Liberals restore and expand court challenges program to support equality fights

“No matter how conscientious a government is when it proposes legislation, or how thoroughly a government studies a piece of legislation before it becomes law, there may still be unforeseen impacts on guaranteed rights,” Justice Minister Jody Wilson-Raybould said Tuesday as she and Heritage Minister Melanie Joly announced the renewed program.

“Protecting against these unintended consequences and ensuring that more vulnerable groups within society have the means to challenge the legislation under the Constitution and under the Official Languages Act is the right thing for government to do.”

The program was originally established in 1978 and played an instrumental role in many major constitutional challenges, including the fight for same-sex marriage and battles to clarify the rights of Metis and non-status Indians, before it was abolished by the previous Conservative government shortly after it came to power.

In 2008, an out-of-court settlement led the government to agree to fund litigation that had already been approved under the old program and to set up a separate language-rights support program.

The latest version — slated to be up and running by the fall — will receive $5 million in annual funding to support individuals and groups as they develop or litigate test cases, as well as funding for legal interventions in order to make arguments in test cases that are broader than those presented by the participants.

At least $1.5 million of that will be allocated for language-rights cases.

At a background briefing Tuesday, an official said as much as 20 per cent of the annual funding could be spent on administrative costs, initially, but the government aims to reduce that in subsequent years as the program gets underway.

The official also said the program is being streamlined to exclude activities such as the general promotion of rights, which will leave more room for funding test cases and access to the courts.

Kim Stanton, legal director for the Women’s Legal Education and Action Fund, described how the funding will help support marginalized and vulnerable people.

“We know that the groups that are intended to benefit from the equality guarantees in the charter are the least likely to have the resources to participate in litigation,” Stanton said.

Last fall, the House of Commons justice committee urged the Liberal government to enshrine the program in legislation to protect it from the whims of future governments.

That did not happen Tuesday, but Joly did not rule it out as a possibility later.

The Liberal government also highlighted that an independent body — managing two separate panels of experts, on official language rights and human rights — will oversee the new program to ensure that decisions over who gets funding — and who does not — remain independent and impartial.

Those interested in the job have until March 6 to apply.

Wilson-Raybould acknowledged on Tuesday the expanded scope could mean that the federal government helps to fund a challenge to its own controversial doctor-assisted death legislation that became law last June.

“There is the potential that through the independent allocation of dollars, that somebody may challenge our legislation on medical assistance in dying,” said Wilson-Raybould, before going on to defend the bill she helped shepherd through the legislative process.

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Joanna Smith, The Canadian Press

by Canadian Press

Liberals restore and expand court challenges program to support equality fights

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