Yes, Mr. Chair.
My name is Ken Norman. I'm the treasurer of the Court Challenges Program. I sit on the board of directors of the program as the representative of the Council of Canadian Law Deans. I have with me our executive director, Noël Badiou.
Mr. Chair, honourable members, I want to talk first from our brief that's filed with you as to the purpose of the Court Challenges Program. The purpose is access to justice, and the rationale for our fund lies in the fact that access to justice requires resources. For sound civil society reasons, there are a number of government funding programs founded on this same rationale with regard to litigation. The Court Challenges Program is but one--or was but one--of such programs.
A year ago, the Canadian delegation appeared before the UN Human Rights Committee during the review of Canada's fifth report on the International Covenant on Civil and Political Rights. Focusing only on charter court challenges and leaving to one side such litigation funding programs as the test case funding program of Indian and Northern Affairs Canada, or the aboriginal rights Court Challenges Program of the Northwest Territories, the Canadian delegation explained the various circumstances in which charter issues may arise during government-funded litigation.
It offered examples such as criminal legal aid, civil litigation involving government or quasi-governmental actors, and individuals engaged in litigation with governmental actors over rights and access issues. The Canadian report proceeds to note that “the Department of Canadian Heritage also funds the Court Challenges Program (CCP), which provides financial assistance for test cases of national significance in order to clarify the rights of the official language minority communities and the equality rights of disadvantaged groups.” In this light, what sense, I ask you, can be made of Treasury Board presidentJohn Baird's comment justifying the funding chop to our program on September 25 of this year, that “I just don't think it made sense for the government to subsidize lawyers to challenge the government's own laws in court.”?
I come before you to ask that this singling out of the Court Challenges Program be reversed. In the name of access to justice, we ask that you call for the restoration of funding to the Court Challenges Program.
I'll now speak briefly to our history and our accomplishments.
The program was established in 1978, following important language rights cases that were pursued in the courts by individuals at great financial cost and personal expense. In view of the fundamental importance of the rights in question, it was recognized that there was a need for a program that would assist individuals from the official minority language groups in bringing forward cases to clarify their constitutional language rights. It was understood that there needed to be a mechanism through which those groups could have their rights recognized. Without such a mechanism, members of those groups would have little or no voice in seeing their rights recognized and respected.
Then in 1982, with the charter coming into effect, the mandate of the program was extended to include language rights under the charter. Then in 1985, with the equality provisions clicking into effect, the program's mandate was further expanded.
In sum, the program was meant to provide access to justice for Canada's historically disadvantaged; those who are most vulnerable to marginalization and exclusion from full participation in Canadian society; and Canada's official minority language groups, who are also trying to claim their full and proper place in Canada. Without this access to justice, these disempowered groups and individuals will no longer have a voice in their efforts to seek equality and recognition. Thus, there's no weight to the argument that the Court Challenges Program somehow failed in its mandate when it did not grant funding to those status quo groups seeking to intervene in support of a government's position.
I want to move to value and effectiveness, as this issue has been raised. In cutting the Court Challenges Program, the government said it did not provide “value for money”. We would be very interested to know on what basis this assertion was made. The program was never notified that it was undergoing a review. Neither staff nor board members were contacted or asked for any information about the program, so what was the nature of the review? What were its findings? Upon announcing the cut, the government did not tie its decision to any supposed findings of any such review.
There have been two formal public reviews of the program, one in 1997 and one in 2003. I will move to a couple of the points made in the 2003 evaluation, the more recent one.
The evaluation said the program is effectively managed. It also said: “The evaluation findings suggest that there are dimensions of the constitutional provisions covered by the Program that still require clarification and that, most probably, there will continue to be dimensions of the constitutional provisions that require clarification indefinitely.”
There are some additional points I'd ask the honourable members to consider. Our program is a small one, but it is national in scope. It is wholly administered by a small staff of eight people from a single office in Winnipeg, Manitoba. The administrative budget is relatively small when considering the importance of the issues funded and the national scope of the program.
Under the limitations established by the Court Challenges Program in administering funds, the real costs of taking a case forward are not even fully covered by any means. There is limited funding that, once granted, allows applicants to leverage the participation of very skilled and experienced lawyers who agree to work at a much lower hourly rate than their norm for some of the work and on a pro bono basis for other portions of their work.
On the impact of the program, our brief sets out some of the important cases. There is one in particular I want to highlight in the brief time I have available, and that's a case out of Prince Edward Island, a minority language rights case called Arsenault-Cameron v. Prince Edward Island, in which the Supreme Court of Canada makes the point and the link between the language funding side and the equality funding side of the program, that link being substantive equality. I quote from Arsenault-Cameron: “Section 23 is premised on the fact that substantive equality requires that official language minorities be treated differently, if necessary, according to their particular circumstances and needs, in order to provide them with a standard of education equivalent to that of the official language majority.” This idea of accommodation is at the heart of the idea of equality in section 15 as well.
In terms of the section 15 cases, contrary to the perception of some, equality challenges have rarely produced clear wins at the hands of the legal system. Funding from the program provides equality-seekers with an opportunity to keep their issues before the courts in the hope that over time the legal principles that they advance will be recognized by the courts. Furthermore, the issues brought before the courts can help to raise the profile of certain issues which can stimulate public debate and lead to legislative reform that advances human rights. The program provides the least powerful in society--disadvantaged groups--with a means to continue the dialogue, which they otherwise would not have.
Let me move to a final point, which is that the Court Challenges Program has been recognized and praised not just by the UN Human Rights Committee under the International Covenant on Civil and Political Rights, which I began my presentation by referring to, but also by the United Nations Committee on Economic, Social and Cultural Rights. As well, the former United Nations High Commissioner for Human Rights, Ms. Mary Robinson, has commented on the wonderful work of the Court Challenges Program and the uniqueness of it, and has stated that this type of program should be replicated in other countries.
Finally, we've had the charter in existence for about a generation. However, constitutional rights continue to evolve. One only has to look to the United States, where constitutional rights continue to be raised in the courts 200 years after their Bill of Rights was entrenched. Surely there's a continued need for our program, which provides some of the resources for disadvantaged Canadians to have access to justice.
Thank you.