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Government of Canada Reinstates the Modernized Court Challenges Program to Better Defend the Rights and Freedoms of Canadians
Between 1978 and 2006, the former Court Challenges Program played a key role in helping Canadians clarify and assert the official language and equality rights guaranteed under the Constitution of Canada. The former Program was abolished in 2006. However, in 2008, following an out-of-court settlement, the Government of Canada pledged to fund the Court Challenges Program cases already approved (old cases still ongoing) and to establish the Language Rights Support Program.
Modernized Court Challenges Program
Through the Court Challenges Program:
- Individuals or groups can obtain funding that allows them to bring and participate in test cases involving the rights and freedoms covered by the Program.
- The perspectives of individuals or groups who have received funding are brought before the courts in the context of test cases.
- The rights and freedoms covered by the Program are clarified and strengthened.
An independent body
In order to avoid any real or perceived conflict of interest with the Government of Canada, the Court Challenges Program will be implemented and managed by a third party. Among other duties, the independent body selected will be responsible for the general administration and implementation of the Program, including the management of the two panels of experts.
Panels of experts
Decisions as to which cases or projects will be funded under the Court Challenges Program will be made by two independent panels of experts: an Official Language Rights Expert Panel and a Human Rights Expert Panel. The seven members of each panel will be selected on the basis of their relevant legal expertise, and will report to the independent body.
A selection committee composed of senior civil servants and experts in official languages and human rights will be responsible for pre-selecting qualified candidates for each panel, and recommending them to the Minister of Canadian Heritage.
The Court Challenges Program will provide funding for:
- developing test cases;
- litigation in test cases;
- legal interventions.
Rights covered by the Program
- The modernized Court Challenges Program will include all of the rights covered by the former Court Challenges Program and the Language Rights Support Program:
- Equality rights in the Charter (section 15; section 28 on gender equality; section 27 on multiculturalism)
- Official language rights in the Charter (sections 16 to 23 of the Charter; freedom of expression in section 2 of the Charter when invoked in an official language minority case)
- Official language rights in other parts of the Constitution and related laws will also still be included (section 93 or 133 of the Constitution Act, 1867, or as guaranteed in section 23 of the Manitoba Act, 1870)
The modernized Program will include these additional Charter rights:
- Freedom of religion, expression, association and assembly (section 2)
- Democratic rights, that is, the right to vote and be a candidate for election (section 3)
- The right to life, liberty and security of the person (section 7)
It will also include these parts and provisions of the Official Languages Act:
- Part I (Proceedings of Parliament)
- certain sections of Part II (Legislative and other instruments)
- Part IV (Communications and services to the public)
- Part V (Language of work within the federal institutions)
- Part VII (Promotion of English and French)
- section 91 (Staffing)
Quotes from stakeholders
“The revived and enhanced Court Challenges Program is a welcome and important addition to the enhancement and enforcement of constitutional human rights in Canada. Too often citizens cannot afford the litigation costs of maintaining democratic rights and freedoms granted by the Canadian Constitution. The expansion of the Program to cover not only additional official language rights and constitutional equality rights, but also fundamental Charter rights, is a demonstration of Canada's commitment to democracy, freedom and human dignity.”
—Michael Bergman, lawyer, cofounder of The Association of English Speaking Jurists of Quebec, and former member of the Board of Directors of the previous Court Challenges Program
“The Court Challenges Program is fundamental to the preservation of our Francophone minority communities. Asserting these rights is not easy, and the Program supports those who take action for the good of us all. For our community, this means a school and learning centre where we can learn, share, eat, play, laugh, sing and, yes, even dance together in French.”
—Noëlla Arsenault, Principal appellant, Arsenault-Cameron v. Prince Edward Island (2000) (Minority Language Educational Rights, Article 23, Canadian Charter of Rights and Freedoms)
“We at the Women’s Legal Education and Action Fund (LEAF) welcome the renewal of a modernized Court Challenges Program. Our cases have sought to improve women’s equality rights since our founding in 1985. Although much remains to be done before equality is achieved, support from this program will improve access to justice by helping LEAF and other equality-seeking groups to ensure that members of disadvantaged groups will have a meaningful voice in the evolution of constitutional equality rights in Canada.”
—Dr. Kim Stanton, Legal Director, Women’s Legal Education and Action Fund
“The Court Challenges Program is an important tool in creating equitable access to the justice and legal system with respect to equity rights. It is also an effective program that recognizes social change and emerging equity issues.”
—Pardeep Singh Nagra, Executive Director of the Sikh Heritage Museum of Canada
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