Funding Charter Litigation: Lawyers reflect on the revival of a cancelled program
Kiran Kang discusses the recent reinstatement of the Court Challenges Program with lawyers who relied on CCP funding to represent clients in key Charter cases.
Funding Charter Litigation: Lawyers reflect on the revival of a cancelled program
published by the Ontario Bar Association on March 20, 2017.
On February 7, 2017, the Federal Liberal government officially confirmed its commitment to reinstate the Court Challenges Program. The Program, cancelled in 2006 within weeks of the election of Stephen Harper’s first minority government, provided funding to individuals and groups seeking to enforce constitutional minority language rights and equality rights. Founded in 1978, the Program became central to the development of equality jurisprudence starting in 1985 when section 15 of the Canadian Charter of Rights and Freedoms (“Charter”) went into effect.
The Program has not been popular with Conservative governments. It was first cancelled by the Mulroney government in 1992 before being restored in 1994 under the Chretien Liberals. Some are asking whether the Trudeau government will take further legislative action to ensure the Program’s continued existence into the future. 
Supporters say the Program has been critical for giving life to the Charter and ensuring access to justice for some of the most vulnerable constitutional rights holders. David Baker, long-time disability rights advocate, says that the Program supported as much as 30 percent of his practice when it was in operation.  Without the Program, much of Baker’s public interest litigation practice would not have been possible. This included acting as lead council for the Council of Canadians with Disabilities (the “CCD”) in its epic battle for accessibility on Via Rail. In a landmark 2007 judgment, the Supreme Court of Canada ordered the Crown Corporation to remove barriers for persons who use wheelchairs in order to ensure equal and dignified access when using the national rail network.  Baker says that funding from the Court Challenges Program was key to enabling the cash-strapped CCD move forward with its case and bring the voice of Canada’s disability community to the table.
Similarly, Egale Canada Human Rights Trust, an LGBTQ advocacy organization, was a key beneficiary of the Program in the late 1990s and early 2000s, receiving funding for its critical work in affirming the equality rights of LGBTQ persons in cases across the country, including in Egan v Canada, Little Sisters, and the British Columbia same-sex marriage litigation. 
Cynthia Petersen, counsel to Egale, attributes the advancement of LGBTQ rights in no small way to the funding of the Court Challenges Program.  In 2000, for example, a CCP-funded national consultation was held in Toronto to discuss how to coordinate the same sex marriage litigation occurring contemporaneously in three provinces: British Columbia, Ontario, and Quebec. Petersen recalls this consultation as being a “really beneficial” opportunity for equality-seeking “activists, lawyers, and academics to come together and develop an action plan for the litigation”. Following the consultation, Egale successfully sought Court Challenges funding to bring a constitutional challenge, along with several same-sex couples, before the British Columbia Supreme Court (and, eventually, the province’s Court of Appeal) on the issue of the legitimacy of same-sex relationships and marriages. Petersen says that the Court Challenges funding “made the litigation possible”, particularly with respect to covering the costs of disbursements and experts.
Stories of success through the Court Challenges Program could also be heard from Muslim community groups who, in the years following 9/11, were concerned about profiling and discrimination. In February, 2005, for example, the African-Canadian Legal Clinic convened a CCP-funded, national consultation to discuss the issue of security certificates. The consultation brought together equality-seeking groups who together shared information and knowledge and brainstormed strategies, including how to best support the so-called ‘Secret Trial Five’. These were five Arab Muslim men who were challenging the statutory regime that permits the indefinite detention without trial of non-citizens suspected (usually on secret evidence) of posing a security risk. 
After the consultation, the National Council of Canadian Muslims (‘NCCM”) (or, as it was called in 2007, the Canadian Council on American-Islamic Relations) together with the Canadian Muslim Civil Liberties Association successfully sought CCP funding to intervene in Charkaoui v Canada in order to make amicus submissions to the Court on the rise of Islamophobia and the impact of negative stereotyping. Ihsaan Gardee, NCCM Executive Director, says:
As a leading national non-partisan, non-profit civil liberties & advocacy organization, the CCP enabled us to address the Court at a very important juncture. It also, importantly, allowed us to pay our lawyers. The Charkaoui case was not only the first time our organization appeared before the Supreme Court, it was the first time any Muslim organization had been granted leave to address the Court on behalf of Canada’s diverse Muslim communities. It allowed us to put the lived reality of Islamophobia before the Court, requiring them to hear about the concerns and challenges facing individuals and our communities, which are even more relevant today. 
These are just some of examples from the more than 1,200 cases  that the Court Challenges Program funded before it was axed in 2006.
The Liberal government’s decision does more than just restore the Court Challenges Program. The Program will continue, as it did in the past, to provide funding for test case development as well as funding actual litigation and interventions. The government has also promised to expand funding to litigation focused on other Charter rights, including fundamental freedoms (section 2), democratic rights (section 3), and rights to life, liberty and security of the person (section 7).  This came after months of consultation with various stakeholders, many of whom expressed concern that the Program’s historic focus on equality and language rights had failed to appreciate the complex and intersecting nature of issues facing members of marginalized groups. Cynthia Petersen, for example, appeared before the Standing Committee on Justice and Human Rights as part of its study on Access to the Justice System. She recommended that the government expand the scope of the Program, noting that there is “no hierarchy of [Charter] rights” and that it would be “artificial” to think that the most vulnerable groups in our society would only be faced with issues falling neatly under section 15.
Similarly, Raj Anand, a former member of the Court Challenges Program’s Equality Rights Panel, spoke about the benefits of an expanded Program during a fireside chat on the issue hosted by the David Asper Centre for Constitutional Rights in November 2016. Specifically, Anand voiced concern that many of the cases applying for funding from the Program were “hard to shoehorn” into a section 15 lens.  With the expanded scope of the Program’s funding, litigants will have more freedom to accurately state the source of their concern without being compelled to fashion their issue to suit a particular frame, which may or may not quite fit the legal test.
The reinstatement of the Program comes at a time when many have noted the relative decline in section 15 jurisprudence. While Anand has attributed this decline in part to the discontinuance of the Court Challenges Program in 2006 and the fact that fewer, more poorly supported cases have been brought to trial , others attribute the decline to the technical and complicated nature of the section 15(1) test which makes it an unlikely avenue for redress. 
Regardless of the government’s reason for expanding the scope of the Program’s funding, it is evident when examining Supreme Court jurisprudence that equality interests are being addressed under other Charter sections. For example, cases like PHS Community Services Society  in 2011, Bedford  in 2013, and Nur  in 2015 all raised important substantive equality issues yet were litigated primarily as section 7 cases. Similarly, the 2015 decisions in Loyola High School  and Saguenay  demonstrate how religious equality issues are dealt with primarily under section 2. With the expanded scope of Court Challenges funding, these cases may have been able to qualify for funding without needing to force the issues into a section 15(1) analysis.
Along with the expanded scope of the funding, the government also said that the new program will be implemented and managed by an independent body, with two expert panels rendering test case funding decisions.  The goal of this independent body is to ensure that decisions over who gets funding (and who does not) remain impartial and uninfluenced by government interests.
Some have raised concern that, although funding decisions will be made by an independent body, the committee may resort to picking and choosing between formal vs. substantive equality rights in cases of conflict between Charter protected groups. Some equality advocates worry that expanding the Program could seriously undermine, rather than reinforce, the goal of creating a more equal society. This would happen if the inclusion of new Charter rights were to open the door to those seeking to bring challenges to restrictions on hate speech, safeguards for sexual assault victims within the criminal justice system, LGBTQ rights, women’s reproductive choice, and affirmative action measures, among other hard-fought equality gains.
Others, however, suggest that there may be legitimate circumstances where it makes sense for the Program to fund both sides of a case. Baker and Petersen both point to the recent Carter case on assisted suicide/dying with dignity as a prime example, noting the principled division within the disability rights community on whether the judgment reduces or increases discrimination against the disabled. In such cases, Baker says, Court Challenges funding for opposing parties may be appropriate for the Court to have a complete view.
Lastly, the federal government announced that the new Program will receive $5-million in annual funding, up from the $2-million budget, circa 2006. Concern that the Court Challenges Program will be putting “big money into the pockets of constitutional lawyers” are misguided.  Petersen recalls funding from the Program as being essential to help cover the costs of disbursements, including the cost of experts. Baker notes the $150 hourly rate was a bare minimum. The government has not announced what the lawyer rate will be under the revived Program. Peterson says that Program funds never covered more than a small amount of her total legal fees in any case. Moreover, given that the Program has not increased rates for lawyers’ fees since its inception more than 30 years ago, it is hard to imagine how lawyers would “get rich” off of its funding. Although the Liberal government has not announced whether or not it intends to increase the rates under the revived program, the Program has also always required a sizeable pro bono contribution from lawyers who receive Court Challenges funding. Thus, those interested in applying for funding will likely need to budget accordingly to ensure the financial feasibility of doing their work on an at least partial, if not substantial, pro bono basis.