Will the Trudeau government design the Court Challenges Program to survive future changes of government?

Here we go again.

The oft-cancelled Court Challenges Program (CCP) is to be resurrected.  The program, which sees the federal government subsidize activists and interest groups to sue it and other governments using the Charter of Rights, has been established and cancelled several times throughout its controversial 40-year history.  This year’s federal budget set aside an annual $5 million budget to start up the program once again.  Why has this little program become a political football?  Can the Trudeau government give it a more stable life?

Prime Minister Pierre Trudeau created the CCP in 1978.  It was part of a broader Liberal effort to undermine the Parti Québécois (PQ) government, in this case by paying activists to challenge the PQ’s Bill 101 and, for good measure, the unilingualism legislation of other provinces, in court.  The elder Trudeau used the Charter of Rights to create new language rights in the area of education, so in 1982 his government expanded the CCP to cover these new rights.  And when the Mulroney government was looking for a low-cost way to prove its “progressive” bona fides, it expanded the CCP again to support litigation by feminist, gay and disability rights groups.  Pretty soon, CCP-funded cases were forcing a broad-scale social reform agenda on governments from coast to coast.

The political agenda of the CCP and the idea of the federal government funding only one side in contentious litigation soon sapped the program’s political support.  In 1992, the Mulroney government was looking for ways to reduce government spending and closed it.  But the Liberals promised to re-establish the program during the 1993 election, turning it into a political football. The resurrected program was even more firmly married to progressive social reform groups, and it therefore ended up back on the scrap heap when the Stephen Harper Conservatives took office.  During last fall’s campaign, Justin Trudeau promised to re-resurrect the program, and discussions are now underway about how to design it.

Before the details of the new CCP are ironed out, Trudeau’s ministers should ask some fundamental questions.  Will it just be cancelled again by the next Conservative government?  Is it fated to be a political football?  Or could the Trudeau government do the country a service and set it up to survive future changes of government?  After all, the protection of human rights is supposed to be above partisan politics.  Shouldn’t a program to fund human rights litigation also be above partisan politics?

The new government’s challenge is to make the CCP less partisan than it has been in the past.

The new government’s challenge is to make the CCP broader and less partisan than it has been in the past.  The new CCP will certainly subsidize the equality rights litigation of socialreform groups. It will fund a new generation of test cases about equality rights, drawing the courts into issues around the rights of transgender Canadians.  And it will continue to finance cases about minority language rights.  But the Charter covers more than equality and language rights.  The new CCP should benefit more than just social-reform and minority-language groups.

Why not let the CCP finance free speech litigation by journalists like Ezra Levant and Mark Steyn?  After all, they have both paid a high price to highlight the oppressive provisions of federal and provincial human rights codes.  Why not let the CCP help traditional religious groups protect the rights of religious minorities in court?  Going beyond Charter issues, why not let the program finance challenges to interprovincial trade barriers?  If the CCP 3.0 had a board of directors and management team with a broader view of rights litigation, it should be able to survive a future change of government.

Whatever the Trudeau government decides about the scope of the program, it should be careful to keep it out of cases that pit one Charter right against another.  In the 21st century, human rights issues are not always as clear cut as they were in the early years after the Charter.  Back then, most rights litigation was trying to roll back oppressive government policies.  These days, the courts are often called upon to decide between two competing Charter claims in a single case.  The federal government should not be weighing in to finance one side or the other in cases like that.

Just such a case will likely come before the CCP as soon as it opens for business.  Trinity Western University, a private, evangelical university in British Columbia, is suing three provincial law societies over its right to have a law school.  Trinity Western, as befits a religious institution, expects its students to abide by traditional religious rules regarding marriage and sexuality.  Some law societies are refusing to recognize the credentials of its graduates, because they cannot tolerate an institution that does not embrace same-sex marriage.  In 2001, when ruling on a similar case about Trinity Western’s teacher training program, the Supreme Court said that neither freedom of religion nor equality on the basis of sexual orientation is absolute.  Since then, same-sex marriage became the law of the land.  The issue is therefore being litigated over again.

The new cases are on the way to the Supreme Court.  Will the resurrected CCP fund the equality rights side or the freedom of religion side?  Better to instruct the CCP to avoid this kind of case altogether.  Since the Supreme Court has recognized that in a conflict between equality rights and freedom of religion, neither side can make an absolute claim.  That, along with a broader set of directors and mandate, could relaunch the CCP without making it a political football again.

 


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