Government of Canada Reinstates Court Challenges Program

10 February 2017

By Valerie Le Blanc

On February 7, 2017, in a joint news release from the Department of Canadian Heritage and the Department of Justice Canada, the Court Challenges Program (“CCP”) was reinstated.  With an annual budget of $5 million, the goal of the CCP is to “better reflect changes in the Canadian jurisprudence by expanding the scope of eligible rights to sections of the Canadian Charter of Rights and Freedoms (the “Charter”) relating to fundamental freedoms, democratic rights, life, liberty and security of the person and most of the language rights guaranteed under the Official Languages Act.

A History of the CCP

The CCP started in 1978 to clarify constitutional language rights, but expanded between 1982 and 1985 to include language and equality rights under the Charter.  The program temporarily terminated in 1992, but was re-opened through the Court Challenges Program of Canada, a non-profit organization created to administer the CCP’s mandate of providing funding for cases that would clarify and assert language and equality rights under the Canadian Constitution.  In September 2006, the CCP ceased accepting applications for funding, and was effectively abolished.  In 2008, an out-of-court settlement reached between the Government of Canada and the Fédération des communautés francophones et acadienne, enabled the CCP to continue funding cases already approved prior to its closure, and to create the Language Rights Support Program.

In February 2016, the House of Commons Standing Committee on Justice and Human Rights began a study on access to justice by reviewing the CCP with a view to its reform and reinstatement.  In mandate letters issued from the Prime Minister to the Minister of Heritage and the Minister of Justice and Attorney General of Canada, a commitment was made to re-establish the CCP.  Between March and April 2016, the Department of Heritage Canada held consultations with a range of stakeholders interested in language and equality rights, and released a summary report on the findings.

The new CCP

The objective of the new CCP “is to provide financial support to Canadians to access the courts for the litigation of test cases of national significance, to help clarify and assert certain constitutional and quasi-constitutional official language rights and human rights in Canada.”  Funding from the CCP will be used to develop and litigate test cases, as well as support various legal interventions.  The CCP aims to:

  • Provide access to funding for individuals or groups to initiate or participate in test cases pertaining to rights and freedoms covered by the CCP;
  • Present the perspectives of individuals or groups who receive funding to the courts in test cases; and
  • Clarify and strengthen the rights and freedoms covered by the CCP.

The rights supported by the new CCP not only include official language rights, but also now capture human rights protected by the CharterFor a complete list of the rights covered, see the government’s backgrounder.

The CCP and Financing Litigation

The announcement of the CCP’s reinstatement comes at a time when the BCLI continues its Financing Litigation Legal Research Project, which includes examination of how publicly-funded programs like the CCP might assist British Columbians finance meritorious cases that enforce fundamental constitutional rights and freedoms.  Public interest cases have more commonly been covered by lawyers providing pro bono legal services, either in a private firm or through a public interest advocacy organization.  Much like class action cases, public interest cases address important legal issues that can have overarching impacts on society as a whole, but with relatively lower financial awards.  Of interest to the BCLI’s study is whether a publicly-funded program, similar to how class action funds are managed, could also be used as a way to pay for public interest litigation.

Implementation Plan for the CCP

Implementation and management of the new CCP will be done through a third-party, “to avoid any real or perceived conflicts of interest” with the federal government.  In addition to administering and delivering the CCP, the third-party would also administer the Official Language Rights Expert Panel and Human Rights Expert Panel, as well as promote the CCP.  The process for identifying members of each Expert Panel is expected to take place in the coming months.  Independent organizations wishing to be considered for the role of managing the CCP can obtain information on the application process here.

The aim is to have the CCP operational later this fall.  For more information on the reinstatement of the CCP, visit the Government of Canada website.

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