In the early to mid-2000s, I was a lawyer practising in a small human rights firm where about 20% of my work was funded by the court challenges program.
I speak today from a couple of perspectives, both as a lawyer who formerly worked for clients who benefited from the program, who otherwise might not have been able to bring their matters, but also now as a lawyer who is mostly an academic. I am a full-time academic. I still dabble in practice. I teach. I research on constitutional equality, statutory anti-discrimination, and issues of access to justice in the legal profession.
The court challenges program provided funding that enabled lawyers to do important work that would not otherwise be done. I'm speaking in the context of the section 15, or equality rights, portion of the program. It was quite properly subject to full and independent evaluation of its activities every five years, the last of which was carried out in 2004, when it was found to be meeting its objectives in a cost-effective manner. As a result, at that time its funding agreement was extended for another five years, which would have gone to 2009.
In fact in May 2006, when Canada appeared at the UN Committee on Economic, Social and Cultural Rights just months before the fateful cancellation of the program, Canada's written submission to the committee described the program as one of the measures adopted by the government to promote “the equality rights of historically disadvantaged groups”. That is, the government was highlighting the program on the world stage as something that we do proactively to advance equality.
There is no question that the court challenges program was critical to the advancement of equality rights in this country. It helped score key victories. It helped make the jurisprudence around section 15. It in fact has radiated to shape the content and character of the country. We're known internationally for many of the principles that came out of the court's interpretation and application of section 15. The program was good for equality in more ways than merely challenging laws and winning victories in court. It promoted legal engagement by groups historically marginalized, developed education opportunities for young lawyers like me and for many others I saw and have known through my professional activity, and helped develop communities. I'd like to speak about one particular example in which this became very evident.
In February 2005 the African Canadian Legal Clinic in Toronto convened a national consultation to discuss the issue of security certificates, which at the time was a pressing issue for many members of marginalized communities. The session brought together immigration lawyers, constitutional lawyers, law professors, representatives of the Canadian Arab and Muslim communities, various organizations, other equality rights-seeking groups, and political activists at large. It brought us all together. I was there as a relatively recent lawyer at the time.
The group shared information and knowledge and brainstormed strategies, including how best to support the case of the so-called Secret Trial 5. That was the security certificate trilogy that ultimately went to the Supreme Court in June 2006 and was decided in 2007.
By August 2005, a year before the case went to court, the groundwork had already been laid by the communities that were interested in the case. Several intervenors sought and were granted court challenges funding to appear, to make equality arguments in the case. Counsel for these intervenors took a lead role in mobilizing communities, engaging members of those communities, doing public events, educating the public on what was going on at the court, and bridging the distance between the bench and the public.
My firm got involved in representing a couple of those organizations. I had the opportunity as a young lawyer to work on a section 15 case, an equality case, which ultimately became an area of my expertise. This was at a critical point in history, just a few years after 9/11, when members of the Canadian Arab and Muslim community were very much finding themselves engaged with the law and with concerns around the application of law.
This case provided an opportunity for members of that community to be involved and engaged and to feel that their voices were going to be heard by the highest court. I can't overstate how important this is from a community development standpoint.
That's just one example, of a particular community that I was involved with, but I know this to be true across the board. I've spent a lot of my time in professional life working in disability rights activism, and I saw how the court challenges program mobilized the disability community across the country. Regardless of what your particular position was on a particular case, when you look at the overall impact of what the program did for communities and for members of those communities working with lawyers, it was constructive. It developed the law, it empowered members of disadvantaged communities, and it provided bridges between those who hold legal expertise and those who need vindication of legal rights.
I want to say a couple of things about what could be improved with the program.
I think the program was constrained in two significant ways. One was that it applied only to the federal jurisdiction. This was a major constraint, and not always a logical constraint. In fact, the issues that implicate equality concerns around disability benefits, social welfare schemes, education, and health all fall under provincial jurisdiction. It was extremely frustrating, as a lawyer, to work with clients and have to separate an individual's or a community's interests into what falls under federal jurisdiction versus under provincial jurisdiction. It just didn't make any sense. The interplay between the federal and provincial, as all of you know, isn't always as neat as our Constitution would like us to have it, especially in the lived experiences of those engaging with the law.
The second constraint was the limitation of viewing equality only the through the lens of section 15. Over the last 10 years, if you look at the jurisprudence of the Supreme Court of Canada, what we see is that equality is being pursued in many other areas of the charter, in particular section 7 and section 2. These are areas wherein fundamental rights are being advocated and in which equality is being used as a lens to interpret these other rights.
I would strongly urge any future program to not have overly restrictive terms of reference or rules around how to frame arguments. That can unduly restrict lawyers working with their clients from advancing what the mandate of the program should really be. I would thus urge you to think more broadly and flexibly about what equality arguments are likely going to look like, going forward, and would urge flexibility in that respect.
Thank you for your time.