moved:
That, in the opinion of this House, the government should withdraw all funding from the federal Court Challenges Program.
Mr. Speaker, the Court Challenges Program by way of background is an independent corporation based in Winnipeg that receives $2.75 million of public money every year. It distributes this money to interest groups so that those groups can then argue their views on the meaning of the charter of rights and freedoms in the courts.
In the 1994 contribution agreement between the program and the government, the overall objective of the program is very carefully stated. It says “the objective of the program is the clarification of constitutional rights and freedoms”. Note the word clarification.
The Court Challenges Program was not charged with the task of advocating specific interpretations of constitutional rights and freedoms. Its role in this process of clarification was to be a relatively minor one having to do with money. It was to provide interest groups with the money needed to present their charter interpretations in the court. Obviously, the judges are the ones who by their rulings must do the actual work of clarifying Canadians' rights and freedoms under the charter.
The problem with the Court Challenges Program is that it does not know its place. Its ambitions go well beyond its mandate. It is not content simply to handle the money side of things and let the courts decide the merits of various arguments. It has set itself up as judge and jury over the interest groups that apply for funding. For example it has been very welcoming to groups that promote gay rights, socialism and radical feminism. But interest groups that bring contrasting viewpoints to the courts, viewpoints which judges need to hear in order to render informed decisions are denied funding altogether.
The Court Challenges Program thus violates section 8.3 of its contribution agreement which says that the program shall fund a broad range of individuals and groups. The program has been anything but broad and inclusive.
This kind of blatant bias is made possible by the lack of adequate, unambiguous criteria for funding decisions. It often happens that when governments decide to fund interest groups, they are unable to answer the question: On what basis did you support one group and not another? In the absence of clear criteria, there is no other way for funding decisions to be made than in an ad hoc way which leaves too much to the discretion of the person who happens to be making the funding decisions.
In a 1992 study undertaken at the request of Consumer and Corporate Affairs Canada, four researchers concluded that various strict procedures needed to be followed in the process of determining which groups would receive government funds. Among those procedures was a process for arriving at some fair criteria for funding decisions. It involved four stages.
The very first stage was that of writing a draft statement of criteria. The second stage was the distribution of that to all affected parties, stakeholders. The third stage was the unbiased consideration of comments on those proposed criteria from the affected parties. Last was the publication of the final criteria.
The authors write that at a minimum, what seems to be required is clearly articulated rules, which are applied equally to all with a stake in the activity and administrators who are obliged to adhere to those rules.
The Court Challenges Program is a notorious transgressor in this regard. Its criteria for making decisions are extremely vague and are therefore susceptible to manipulation by the Court Challenges Program's obviously biased decision makers. Most importantly, since the Court Challenges Program can only fund cases that deal with equality rights under sections 15 and 28 of the charter, the Court Challenges Program decision makers have taken it upon themselves to in effect define what that equality means when clearly that should be left to the judges.
How is it that the Court Challenges Program could be as biased as I am saying it is? The reason for such consistently biased funding decisions is clear. The members of the Court Challenges Program board of directors and also of its equality panel which makes the actual funding decisions are also members of those very same groups that wind up getting funded.
It is a very clear conflict of interest. The organization has no checks and no balances that would serve to guard it against partisan and biased decision making. Instead the government has written these groups a blank cheque by giving them control over the organization that disburses public money for charter cases.
Let us look at an example of an interest group that has been treated unfairly, in order to highlight the bias at the Court Challenges program. REAL Women of Canada is an organization whose approach to women's equality seeks to be sensitive to the needs of other members of society, including unborn children. On many issues, their view contrasts with that of the Women's Legal Education and Action Fund or LEAF for short. Time and again, REAL Women has been denied funding by the Court Challenges Program while LEAF has been consistently handed out cheques.
There have been six court cases in which both groups participated on opposite sides of an issue. In all six of those court cases, LEAF's bills were paid by the Canadian taxpayer via the Court Challenges Program but REAL Women had to struggle to scrape together the necessary funds.
There is no logical reason for this inequality and discrimination against the group REAL Women. Regardless of what one thinks of the views of this group, it is clear that its positions on various issues are representative of the views of a large number of Canadian women. How large that number is is not my present concern, but it is clear that the Supreme Court has regarded this organization as worth hearing in court since it has consistently granted REAL Women intervenor status. Yet the Court Challenges Program whose equality panel is cut from a different ideological cloth than REAL Women has consistently refused to grant funding to REAL Women.
What is most shocking is the written response the Court Challenges Program gave to REAL Women after the group applied for intervenor funding in the Borowski case. Here is how REAL Women describe what happened in a letter written this year concerning a period in the mid-1980s: “In its refusal the Court Challenges Program stated that our view”—REAL Women's view—“of equality was not in accordance with the accepted and current understanding of equality both by society and the courts. This was back in 1987 when the courts had barely dealt with equality issues under section 15 of the charter which came into effect only in 1985”.
Only two years later and the response is that their view or understanding of equality does not fit the set understanding of equality in society and in the courts. Two years later. It is really quite a far stretch to imagine that it would already be that set at that point. “To add insult to injury, the Court Challenges Program enclosed an analysis or critique of our Borowski factum written by Rosalyn Curry, a member of LEAF, which was opposing us in the case”.
Imagine. The Court Challenges Program wanted an expert to examine REAL Women's application for funding and just happened to choose a lawyer who was a member of LEAF, REAL Women's arch rival.
The Court Challenges Program is clearly usurping the role of judges by deciding whether or not a group's legal arguments have merit. They have appointed themselves the justice system's gatekeepers on charter cases of crucial significance.
There is other disputable evidence of bias at the Court Challenges Program. Quite tellingly when the courts have not ruled in favour of one of the Court Challenges Program's favourite groups, the program's literature subsequently portrays that decision as a great setback for justice and equality. That makes it clear that the Court Challenges Program is not interested in letting judges clarify the rights and freedoms we have under the charter, which is their mandate, their reason for existence. Rather the organization is itself an advocacy group whose true objective is to help its friends in the left wing advocacy business.
That was even acknowledged publicly by one of the funded groups EGALE, Equality for Gays and Lesbians Everywhere. In their newspaper Capital Extra , they told their readers as recently as November 14, 1997 “federal funding for the Court Challenges Program means that you have an advocate”. It does not get much clearer than that, straight from the mouth of the gay lobby.
I would like to raise a question which I find interesting concerning how the Court Challenges Program might fare if it were ever itself subjected to a court challenge. I enjoy thinking about this. A 1994 supreme court case dealt with the very issue of selective funding of interest groups. It throws some interesting light on the Court Challenges Program.
The Native Women's Association of Canada argued that the government had unfairly denied it funding and a seat at the table in the so-called Canada round of constitutional consultations that led up to the Charlottetown accord. Four native groups did receive direct funding and a seat at the table but NWAC was not one of them. The group argued that its freedom of expression had been violated as well as its equality rights under the charter.
There were some interesting ideas in terms of the judges' reasons for their decisions. Some interesting ideas emerge which are helpful to us in our consideration of the motion before us today.
The court ruled that a government is free to choose its advisers as long as it does not base its choices on discriminatory grounds. Writing for the majority, Justice Sopinka said that the government must be free to consult or not consult whomever it pleases. There is nothing illegal about a government funding some groups and listening carefully to them while totally ignoring others. So far so good.
Let us be careful to realize that Judge Sopinka's words about the acceptability of bias toward different interest groups applies to governments but not to the judiciary. It would be completely unacceptable for judges to want to hear only one side of an argument and to completely ignore and not even hear arguments from the other side. If they did so the public would lose confidence in the courts pretty quickly.
That is why the Court Challenges Program is such an absurd, offensive and unjust program. It may sometimes be acceptable for the government to listen to arguments on only one side of an issue but the government cannot and should not spend money in the hope that the judiciary will be subjected to one-sided argumentation.
The government can choose its own advisers but it must not choose the judiciary's advisers. However that is the effect of the Court Challenges Program. By funding this biased organization, the government is meddling in the affairs of the judiciary. It is attempting to determine which interest groups will be able to press their case in the courts.
There is another thing which we learn from this supreme court case. The court ruled that the government's decision to fund the four aboriginal groups but not NWAC, it was not based on discriminatory grounds. The decision was based on a procedural preference and not a gender preference. The NWAC argued that the four groups were pushing a male dominated view of aboriginal self-government but the evidence did not support this. It showed that the four funded groups adequately represented both men and women in native communities and that there were no barriers to NWAC's working within those four groups and thus having a voice.
Not only were these groups open to working with NWAC but two of them gave $260,000 of their government funding to NWAC precisely to assist the group in presenting its views. It is instructive that the courts clearly assumed that NWAC's equality rights would have been violated had the evidence shown that those four groups were biased against women and did not represent the views of native women.
It is clear from Judge Sopinka's ruling that the decision would have been different had the evidence shown that the four groups hand picked by the government to represent native Canadians were hindering NWAC's participation in the aboriginal consultation. If we apply Justice Sopinka's reasoning to the Court Challenges Program, the program comes up short.
First, the positions advanced by the Court Challenges Program are not, and I underline are not, representative of the views of the interest groups that have been denied funding. Second, all the evidence shows that the Court Challenges Program is indeed biased against the views of many of the non-funded groups. They do not give out dollars to those groups with whom they differ. Third, unlike the four aboriginal groups that opened their doors to make room for the NWAC to participate in the constitutional process, the Court Challenges Program has no interest in working with groups it regards as ideologically suspect. Fourth, unlike the four aboriginal groups which redirected $260,000 of their funding to the NWAC, the Court Challenges Program has not directed any money to groups whose views it does not share.
For all these reasons I brought this initiative forward. Let me read it into the record again:
That, in the opinion of this House, the government should withdraw all funding from the federal Court Challenges Program.
I seek unanimous consent of the House to have the motion before us deemed adopted and passed.
