Thank you, Mr. Chair.
Thank you to members of the committee for the invitation to speak today.
I believe, despite my efforts over the last 25 years, I've become the leading published authority on the history of the Court Challenges Program.
As members of the committee will know, the Court Challenges Program has a checkered history. It was first established in 1978 with the intention of funding litigation against Quebec's language laws, particularly Bill 101, and by extension language laws in other provinces. Its mandate was expanded to cover what we would today call “social justice litigation” in 1985. It was then shuttered in 1992 as part of budget decisions that year. It was recreated a few years later. The federal government announced it would be cancelled again in 2006, although in fact the program never closed. It has carried on since then under a variety of sponsorships and in different organizational forms.
From 1985 until about 2000, when public interest litigation was in its infancy in Canada, the Court Challenges Program certainly helped boost that form of political organization in this country. Today, however, the Court Challenges Program probably finances a relatively small slice of Canada's public interest litigation. Most court cases about human rights, and certainly all the cases that try to limit government action, are financed by private means or by means of provincial legal aid programs without the help of the Court Challenges Program.
In my written submission, I recommend three amendments to the bill.
One is to stop the federally funded Court Challenges Program from financing court cases against provincial actions. This has been an issue since the program was created in 1978. If the federal government decides it should challenge provincial legislation or provincial programs, it can do that directly and transparently by means of litigation or other techniques.
A second amendment would prevent the program from funding cases that involve two or more sections of the Charter of Rights being in conflict with each other. There is no reason, in my submission, for the federal government to finance litigation that could, for example, limit freedom of expression or freedom of religion in the name of pursuing equality rights or vice versa.
Third, to head off the cycle of creation and cancellation, I recommend expanding the program's board to include nominees from all parties represented in the House of Commons. I think that would ensure the program would only fund cases that are genuinely beyond partisan disagreement.
On reflection since my submission, I would urge a fourth consideration, although it's not in the written submission. The public annual report of the program envisioned by proposed subsection 5.1(1) in the bill before you should include a list of all the cases that are funded and the amount of funding devoted to each of those cases.
The program used to allow the public to know what cases it funded and what cases it did not, but the Court Challenges Program now serves as a way of turning our tax dollars into untraceable dark money, and that should come to an end. The program should be reporting its funding decisions to the public in real time. If that's not feasible, it should report those decisions in its annual report.
Mr. Chair, that's all I have to say.