Courting Controversy: Substantive Equality and the New Court Challenges Program

Following through on their election promise, the Federal Government has committed to reinstating and updating the Court Challenges Program (“CCP”) after the Harper government cut the entire budget in 2006. The process is well under way, with funding promised in the 2016 Budget, stakeholder consultations and Parliamentary Committee hearings currently in progress.

In its previous iteration, the CCP was made up of two separate panels: a Language Rights Panel and an Equality Rights Panel. The program provided funding for court cases of national significance that had the potential to advance constitutional language or equality rights. Equality cases were notably restricted to (a) challenges to federal laws, legislation, policies or practices, (b) that were based on s. 15 of the Charter, or invoked s. 2 (fundamental freedoms) or s. 27 (multiculturalism) in support of s. 15 of the Charter.

Much has changed in the intervening decade since the program was terminated, particularly when it comes to the evolution of Charter jurisprudence. Reinstatement provides an opportunity to critically assess the limitations of the former program, while also imagining what a more effective version might look like. Those with a stake in fundamental human rights litigation can be expected to propose a number of improvements to the regime: abandoning the purely federal focus, supporting fundamental human rights claims based on the Official Languages Act and the Canadian Human Rights Act, expanding the program to better cover the rights of indigenous peoples, and others.

In this piece, however, we wish to emphasize two restrictions on the prior regime that are seriously out of step with developments in Charter jurisprudence in the area of substantive equality — broadly conceived — since 2006. First, ss. 7-14 legal rights under the Charter were not eligible for funding — even when brought in connection with s. 15. Second, claims to advance the constitutional protection of marginalized groups would not be funded unless they were tied to s. 15. In our view, these restrictions are not justified, nor are they consistent with the goals of the publicly-funded CCP.

A scheme for publicly funding fundamental human rights litigation must recognize that government resources are limited. Not all cases can be funded, and even meritorious cases may fall outside the scope of the scheme. The structure of the former CCP prioritized claims with a collective dimension — cases that would have implications beyond the interests of individual litigants. The focus on minority language rights and s. 15 of the Charter indicates that the aim was to make funding available to marginalized groups. This aim is sensible, as such groups may be least able to access the justice system in order to assert their fundamental rights.

We suspect that the need to tie substantive equality claims to s. 15 of the Charter was based on the (not unreasonable) expectation that s. 15 would be the primary vehicle for advancing substantive equality through litigation. We also suspect that the exclusion of ss. 7-14 legal rights was based on two main assumptions: first, that legal rights are too individualized to serve the collective goals of the program; and second, that individuals facing ss. 7-14 rights deprivations would already benefit from state-funded legal aid, particularly in criminal cases.

These assumptions have not been borne out by recent Charter jurisprudence. There has not been a successful s. 15 claim before the Supreme Court of Canada since the 2007 decision in Canada (Attorney General) v Hislop, 2007 SCC 10, [2007] 1 SCR 429. In many ways, other Charter provisions have been more effective at protecting the rights of marginalized and vulnerable groups than s. 15 itself.

In Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331, for example, the Court struck down the criminal prohibition of physician-assisted dying, finding that it violated the s. 7 rights of competent adults seeking such assistance as a result of a grievous and irremediable medical condition causing enduring and intolerable suffering, and that this violation was not justified under s. 1. While the claimants invoked s. 15, the Court found it was unnecessary to consider that aspect of the claim. The claimants did not bring their challenge in the context of defending a criminal prosecution, but as an application for a declaration that provisions of the Criminal Code were unconstitutional. Their claim was therefore not funded by legal aid.

Similarly, in Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651, the Federal Court found that the government’s cuts to Interim Federal Health funding for refugee claimants and other persons seeking protection from Canada amounted to cruel and unusual treatment under s. 12 of the Charter, and was not justified by s. 1. At the same time, the Court rejected the challenge based on s. 7 of the Charter and all but a narrow aspect of the s. 15 argument. Indeed, s. 15 only protected one class of claimants (refugee claimants who were excluded based on their country of origin). The broad basis for the ruling was s. 12 and, despite the most fundamental human rights interest it protects, the application was not covered by legal aid, nor would the s. 12 aspect have been eligible for funding under the old CCP.

The reluctance of courts to extend s. 15 to protect the economically marginalized is another reason why funding for litigation that raises substantive equality issues should be decoupled from the need to make a s. 15 claim. In Dunmore v Ontario (Attorney General), 2001 SCC 94, [2001] 3 SCR 1016, the Supreme Court considered the constitutionality of legislation that excluded agricultural workers from the standard labour relations regime. The majority of the Court found the legislation unconstitutional because it violated s. 2(d) freedom of association, but found it unnecessary to decide whether it violated s. 15(1).

Ten years later, in Ontario (Attorney General) v Fraser, 2011 SCC 20, [2011] 2 SCR 3, the Court considered the constitutionality of labour relations legislation specifically targeted at agricultural workers. The majority in that case found the legislation constitutional, notably finding that the agricultural labour relations regime did not violate s. 15 because there was no evidence that it utilized stereotypes or perpetuated existing prejudice or disadvantage. Although agreeing in the result, Justice Deschamps’ reasons argued that “[t]o redress economic inequality, it would be more faithful to the design of the Charter to open the door to the recognition of more analogous grounds under s. 15, as L’Heureux-Dubé J. proposed in Dunmore.” To get to such an approach, however, “would entail a sea change in the interpretation of s. 15 of the Charter” (at para 319). It therefore seems likely that, at least for now, Charter litigation to advance substantive equality for the economically marginalized will often depend on provisions other than s. 15.

Even in the context of the criminal justice system, legal aid and funding tied to s. 15 of the Charter will often be inadequate to advance substantive equality claims — particularly when the litigation targets systemic injustices. Legal aid regimes are marred by gaps and inconsistencies and vary across provinces and territories. Simply put, they are ill-suited for complex Charter challenges.

In January 2015, the British Columbia Civil Liberties Association, along with the John Howard Society of Canada, launched a constitutional challenge to the use of solitary confinement in Canada’s federal prisons. The groups argue that sections 31, 32, and 33 of the Corrections and Conditional Release Act violate ss. 7, 9, 10, 12, and 15 of the Charter. While some prison law issues are covered by legal aid in British Columbia, fear of reprisals among inmates led two institutional plaintiffs to launch this systemic challenge, rather than individuals. The case obviously raises important substantive equality issues, including the overrepresentation of those with mental health issues in solitary confinement. It is unfortunate that the legal rights aspect of their case would not be eligible for funding under the old CCP, and that funding could be denied altogether if the panel viewed the s. 15 argument as unmeritorious — regardless of the strength of the other Charter claims.

In addition to this recent example, it is easy to envision other Charter claims to protect the collective rights of prisoners — a marginalized group — that may not be eligible for legal aid and would not fall neatly into s. 15. These could include challenges to prison policies leading to overcrowding (ss. 7 and 12), restrictions on access to reading materials (ss. 7 and 2(b)), and limitations on religious practices (ss. 7 and 2(a)), to name just a few. A CCP focused on promoting substantive equality should not exclude such claims from the outset.

Ultimately, forcing marginalized groups with meritorious Charter claims to frame their arguments in terms of s. 15 is both unfair and wasteful. The practical effect of requiring a connection to s. 15 will be to encourage applicants for funding to simply add on a s. 15 claim to the list of arguments they propose to raise. If ss. 7-14 legal rights remain excluded from funding, litigants may be encouraged to abandon or place less emphasis on the strongest arguments in support of their case.

The panel reviewing a claim for litigation funding will have to make a preliminary assessment of whether the claim is meritorious. If funding depends on a s. 15 connection, it is likely that applications with a strong s. 7 claim and a merely tacked on (and unpersuasive) s. 15 claim will be denied.

The need to make a s. 15 argument will also unnecessarily complicate funding applications and the review process. Rather than encouraging claimants to present the strongest Charter case for the panel’s consideration, one that best redresses substantive equality issues, the panel will be burdened with sifting through claims awkwardly shoe-horned into s. 15.

Finally, bringing a s. 15 Charter claim is costly because of the heavy evidentiary burden in establishing comparator groups and adverse effect discrimination. It is imprudent to incentivize plaintiffs to bring s. 15 claims as a condition for receiving funding, when the claims may be better and more efficiently advanced under other provisions of the Charter.

Instead of formalistically excluding certain claims for failing to invoke s. 15 of the Charter, we propose a more substantive approach. Charter claims by marginalized groups that raise issues of national importance and are aimed at improving substantive equality should be seriously considered, regardless of the specific Charter provisions they raise. While we welcome the reintroduction of the program, the pursuit of substantive equality requires more.

_______________________________________

Jennifer Klinck practices constitutional and administrative law at Power Law in Vancouver.

Kyle Kirkup is a 2013 Trudeau Scholar at the University of Toronto Faculty of Law. In July 2016, he will be joining the University of Ottawa Faculty of Law (Common Law Section) as an Assistant Professor. Follow him on Twitter @kylekirkup.