David Baker on the Court Challenges Program and what it means for Bakerlaw and for Equality Seekers Across Canada

  • February 14, 2017
  • David Baker

Bakerlaw currently has 4 Charter cases on the go with 8 more ready to go pending the reinstatement of the Court Challenges Program (CCP). Each case will be described on this website when it is known to be proceeding and with consent from the client(s).

As the previous CCP was, we expect that the reinstated program will be of substantial benefit to our clients. To the extent it enables us to litigate important Charter issues to the standard required, its return will be of substantial benefit to us as well.

In case you’re curious, the CCP has not increased its rates for lawyers’ fees since its inception more than 30 years ago. It also exacts a massive pro bono contribution towards the costs of the litigation it funds from the lawyers who agree to participate. The rate is above the Legal Aid Ontario (LAO) rate, however LAO demands no pro bono contribution, and is well below the rate the government pays the lawyers it privately retains.

Bakerlaw has kept its overhead and the financial expectations of its lawyers low enough that we can afford to do a substantial amount of CCP work. We make no apology for the fact that we are thrilled that will soon be able to take on Charter cases again that make a real difference on behalf of disadvantaged Canadians. Whether it’s making Canada’s transportation network or government websites accessible or enabling students with disabilities to be able to afford to the post-secondary education of which they are capable, we have been pleased serve clients who are pursuing equity goals shared by the disabled community as a whole.

Our clients have real meat and potato issues, who seek substantive equality for themselves and for others in similar circumstances. By involving the elected representatives of Canada’s various disabled communities in the development of our client’s cases, we have consciously attempted to ensure that the outcome sought in any particular case is not decided by the media intent on encouraging the latest sensational confrontation or self-promoters who crave attention without regard for the negative impact their actions may have on others.

The current government is to be congratulated on following through on its promise to reinstate the CCP. The proviso is that it remains to be seen what the CCP will actually look like and more particularly what kind of cases it will select to support. Those interested in observing or influencing how the new CCP rolls out can start by turning to the government’s announcement. Droits IC / CI Rights (PCH) PCH.droitsic-cirights.PCH@canada.ca

For those who would prefer a more detailed analysis, with some historical perspective click on Voices/Voix http://voices-voix.ca/en/facts/profile/court-challenges-program.

Of immediate concern is the group entrusted by the government with the administration of the program. The government has given only 3 weeks for a group to step forward and apply for the job.

It strikes me that the new administration is going to be of greater substantive importance than in the past since the “panels” that decide which cases will be funded are to be composed of government appointees. Under the previous arrangement, the CCP Board was elected and would appoint the panel at their annual meeting which was attended by equality seeking groups. Not surprisingly, these panels seem to exercise far more influence than staff on the outcome of individual decisions.

Under the new regime, the government appears on intent on responding to conservative criticism by appointing people whose expertise are more political than purposively based in the Charter. As a result we may see CCP funding both sides of cases that should never have been supported in the first place, brought by groups such as Real Women and Trinity Western University, medi-care challenges by doctors and Ezra Levant’s self-promoting free speech litigation.

It is to be sincerely hoped that the appointees will request and hopefully take advantage of the research and case preparation done by the Program’s staff.  For this reason alone, it is crucial that the administrative body, whatever it turns out to be, is capable of establishing the wants and needs of the community said to benefit from the proposed litigation and have a high level of Charter expertise to ensure the members of the panel are schooled in the Supreme Court of Canada’s insistence upon substantive rather than formal equality in all its decisions.

One piece of good news is that the previous Court Challenges Program members are applying to become the administrative body. I read the government’s announcement and background material suggests an intention that the status quo is going to change and that the direct influence of substantive equality seeking interest groups on the Program Board is coming to an end. It also seems to want an existing corporate package that does not entail the administration costs that flow from annual meetings, elections etc.  This is to be greatly lamented since the Program has benefitted from the pro bono participation of some of the leading Charter minds in the country, and has done its work without reproach.

The previous program has been criticized by the political right for having overlooked the cases of the groups mentioned above. However, anyone with any Charter expertise would have recognized that if the CCP ever funded litigation on behalf of any one of the groups or individuals listed above, it would have been necessary to fund at least one equal and opposite group to advise the Court how such a case would contribute to their disadvantage. Sadly the government seems more intent on throwing the political right a bone than on advancing Charter values.

Whether or not the previous Program leaders read the “writing on the wall”, they are to be congratulated for putting forward an application to administer the new CCP in a way that has demonstrably advanced Charter values and concerned themselves with ensuring the Program improves access to Charter justice for the disadvantaged. After all, those are the intended beneficiaries of the Court Challenges Program. Further, the previous Program’s application ensures that at least 1 option exists that does not involve casting aside the benefits of the previous Program in the interests of political expediency

The other obviously qualified candidate for this role is the University of Ottawa Law School. It has the credibility that comes from having been the Program’s initial administrator and from operating in both official languages. It currently administers the official language CCP and has worked with the country’s language litigators. As a law school, it could be expected to inject an essential substantive equality [and s. 2, 3 and 7] component into the case analysis it prepares for the panels rather than leaving the panel to revert back to the long discredited formal equality assumptions reflected in aspects of the government’s announcement and its apparent assumption that retired judges would know a good Charter case when they see one.

People or organizations who have ideas for Charter cases they wish to pursue can contact Sydney Baker at sbaker@bakerlaw.ca or 416-533-0040 ext. 230. Remember that in addition to language rights and s. 15 equality rights cases, applicants can now seek CCP funds for section 2 (freedom of conscience, religion, thought, belief, opinion and expression, including freedom of the press and other media or communications, peaceful assembly and association), section 3 (democratic rights, collectively described as “the right to vote in an election”) and section 7 (“life, liberty and security of the person” rights).

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