coast LEAF supports Bill C-316, which would provide the Court Challenges Program with a legislative home. We also seek two amendments to further strengthen access to the guarantees enshrined in constitutional law and official languages legislation.
Our position on this bill arises from our decades-long experience advancing justice and equality for women and people who experience gender-based discrimination. We were formed in 1985 to ensure that charter rights, particularly section 15 equality rights, would receive robust protection. We have appeared before courts and tribunals in many cases to advocate for equality rights and protection from discrimination.
In our current justice system, all litigation is costly, and constitutional litigation is even more so. Going to trial as well as bringing or facing an appeal can be financially draining and cost hundreds of thousands of dollars. Developing and litigating test cases that seek to move constitutional law forward, especially on systemic issues, may involve several years of litigation, likely at three levels of court, and support from dozens of lawyers, staff and expert witnesses.
The program as currently structured caps funding at $200,000 for trials, $50,000 for appeals and $20,000 for test case development. This funding is a significant help, even if it only partially covers the total costs of litigation. Without it, accessing justice would be even more of an uphill battle.
The program is also an important funding source for public interest litigants, many of whom are non-profit organizations with very limited resources. In the 2022 case of British Columbia (Attorney General) versus Council of Canadians with Disabilities, CCD, the Supreme Court of Canada recognized the critical role that public interest organizations play in supporting access to justice by bringing cases on behalf of people and communities who face social, economic or psychological barriers in litigating cases on their own.
The program also funds intervenors who join cases as third parties to share unique perspectives with the courts. For decades, intervenors have made notable contributions to the development of constitutional law by ensuring that the perspectives of those whose rights and interests are impacted by a case are considered by courts and that legal decisions are informed by broader implications. West Coast LEAF has also received funding from the program to partially support the litigation costs of interventions.
While we support Bill C-316 in principle, we also recommend two amendments to bolster access to justice in constitutional and language rights cases.
First, section 2 of the bill should be amended to include language indicating that the program will support claims arising from federal, provincial and territorial jurisdiction. Presently, funding is only available for cases connected to federal jurisdiction; however, provincial and territorial laws directly affect the largest number of Canadians, and areas of law falling within provincial jurisdiction, such as family law or access to social services, often disproportionately impact women, people of marginalized genders and people facing other intersecting barriers.
The program must also include cases engaging provincial or territorial jurisdiction if it is to achieve its goal of supporting cases of national significance, which is the language used in the bill. Andrews versus Law Society of B.C., the first ruling from the Supreme Court of Canada on section 15 equality rights, was a case concerning provincial law. Similarly, the CCD case mentioned earlier in my remarks was also provincial in scope, but required the Supreme Court of Canada to decide legal questions concerning public interest standing. These cases significantly impact constitutional jurisprudence, but they may not have met the program's criteria for national significance as they did not squarely engage federal jurisdiction.
Second, the bill should be amended to clarify the term “independently administered” and to specify how independence from government will be secured. Litigation is an adversarial process, and cases brought against the government will necessarily run counter to government's interests. The bill must prevent the possibility of interference in funding decisions through the pulling or limiting of funding.
We understand that many committee members have expressed a wish for greater transparency and accountability, and we agree that the process of funding applications must be transparent and accountable; however, we caution that this must not come at the expense of independence and must balance concerns around preserving litigation privilege.
To conclude, by adopting Bill C-316, this committee would be signalling respect for constitutional rights and the rule of law. The Supreme Court of Canada has stated that if people cannot challenge government actions in court, individuals cannot hold the state to account and the government will be or will be seen to be above the law. It also ruled that there cannot be rule of law without access to justice.
By enshrining the program in legislation, this committee would be supporting meaningful and consistent access to courts to check and balance government and to advance fundamental rights.
Thank you.