As I was mentioning, I'm a former panel member and vice-chair of the program. The court challenges program, in my mind, has always played a critical role in advancing access to justice for many historically disadvantaged groups, in particular racialized communities, women, and people with disabilities who are among those who need support the most in accessing the legal services due to a number of barriers, in particular because they tend to be overrepresented among the low-income population in Canada.
Some people argue that we no longer need the court challenges program because equality jurisprudence is by now well developed. With all due respect, that is simply not the case. If anything, of all the various sections in the Canadian Charter of Rights and Freedoms, section 15 jurisprudence has often seen the greatest uncertainty and changes over the last decade, in particular the last 10 years.
While the charter represents the ideal of justice and equality that this country strives to achieve, the reality is that systemic racism is still very much alive and well, and is embedded in our legal system and reflected in many of the laws and policies, both at the federal and provincial level. Due to their lack of political power, marginalized groups continue to look to the court as a forum to voice their grievances and a place to advance social change.
Over the last 10 years the ability of these groups to launch charter litigation has been severely limited due to the de-funding of the court challenges program, and the fact that many under-resourced provincial legal aid programs do not fund test case litigation.
The 10-year hiatus of the program coincided with the period of a growing number of community groups, as well as lawyers, looking to the courts to advance racial equality claims. Yet ironically, it was during this time when the legal profession itself was becoming more diverse and more interested in racial justice that their access to funding, support to charter litigation, was cut.
According to Professor Bruce Ryder at Osgoode Hall Law School, the number of section 15 rulings by the Supreme Court of Canada has gone down over the last decade, and the depth of the court's engagement with section 15 issues has declined as well. He points out that many of the recent decisions from the Supreme Court focus on other charter issues and offer very little and brief reasons for rejecting the section 15 claim. There is currently no significant section 15 cases pending to which the Supreme Court has granted leave. This is so, notwithstanding the growing concerns regarding a multitude of legal issues affecting racialized groups, particularly in the criminal justice system.
The de-funding of the court challenges program has clearly had a direct and negative impact on the development of equality rights jurisprudence, particularly with respect to race-based equality claims.
Looking forward, we want to make the program better, but we also want to protect what has made the program a success. What has worked is the government's model, which ensures the program is accountable to its constituent communities, while at the same time maintaining its independence from the government.
While the program has managed to be an extremely efficient and effective organization, there are changes that can be made to enhance its success. We have included a number of our recommendations in the written submission. I'm going to highlight three in particular here.
First of all, we think that the program should expand coverage to fund arguments based on section 7 of the charter in addition to section 15, in cases where the section 7 argument is used specifically to advance substantive equality for disadvantaged groups.
The second point is to expand coverage to fund cases dealing with provincial laws, especially in provinces, not just provinces where the legal aid program does not provide for test case funding, but where the funding might be inadequate as well.
Thirdly, we should allow the court challenges program board the flexibility to reallocate funds among different categories of expenses within the program, so as to better respond to the needs of the equality-seeking groups and to address any emerging issues.
In conclusion, the program is one of the most unique and remarkable institutions that Canada has created to strengthen our country's democracy through the protection of minority rights. The government's decision to restore the funding represents a new opportunity for racialized and other marginalized groups to engage in a dialogue with the court and to help ensure that the government lives up to its promise under the charter.