COURT CHALLENGES PROGRAM OF CANADA

PROGRAMME DE CONTESTATION JUDICIARE DU CANADA

ANNUAL RAPPORT 1994-1995

CCP's Logo

The triangle has always been a symbol for equality seeking groups. The symbol on the left side shows two triangles one over the other which, together with the sloped section to their right, represent a "C" for "Challenges". The scale, which is not supported in any way, represents the fragile nature of language and equality rights. Furthermore, the fact that one is more powerful than the other represents the unequal powers between the parties involved. The "C" challenges the inequality.

In addition, the sloped section is divided in three parts representing the funding of test cases and the appeal process of our legal system. Finally, this slope also means the enhancement and the progression of rights under the Canadian Charter of Rights and Freedoms.

The logo was designed by Nicole Martin, CCP’s national logo contest winner. Nicole’s passion for the creativity of computer graphic design inspired her to participate in Court Challenges Program of Canada’s contest. As a visual artist she privileges multidisciplinary processes which are the source of her artistic inspiration. She puts her knowledge of many artistic and cultural sectors to good use as the production coordinator at the Fédération culturelle canadienne-français, they profit from her knowledge of many artistic sectors.

The Court Challenges Program of Canada is funded by the Department of Canadian Heritage of the Government of Canada.

This report was prepared by François Boileau with the assitance of Joan M. Dawkins and Marc Tremblay.

Translation : Architexte Inc.
Lay-out and design : Stacy Nagle

This report is also available in French.


Further information my be obtained from:

Court Challenges Program of Canada /

Programme de contestation judiciaire du Canada
294, av. Portage, pièce 616
Winnipeg (Manitoba)
R3C 0B9
tél. : (204) 942-0022
téléc. : (204) 946-0669

© 1995

TABLE OF CONTENTS

President's Message

Executive Director's Message

Board of Directors

Part I- Re-instatement of Program

A) Background to Closure in 1992

B) Reinstatement Process

C) Contribution Agreement

Part II- Panels

A) Language Rights Panel

Equality Rights Panel

Part III- Cases Funded

Introduction

Language Rights Panel

Equality Rights Panel

Part IV- Financial Position

The Staff

 

President's Message

On behalf of the Board of Directors, I am very pleased to submit the first Annual Report of the Court Challenges Program of Canada, which is new indeed since not only did we sign a Contribution Agreement with the federal government on October 24, 1994 but we have also established a completely new organization.

The Court Challenges Program of Canada/Programme de contestation judiciaire du Canada is both unique in itself and quite distinct from its predecessor. This organization was created by an unprecedented amalgam of official language groups, organizations working in the field of equality rights, universities (primarily law schools) and various jurists' associations in this country.

Following intense activity, negotiations and compromises, all of us working together were able to reach agreement on an interim five-member Board of Directors, two of whom were appointed by language rights groups, two by equality-seeking groups and on jointly by academia and the bar. This Board subsequently established the Court Challenges Program of Canada Corporation and signed a Contribution Agreement with the federal government.

From the very outset of the Program we wished to respect a spirit of parity between language rights groups and those involved in equality rights. Although the majority of applications for funding come from equality-seeking groups, it seemed absolutely essential to maintain a balance on the Board of Directors. In other respects, notably the allocation of budgets for funding cases, the same break-down applies as under the former Program.

Two Rights Panels, completely separate from and independent of each other, were created following lengthy consultations with the communities, institutions and groups involved. The Language Rights Panel and the Equality Rights Panel will examine and fund applications to the Program. We are very proud to report that these panels began their deliberations as early as February of this year.

We still have a great deal of ground to cover. Unfortunately, the Agreement does not last for ever and we shall soon have to get down to work to ensure that it is renewed. In addition, it is clear that the Program's mandate needs to be broadened to include provincial legislation, policies and practices relating to equality rights. As for language rights, the Program's mandate should also include challenges with respect to the rights protected by the Official Languages Act. During the negotiations leading to the signature of the Agreement, the federal government seemed prepared to discuss possible extensions to the Program's mandate. At the time, however, our obvious priority was to reinstate the Program with a mandate similar to that which it had before being abolished in February 1992.

It would be unforgivable if I failed to mention the federal government's commitment to language and equality rights, especially the undeniable support offered by the Honourable Michel Dupuy, Minister of Canadian Heritage, in the reinstatement of the Program. I should also like to note the dedication shown by a large number of volunteers who contributed to the creation of this new Program. In addition, I wish to congratulate our staff, both those who were present in the early days in Ottawa and those now on the job in Winnipeg, for the professional approach and commitment they have displayed.


Fernand Landry
President of the Board of Directors


Executive Director's Message

A Contribution Agreement was signed with the federal government on October 24, 1994. The Court Challenges Program of Canada was officially launched. Immediately thereafter, the interim Board of Directors began a search for a suitable person to hold the position of Executive Director so that everything could be done to make the Program operational as soon as possible. It should not be forgotten that, when this Contribution Agreement was signed, the Program existed only on paper. Everything had to be built from the ground up. The documents of the former Program were either in the hands of the firm of accountants responsible for administering the remaining files, at the National Archives or in various research centres.

When I took up my position on February 20, 1995, a lot of work had already been done by Patricia File, the Co-ordinator of the Board of Directors. She has been instrumental in the reinstatement of the Program especially to rally the numerous equality seeking groups. However, much still remained to be done! Once Winnipeg, Manitoba had been chosen as the host city of the program, it was also necessary to decide on the exact location, negotiate the lease as well as purchase computers, furniture, filing cabinets and other equipment. Above all, however, it was necessary to equip the Program with a solid and effective team. Finally, in order to ensure uniformity in the analysis and processing of applications, it was necessary to put administrative policies in place.

Ten years after section 15 of the Charter came into effect, it is clear that a lot of work must still be done in order to achieve equality in areas under federal jurisdiction where progress appears slow. This becomes even more obvious when we see the incredible volume of applications for funding received by the Program since its reinstatement.

In the area of language rights, the question of school management is the number one priority. It is surprising, however, that thirteen years after the Charter took effect, the provincial and territorial governments make a mockery of their duties under the Constitution and still deny access by official language minority communities to the most fundamental rights in this country.

Before concluding, I should like to take this opportunity to express my sincere thanks to the members of the Board of Directors, especially the President, Vice-Rector Fernand Landry, for their constant support and the trust they have shown in me. I should also like to thank the staff of the Program for their devotion, professionalism and support in ensuring that our operations run smoothly.

In closing, I should point out that this renewal of the Court Challenges Program means that governments are becoming aware of the importance of respect for the constitutional rights of official language minority communities as well as the rights of members of disadvantaged groups. Long may the Court Challenges Program continue!


Francois Boileau
Executive Director

 

Board of Directors

Two Representatives One Academic and/or Two Representatives
from Equality Seeking Jurists' Association from Language
Organizations Representative Organizations

Chair, Equality Chair, Language
Rights Panel Rights Panel

<<TABLE 1>>

The Board members are Fernand Landry (Chair), former Dean of the Faculty of Law, University de Moncton, currently Vice-Rector of the same university; Avvy Go (Vice-Chair), former Equality Rights Panel member and former member of the Board of the Chinese Canadian National Council, currently Executive Director of the Metro Toronto Chinese and Southeast Asian Legal Clinic; Paul Charbonneau (Treasurer), former Executive Director of the Commission nationale des parents francophones, currently Executive Director of the Centre Hospitalier de Maniwaki; Andre Paradis, Executive Director of La ligue des droits et libertes, and a former member of the Advisory Committee on Equality Seeking Groups; and Victoria Percival-Hilton, formerly Director, Legal Affairs and Government Services, and interim Executive Director, Alliance Quebec, currently with the Legal Department, University of Concordia.

The Chair of the Language Rights Panel is Marc Godbout. The Co-Chair of the Equality Rights Panel that sits on the Board of Directors is Shelagh Day. Please see Part II for more details.




Part I
Re-instatement of the Program

The following principles and consideration serve to guide the interpretation of the terms of the Contribution Agreement with the federal government as well as the general mandate of the Court Challenges Program:

1. Recognizing the inequality that has existed for historically disadvantaged groups and official language minority communities, and the significance of the recent development of Canadian law and jurisprudence regarding equality and the rights of official language minorities;

Recognizing Canada's commitment to ensure respect for, and to promote and enhance the rights of official language minority communities and historically disadvantaged groups;

1. Recognizing the need to ensure access to the courts that will enable historically disadvantaged groups and official language minority communities to secure the realization of their rights and to ensure the execution of the judgements regarding their rights; and

2. Recognizing the international obligations to which Canada has agreed to be bound under

international human rights instruments;

3. The Program will provide assistance for test cases of national significance (without regard to geographical factors), put forward on behalf of or by groups or individuals, which will promote and enhance the language rights of the official language minority communities or the equality rights of historically disadvantaged groups.

4. The Court Challenges Program was initially conceived for language purposes in 1978 and expanded in 1985 when Section 15 (Equality Rights) of the Charter came into force. The abolition of the Program in 1992 was a blow for official language minority communities and historically disadvantaged groups since it was a key instrument in obtaining recognition of their rights. In this section, we want to recognize the importance of the role of these groups in the Program's reinstatement.

 

A. Background to Closure in 1992

Beginnings of the Program

When it was closed in 1992, the Court Challenges Program had two main aspects, equality rights and language rights. It is important to look back briefly at these in order to gain an understanding of this highly innovative and unique program.

In 1978, when the debate about language was at its height, especially in Quebec (following Bill 101) and Manitoba, a decision was made to create a program to fund the costs incurred by individuals wishing to apply to the courts to clarify the extent of their rights under sections 93 and 133 of the Constitution Act, 1867. At the time the federal government had complete control over the funding and thus also over the cases selected.

The adoption of the Canadian Charter of Rights and Freedoms in 1982 brought about substantial and permanent changes in the nature of language rights in Canada. The new provisions concerning language rights guaranteed not only individual but also collective rights for official language communities (especially section 23). The Program's mandate was accordingly broadened to allow challenges under these new provisions.

When section 15, which governs equality rights, took effect in 1985, it was again decided to broaden the mandate of the Program. Members of disadvantaged groups were now allowed to assert the equality rights they were guaranteed under the Constitution. This addition to the mandate was to some extent a response to the pressing demands of organizations representing women, persons with disabilities, various cultural and racial minority communities, gays and lesbians and other groups established to defend and promote equality. These groups argued that without public funding the newly acquired rights would not have had any impact since they would remain inaccessible to the people they were supposed to protect.

Since the Program involved challenges to the legislation, policies and practices of the federal government, it was important to allow for the creation of a program that was completely independent of government, which would find itself in a conflict of interest if it decided which cases should be funded.

The Canadian Council on Social Development (CCSD) was given the task of administering the Court Challenges Program from September 1985 to March 1990. Two independent panels were set up, one to study applications for assistance relating to language rights and the other to study applications relating to equality rights. These panels became the only bodies that could decide which cases were to be funded by the Program. In order to comply with the agreement signed with the federal government, the CCSD hired a team consisting of a Director, legal analysts and administrative staff.

 

Renewal of Program in 1990

The negotiations for the renewal of the Program were not easy. The federal government was slow to respond to demands for renewal. Officials in the Secretary of State Department and management consultants had first to complete certain analyses. In this situation, the Standing Committee on Human Rights and the Status of Disabled Persons held public hearings specifically concerning the Program. More than 60 witnesses from all parts of the country and from a wide variety of backgrounds appeared before the Committee. Besides expressions of the obvious satisfaction of client groups, lawyers and others, the Committee's report contained a large number of recommendations.

Some of these recommendations related to the mandate, and we shall consider them later, while others concerned the Program's arm's length relationship with the government and the need to find a host organization or institution.

The mandate of the Program was accordingly renewed for a five-year period when the government concluded an agreement with the Human Rights Research and Education Centre at the University of Ottawa. However, many of the Standing Committee's recommendations were ignored such as those advocating a broader mandate and a continuation of the funding of community activities, which will also be considered in another section of this Report.


Abolition of Program in 1992

The months of uncertainty concerning the renewal were expensive to the Program both in terms of staff and cases to be funded. The groups even cut down on their activities since they did not know whether the mandate would be renewed. Nevertheless, the Program rebuilt its team, computerized the files and adopted the University of Ottawa account management system.

This is why the announcement of the federal government's Budget Estimates in February 1992, which included closure of the Program, surprised all the parties involved. The Program's mandate had just been renewed after intense scrutiny by the Parliamentary Committee. Nonetheless, the Program was suddenly scheduled to shut its doors on September 30, 1992. The Annual Report of the Court Challenges Program for 1991-92 describes the whole situation surrounding the closure of the Program. For further information, reference should be made to that Report. However, the broad outlines should be noted here since the context surrounding the renewal of this Program necessarily reflected the closure of the former Program.

The government gave essentially two reasons for closing the Program:

1. Since the Program had made it possible to establish a substantial body of case law, it was no longer needed;

2. There were less costly ways to manage the funding of court challenges and a government department (in this case the Department of Justice) could do so on a case-by-case basis.

The Standing Committee on Human Rights and the Status of Disabled Persons met again in emergency session to study the issue of the Program's survival.

The Committee witnessed an unprecedented outcry. "The observations made to the Committee since the Program was cancelled have shown us the importance placed by the people of Canada on the principle of access to the courts. At no time during the 34th Parliament has the Standing Committee received so many briefs on a single subject. The comments submitted to us came not only from a former justice of the Supreme Court of Canada and municipalities such as Ottawa, but also from organizations such as Rural Dignity Canada, the Shelter for Abused Women and their Children, the Centre for Spanish-Speaking Peoples and the Inuit Women's Association."

In its June 1992 report entitled "Paying Too Dearly", the Committee concluded that the Program played an essential role in giving Canadians access to the courts. It also noted that a large number of experts had testified that the courts' interpretation of the constitutional guarantees relating to equality rights as well as language rights was merely in its very early stages. The Program had thus become indispensable to the development of new case law.

The Committee also concluded that the closure of the Program would not save any money and that the funds allocated to it had been soundly and efficiently managed. In the Committee's view, a lack of access to justice was too high a price to pay for the people of Canada in relation to the investment made in the Program. Finally, the Committee decided unanimously that this Program should be retained and restructured so that it would *protect the Program from the vagaries of the fiscal and financial imperatives of any government in the futureª.

The consequences of the Program's closure were difficult both for language groups and for equality-seeking groups. Many cases have been heard by the courts since that time and it is unfortunate that many groups have been unable to participate in the development of the law because they lacked the necessary funding. It is difficult enough to bear the moral, legal and often political responsibility for a case without having to assume the entire financial burden as well. An in-depth study of the specific consequences of abolishing the Program on the case law and the various groups involved should be made. However, that is not the purpose of this Annual Report.


B. Reinstatement Process

Period Following February 1992

Organizations representing minority official language communities and equality-seeking organizations exerted firm pressure on the federal government to make it change its mind. Various jurists' associations also demanded the reinstatement of the Court Challenges Program.

The Liberal Party of Canada, which was at that time the Official Opposition in the House of Commons, stated that the Program would be reinstated if the Party returned to power. The New Democratic Party also protested against the abolition of the Program.


Government Announcements

In a speech in Edmonton on August 30, 1993 The Right Honorable Kim Campbell, then Prime Minister, prior to the Fall election, announced the government's intention to reestablish the Program under a new name, namely the Charter Rights Enrichment Program. This announcement was crucial in the attempts to reinstate the Court Challenges Program because the Prime Minister's speech cast the die for all future negotiations. In effect, Ms Campbell said in her speech that the new Program would be a partnership between interested non-government organizations, associations of lawyers and various universities and research centres.

It is certain that this announcement was unanimously welcomed by the groups involved. Because the General Election took place the following October, very little was done during the period from August 30 to election day, October 25, 1993.

The Liberal Party of Canada's Red Book, which set out the Party's election platform, clearly expressed the Party's intention to reinstate the Court Challenges Program. The Throne Speech on January 18, 1994 unquestionably indicated that the reestablishment of this Program was a priority for the federal government.

Following the federal election on October 25, 1994 equality-seeking groups and those involved in language rights eagerly set to work to prepare for the reinstatement of the Program. As an aside, it should be noted that the former Program had two advisory committees, one for language rights and the other for equality rights. Both these committees suggested candidates to the Language Rights Panel and the Equality Rights Panel. The Advisory Committees were also very active through their involvement in politics, the media and the community in making recommendations for reforming the Program in 1990 and for reinstating it when it was abolished in 1992.

Equality-seeking groups prepared a proposal for the Department of Canadian Heritage, which was responsible for reestablishing the Program. These groups did not merely want to be consulted in the process of reinstating the Program but rather to be active partners. After all, the Program must belong to those groups that are likely to use it.

The language rights groups were also very active. The Federation des comminutes francophones et acadienne du Canada, among others, issued a press release heralding the Program's return on August 31, 1993. After lengthy consultations, these national groups representing minority official language communities were able to submit a brief to Mr. Dupuy containing their principal recommendations concerning the reinstatement of the Program.

The Canadian Bar Association also submitted a brief to Mr. Dupuy that contained a number of interesting ideas and further submissions were made by the University of Moncton, specifically its Law School, and the University of British Columbia to the Minister of Canadian Heritage, who was responsible for reinstating the Program.

 

Meetings on March 28 and 29, 1994

In order to co-ordinate the various submissions made to the Department and to enable the main stakeholders to meet with one another, the firm of Price Waterhouse was asked to conduct consultations in March 1994. Thus, some twenty members of groups working in the equality rights field, minority official language communities, academia and research centres as well as representatives of the Canadian Bar Association met in Ottawa under the supervision of Price Waterhouse. Also attending the meeting were resource persons invited at the express request of many of the participants.

As far as the future of the Court Challenges Program was concerned, this meeting proved to be decisive. The range of topics considered and the consensus that was achieved meant that the groups and institutions involved agreed on the actual basis of the Program as it now exists:

"The consultation was remarkable for the unity of purpose evidenced by the participants. All felt that the Program was important, fulfilled a vital role in the community and should be continued. In order to foster that unity of purpose, significant concessions were made by all invitees. The participants have created committees to make concrete proposals in order to have the Program running as soon as possible."

Abstract from the Consultation Report from Price Waterhouse (p.32)

Consensus was even achieved on a number of contentious issues. Further information may be found in the Price Waterhouse Report (available from the Program). However, since the current Program emerged directly from this consultation, it is important to look at the main subjects discussed. The federal government was not represented at these consultations.

 

Scope of Program

The federal government had indicated the parameters of the future Program earlier in the instructions it gave to Price Waterhouse. Nevertheless, the persons invited to participate reached agreement on a number of proposals concerning the mandate and scope of the Program. In essence, the government adopted the very mandate that the former Program has had until it was disbanded in 1992.

The participants also agreed that the mandate should be broadened to include provincial legislation, policies and practices relating to equality rights. They also agreed to review the question of fundamental freedoms (section 2 of the Charter) in terms of how the Program should address this provision. As far as language rights were concerned, the first imperative was to ensure that the new section 16(1) of the Charter was included in the mandate. It was also necessary for the Official Languages Act to be added to the Program's mandate.

Finally, it was necessary for the Program to provide litigation funding in cases brought under section 24 of the Charter or section 52 of the Constitution Act, 1867 to provide relief in cases relating to the rights included earlier in the mandate.

 

Allocation of Funding

Participants made a series of compromises to meet different needs and interests. They agreed that 20% of the total budget will be devoted to administration of the Program. They also agreed that 10% of the budget allocated to cases involving equality rights will be used for program promotion and access funding. Ten per cent of the budget for language rights cases can be used for negotiations.

The equality rights groups felt that the Program should be given the resources to enable it to approach the various communities and groups. In order to be effective, therefore, the Program had to make itself known to potential users. On the other hand, the language rights groups wished to ensure that the Program could fund negotiations with various provincial governments, especially with respect to school management.

In terms of overall budget, the participants agreed that administrative costs should be divided into equal parts and that any unspent funds should be distributed proportionately between cases relating to language rights and those relating to equality rights. Thus, 25% will be allocated to language rights cases and 75% to those involving equality rights; the same break-down applied under the former Program. This reflects the percentage of applications for financial assistance received by the two different parts of the Program.

 

Administration and Structure of Program

A consensus was also reached during these consultations concerning the administration of the Program. Several options were put forward but the one that was ultimately chosen was to create a new not-for-profit organization that would be completely independent of the federal government. This new organization would, to some extent, create partnerships with the universities, research centres and various bar associations across the country.

In order to reflect parity in the Court Challenges Program, language groups and equality-seeking groups will be equally represented on the Board of Directors.

The meeting also reached a consensus to the effect that two separate panels should be set up to decide which applications for funding made to the Program would be accepted. Thus, an Equality Rights Panel and a Language Rights Panel would be created. It was also recognized that the Language Rights Panel should have five members while the Equality Rights Panel, in contrast, would have seven members in order to reflect the different membership of the various groups involved and to promote equality of representation. At least one of the five members of the Equality Rights Panel will come from a racial minority and another from the groups representing disabled persons.

The participants also dealt with the important question of case funding. In essence, they reached agreement on the maximum amounts of case development funding, for court cases as such and for extraordinary funding. It was not until February of 1995 that the last details concerning case funding were finalized.


C. Contribution Agreement

Negotiations

At the consultation in May 1993 the guests agreed to create two committees to follow up on the ideas put forward during the two days of meetings. A steering committee was formed to represent the interests of the groups and institutions that had attended the consultation. This committee consisted of Dean Fernand Landry and Armand BQdard, representing the language rights groups, Shelagh Day, Sharon McIvor and the Reverend Ohanaka, representing the equality-seeking groups, and the former Director of the Program, Andre CóCote. The specific role of this committee was to provide the details missing from the consensus reached at the consultations and to represent the groups and institutions in negotiations with the federal government.

A second committee was established at the consultations to provide technical and administrative support to the first committee. This review committee consisted of Frantois Boileau, representing the language rights groups, Melina Buckley of the Canadian Bar Association and Patricia File, representing the equality-seeking groups.

First of all the steering committee filed a report that was attached to the Price Waterhouse Report on the Consultations. It contained the main points on which consensus had been reached as well as further details required for the establishment of a new organization.

A period of negotiations with the federal government followed, particularly in the late summer and fall of 1993. Before the Contribution Agreement could be signed, however, the organization had to exist in the proper form. An interim Board of Directors was accordingly established and took office.

On October 12, 1994 the letters patent confirming the existence of the Court Challenges Program of Canada/Programme de contestation judiciaire du Canada was registered under the Canada Corporations Act.

Finally, on October 24, 1994 the Minister of Canadian Heritage, the Honourable Michel Dupuy, signed a Contribution Agreement with the interim Board of the new Court Challenges Program of Canada.

 

Term and budget

The Contribution Agreement extends over a period from October 12, 1994 to March 31, 1998. The total annual budget is $2.75 million. Of this amount not more than 20% can be spent on Program administration.

<<TABLE 2>>

It should be noted that the amounts spent on Program management and on Program Promotion and Access may not exceed the amounts allocated in each financial year. In other words, if there is a surplus at the end of the fiscal year, the money may be transferred only to the general litigation section. It should be noted that in the other sections, including litigation, the amounts committed may not exceed the sum allocated plus the amount carried forward from previous years.



Mandate

Equality rights

Cases must involve the equality rights protected by sections 15 (equality) and 28 (gender equality) of the Canadian Charter of Rights and Freedoms (the Charter), or raise sections 2 (fundamental freedoms) or 27 (multiculturalism) in support of arguments based on section 15.

The cases must involve challenges to federal legislation, policies or practices. The Contribution Agreement indicates that the Program may not provide litigation funding to challenge provincial legislation, policies or practices or actions brought under the Canadian Human Rights Act.

<<TABLE 3>>

Language rights

Cases must relate to provincial or federal language rights protected by sections 93 or 113 of the Constitution Act, 1867, sections 16 to 23 of the Canadian Charter of Rights and Freedoms (the Charter), section 23 of the Manitoba Act, 1870, and section 2 of the Charter especially freedom of expression or a similar constitutional provision, when it is raised in support of other provisions relating to language rights under the Constitution.

The Contribution Agreement provides that the Program may not fund cases under the Official Languages Act.

<<TABLE 4>>


Part II
Panels

In late December 1994, approximately one thousand letters were sent to all the groups involved in the promotion of language rights, equality seeking groups, institutions, associations of lawyers, human rights commissions and other organizations. The primary goal of this extensive mailing was, above all, to inform client groups that the Program was back. Besides announcing the vacancy for an Executive Director, we also sought applications for the Program's two rights panels.

To ensure that applications for membership of these two panels would be examined carefully, the Board of Directors set up two selection committees. The members of these two committees were chosen following consultations with the members of the two advisory committees under the former Program. In addition, the members of the selection committee had to be well known in their fields and their communities.

The Panels members are appointed for up to three years. Each Panel is responsible for independently selecting the cases to be funded and establishing the amount of this funding. Panel members are given a per diem honorarium when the Panel sits and their reasonable disbursements for travel and lodging are reimbursed.


A. Language Rights Panel

Jose Bouchard, Gerald Levesque, Guy Matte, Raymond Poirier and Eric Setton constituted the selection committee. They had to choose five candidates from the twenty or so names submitted. Among the most important criteria was a requirement that all regions be represented. It was also necessary to ensure that the Panel would include professors, lawyers and people from the communities who had networking expertise. A single conference call enabled the members of the selection committee to agree on five names:


Marc Godbout (Chair)

Born in Ottawa, Marc Godbout obtained a Master's degree in Education from the University of Ottawa and has extensive experience in this field. In particular, he was President of the Conseil de l'Éducation franco ontarienne for the Minister of Education and Minister of Colleges and Universities of Ontario, and President of the Study Group on School Structures in Prescott-Russell. He was also President of the Sommet de la francophonie ontarienne, chaired the Conseil des presidents des organismes franco-ontariens en education and was Vice-President of the Association des surintendants francophones de l'Ontario. Mr. Godbout had been Executive Director of the Fédération des communautés francophones et acadienne for 3 years and has recently been appointed Vice-President of the City collegiate in Ottawa. He has chaired the Language Rights Panel since February 1995.

 

Yvan Beaubien

Yvan Beaubien has a Bachelor of Industrial Relations from Université Laval and has received training in community development at the Faculty St Jean in Edmonton. A carpenter, stone-mason and a railroad contractor, Mr. Beaubien has long been a builder. This did not change when he moved to Alberta, where he has devoted all his efforts over the last several years to the Francophone community. His beginnings in community development date back to his years as a worker in international development organizations such as Salvaide and Tools for Peace. Later he was the Community Development Officer with the Association canadienne frantaise de l'Alberta and Executive Director of the Fédération des parents francophones de l'Alberta. In this position he was actively involved in the school management issue, bringing together Franco Albertan parents, organizing their efforts and participating vigorously with them in the Mahé case and in the development of French-language school boards in Alberta.

 

Casper Bloom

Casper Bloom obtained his law degree from the Université de Montreal as well as a Bachelor of Arts degree (economics and political science) and a Master's in Business Administration. A former Batonnier of the Montreal Bar, he is actively involved in minority language cases addressing the fundamental needs of Anglophones in Quebec and Francophones elsewhere in Canada. Although his career has been marked by his publications and his participation in conferences on labour law and industrial relations, Mr. Bloom has also often been called upon to speak to a wide range of community, business and service groups on subjects related to the defence of minority language rights. Mr. Bloom practises law with the firm of Ogilvy Renault and lives in Montreal.

 

Marc Cousineau

Professor Marc Cousineau obtained a Bachelor of Laws degree from the University of Ottawa and a Master's degree in law from Cambridge University in England. He also has a B.A. and an M.A. in Philosophy from the University of Toronto. His publications include a report prepared for the Attorney General of Ontario entitled "L'utilisation du frantais au sein du system judiciaire de l'Ontario, un droit a parfaire" and "Belonging: An Essential Element of Citizenship - A Franco-Ontarian Perspective". Professor Cousineau has given lectures to several associations and groups on the use of French within the legal system, unionization and diversity in law schools. He teaches Law in the French Common Law Section of the University of Ottawa and is President of the Association des juristes d'expression frantaise de l'Ontario.

 

Louise R. Guerrette

Louise Guerrette obtained her Bachelor of Laws degree from the University de Moncton. For several years now she has been the Secretary General of the Association des juristes d'expression frantaise du Nouveau-Brunswick in Moncton. In addition to drafting legal precedents in French for use by the Association's members and popularizing law through educational tools and public legal information, she has also submitted reports at public hearings and before standing committees of the House of Commons and the New Brunswick Legislature such as the Beaudoin-Dobbie Commission and the Constitutional Committee of the New Brunswick Legislature. Ms. Guerrette is a member of the New Brunswick Bar and practises law as a lawyer and mediator in family and commercial matters.

 

B. Equality Rights Panel

Akua Benjamin, Bill Black, Andrew Cardozo, Lucie Lamarche and Gerald Miller had the arduous task of selecting a list of seven names from among the hundred or so received. Here again the selection committee had to ensure that those selected were lawyers, academics and persons from community groups. In addition, it was necessary to ensure that both sexes were fairly represented.

Following three conference calls, the members of the selection committee reached agreement on a list of seven names:

 

Shelagh Day (Co-Chair)

Shelagh Day received an M.A. from Harvard University. She has served as the Director of the Saskatchewan Human Rights Commission, was the first President of the Women's Legal Education and Action Fund and is the President and senior editor of the Canadian Human Rights Reporter. She was Vice-President and Co-Chair of the Justice Committee of the National Action Committee on the Status of Women. She is the author of several publications in the areas of human rights and equality rights including "Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back". Since 1987 she has practiced as a human rights consultant and conducted research into the adequacy of human rights systems in Canada. Recently she was a Visiting Fellow in the Human Rights Program at Harvard University. She lives in Vancouver.

 

Ken Norman (Co-Chair)

Professor Ken Norman received his LL.B. and B.A. from the University of Saskatchewan and a B.C.L. from Oxford University in England. He has taught law at the University of Saskatchewan since 1969 and has published in the areas of human rights, labour relations, and administrative and constitutional law. He has also written a number of reports and appeal case factums on similar issues. From 1978 to 1983 he was the Chief Commissioner of the Saskatchewan Human Rights Commission and a member of the Equality Rights Panel in the former Court Challenges Program from 1988 to 1992. Professor Norman lives in Saskatoon.

 

Daniel Dortélus

Daniel Dortélus received his Bachelor of Laws degree from the Université du Québec a Montréal. He has been a member of the Canada Employment and Immigration Advisory Council from 1990 to 1992 and a member of the Quebec Human Rights Tribunal since 1990. He has been Vice-President of the Congress of Black Lawyers and Jurists of Quebec and a Board member of the Ligue des droits et libertés and the Centre for Research Action on Race Relations. Mr. Dortélus is currently engaged in private practice in Montreal and lives in St-Hubert.

 

Amy Go

Amy Go received her M.S.W. from the University of Toronto and her B.A. in Psychology from the University of Waterloo. She is actively involved (as Chair and Past President) of the Chinese Canadian National Council, Evergreen Non-Profit Housing Corporation and the Coalition of Women for Employment Equity. For the government she has been a member of the Working Group on Integration and Services, the Ontario Advisory Council on Women's Issues (President), and the Minister's Advisory Groups on Employment Equity Legislation and on the new Social Assistance Legislation. At the present time she is Director of Senior Services at the Woodgreen Community Centre in Toronto and has devoted much of the last ten years to working with racial minority and women's communities to combat systemic racism, sexism and discrimination. She lives in Toronto.

 

Sharon McIvor

Sharon McIvor received her Bachelor of Laws from the University of Victoria and recently successfully defended her LL.M. thesis at Queen's University. She is a Lower Nicola Indian Band Member and has worked as the Justice Co-ordinator for the Native Women's Association of Canada for the last three years. At the present time she is Professor of Aboriginal Law at Queen's University, a member of the National Aboriginal Advisory Committee to the Commissioner of Correctional Services Canada and has been a member of the Task Force on Federally Sentenced Women. She was a member of the Equality Rights Panel of the former Court Challenges Program and is currently a member of the Law Society of British Columbia and has been involved in many equality cases in the Supreme Court of Canada, including O'Connor and NWAC. She has given many speeches and published many articles on the subject of Aboriginal women's rights, Aboriginal self-determination and gender equality in the legal profession. She currently lives in Ottawa.

 

Carmen Paquette

Carmen Paquette received her M.A. in Adult Education from the University of Ottawa. She has worked actively over the last twenty years with a range of communities on women's issues, international development, minority rights, Francophone issues, health issues, gay and lesbian issues and work-place innovation. She has been a literacy worker in Haiti and was a founding member of Action Education femmes, a Francophone women's adult education organization. She has just completed three years as an Ontario Human Rights Commissioner. Ms Paquette is currently a consultant in the Convergence firm and lives in Ottawa.


Yvonne Peters

Yvonne Peters obtained her LL.B. and B.A. from the University of Saskatchewan. She also received her Bachelor of Social Work degree from the University of Regina. From 1989 to 1993 she was the Executive Director and Litigation Director of the Canadian Disability Rights Council. Ms Peters is currently practicing as an equality rights and human rights lawyer, providing legal research and consultation services for governments, community groups, labour unions and corporations on the impact of human rights legislation and the Charter. Her most recent projects include the provision of advice on legislative reform in the area of human rights, identifying the implications of reproductive technology for men and women with disabilities, and developing an international structure to advance the human rights of persons with disabilities. She co-ordinated the interventions of equality groups in the Swain and Mossop cases in the Supreme Court of Canada. She lives in Winnipeg.

 

Part III
Cases Funded

A. Introduction


Selecting the members of the two panels took some time. The Board wished to ensure that the most effective process was used for this. Accordingly, the new members of the Language Rights Panel and the Equality Rights Panel did not hold their first meetings until February 25 and 26, 1995. The panel members already had decisions to make at those meetings.

 

Meetings in February 1995

At the outset it was important for these two panels and the Board to reach agreement on administrative policies in order to ensure a certain consistency in the processing of cases. Consequently, the Language Rights Panel, the Equality Rights Panel and the Board of Directors met in Toronto on February 25 and 26, 1995.


Guidelines for use by applicants when they seek assistance from the Program were adopted. One of the rules relates to the confidentiality of files. Any application to the Court Challenges Program is treated in the strictest confidence. We are bound by solicitor-client privilege and we may accordingly reveal only those cases that the Program has decided to fund. We may not disclose which applications are in the process of being prepared since these potential cases are not yet in the public domain.

 

Maximum Amounts


The following are the maximum allowable amounts for the different types of funding and/or levels available to the Program :

Case Development up to $5,000
Additional Funding for Community Consultation up to $5,000
Trial Level Case Funding up to $50,000
Appeal Funding up to $35,000
Intervention Funding (Equality cases only) up to $35,000
Intervention Funding (Language cases only) up to $15,000
Extraordinary Funding (per Court level) up to $25,000
Negotiation Funding (Language cases only) up to $5,000
Program Promotion and Access Funding
(Equality only) available upon request

 

Applications

The applications received do not always satisfy all the requirements of our mandate. We do not begin to examine any application until a formal application is received in writing. An information kit describing the Program's conditions, how to apply and other administrative details is available to any person or organization requesting it from the Program.

<<TABLE 5>>

Retroactive funding

The Program does not as a rule cover expenditures incurred prior to its receipt of an application for financial assistance. However, because of the conditions surrounding the cancellation and the reinstatment of the Program, it was possible to obtain retroactive funding from the Program under very specific conditions until March 31, 1995. The application had to relate to a case that received funding under the previous Program and the expenditures involved must have been incurred between August 30, 1993 and October 12, 1994 (on which date the new Contribution Agreement came into effect). The same level of jurisdiction or a higher court might be involved.


B. Language Rights Panel

Since the Language Rights Panel met only once before the end of the fiscal year, the number of applications received was quite limited. As of March 31, 1995, 20 applications had been received, although five were considered in February. Several applications reached the program after the February meeting.

<<TABLE 6>>

Among the few files examined, questions surrounding the issue of management and control of minority language educational facilities have continued to garner the attention of the Panel. Thirteen years after section 23 of the Charter has come into effect, it may be time to place before the courts the issue of the scope, under section 24, of remedial rights where constitutional violations have occurred. Indeed, it is inconceivable that provincial and territorial governments are still violating the fundamental law of the land. As to other potential remedies, one still wonders whether section 16 stands on its own and grants rights that are enforceable. Finally, there is a dearth of significant cases where section 20 of the Charter, dealing with services and communications has been interpreted.

 

Séguin, Bourgeois, Landry v. The Queen

A group of parents demands the creation of a French language Catholic school board financed entirely and equitably from public funds in the united counties of Stormont, Dundas and Glengarry, in Ontario. The current legislative framework does not allow or require the creation of such a school board. The parents have launched a lawsuit which will be heard in Cornwall. In its February 25, 1995 decision, the Panel approved funding in principle in this case, subject to the Program's funding guidelines.

In addition, the Panel examined four further applications at that time but postponed its decision to a later date.

 

Language Rights Synopsis

The Language Rights Panel also appointed Professor Benoet Pelletier of the University of Ottawa Faculty of Law to carry out a study of language rights in Canada. The Panel members felt it was important to place language rights in this country in their sociological and legal framework and to determine the extent of these rights. This study is also designed to assist Panel members to focus their decisions and to become familiar with different ways of looking at the whole question of language rights in this country. In addition, this overall view will certainly encourage discussion among Panel members.

 

C. Equality Rights Panel

The Equality Rights Panel met in February 1995. However, the members also took part in three conference calls. The Program received 54 applications for funding, of which 15 were considered by the Panel before the fiscal year end. Although the Equality Rights Panel has approved three case development funding, the decisions and applications remain confidential as they are not, at that stage, in the public realm.

<<TABLE 7>>

It is difficult to measure the losses entailed through the cancellation of the Court Challenges Program in the recent past. This is even more so now that fiscal reality appears to have caught up with governments at the federal, provincial and territorial levels. However, the imperatives of sound fiscal management of public affairs should not be pursued at the cost of the most fundamental rights granted to citizens. It is thus that the Program becomes all the more important. In order to foresee upcoming issues, the members of the Equality Rights Panel and staff will refer to the papers prepared by Gwen Brodsky and Nitya Iyer for guidance on the interpretation of the work already accomplished and the work that remains to be done.

 

O'Connor v. The Queen Intervention

The Women's Legal Education and Action Fund (LEAF), in coalition with the Aboriginal Women's Council, the Disabled Women's Network of Canada and the Canadian Association of Sexual Assault Centres, was granted intervener status in this case by the Supreme Court of Canada. One of the issues before the Court in this appeal was the extent to which the accused in a criminal matter would be permitted to demand the disclosure of personal records regarding the alleged victim and/or other witnesses in the proceedings. The equality argument advanced by the coalition was based on the recognized relationship between sexual inequality and violence. LEAF was granted intervener funding by the Equality Rights Panel for its appearance before the Supreme Court of Canada.

 

Layland and Beaulne et al

The applicants, Pierre Beaulne and his male partner, Todd Layland, lived together as a couple for five months before applying for a marriage license under the Marriage Act of Ontario. They were refused a license on the grounds that only people of the opposite sex could marry each other. Charles Schouwerwou and William Shannon lived together in a conjugal relationship since December 25, 1987. In May of 1989, they participated in the Rite of Holy Union according to the scriptural practice of the Church of Jesus, the Christ. On April 6, 1993, they applied for a marriage licence at the City Clerk's office in Ottawa, and were refused on the same grounds. The applicants sought funding for a challenge to the federal common law restrictions on the capacity to marry which they allege is discriminatory on the basis of sexual orientation. The Panel approved funding for the appeal before the Ontario Court of Appeal. Layland and Beaulne are no longer participating in the litigation. The Panel has however confirmed its decision to fund the appeal by Shannon and Schouwerwou alone.

 

Equality for Gays and Lesbians Everywhere (EGALE)

EGALE received funding in the amount of $5,000.00 to conduct a national consultation with gay, lesbian and bisexual organizations to inform them about the Court Challenges Program and to discuss litigation priorities and concerns. Their project involved having a representative of EGALE travel to communities across Canada and meet with groups and individuals involved in equality seeking activities on behalf of gays and lesbians.

 

Minority Advocacy Rights Council (MARC)

The Equality Rights Panel granted $7 400.00 in funding to MARC for the following:-

expenses related to MARC's Montreal Minority Rights Symposium-
expenses related to MARC's Vancouver Minority Rights Symposium-
expenses for a joint project with the Court Challenges Program to develop and
distribute a brochure for cultural and racial minority communities regarding
section 15 of the Charter of Rights and Freedoms, the work of the Program and
resources available to assist groups and individuals to pursue test case litigation

The two (2) symposia included in their proposed agendas specific discussion of the Court Challenges Program and of specific litigation initiatives. Executive Director Francois Boileau attended and spoke at the Montreal Symposium in June, 1995.

 

Discussion Papers

Nitya Iyer of the University of British Columbia was commissioned to prepare a discussion paper which would address questions related to the relative absence of cases involving racial inequality in the jurisprudence concerning section 15 of the Charter. She will examine the reasons for this apparent absence, including the barriers faced by those attempting to use section 15 of the Charter to address problems of racial inequality in Canada - barriers in the Charter generally, in the jurisprudence and in the Court Challenges Program's mandate. In addition, she will discuss some strategies for overcoming the problems she identifies.

Gwen Brodsky, an equality rights lawyer from Vancouver, British Columbia, was commissioned to author a discussion paper to review developments in equality rights jurisprudence during the ten(10) years since section 15 of the Charter came into force in 1985. Her paper will discuss the concept of substantive equality and examine the extent to which a substantive equality approach to the interpretation of section 15 has been argued in and accepted by the Courts. She will also comment on the future of section 15 litigation in Canada and on the challenges which face substantive equality seekers in the decade to come.

 

Part IV

Financial Position

AUDITED FINANCIAL STATEMENTS

PRICE WATERHOUSE
Chartered Accountants
2200 One Lombard Place
Winnipeg, Manitoba
Canada R3B 0X7
(204) 943 7321
Telecopier (204) 943 7774

Price Waterhouse logo, depicting the letters P & W within a black
circle.

Oct 5, 1995

Auditor' Report

To the Board of Directors of Court Challenges Program of Canada
Programme de contestation judiciaire du Canada

We have audited the balance sheet of Court Challenges Program of
Canada - Programme de contestation judiciaire du Canada as at March
31, 1996 and the statements of designated funds receipts and
disbursements and revenue and expenses and equity for the year then
ended. These financial statements are the responsibility of
management. Our responsibility is to express an opinion on these
financial statements based on our audit.

We conducted our audit in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform an audit to obtain reasonable assurance whether the
financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the
amounts and disclosures in the financial statements. An audit also
includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall
financial statement presentation.

In our opinion, these financial statements present fairly, in all
material respects, the financial position of Court Challenges
Program of Canada - Programme de contestation judiciaire du Canada
as at March 31, 1996 and the results of its operations and changes
in its financial position for the year then ended in accordance
with generally accepted accounting principles.

Signed
Price Waterhouse
Chartered Accountants
COURT CHALLENGES PROGRAM OF CANADA
PROGRAMME DE CONTESTATION JUDICIAIRE DU CANADA
Price Waterhouse Logo

Oct 5, 1995

BALANCE SHEET

March 31, 1995

Assets

Current assets

Cash

$453,026

Accounts receivable

1,472

Funds held in trust (Note 3)

570,000

Asset total

$1,024,498


Liabilities and Equity

Current liabilities

Accounts payable & accrued liabilities

$34,035

Funds held in trust (Note 3)

570,000

Liabilities total

604,035

Equity

420,463

$1,024,498

 

Statement of Revenue and Expenses and Equity for the

Period from inception of operations on

October 24, 1994 to March 31, 1995

Revenue

Canadian Heritage contributions

$550,000

Interest

5,905

Revenue total

555,905

Expenses

Contractual labour

35,532

Travel and meetings

25,095

Advertising

21,341

Office and supplies

18,079

Salaries and benefits

13,249

Translation and interpretation

7,051

Audit fees

5,000

Panel members' fees

4,250

Other indirect costs

2,982

Facilities

2,134

Board member's expenses

729

Expenses total

135,442

Excess of revenue over expenses for the period and equity, end of period

$420,463


Notes to Financial Statements
March 31, 1995

1. Incorporation

The Court Challenges Program of Canada -- Programme de contestation judiciaire du Canada is a corporation incorporated without share capital under Part II of the Canada Corporations Act. The Corporation's objective is to clarify the constitutional rights and freedoms

Official language rights

Equality rights

by providing financial assistance for test cases of national significance.

 

2. Significant accounting policies

Revenue
Contributions and interest are recorded on the accrual basis of accounting.

Funds held in trust

Funds held in trust have been established to segregate monies received for special funding areas and related disbursements. Receipts and disbursements made from these funds are recorded on a cash basis of accounting.

3. Funds held in trust

Funds held in trust comprise the following:

Litigation Fund
The Litigation Fund is used to provide financial assistance for litigation expenses incurred for language and equality cases of national significance.

Program Promotion and Access Fund
The Program Promotion and Access Fund is used for activities which promote awareness of, access to, or capacity to use the Program (equality rights only).

Negotiation Fund
The Negotiation Fund is used to provide financial assistance to individuals or organizations for negotiating expenses incurred to resolve their disputes (official language rights only).

Case Development Fund
The Case Development Fund is used to provide financial assistance for obtaining supporting jurisprudence and legislative provisions to develop a case.

Impact Studies Fund
The Impact Studies Fund is used to provide financial assistance for the preparation of impact studies of important court decisions relevant to litigation under the Program.

Notes to Financial Statements…continued

March 31, 1995

Funds held in trust (cont'd)

Receipts

Litigation Fund

$300,000

Program Promotion and Access Fund

165,000

Negotiation Fund

55,000

Case Development Fund

50,000

Impact Studies Fund

-

Receipts Total

570,000

Disbursements

-

$570,000

 

Statement of Changes in financial position

A statement of changes in financial position has not been included as it would not provide any additional meaningful information.



The Staff

An extensive mail-out took place in late December 1994 to announce the reinstatement of the Court Challenges Program and also to solicit applications for the position of Executive Director. In addition, advertisements were placed in the major national daily newspapers, minority official language community newspapers and other community newspapers.

François Boileau was appointed to the position of Executive Director. He worked as an analyst in the Court Challenges Program prior to its closure in 1992. After spending some time in private practice, Mr. Boileau became in-house counsel to the Fédération des comminutes francophones et acadienne du Canada, where he also acted as a policy and legal analyst and took part in all the stages of our renewal. In effect, he played an active role in the process of reestablishing the Program by sitting on the review committee in the negotiations for the return of the Program. Besides performing the duties of Executive Director, Mr. Boileau also co-ordinated funding applications relating to language rights.

There was an extensive national campaign to solicit candidates for the positions of legal analysts. Notices and information were provided through the major national dailies and in law schools, human rights commissions and the minority official language communities, as well as equality seeking organizations.

Joan M. Dawkins was selected to be Assistant Executive Director and legal analyst for equality rights. In addition to her extensive experience in private practice, Ms Dawkins has also taught at Dalhousie University Law School, was Executive Director of Dalhousie Legal Aid Services in Halifax, Counsel to Family and Child Services in Kenora-Patricia in Northwestern Ontario and Executive Director of the Northern Flood Committee in Manitoba. She has also actively pursued her own particular interests in the fields of gender equality, poverty and aboriginal issues. In addition to helping the Executive Director in the administration of the program, Ms Dawkins also analyses and co-ordinates applications relating to equality rights.

Marc Tremblay was selected as legal analyst in both equality rights and language rights. Mr. Tremblay, a Franco-Ontarian, obtained a Bachelor of Law degree from the French Common Law Program at the University of Ottawa in 1990, and he later obtained a Master of Law degree from Cambridge University in England. He has taught law at the only two institutions in the world at which common law is taught in French, namely Ottawa and Moncton. In his experience in private practise (Scott & Aylen) he has always pursued his varied academic interests.

Stacy Nagle was appointed to be responsible for operations. She brings with her an extensive knowledge of the subject, especially in Manitoba, since, among other positions, she did similar work for the Community Legal Education Association (better known as CLEA) for many years.

Dianne Dorge and then Danielle Arnal have provided necessary administrative support during this period.