The Abolition of the Court Challenges Program

Presentation on the abolition of the Court Challenges Program to the 39th Parliament,1st Session, Standing Committee on the Status of Women (FEWO).

For the full transcript visit the Edited Evidence website of the Standing Committee on the Status of Women.

Prof. Margaret Denike (National Association of Women and the Law):

Thank you. I’m sorry, I have a voice problem today, so I’ll try to project a bit more.

I’m grateful to be welcomed here by the honourable members of this committee on behalf of the National Association of Women and the Law, which is an organization I am here to offer a presentation on behalf of.

My name is Margaret Denike. I am a professor of human rights at Carleton University. I have been a member of the National Association of Women and the Law for several years, as well as a member of the Women’s Legal Education and Action Fund. I’m familiar with the court challenges program, I guess, through those capacities, but I am speaking just on behalf of NAWL today.

The National Association of Women and the Law is a non-profit organization that has been working to improve the legal status of women in Canada through legal education, research, and law reform advocacy since 1974. We recognize that the advancement of equality rights for women and for various groups that have been historically disadvantaged due to factors such as race, ability, age, ethnicity, and sexual orientation requires a range of approaches and strategies for law reform. These include, among other things, engaging in dialogue, research, and scholarship to educate ourselves and our local and national communities about the circumstances and needs of others; creating new laws and policies to foster respect among individuals and groups and to protect those who are vulnerable to social and political prejudice; and conducting test case interventions and legal challenges to existing discriminatory laws and policies, particularly those that inadvertently and/or adversely affect already disadvantaged groups by failing to take them into account in the first instance.

In our view, achieving a just and equal society means fostering the ways by which justice and equality are achieved. This entails providing funding to the programs and services that enable that. The court challenges program of Canada is a quintessential model, in our view, of such programs. Its mandate is to support the advancement of constitutional equality rights and language rights that are enshrined within the Canadian Charter of Rights and Freedoms. NAWL, the National Association of Women and the Law, is thus deeply concerned about the impact of the cancelling of the funding for the court challenges program of Canada, particularly on the disadvantaged groups in our society.

An internationally recognized and celebrated feature of Canada’s heritage is our expressed commitment to constitutional values and principles of justice. Canada has been acknowledged for its commitment not only to granting rights to substantive equality within an inclusive and participatory democracy, but to putting in place the means to proactively pursue these rights. These values are universally affirmed in customary international human rights norms and laws. Canada’s unique approach to making this commitment through the court challenges program has been explicitly acknowledged and applauded by international experts and committees of the United Nations, including the Committee on the Elimination of Discrimination Against Women in 2003 and the Committee on Social, Cultural and Economic Rights in 2006.

A fundamental tenet of constitutionalism–and this is a word about constitutionalism–is that rights enshrined within constitutions be made available to everyone and not only to the more privileged individuals who have the means and the wherewithal to pursue them. Since its establishment in 1978, the court challenges program of Canada has been instrumental in providing access to justice for individuals and groups that would otherwise not have such access and in enabling them to draw on the constitutional guarantees of section 15 of the charter to bring equality arguments before the courts. The program has ensured that the rights set out in the charter are accessible to all members of Canadian society by assisting with funding for those who cannot afford the costly processes of litigation.

As Beverley McLachlin, the current Chief Justice of the Supreme Court of Canada, once stated when she was considering whom the charter is designed to benefit and where such rights should apply:

The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people. All law and law-makers that touch the people must conform to it.

I would add that the court challenges program of Canada has worked specifically to ensure the realization of this ideal that all people, particularly those who are disadvantaged or those who represent the interests of the disadvantaged, can make charter claims before the courts.

Part of the inherent logic of our constitutional system or any constitutional system is that funding is required to support some constitutional challenges. Without it, we invariably deny the full range of perspectives on the Constitution to play out, particularly the perspectives of those who are economically disadvantaged. It is a requirement of constitutionalism and the rule of law that government fund those who cannot afford it to ensure their issues can be brought before the courts and to provide the means by which all individuals can aspire to hold government accountable to its constitutional obligations.

In the recent landmark case of Law v. Canada, the Supreme Court of Canada defined and clarified the purpose of equality guarantees set out in section 15 of the charter as involving two specific objectives.

As Justice Iacobucci stated:

In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.

This second objective of promoting equality and promoting a society that fosters equal recognition of all members of our society clearly anticipates a positive commitment on the part of governments to ensure that these rights and principles are fully realized. The constitutional right to equality cannot be reduced to a notion of negative rights; that is, stopping instances of discrimination when they are about to happen. According to our Supreme Court’s vision, it entails a positive and proactive commitment to promoting and advancing these rights.

The court challenges program illustrates this commitment as its very mandate characterizes this two-pronged objective through its role in supporting and enabling scholarship, debate, education, and dialogue on equality issues, as well as by sponsoring conferences, colloquia, and research publications on equality.Some of the court case interventions supported by the court challenges program have had a profound impact on what substantive equality can and does mean for Canadians, notably, for example, on how courts have addressed the problem of systemic violence against women.The program has provided funding for women’s equality-seeking groups to work collaboratively to furnish analyses of historically entrenched discriminatory provisions of our criminal legal procedures, for example, such as myths and stereotypes about victims of sexual assault. Degrading stereotypes about women’s lack of credibility have imbued rape laws and proceedings for centuries, and they have prevented women from reporting assaults and from pursuing criminal charges against the perpetrators.

For instance, through their intervention, women’s groups had the opportunity in the 1999 case of Ewanchuk to challenge the reasoning of the Alberta Court of Appeal that how a woman dresses or whether she lives in a common-law relationship impugns a woman’s character and credibility enough to support the acquittal of the accused on charges of sexual assault.

The funding has also been crucial in advancing arguments and analyses in the sexual assault case of Bishop Hubert O’Connor and the Mills case. They addressed whether or not and under what circumstances the medical and psychiatric records of rape complainants were to be made available to those accused of sexual assault for the purposes of questioning a complainant’s credibility.

Such interventions have challenged long-standing assumptions and practices that concern the safety, security, and freedom of every girl and woman in this country. The ability to provide our courts, through interventions, with informed analyses derived from varying perspectives that lend themselves to a sophisticated and evolving understanding of substantive equality implications in such context is part of the legacy of the court challenges program of Canada. The support provided by this program is essential to ensuring that the courts continue to address violence against women as an equality issue.

As a concluding comment, when we are challenged with questions concerning the rights of minorities, and particularly those that endure the disdain and prejudice of the majority, we must keep in mind the intrinsic irony of constitutionalizing and hence protecting equality rights. As Professor Jennifer Nedelsky has noted:

…when we choose to treat a value, such as equality, as a constitutional right, we are in effect saying both that there is a deeply shared consensus about the importance of that value and that we think that value is at risk, that the same people who value it are likely to violate it through their ordinary political processes.

This is a fundamental consideration of constitutional equality rights, as they define the entitlements that make it possible for all members of society to flourish and to relate to each other in terms of equality in the face of the fact that we are vastly unequal in our needs, abilities, and status.

Individuals and groups, such as sexual minorities, that are most subjected to social prejudice, disdain, and hatred and who are most likely to be stripped of fundamental human rights are those who are in most urgent need of constitutional equality protections. Such protection must include fostering the services and programs that provide opportunities for dialogue and education about differing needs and circumstances, however much the majority would be loathe to accept them. This is a feature of our heritage—of this program, that is—of which many Canadians are proud. It is about respecting the dignity of all persons, including those we ourselves might question as to entitlement in granting them access to justice and to the protections and benefits of the law.

Thank you for your time.