Thank you, sir.
Reinstating and modernizing the court challenges program will serve to enable long-standing inequities facing the African Canadian community to be more fairly, effectively, and correctively addressed through the Canadian court system. This is particularly true when considering that a disproportionately high number of African Canadians live on the margins of social and economic inclusion, are impoverished, precariously housed, and dramatically overrepresented in all levels of the criminal justice system, including provincial and federal prisons.
To address these conditions, it is critical that a modernized CCP not be embedded with procedural hurdles to obtain access to the resources it can avail. In other words, where there are cases, for instance, where one or more individuals from a historically disadvantaged group is facing a significant limitation or loss to their life, liberty, or security of the person, partly in connection with their charter-protected identity, unduly onerous procedural and eligibility requirements should not bar access to support from the CCP.
The following are also considerations that the Government of Canada should take very seriously as it undertakes to reinstate the court challenges program.
First, access to justice must include providing resources to support the enforcement of charter-focused remedies and decisions of our courts. For instance, racial profiling and illegal searches of individuals continue to take place at alarming rates, despite the existence of jurisprudence that forbids the continuation of these practices.
Gathering sufficient Canadian-based and focused social science evidence to support equality rights challenges is an extremely costly exercise. Undertaking community consultations and hiring expert witnesses to produce reports and provide testimony on pressing issues like anti-black racism comes at a prohibitive cost to the overwhelming majority of black African Canadian individuals and organizations.
It is critical that the court challenges program be an arm's-length institution from the Government of Canada. It should be a stand-alone, not-for-profit organization, as it was in its previous iteration. This will allow for greater independence and garner considerable trust and confidence in the CCP as a resource to turn to for support for charter-based court challenges.
Further to the point of accessibility of the CCP, the ACLC feels strongly that the program should not be housed in an academic institution. While much important work is done within academia, the general public and especially the collective African Canadian community, which experiences high levels of social and economic exclusion, will not feel that the CCP is a welcoming and receptive institution for them to access if it is housed in a university.
Alternative dispute resolution is an important part of our legal system, but it should not be actively encouraged or supported by the CCP where the matter being challenged is systemic in nature. The reason we take this position is that ADR prevents the establishment of much-needed equality jurisprudence that meaningfully serves to address and uproot systemic discrimination and inequality.
To ensure stability and continuity of the CCP, the Government of Canada should establish an endowment for the program through a legislative framework. This is to ensure that subsequent governments cannot so easily dismantle this vital access to justice program as was done by the Harper government.
The scope of the CCP should be extended beyond federal jurisdiction but should also include matters that have systemic impact across provinces. This, we feel, is instrumental to helping the court challenges program fulfill its potential to address the equality deficit facing African Canadians and far too many other historically disadvantaged groups.
In conclusion, to support our submission's call for the aforementioned enhancement to the court challenges program, I refer to the following Supreme Court of Canada's jurisprudence. In Tranchemontagne the court stated the following, “Human rights remedies must be accessible in order to be effective.”
In another Supreme Court decision, Hryniak, the Supreme Court also stated that, “Ensuring access to justice is the greatest challenge to the rule of law in Canada today.”
Finally, in Fischer, the Supreme Court also recognized the existing barriers when it stated the following:
The sorts of barriers to access to justice...may relate to either or both of the procedural and substantive aspects of access to justice. The most common barrier is an economic one, which arises when an individual cannot bring forward a claim because of the high cost that litigation would entail in comparison to the modest value of the claim. However, barriers are not limited to economic ones: they can also be psychological or social in nature.
Reading these Supreme Court decisions together, the ACLC argues that access to justice is a fundamental charter value that has not been effectively extended to the African-Canadian community.
Through modernizing the court challenges program in the ways proposed above, the Government of Canada would be making an historic leap forward toward comprehensive recognition and correction of the centuries of systemic anti-black racism that has imperiled the prospects and well-being of far too many African-Canadians in our country.
Thank you very much.