You can tell by looking at my grey hair that I've been involved in this work for some time. I speak as someone who was involved in LEAF's litigation program from its earliest days, during which much of its work benefited from the support of the court challenges program. I returned in 2013 to LEAF as an organization that continued to do high-quality work, but with a much reduced capacity, linked closely to the absence of public support for equality work, including the loss of the court challenges program.
To speak first to the restoration of the program, the creation of the equality rights program coincided with the coming into force of section 15, the core equality rights provision of the charter. LEAF and the court challenges program grew up together. The program underlined the critical importance of equality guarantees to Canadian society and Canadian values. Public litigation funding recognized that individuals and groups intended to benefit from equality guarantees were often the least likely to have the resources to participate in litigation.
The government of the day, concerned to ensure that members of disadvantaged groups would also have a meaningful voice in the evolution of constitutional equality rights, made the responsible decision to provide modest amounts of funding to support their participation in key test cases.
That was then, this is now, and it might reasonably be asked whether equality rights have become so well understood by the courts that there is no more need for test cases. The answer to that question is a resounding no. The job that LEAF and other equality seeking groups set out to do, and the court challenges program set out to support, is far from finished. The Supreme Court's 1989 decision in Andrews, a case in which LEAF was involved, was an important and early breakthrough. The court adopted an approach in which equal protection and equal benefit of the law must take into account the real life situations of disadvantaged groups.
Since Andrews was decided, the Supreme Court's approach to equality rights has been far from consistent. Numerous important test cases came forward between 1985 and 2006. In many of these, LEAF interventions were assisted by funds from the court challenges program. The cases did not stop coming forward in 2006. In Canada, where the constitution is quite properly understood to be a living tree, there will always be test cases exploring its meaning in the context of current social conditions.
Funding for equality rights was crucial when the charter and section 15 were new, and it continues to be badly needed if individuals and groups traditionally excluded from power and from the courts are to have a realistic prospect of effective involvement. Overall, the equality rights program of the court challenges program was a great Canadian success story. Its loss has been a significant barrier to accessing the courts for members of the very groups section 15 was intended to protect.
Turning now to the issue of appropriate funding, the litigation of equality rights demands adequate resources. Litigation never comes cheap, and that's the very reason the court challenges program was instituted in the first place. Basic litigation costs have been climbing since the program's birth in 1985. There is concern throughout legal circles about the extent to which legal costs operate as a significant barrier to access to justice in general. Considerable policy energy is being directed to finding solutions. The cancellation of the court challenges program exacerbated the problem with respect to constitutional litigation, and its reinstatement is an obvious, if partial, solution.
The costs of test case constitutional litigation can be very high, particularly for cases that begin at the trial or tribunal level and are sponsored all the way to the Supreme Court of Canada. This is the ideal type of test case litigation, but over our 30 year history, LEAF has had to learn some hard practical lessons about how to carry out its mandate with scarce resources. Out of necessity, LEAF largely employs an intervention strategy, bringing its expertise in substantive feminist analysis of constitutional questions in cases brought by other parties at higher court levels.
This intervention strategy is considerably less expensive on a per case basis and allows LEAF to respond more nimbly to emerging issues. But good and effective intervention also does not come cheap. One of the consequences of intervention strategy is that it turns fact situations into abstractions. This is a serious problem in equality litigation since it's essential that courts understand how their decisions will affect real people.
To convey these realities to courts, LEAF has increasingly made it a practice to consult widely and to work in coalition with front-line organizations that have valuable experience and perspectives to share on the differential impact of legal analysis on diverse groups of women. This significantly enriches LEAF's ability to assist courts in understanding how the decisions might affect, for example, racialized and disabled women differently than they affect women in positions of relative social and economic privilege. But working this way takes more human and financial resources than traditional forms of legal work.
The old court challenges program deserves great credit for supporting this kind of collaborative litigation practice. The program provided direct funding for litigation, but it also provided crucial funding for case development, and follow-up funding or impact funding to address the results of court decisions. Studies show that the program was cost effective, well designed, and well managed. It unquestionably had a positive impact on equality litigation in Canada.
In discussing legal concepts of equality and constitutional jurisprudence, LEAF is acutely aware of the dangers of making legal concepts sound like abstractions. Let us conclude by emphasizing that LEAF's work has been anything but abstract. LEAF's cases have involved women's equality rights relating to issues of sexual violence, pay inequities, spousal and child support, reproductive choice, religious freedom, and access to justice among others. Much of this work was supported by the court challenges program. These cases name and place in a constitutional context the challenging and often brutal realities of the lives of Canadian women and girls. These realities persist.
In LEAF's view, an updated and properly resourced court challenges program will serve Canada well in the days ahead as our dynamic country and its communities grapple with the equality issues that will inevitably flow from changes in demography, language patterns, family status, and immigration, and evolving gender relations at work, at home, and much else.
We respectfully submit that Canada needs a restored and modernized court challenges program to continue the successful development and flourishing of our citizens' equality rights. The program began as a critical and innovative tool for access to justice in Canada. It can and should be again.