COURT CHALLENGES PROGRAM OF CANADA

PROGRAMME DE CONTESTATION JUDICIARE DU CANADA

ANNUAL REPORT 1995-1996

The Court Challenges Program of Canada/Programme de contestation judiciaire du Canada is a non-profit organization independent of government. Its principal mandate is to provide financial assistance for test cases of national significance that will help promote and encourage the rights of official language minority communities and the equality rights of historically disadvantaged groups.

The annual report provides an overview of the major activities of the Court Challenges Program for the period commencing April 1, 1995 and ending March 31, 1996.

The annual report is divided into three main parts. The first part covers mainly the administration, the meetings of the Board of Directors, the Annual General Meeting, the by-laws and regulations, the financial statement, and human resources. The second part deals with the major cases funded by the Language Rights Panel. Finally, the third part deals with the most significant cases funded by the Equality Rights Panel.

Happy reading!

Court Challenges Program of Canada/Programme de contestation judiciaire du Canada is funded by the Department of Canadian Heritage of the Government of Canada

This report was prepared by François Boileau and Joan M. Dawkins

Translation: Translex

Layout and Design: Stacy Nagle

ISBN # 1-896894-00-3

For further information, contact:

Court Challenges Program of Canada /

Programme de contestation judiciaire du Canada

294 Portage Avenue, Room 616

Winnipeg, Manitoba R3C 0B9

Telephone: (204) 942-0022

Fax: (204) 946-0669

Web Site: http://www.ccppcj.ca

Electronic mail: info@ccppcj.ca

© 1996

ISBN # 1-896894-00-3

Table of Contents

President's Message

Executive Director's Message

 

Part I- Administration

Annual General Meeting

Board of Directors

Audited Financial Statements

Staff

 

Part II- Language Rights

Mandate

Language Rights Panel

Litigation Funding

Cases

Conclusion

Part III- Equality Rights

Mandate

Equality Rights Panel

Cases

Litigation Funding

Program Promotion and Access Funding

On the Horizon- The Economics of Equality

 

List of Tables

Table 1 Board of Directors

Table 2 Breakdown of Decisions on Language Applications

Table 3 Language Grants Made

Table 4 Language Applications Received by Provinces and Territories

Table 5 Language Applications by Category of Rights

Table 6 Equality Applications by Alleged Ground of Discrimination

Table 7 Equality Applications Received by Provinces and Territories

Table 8 Equality Grants Made

Table 9 Breakdown of Decisions on Equality Applications

 

 

 

 

President’s Message

I could not end my second year as president of the Board of Directors of the Court Challenges Program of Canada without preparing a brief account of its achievements. Our last annual report covered in detail the process of reinstating the Program. I had the privilege of participating in the creation of the new national organization and can attest to the lively, dynamic and enthusiastic approach shared by many participants: my colleagues on the Board, Panel members, individuals working within the communities, as well as staff members.

The dynamic approach is all the more remarkable in light of the significant cutbacks non-profit organizations throughout the country are experiencing in their operating budgets. The socio-political situation in current years is very different from that of the 80’s when we spoke of creating and promoting new rights, whether they were economic, environmental or other. Now, it seems difficult to maintain what we have achieved. A single theme seems pervasive in the 90’s, that of fiscal responsibility. The negative impact of this approach on the most vulnerable members of our society is evident.

I do, however, want to congratulate those who continue to work and advocate in the current climate. In this context, the reinstatement of the Program comes none too soon; it is certainly refreshing to witness the commitment of the federal government to pursue the advancement of the rights of historically disadvantaged groups and those of official language minority communities. Now that we have been able to recover some of the time lost as a result of the abolition of the Program by the previous government, we invite the present government to renew the mandate of the Program within the coming year.

During the past year, we amended our by-laws and regulations to ensure that the members of the Program are the groups which we were created to serve. Any non-profit organization interested in supporting the Program’s objectives can apply to become a member. At the first Annual General Meeting, we already had a substantial number of members, on both the equality rights and the language rights sides. These members were able to vote on the composition of the Board of Directors and on the future priorities of the Court Challenges Program.

The Board of Directors also adopted a long-term strategic plan that will allow the Program to carry out its mandate and remain an active participant in the evolution of Canadian society. Among our priorities, the creation of partnerships with universities, research centres and various legal associations ranks very high. We also want to be more accessible to all Canadians who might need the Program.

In closing, I wish to sincerely thank my colleagues on the Board of Directors, the Panel members and the staff for their total dedication and professionalism.

 

Fernand Landry

Chair of the Board of Directors,

 

Executive Director's Message

This is already our second annual report since the reinstatement of the Court Challenges Program of Canada. The first annual report testified to the incredible story surrounding the re-establishment of the Program.

The year 1995-1996 was a year of construction. Just as on a real construction site, we undertook to build a solid foundation and started by hiring qualified, competent and dedicated staff. We were thus able to assemble a solid administrative base for the whole structure of the Program. Relying on the strength of our administrative policies, we are confident that we can fulfill our mandate.

We also developed a strategic plan and an action plan that will be useful in the years to come. Among our many priorities, we now choose to focus on Program promotion. There are still many individuals and groups who are unaware of their constitutional rights and the Court Challenges Program. By developing partnerships with other institutions and organizations, we will be in a better position to promote the Program.

We have received more than 200 applications for funding since the Program was reinstated, a clear indication of the anticipation and the need in the community for its funding. Each of the two panels, the Language Rights Panel and the Equality Rights Panel, has made decisions on a large number of these applications. Our role is to provide financial assistance to individuals or groups who wish to challenge legislation that contravenes their constitutional rights, as well as to assist them in presenting their applications for funding to the panels. Recognizing that we work in a highly specialized field, we must therefore find ways to make the Program’s activities more easily accessible to the public.

Equality rights and language rights are the very foundation of our Canadian society. Equality before the law and entitlement to the same benefits is not a privilege that is reserved for a select few, nor does it confer "second-class citizen" status on any other. Equality rights are not negotiable and they cannot be set aside because of difficult financial circumstances.

In the same way, while the concept of linguistic duality is indeed a historic reality, it nevertheless remains a current reality! Having two official languages does not mean that a country is trying to force its inhabitants to become bilingual. Rather, the linguistic duality aims to foster respect for the linguistic and cultural growth and development of minority official language communities - nothing more, nothing less.

In closing, I would like to sincerely thank the president of the Board of Directors, Fernand Landry, who deserves to be commended for the work he has accomplished over the past two years. Initially, he helped build the ship, then he successfully steered it to port. I would also like to thank the members of the Board of Directors, the members of the Language Rights Panel and the Equality Rights Panel, and the staff, for their dedication, professionalism and support, which has ensured the effective operation of the Program.

François Boileau

Executive Director

 

 

INTRODUCTION

The annual report provides an overview of the major activities of the Court Challenges Program for the period commencing April 1, 1995 and ending March 31, 1996.

The annual report is divided into three main parts. The first part covers mainly the administration, the meetings of the Board of Directors, the Annual General Meeting, the by-laws and regulations, the financial statement, and human resources. The second part deals with the major cases funded by the Language Rights Panel. Finally, the third part deals with the most significant cases funded by the Equality Rights Panel.

Happy reading!

 

PART I- OVERALL ADMINISTRATION

annual general meeting

By-laws and regulations

It is important to underline the uniqueness of the Court Challenges Program of Canada. The combined efforts and the willingness to compromise of groups representing the official language minority communities, groups working in the field of equality rights, as well as lawyers’associations and academics, contributed to the creation of the Court Challenges Program. The organizational structure of the Program appropriately reflects this.

At the Annual General Meeting of the Court Challenges Program of Canada, three main categories of members are represented: Language Members; Equality Members and the Board of Directors. Each member has the right to vote at the meeting.

Any organization from an official language minority community interested in pursuing the objectives of the Program may become a member of the Language Membership. In the same way, any organization working in the field of equality interested in pursuing the objectives of the Program may become a member of the Equality Membership. The Board of Directors must approve every application for membership in the Program.

In order for a motion to be carried or defeated at the Annual Meeting, a majority of votes in at least two of the three member categories is required. The historical parity between the language groups and the groups working in the field of equality rights has thus been preserved.

The members of the Equality Membership may appoint or elect two individuals to sit on the Board of Directors. The same applies to Language Membership. The fifth Director comes from an academic setting and/or a lawyers’ association. The final choice is made at the Annual General Meeting where all appointments must be ratified.

 

The Meeting

The first Annual General Meeting of the Court Challenges Program of Canada was held in Ottawa on November 18, 1995. At the meeting, in addition to ratifying the new Board of Directors, the new members of the Program had the opportunity to state their opinions on the major directions that should become priorities for the Board of Directors. It was clear from this meeting that the members wanted to see the Program’s mandate for equality rights expanded to include provincial legislation. Thus members directed the Board of Directors to examine the possibility of re-negotiating the Program’s Contribution Agreement with the federal government.

board of directors

<<TABLE 1>>

Composition

The members of the Board of Directors are Fernand Landry (Chair), former Dean of the Law School of the University of Moncton, currently Vice-rector of that university; Avvy Go (Vice-Chair), former member of the Equality Rights Panel and of the Board of Directors 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 Maniwaki General Hospital; Victoria Percival-Hilton, former Director of Legal Affairs and Government Services and Acting Executive Director of Alliance Québec, currently with the department of legal services of Concordia University in Montréal; and Fo Niemi, Executive Director of the Centre for Research-Action on Race Relations, located in Montréal, replaced André Paradis.

All the members were confirmed or elected to their positions at the Annual General Meeting of the Court Challenges Program. It should, however, be noted that the members of the Board of Directors decide among themselves who will hold the positions of Chair, Vice-Chair and Treasurer.

The Co-Chair of the Language Rights Panel who sits on the Board of Directors is Yvan Beaubien. The Co-Chair of the Equality Rights Panel who sits on the Board of Directors is Shelagh Day. Please refer to Part II and Part III for more information.

The Board of Directors met three times during the year 1995-1996, on April 28 and November 18, 1995, in Ottawa, and on February 10 and 11, 1996, in Winnipeg, and held at least fifteen conference calls.

Office opening

The first part of the fiscal year was mainly devoted to setting up the office itself. Selecting staff, renting workspace, purchasing equipment and other administrative details occupied a major portion of the activities of the Board of Directors.

At the official office opening on June 22, 1995, the Court Challenges Program of Canada issued a press release announcing the membership of the Language Rights Panel and the Equality Rights Panel. The Co-Chairs of the Panels took the opportunity to offer a few comments.

We are conscious of the fact that, even with the Program’s funding, we will never be able to match the government’s resources, but at least this funding provides communities with an added tool with which to fight for their rights.

Language Rights Panel Co-Chair, Marc Godbout

The Panel hopes that because of the funding available from the Program, cases can be brought forward that will contribute to giving equality rights real and practical meaning in this country.

Equality Rights Panel Co-Chair, Shelagh Day

 

Priorities

At its meeting on February 10 and 11, 1996, in Winnipeg, the Board of Directors adopted a long-term strategic plan. The plan provides details on the Program’s various spheres of activity including administration, the examination of funding applications, and public relations, including the distribution of information about the Program’s activities.

Priorities also include an external outreach plan. The Board of Directors feels it is necessary to create an awareness of the Program, especially among individuals and groups who do not have access to relevant information that might enable them to obtain recognition of their constitutional rights. An action plan was also established.

Following up on the priorities established at the Annual Meeting, the Board of Directors developed an action plan which will hopefully expand the Program’s mandate to include provincial legislation, regulation, practices and policies affecting equality rights.

 

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.

May 1, 1996

AUDITORS' 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

 

 

BALANCE SHEET

March 31
1996 1995

Assets

Cash

For operations $354,875 $453,026
For designated purposes (Note 4) 502,156 570,000

857,031 1,023,026

Accounts receivable 25,538 1,472

Total Assets

$882,569 $ 1,024,498


Liabilities and Equity

Accounts payable & accrued liabilities $54,150 $ 34,035

Designated funds 502,156 570,000
Equity 326,263 420,463

Total Liabilities and Equity $ 882,569 $ 1,024,498


Approved by the Board (signature) Director (signature) Director

 

STATEMENT OF DESIGNATED FUNDS RECEIPTS AND DISBURSEMENTS
Year ended March 31, 1996

Reader's note:
This statement was originally given as a table with one column for
designated fund items and seven columns for numbers. Below the
table has been broken into two pieces. The first table gives the
numbers for the "litigation", "program promotion & access", and
"negotiation" columns. The second table gives the numbers for the
"case developement", "impact studies", "total 1996", and "total
1995" columns.


End of reader's note.

 

Program
Litigation Promotion & Access Negotiation

Designated funds,
beginning
of year $300,000 $165,000 $55,000
Designated fund contributions from the

Government of Canada, Canadian
Heritage 373,650 37,365 12,455
Designated fund
disbursements (454,569) (77,029) (5,511)
Designated funds,
end of year $219,081 $125,336 $61,944

Allocated as follows:
Equality rights $69,904 $125,336 $ --
Language rights 149,177 -- 61,944
$219,081 $125,336 $61,944

Case Impact Total
Development Studies 1996 1995
Designated funds,
beginning
of year $50,000 $ -- $570,000 $ --
Designated fund contributions
from the Government of
Canada, Canadian
Heritage 69,748 4,982 498,200 570,000
Designated fund
disbursements (28,935) -- (566,044) --
Designated funds,
end of year $90,813 $4,982 $502,156 $570,000

Allocated as follows:
Equality rights $60,876 $3,736 $259,852 $352,500
Language rights 29,937 1,246 242,304 217,500
$90,813 $4,982 $502,156 $570,000

 

STATEMENT OF REVENUE AND EXPENSES AND EQUITY

Year ended March 31
1996 1995

 

Revenue

Contributions - Government of Canada,
Canadian Heritage $ 550,000 $ 550,000
Interest 41,883 5,905

Total Revenue 591,883 555,905

 

Expenses

Advertising 14,512 21,341
Annual meeting 6,558 --
Audit fees 5,350 5,000
Board members' lost wages 875 729
Contract labour 49,602 35,532
Equipment maintenance 7,339 --
Facilities 26,069 2,134
Legal fees 5,799 --
Office and supplies 85,330 18,079
Panel members' fees 23,750 4,250
Research material 6,686 --
Salaries and benefits 265,179 13,249
Start-up costs (Note 5) 109,189 --
Translation and interpretation 19,606 7,051
Travel and meetings 60,239 28,077

Total Expenses 686,083 135,442

Excess of revenue over expenses (expenses over revenue)
for the year (94,200) 420,463

Equity, beginning of year 420,463 --

Equity, end of year $ 326,263 $ 420,463

 

NOTES TO FINANCIAL STATEMENTS
March 31, 1996

1 Incorporation and contribution agreement

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 related to equality rights and official language rights by
providing financial assistance for test cases of national
significance.

The Corporation entered into a contribution agreement with the
Government of Canada on October 24, 1994 which sets out terms and
conditions governing the administration of the Corporation for the
period October 12, 1994 to March 31, 1998.

2 Significant accounting policies

Revenue
Contributions from the Government of Canada, Canadian Heritage and
interest are recorded on the accrual basis.

Designated funds
Designated funds have been established to segregate monies for
funding commitments approved by the Equality and Language Rights
Panels. Receipts and disbursements made from these funds are
recorded on a cash basis.

Income taxes
No provision has been recorded for income taxes because the
Corporation is non-taxable under Section 149 of the Income Tax Act

 

3 Designated funds

Designated funds have been established as follows:

Litigation Fund
The Litigation Fund is used to provide financial assistance for
litigation expenses incurred for language and equality cases of
potential 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 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, 1996

4 Commitments

The Corporation's Equality and Language Rights Panels have approved
commitments as follows:

Equality Rights Language Rights Total

Commitments approved by Panels $1,324,950 $587,157 $1,912,107

Disbursements paid 466,297 99,747 613,044
$ 858,653 $487,410 1,346,063

Cash held for designated purposes 502,156

Commitments to be funded by future contributions $843,907

The Corporation has an operating lease commitment for office
premises at an annual cost of $23,805 for a term that expires on
March 31, 1998.

 

5 Start-up costs

One-time start-up costs associated with relocating the
Corporation's head office during the year ended March 31, 1996,
including acquisition of computer and office equipment and
recruiting costs, have been written off in this current year.

 

6 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.

 

STAFF

With respect to the Program’s human resources, Marc Tremblay left his position as Legal Analyst in February 1996 to join the team of crown attorneys at the federal Department of Justice, Official Languages Section.

In March 1996, we welcomed Norma Won as Equality Rights Legal Analyst. Ms Won received her Bachelor of Laws from the Common Law Program at the University of Ottawa in 1994. After completing her articles, she was admitted to the Law Society of Upper Canada in 1996. Trilingual, Ms Won actively pursued her interests in the fields of human rights, gender equality and racial discrimination. As well as being an active member of the Canadian Lawyers Association for International Human Rights (CLAIHR), she completed an internship in South America with the Guyana Association of Women Lawyers. As a consultant with a Canadian non-governmental organization, she participated in the Forum for Non-Governmental Organizations and the fourth UN World Conference on Women which was held in Beijing in September 1995.

Richard Goulet also joined the team in April 1996 as Equality and Language Rights Legal Analyst. A Franco-Manitoban, Mr. Goulet received his Bachelor of Laws from the Common Law Program in French at the University of Ottawa in 1992. After completing his Articles, he was admitted to the Law Society of Upper Canada in 1994. Mr. Goulet is particularly interested in human rights, equality rights and language rights. He also holds a Master of History degree from the University of Essex in England.

 

PART II- LANGUAGE RIGHTS

mandate

Cases must involve the provincial or federal language rights protected by sections 93 or 133 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 where it is used in support of the other language rights sections in the Constitution and, in particular, freedom of expression, or the language rights protected by any parallel constitutional provision.

 

Language rights panel

The Language Rights Panel is made up of five members, Co-Chair Marc Godbout (Ontario), Co-Chair Yvan Beaubien (Alberta), Casper Bloom (Québec) and Louise R. Guerrette (New Brunswick). Professor Marc Cousineau (Ontario) had to leave the Panel to go to Rwanda to work on a project for the restoration of the judicial system. He was replaced by Sylvie Léger. An assistant professor in the Faculty of Law, Common Law Section, of the University of Ottawa, Sylvie Léger has been Director of the Canadian Centre for Linguistic Rights (CCLR) at the University since 1993. She received her LL.B. and LL.L. from the University of Ottawa and is currently completing her LL.M. at the University of British Columbia. In 1995, the proceedings of the first conference entitled Linguistic Rights in Canada: Collusions or Collisions? were produced under her direction. The following year, she was once again responsible for producing the proceedings of the second conference "Towards a Language Agenda: Futurist Outlook on the United Nations." Ms Léger is a member of the Ontario Bar.

 

litigation funding

Under the Contribution Agreement and the Program’s Funding Guidelines, the Language Rights Panel is permitted to grant funding of up to $50,000.00 for cases at the trial level and $35,000.00 for cases at the appeal level. Funding may be granted to applicants who are litigants or recognized interveners in cases which are within the mandate of the Program and satisfy the established funding criteria. Interveners are generally entitled to a maximum of $15,000.00, regardless of court level but the amount can go up to $35,000.00.

The Language Rights Panel may also grant funding for the development of cases which come within the Program’s mandate. When groups or individuals are considering court challenges but require financial assistance to do further research or other development work before they will be in a position to ask for case funding, the Panel may grant up to $5,000.00 for that purpose. If the proposed language argument in the case is one which needs to be clarified or improved by consultation with other members of the official language minority community, the Panel may provide up to an additional $5,000.00 for consultation at the case development stage.

 

Cases

Introduction

During the year 1995-1996, the Language Rights Panel met four times and held one conference call. The Program received 41 applications for funding and the Panel considered 32 of the applications. Six applications for funding were not reviewed (these were generally incomplete applications or applications that arrived too late for the Panel to consider them) and three were withdrawn by the applicants.

<<TABLE 2>>

In total, 24 applicants were granted funding by the Panel: 16 court challenges, 4 case development projects and 4 applications for negotiations.

<<TABLE 3>>

The applications come from nearly all the provinces and territories of Canada and raise a number of issues with respect to language rights guaranteed by the Canadian Constitution that are within the Program’s mandate. In particular, it should be noted that education rights still receive the majority of the attention, as documented later in this report.

<<TABLE 4>>

This report outlines the main court challenges which received funding from the Language Rights Panel. Unlike annual reports of the former Court Challenges Program, this report is not intended to be a complete review of the language rights situation in Canada. The Program contracted with Professor Benoît Pelletier of the Faculty of Law, Civil Law Section, of the University of Ottawa, to prepare a study on the current state of language rights in Canada as they relate to the Program’s mandate. In this study, Professor Pelletier provides a full account of all language rights within the Program’s mandate. This report is largely based on his study and in particular on the issues yet to be resolved in the area of language rights. Professor Pelletier’s study entitled Le Bilan des droits linguistiques au Canada is available upon request.

Similarly, it is worth noting that the annual reports of the Commissioner of Official Languages are an excellent source of information for anyone who wants an annual review of the language rights situation in Canada.

We have divided language rights into five main categories: legislative bilingualism; judicial rights; education rights; language rights involving language of work, communications and services; and fundamental freedoms. We will only note the Panel’s activities in each of these categories. For the full status of the law in this area, we once again refer you to Professor Pelletier’s text.

<<TABLE 5>>

Legislative bilingualism

Section 133 of the Constitution Act, 1867 authorizes the use of English or French in the debates and proceedings of the Canadian Parliament and the National Assembly of Québec. It requires the use of the two languages in the records, minutes and journals of each of these two assemblies. Finally, it provides that legislation must be printed and published in both languages. Section 23 of the Manitoba Act, 1870 contains similar provisions and makes those rights and obligations applicable in that province. Sections 17 and 18 of the Canadian Charter of Rights and Freedoms describe the same rights and obligations with respect to the Canadian Parliament and the legislature of New Brunswick. Section 18 of the Charter specifies that the English and French versions of a statute or other document are equally authoritative. Equal status is implicit in the other provisions mentioned.

It is now accepted that the interpretation of such provisions must be based on a philosophy of equality, the foundation of which is equal access for Francophones and Anglophones to the law in their respective language and equal participation in parliamentary debates and proceedings.

The obligation to print and publish legislation in both official languages therefore also applies to the process for the adoption of legislation.

Section 110 of the Northwest Territories Act contains similar provisions to those already enumerated, and the Supreme Court of Canada has decided that they apply to Saskatchewan and by extension to Alberta. Although they are constitutional provisions in the sense that they are part of the constitution of these provinces, the provinces can amend them unilaterally [Decision in R. v. Mercure, [1988] 1 S.C. R. 234]. In 1988, Saskatchewan and Alberta adopted legislation to retroactively validate their practice of unilingual English adoption of legislative texts. This legislation, at most, allows for the use of French before the legislative assemblies of these provinces; English has been declared the language of legislation, although the Saskatchewan legislation does provide for the adoption of bilingual legislation from time to time.

In Rottiers v. The Queen (19 January 1995), unreported decision of Mr. Justice Kyle, Court of Queen’s Bench (Court File No. 609), the applicant was issued a speeding ticket on September 4, 1992, in Regina, Saskatchewan. Mr. Justice Kyle attempted to resolve the case through reliance on two arguments, the first historical and constitutional, the second based on the province’s obligation to translate all important Saskatchewan laws into French. At the trial level, Justice Smith ruled in Mr. Rottiers’ favour on the basis of natural justice arguments. The Court of Appeal reversed the trial level judgment. The applicant, Mr. Rottiers, has sought leave to appeal before the Supreme Court of Canada. The Program granted retroactive funding to the applicant for his court challenge in René Rottiers v. The Queen (6 June 1995), unreported decision from the bench, Court of Appeal (No. 6613) Justices Vancise, Sherstobitoff and Jackson, before the Saskatchewan Court of Appeal.

A number of issues involving legislative bilingualism have yet to be raised at the highest court in the country. For example, we know that the bilingualism obligation also extends to delegated legislation in the following circumstances: a) regulatory documents adopted by the government, a minister or a group of ministers (except internal management regulations and directives), b) rules of practice of judicial or quasi-judicial bodies, and c) regulatory administrative documents if they are subject to approval by the government, a minister or a group of ministers [Decision in Blaikie no.2, [1981] 1 S.C.R. 312.]. As Professor Pelletier indicates:

[TRANSLATION]

One of these days, the Supreme Court of Canada will have to clarify the distinction

between what is properly called delegated legislation, which is subject to bilingualism,

and internal management regulations or directives, which are not. In the same way, the

question still arises whether the bilingualism regime applies only to regulations of a

standard, general and impersonal nature, or whether it also applies to orders in council,

letters patent, licences, orders, or other documents issued by the government to effect

appointments.

 

judicial rights

In judicial matters, language guarantees arise from section 133 of the Constitution Act, 1867, section 23 of the Manitoba Act, 1870 and section 19 of the Charter. These provisions authorize the use of English or French in any argument or document filed in evidence in proceedings in the courts established in certain provinces (Québec, New Brunswick and Manitoba) or by the Parliament of Canada, or issued by these courts. In the judicial area, language rights arise mainly with respect to the choice of language of proceedings and the right to address the court in the official language of choice.

Where a trial in English before a judge and jury is chosen by the accused, can the Crown prosecutor still address the judge in French, outside the jury’s presence? The Superior Court of Québec has rendered two contradictory judgments in this matter. In one case, the court found that paragraph 530.1 (e) of the Criminal Code contradicted section 133 of the Constitution Act, 1867 because it denied the prosecutor his constitutional right to use French before a court of law [R. v. Cross, (1993) 76 C.C.C. (3d) 445 (Québec S.C.)]. In the second case, however, another judge stated that section 133 protects the language rights of private parties and not the rights of individuals representing the Government, in this case Crown prosecutors [ R. v. Montour, [1991] R.J.Q. 1470 (Québec S.C.)] The Anglophone accused has tried to force the provincial Attorney General to assign English-speaking Crown prosecutors to the case.

The Program granted funding to Alliance Québec for its intervention in Cross (In the matter of a constitutional challenge against section 530.1(e) of the Criminal Code), at the Québec Court of Appeal. Alliance Québec wishes to intervene in support of the accused’s right to a trial entirely in the official language of his choice. The main question is how to balance the legislative right of an accused to choose the language of trial with the right of the prosecutors (and judges) to choose the language they will use before the courts.

Subsidiary questions could arise since the provisions of the Criminal Code have been in effect in all provinces and territories since 1990, and yet some of them do not have the required infrastructure to conduct a trial in French. Judicial guarantees such as the right to a trial within a reasonable period of time could be invoked. A recent study by the Commissioner of Official Languages reveals significant deficiencies in this regard in several provinces.

In another case where the Criminal Code is at issue, the applicant Rodrigue asked, at his preliminary inquiry, that the evidence against him be communicated in French. His request was rejected by the Yukon Supreme Court on the procedural question, and his appeal rejected by the Yukon Court of Appeal on the ground that no right of appeal existed on an interlocutory matter. At trial, Mr. Rodrigue intends to challenge, the absence of French translations of the evidence as an alleged violation of the language provisions of the Charter.

Finally, in another case, the Language Rights Panel granted retroactive funding to the applicant Robert Lavigne, for a challenge through an interlocutory motion before the Federal Court on May 14, 1995, as well as funding for his appeal before the Federal Court of Appeal. At issue here is the apparent conflict between the different players within the justice system, all of whom claim the right to express themselves in the language of their choice. Questions of language of service, the right to a fair trial, and the right to fully understand the evidence presented against the individual also arise here. Mr. Lavigne claims the right to have evidence translated in his language of choice in the context of a civil suit brought against a federal department.

Among the issues that remain to be resolved, it must be determined where judicial rights end and where the right to service in the language of one’s choice begins. If police forces cannot be required, on the basis of section 20 of the Charter, to use the language of an individual who has committed an offence, perhaps it would be possible to do so under the Criminal Code, by advancing the argument that the process begins the moment a suspect comes into contact with a member of the police force.

One may also ask what effect the right to choose English or French for a criminal trial would have on the interpretation of judicial guarantees provided by the Charter. In particular, this may affect the right to be informed of the reasons for arrest and the right to a lawyer (section 10). One may also ask whether lawyers providing legal aid be required to communicate in the official language of choice of their clients. The questions concerning the right to an interpreter (section 14) and the form of translation (simultaneous or consecutive), as required by the Constitution remain unresolved.

Finally, on another topic, still involving judicial rights, we may also ask whether the right to use one of the two official languages before the federal courts is compromised where the administration of federal laws (for example in bankruptcy and divorce matters) is handled by provincial courts. In view of the fact that in several provinces and territories, a party does not have the right to use French in judicial proceedings with respect to the application of laws of federal jurisdiction, it is legitimate to ask whether Parliament can, by delegating the administration of its laws, circumvent its language obligations under the Canadian Constitution.

 

Education rights

The majority of applications to the Language Rights Panel still focus on the issue of education, even though 14 years have elapsed since the coming into force of section 23 of the Canadian Charter of Rights and Freedoms. As you may recall, all provinces and territories (except Québec) were signatories to the constitutional changes of 1982. Yet, despite undeniable progress, Francophone parents still have to fight before the courts to have their rights recognized.

Section 23 of the Charter grants qualified parents the constitutional right to have their children instructed in the official language of the minority official language community. The wording of this section is highly technical, lengthy and complex. Judicial intervention appeared inevitable, even desired by the framers of the Constitution. In addition, the highest court in the country has affirmed the case by case approach, resulting in lengthy and costly court battles throughout the country.

Without going into detail, the Supreme Court in Mahé v. Alberta, [1990] 1 S.C.R. 342 interpreted section 23 of the Charter as granting a general right to instruction in the minority language which gradually increases as you advance on the sliding scale established by the Court.

For example, Francophone parents in Summerside, on Prince Edward Island, have been seeking a French language school for their community for a number of years. The Education Minister, citing the low number of children involved, has offered to bus the children to l’Évangéline, a French language school located 30 kilometres from Summerside. The Program has granted trial level funding to the Fédération des parents de l’Île-du-Prince-Edouard to allow them to challenge the Education Minister’s decision to refuse the parents’ request for the creation of a French language school in Summerside.

Section 23 also grants the language minority authority over the management and control of instruction and educational facilities. Section 23 establishes a sliding scale based on the number of children whose parents meet the requirements of this section. The minimum is the establishment of a program of instruction. The maximum would be the management and participation in the management of its own public education facilities. However, the right to control and manage may take many institutional forms. It is the responsibility of the provinces and territories to determine what form the exercise of the management right will take in their situation. The management right may, where numbers warrant, extend to the creation of an independent school board, but may also take the form of a right to representation on the school board of the majority.

Several significant judgments have been rendered by the courts to date. We have already mentioned the important Mahé case in the Supreme Court of Canada. This court has also decided the Reference Re the Public Schools Act (Man.), [1993] 1 S.C.R. 839. In this case, the court found that the Manitoba statute did not recognize Franco-Manitoban parents’ right to education management and ordered the government to introduce a structure that would allow the community to exercise its management rights. Professor Pelletier states:

[TRANSLATION]

If the 1993 Reference marks a gain for the Francophone minority in Manitoba, we are

forced to admit that it is relative. The Supreme Court of the country has really only

affirmed the Mahé decision, in letter and in spirit, and stated what everyone already

knew, that in the Manitoba context, section 23 involved the establishment of an

independent French language school board whose management and control would be the

exclusive responsibility of the Francophone language minority, which could provide

instruction in locations or institutions physically distinct from those of the majority.

In reality, the Supreme Court did nothing more in the 1993 Reference than confirm the approach it had taken in the past, maintaining that language rights are essentially political and must, as a result, escape too liberal or too precise a judicial interpretation. With respect to this issue, judicial restraint and the case by case approach prevail.

This may explain, in part, the large number of court challenges to the level of control over public education facilities, commonly referred to as education management. It is important to point out that minority official language communities have always based their case developments on rights to instruction and education management, an all-important aspect for these communities.

The Fédération des parents francophones de Terre-Neuve et du Labrador is of the opinion that the proposed legislation concerning education contravenes section 23 of the Charter. Although the Province recognizes the right to instruction in the French language, the Bill does not provide any management structure. The Fédération is seeking management authority closer to the high end of the sliding scale set out in the Mahé decision, that is full management and control of a French language school system. The parents are seeking an amendment of the Bill which would allow the establishment of an education management structure at the local and provincial levels. The Panel granted funding for the Fédération’s court challenge.

In Ontario, a group of parents is demanding 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. The current legislative framework does not allow nor require the creation of such a school board. The parents have launched a lawsuit that will be heard in Cornwall. The plaintiffs in Séguin, Bourgeois, Landry have obtained financial support from the Program. Given the provincial importance of the case and the significant contribution from interveners, and in particular the exceptional circumstances surrounding the case, the Panel granted funding to four interveners, the Association française des conseils scolaires de l’Ontario, the Association des enseignantes et enseignants franco-ontariens, the Conseil des écoles catholiques de Stormont Dundas et Glengarry and the Conseil de l’éducation catholique pour les francophones de l’Ontario.

In Manitoba, the Fédération provinciale des comités de parents believes that the provincial government has still not fulfilled its obligations with respect to education. The Fédération wants to undertake negotiations with the government to correct deficiencies in the Education Act, if any, not only to improve the existing Franco-Manitoban school system, but also to ensure that the next wave of program transfers, planned for September 1996, recognizes the rights of Francophone parents. The Panel granted funding for the negotiation.

In Alberta, a group of Francophone parents in Lethbridge is seeking the expansion of the French language instruction program beyond the sixth grade. The group is also demanding a separate facility which it would manage, a combined school and community centre. The local school board refused to expand the Francophone program and to grant a separate building that would allow Francophone students to achieve the objectives of French education provided for under provincial law. The Panel granted the group funding for the court challenge.

In British Columbia, the Association des parent francophones de la Colombie-Britannique is requesting the creation of a Francophone school board and also asking for compensation for damages caused by the provincial government’s refusal or failure to honour its constitutional obligations. This is the first time anyone has tried to use section 24 of the Charter (remedies section) in a case alleging a violation of rights provided by the Charter; this will be discussed again at a later point.

The Association is seeking the creation of a Francophone school board for the Prince George region. It proposes to amend its statement of claim for the creation of a Francophone school board in the region between the cities of Chilliwack and Victoria, to include all regions with a significant Francophone population. The Panel has granted its support to the Association.

Finally, the Association des parents francophones de Yellowknife is seeking the creation of a French language school board in the Northwest Territories. The Education Act, adopted on June 22, 1995, does not provide for the creation of such a school board. The Panel granted the Association funding for negotiations with the government in order to amend the Education Act and develop regulations to ensure that section 23 of the Charter is respected in the whole Northwest Territories.

There are many court challenges on the issue of education management, and further challenges can be expected in the near future. A number of issues still need to be raised for the benefit of minority official language communities. For example, what importance should be attached to the language skills of a child who wants to be instructed in the minority language, given the fact that the eligibility criterion is based on the mother tongue of the parents or on the language in which the parents received their primary education?

Should the government provide some kind of initial language training program where children of eligible parents experience difficulty in the minority language? What are the government’s responsibilities with respect to the linguistic and cultural homogeneity of schools?

Because the extent of the rights provided by section 23 depends on "where numbers warrant," disputes with public authorities may arise with respect to the places where instruction is offered; the scope of courses that must be offered to the language minority; the types of programs to adopt; the resources that must be allocated; the compulsory second language courses that must be provided; and the role of parents in the operation and content of instruction in the minority language.

What level of resources allocated to education in the minority language will be acceptable? The amount of resources must be allocated on the basis of quality of instruction; the quality of instruction in the minority language must, in fact, be equivalent to the quality of instruction in the majority language. This issue is currently being raised by Franco-ontarian parents in the Stormont, Dundas and Glengarry region. It will be one of the major issues for the future.

 

language of work, communications and services

Section 16 of the Charter

Subsection 16(1) of the Charter states that English and French are the two official languages of Canada and that they have equal status and equal rights and privileges with respect to their use in the institutions of Parliament and the government of Canada. A similar statement is contained in subsection 16(2) concerning the institutions of the legislature and government of New Brunswick. Finally, subsection 16(3) affirms the authority of the Canadian Parliament and provincial legislatures to advance the equality of status or use of the two official languages.

The courts have given little consideration to the interpretation of section 16. The Supreme Court of Canada has allowed itself to make a few comments, but it would be difficult to draw any definite conclusions about the effect of this section. It would therefore be difficult to say whether this section has only declaratory effect or whether it grants specific rights.

For example, can section 16 serve as the basis for an individual’s right to work within the federal public service (and the New Brunswick public service) in his or her own official language? No judicial decision has provided an answer to this question as yet.

 

Section 16.1 of the Charter

Section 16.1 of the Charter is a new constitutional provision stemming from the Constitutional Amendment, 1993 (New Brunswick). It is worth reproducing in its entirety here:

16.1 (1) The English linguistic community and the French linguistic community in New

Brunswick have equality of status and equal rights and privileges, including the right to

distinct educational institutions and such distinct cultural institutions as are necessary for

the preservation and promotion of those communities.

(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.

Professor Pelletier notes an important distinction to be made between the new section and section 16 of the Charter:

[TRANSLATION]

It must be noted, however, that the new section 16.1 differs from section 16 in that it is

based on the equality of the English and French linguistic communities of New

Brunswick and not on the equality of the English and French languages themselves.

Moreover, section 16.1 specifically provides the right to distinct educational and cultural institutions, which section 16 does not explicitly provide. Section 16.1 may therefore incorporate a collective or community meaning that section 16 of the Charter does not necessarily include. Finally, section 16.1 recognizes the role of the legislature and government of the province in preserving and promoting the equality of the linguistic communities mentioned above, which section 16 obviously does not. In this context, it seems that section 16.1 is designed to have an undeniable mandatory effect.

Here we have a constitutional provision dealing for the first time with the equality of communities and not simply the equality of languages themselves, which generally has a more individual meaning. A language right, of course, can only be described in terms of a social and cultural context, but it is important to point out that the framers of the Constitution wanted to specify that the two official language communities have equal status and equal rights and privileges. Apart from section 23 of the Charter, which is a fundamentally individual right, but which only has meaning when taken collectively in its implementation, section 16.1 has the potential to offer interesting possibilities. To date, we have not identified any decision by a court concerning the interpretation to be given to this section.

 

Section 20 of the Charter

Section 20 of the Charter grants the right, without exception or limitation, to communicate with the head or central office of institutions of the Parliament and government of Canada and the legislature and government of New Brunswick in the official language of choice. It also grants the right to communicate with and receive services from any other office of these institutions in the official language of choice. These rights are not unlimited, however; they are restricted by the tests of significant demand and the nature of the office.

Trial courts have begun to consider the interpretation of section 20, in particular in New Brunswick. A review of recent case law from New Brunswick reveals that the issue is not that simple to resolve, even for governmental agencies such as police forces. The question of federal corporations will certainly arise in the future. The degree of control of a corporation by federal authority considered sufficient to make the corporation subject to the Charter will have to be determined.

Many questions about this section remain unresolved. One may ask, for example, how to define "institutions of the Parliament and government of Canada" or "of the legislature and government of New Brunswick" referred to in sections 16 and 20 of the Charter.

There is also a need to ask how the term "public" should be interpreted. Does it include legal entities, groups and various associations, in addition to individuals? Canadian courts have not yet tackled the interpretation of "communications" and "services" in section 20.

One may also ask what is meant by the terms "significant demand" and "nature of the office." Although these terms have been defined in the Regulations adopted pursuant to the Official Languages Act (of which the majority of provisions came into effect in December 1992), certain legal arguments could be raised that these definitions restrict the scope of the rights more so than the rights provided in section 20 of the Charter.

In this regard, one must ask whether the Supreme Court will adopt the same interpretation for the Official Languages Act as for the Charter, in particular with respect to language of work and language of communications and services.

 

Decentralization or administrative devolution

The federal government’s jurisdiction to legislate with respect to language in its areas of jurisdiction has been clearly established. However, the question that arises is whether the federal government has an obligation under section 20 of the Charter to require the provinces and territories to respect the obligation to provide services to the public where the administration of federal laws is delegated to them. For example, could an action be brought under section 20 based on the fact that an individual was not able to obtain a divorce in French before the courts of a given province or territory?

Specifically, can the federal government transfer the powers it has appropriated over the years through its spending power, to the provinces and territories without attaching to them the responsibility to fulfil its obligations with respect to the official languages?

Can constitutional language obligations be circumvented by the delegation of federal administrative responsibilities to provincial bodies? If so, how? Should the federal government ensure the fulfillment, not only of its obligations to deliver services, but also its obligations pursuant to Part VII of the Official Languages Act, to enhance the vitality and to support the development of official language minority communities? What recourse (and against whom) will official language minority communities have in ensuring the preservation of their rights?

 

fundamental freedoms

Certain fundamental rights found in the Canadian Charter of Rights and Freedoms have a linguistic connotation. The most obvious example is freedom of expression which is protected by section 2 of the Charter. As you may recall, the Supreme Court of Canada has already given its opinion on the relationship between language and freedom of expression in cases arising in Québec, in particular with respect to the language used on signs.

The highest court in the country held that freedom of expression extends to commercial expression and also includes the choice of language of expression. Freedom of expression, as a fundamental right, is not respected if the use of a language of choice is prohibited. However, the objective of preserving the French language in Québec is legitimate, because that language is threatened. The Supreme Court asked itself whether the restrictions flowing from the Québec legislation were reasonable within the meaning of section 1 of the Charter. Although the objective is legitimate, the Court decided that the means used, that is, prohibiting the use of another language, were not proportionate to the objective [Decision in Ford v. Québec (A.G.), [1988] 2 S. C. R. 712.]

In another decision, the Supreme Court affirmed that a law prohibiting the use of a language is incompatible with freedom of expression. This case focused on the provisions of Québec legislation which imposed the use of French in the production of catalogues, printed forms, invoices, etc., but not exclusively. Because freedom of expression is characterized by the absence of any constraint, a law compelling the exclusive or predominant use of a language is incompatible with freedom of expression. The Court recognized, however, that measures intended to make the use of French mandatory in Québec, without prohibiting another language, constitute a reasonable limit within the meaning of section 1 of the Charter. [Decision in Devine v. Québec (A.G.), [1988] 2 S. C. R.. 790.]

The Contribution Agreement with the federal government allows the Language Rights Panel to fund a case involving freedom of expression pursuant to subsection 2(b) of the Charter as long as the case also raises other Charter sections dealing directly with language rights. The Program has not received any applications for funding based on this point in the year 1995-1996.

 

Conclusion

As we have observed, there are still a great many unresolved issues in the area of language rights in Canada. The issue of education rights continues to be the main source of concern in Francophone and Acadian communities. In pursuing these rights, the effort of many parents across the country has been significant. Nevertheless, despite the existence of the Court Challenges Program, parents groups still face an adversary with much greater resources.

Of course, as we mentioned previously, remarkable progress has been made in recent years. However, communities still find themselves forced to appear before the courts to have their right to education management and their right to equitable funding recognized.

Now that 14 years have passed since the coming into force of the Charter in 1982, is it still possible to claim compensation for wrongs suffered because of the violation or denial of language rights under section 24 of the Charter? Franco-Canadian parents are seriously discussing this issue. To date, no judicial decision has considered such an interpretation of the application of section 24 with respect to language rights, particularly in the context of remedies for inaction on or denial of education rights.

Professor Pelletier summarizes the principal issues that remain to be resolved with respect to section 24 as follows:

[TRANSLATION]

The question arises, however, whether section 24 of the Charter can give rise to financial

compensation, in terms of damages and interest, in the case of violation of a language

right. It would appear, if a certain doctrine is followed, that the answer to this question

must be in the affirmative. In any case, to have the right to this type of compensation,

would it not be necessary to bring evidence of some kind of bad faith, malicious or

mischievous intent, or gross negligence, in addition to the fault itself?

Will it be necessary to lead evidence of prejudice, and if so, how do we go about that in

the language context? Could section 24 allow for court orders requiring the federal government or a province to supply a particular infrastructure or resource, or to offer a particular service? Could section 24 give rise to punitive or exemplary damages in the case of a violation of any language right? All these issues will have to be resolved in the future by the courts.

In any event, recourse to the courts remains an important way to clarify the language rights enshrined in the Canadian Constitution -- it is a useful way for official language minority communities to ensure their rights are recognized.

 

 

PART III- EQUALITY RIGHTS

Mandate

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.

 

Equality Rights Panel

The Equality Rights Panel is composed of seven people who are Shelagh Day, Co-Chair (British Columbia), Ken Norman, also Co-Chair (Saskatchewan), Daniel Dortélus (Québec), Amy Go (Ontario), Sharon McIvor (Ontario), Carmen Paquette (Ontario) and Yvonne Peters (Manitoba).

 

The Cases

Introduction

April 17, 1995 was an historic day for those involved in the pursuit of equality in Canada --exactly 10 years had passed since the coming into force of section 15, the equality provision of the Canadian Charter of Rights and Freedoms. To celebrate this occasion and the reinstatement of the Court Challenges Program of Canada, on April 28, 1995, the Program hosted a public meeting in Ottawa with the Faculty of Law, Common Law Section of the University of Ottawa. This meeting provided an opportunity to invite the authors of 2 discussion papers on equality rights, which were commissioned by the Court Challenges Program at the direction of the Equality Rights Panel, to present their work.

Gwen Brodsky, an equality activist, lawyer and author, was present to talk about both the positive and the troubling developments in section 15 jurisprudence since 1985. In her paper, entitled "The Equality Guarantee of the Charter 10 years later", (prepared for the Court Challenges Program, 1995), she applauded the commitment to substantive equality in early equality jurisprudence, identified specific concerns about some aspects of the interpretation being given by the courts to sections 15 and 1, particularly in more recent decisions, and commented on the challenges facing equality seekers in the 1990’s and beyond.

Dr. Nitya Iyer, professor of law and member of the Equality Rights Panel of the previous Court Challenges Program, was not available to be in Ottawa but joined those assembled by videotape to present her paper, entitled "Charter Litigating for Racial Equality" (prepared for the Court Challenges Program, 1995). Dr. Iyer’s work dealt with the barriers -- within the Charter and Charter jurisprudence as well as within the Court Challenges Program’s mandate -- which limit or compromise the effectiveness of litigation as a means of achieving racial equality.

Less than a month later, the Supreme Court of Canada released its most recent trilogy of section 15 equality decisions. These landmark cases gave equality seekers a set of complex opinions on the interpretation to be given to sections 15 and 1 of the Charter and the meaning of earlier equality cases. These decisions provoked a myriad of reactions from equality seekers and others with an interest in the development of equality theory and jurisprudence. The case of Miron v. Trudel, [1995] 2 S.C.R. 418, involved a claim for spousal benefits under an insurance policy. The claimant was the male common law partner of a woman who was injured in a motor vehicle accident and no longer able to work and contribute to the household. His claim for accident benefits was denied because he was not a "spouse" as defined in the Insurance Act of Ontario. In ruling that the Act’s definition of "spouse" violated section 15, a majority of the Court held that marital status should be considered analogous to the prohibited grounds of discrimination enumerated in section 15. The judges rejected an argument that the discrimination could be justified under section 1 of the Charter.

In Egan and Nesbit v. The Queen, [1995] 2 S.C.R. 513, a gay couple from British Columbia challenged the definition of spouse in the Old Age Security Act, which denied Nesbit, the younger of the two, a spousal benefit available to opposite sex partners. A majority of the court reached the long sought after conclusion that discrimination on the basis of sexual orientation is prohibited by section 15 of the Charter. The result of the case, however, was bittersweet for gay men and lesbians as a different majority of judges, in a departure from earlier cases on the interpretation of section 1 of the Charter and from the decision in Miron, supra, found the discrimination in the Act was justified, deferring to the view of legislators on the question of when we are, as a society, ready to treat same sex couples equally with others.

In the case of The Queen v. Thibaudeau, [1995] 2 S.C.R. 627, a mother with custody of her child challenged a provision in the Income Tax Act which required her to include child support payments received from the father in her income. A majority of the Court rejected Ms Thibaudeau’s argument that this provision had a discriminatory effect on women, who were by far the majority of custodial parents, and concluded that the Act actually created a net benefit for the post-divorce family. Equality seeking groups which intervened consider that the majority decision largely ignores the reality of women’s lives and gives uncertain value to women’s equality rights.

As Nitya Iyer and Gwen Brodsky pointed out and as these three decisions demonstrate, positive steps have been taken in the pursuit of equality but a great deal remains to be done. The socio-economic and political reality of the 1990’s means that many barriers to equality continue to exist.

It was against this backdrop that the Equality Rights Panel carried on its work for this fiscal year, providing financial assistance to cases and arguments which had the potential to break down the barriers and redress the inequality suffered by members of disadvantaged groups.

 

APPLICATIONS FOR EQUALITY RIGHTS FUNDING

The Court Challenges Program received 83 new applications for equality rights funding during 1995-96, bringing the total since the reinstatement of the Program in October, 1994 to 141. Applications represented a diversity of issues arising in equality seeking communities in Canada. Applications involving Aboriginal issues, race and ethnicity and disability accounted for the largest numbers; however, challenges to discrimination on the basis of sex and sexual orientation were also the subject of a significant number of applications.

<<TABLE 6>>

As is apparent from the following Chart entitled "Files by Province", the Program received applications from nearly every province and territory.

<<TABLE 7>>

It is equally clear, however, that some areas, notably the Atlantic Region and the North, submitted very few applications and that a majority of the applications came from Ontario, British Columbia and Manitoba. Having noted these regional differences, Program staff developed an outreach plan, for implementation in 1996-97, to ensure that individuals and groups in areas where little is known about the Program have access to the information they need to bring applications for funding forward.

 

LITIGATION FUNDING

Under the Contribution Agreement and the Program’s funding guidelines, the Equality Rights Panel is permitted to grant funding of up to $50,000.00 for cases at the trial level and $35,000.00 for cases at the appeal level. Funding may be granted to applicants who are litigants or recognized interveners in cases which are within the mandate of the Program and satisfy the established funding criteria. Interveners are generally entitled to a maximum of $35,000.00, regardless of court level.

The Equality Rights Panel may also grant funding for the development of cases which come within the Program’s mandate. When groups or individuals are considering court challenges but require financial assistance to do further research or other development work before they will be in a position to ask for case funding, the Panel may grant up to $5,000.00 for that purpose. If the proposed equality argument in the case is one which could be clarified or improved by consultation with other members of the equality seeking community, the Panel may provide up to an additional $5,000.00 for consultation at the case development stage.

 

Cases Funded in 1995-96

<<TABLE 8>>

The Equality Rights Panel met 15 times during 1995-96, 5 times in person and on 10 occasions by teleconference. Case funding in the amount of $978,537.29 was granted to 26 applicants, 16 of whom were appearing in cases at the trial level and 10 in appeals. Of the successful applicants, 8 were interveners in the funded cases. A total of $120,000.00 was granted for 15 case development projects on a wide range of legal issues. The Panel denied funding in some of the cases it considered, primarily because the applications did not come within the Program’s mandate. Many, for example, were challenges to provincial legislation and therefore specifically excluded from eligibility for funding.

<<TABLE 9>>

Following is a summary of the cases and case development projects funded by the Panel in 1995-96. In keeping with the Program’s confidentiality commitment to its applicants, some funding grants have not been included in the summary and others have been described only in general terms. The descriptions of case development applications include only the nature of the issue involved and do not include information which might serve to identify the applicant or to reveal the specifics of the proposed argument. Case funding descriptions will, for the most part, be more complete as the identities of the litigants and the nature of the argument they are making are ordinarily part of the public record in the case.

 

Access to Equality Litigation

Rights accorded to Canadians in the Constitution and the Canadian Charter of Rights and Freedoms have little meaning if those asserting them cannot gain access to appropriate mechanisms for the interpretation and enforcement of those rights. The Equality Rights Panel granted funding in two cases in which access to the courts was at issue.

In the first, the United Chiefs and Councils of Manitoulin Island received case funding to bring a motion in the case of R. v. Abotossaway et al. (Operation Rainbow), a proceeding taken against certain of its members for violating Ontario hunting laws. The UCCMI wished to argue that the Government of Canada breached the equality rights of Aboriginal persons by providing funding for cases on some constitutional rights but not for cases like the applicant’s, where rights under section 35 of the Constitution Act, 1982 were at issue. The applicants were unsuccessful in this motion.

The Panel granted case development funding on two other issues which may affect a litigant’s right to advance a section 15 argument. The first involved the issue of waiver. The applicant, an individual, had signed an agreement in which he settled a grievance and agreed to take no further action, including a Charter challenge. He was funded to explore the question of whether an individual can waive his constitutional rights or whether those rights override a settlement like the one entered into in this case. The applicant in the other case asked for funding to develop a challenge to the evidentiary rules in discharge proceedings under the Bankruptcy Act. He hopes to argue that the Court, in considering discharge requests, has an obligation to consider evidence of the historic disadvantage suffered by black persons in Canada and the effects of that disadvantaged position on the applicant’s ability to meet discharge conditions.

 

 

Disadvantaged Groups and Section 15

In her paper, Gwen Brodsky reminded us that:

The 1989 decision of the Supreme Court of Canada in Andrews v. The Law Society of British Columbia was a watershed development in equality rights jurisprudence. What made Andrews important to equality rights jurisprudence was not the change that it effected in legislation relating to British Columbia lawyers, but rather its interpretive approach to the Charter’s equality guarantee. The most important element in Andrews is its acknowledgment that group-based disadvantage is a concept relevant to section 15. This recognition was a crucial first step in establishing equality rights that could be used to challenge the conditions of inequality experienced by marginalized groups.

In a number of cases funded by the Equality Rights Panel, applicants sought remedies for group-based discrimination.

In three cases, lesbians and gay men sought to argue that their section 15 rights were violated by laws which created benefits or privileges available exclusively to opposite sex couples or partners. In and Nesbit v. The Queen, supra (referred to above in the Introduction), the Panel granted funding to Mr. Egan and to Equality for Gays and Lesbians Everywhere (EGALE), a national lesbian and gay organization which intervened in the case, for this challenge to the provisions of the Old Age Security Act.

In Shannon and Schouwerwou v. Minister of Consumer and Commercial Relations (Ontario) (1993), 14 O.R. (3d) 658 (Gen. Div.), the parties and the Intervener, Foundation for Equal Families, were granted funding to advance an argument that the common law which defines who may marry violates section 15 by depriving same sex couples of the right to legally marry.

In a third case, Canadian Union of Public Employees, Rosenberg et al. v. Canada, (5 September 1995) Ottawa 79885-94, (Gen. Div.), EGALE asked for and received funding for its intervention in the Ontario Court of Appeal. C.U.P.E. and 2 of its lesbian employees challenged the definition of spouse in the Income Tax Act, which was the basis for a refusal by the government to register C.U.P.E.’s pension plan. The pension plan included survivor benefits for same sex partners, including the right to remain in the plan after the death of the employee. C.U.P.E. was unsuccessful at trial and has appealed.

The Panel granted funding for two cases which involved the equality rights of non-citizens, including recently arrived immigrants and refugees. Case development funding was granted to permit the applicant to develop a challenge to the newly imposed right to landing fee of $975.00, and the processing fee of $500.00, which all immigrants and refugees must pay before their applications for landed immigrant status will be considered.

Case funding was granted to the litigants in Lavoie and To Thanh Hien v. The Attorney General of Canada (1995), 125 D.L.R. (4th) 80 (F.C.T.D.), which involved a challenge to the Public Service Employment Act, under which permanent residents who are not citizens of Canada are denied equal access to employment opportunities. The applicants lost at trial and were granted funding to pursue an appeal of the court’s ruling.

The issue of religion and ethnicity arose in applications submitted to the Program this year by Andrew S. Liebmann, a member of the Canadian Forces Naval Reserve, for the trial level of Liebmann v. Canada (Minister of National Defence), [1996] F.C.J. No. 536 (T.D.), and by the League for Human Rights of B’nai Brith Canada, an Intervener in that case. Mr. Liebmann had been denied a posting in the Persian Gulf solely as a result of the fact that he was Jewish. At issue in his case are policies of the Department of National Defence under which race, religion and ethnicity are taken into account in decisions regarding overseas postings. Case funding was granted jointly to Liebmann and B’nai Brith.

Ukrainian Canadians were imprisoned in Canada during WW I and deprived of their property and livelihood, solely on the basis of their national origin. The Equality Rights Panel granted case development funding to a group interested in exploring the potential for a Charter challenge related to the original imprisonment or to the subsequent refusal of the Government of Canada to compensate those interned and their families.

In a unique challenge which also arose as a result of the wartime and post-war policies of the Government of Canada, the Merchant Navy Coalition, requested and received case funding for a challenge to the exclusion of Merchant Navy veterans of WW II from the benefits which were and are available to Armed Forces veterans. Members of the Merchant Navy, many of whom were not permitted to join the Armed Forces for health or other reasons, provided operational support to the regular forces throughout the war at great risk to their personal safety, but were not treated on an equal basis with other veterans after the war.

Applications from Aboriginal individuals and groups resulted in a significant number of grants of funding during 1995-96. Case development funding was granted to an applicant for a proposed challenge to the Canada Pension Plan Act, which denies Indian persons the right to make contributions to the Canada Pension Plan or to receive benefits in relation to periods during which they work on reserve.

In 2 cases, Métis individuals and groups claimed discrimination on the basis that Indians, as defined in the Indian Act were entitled to a benefit which was not equally available to other Aboriginal persons and groups. In the first case, two Métis fishers from Saskatchewan received case funding for R. v. Favel. The Favel brothers were charged with fishing during the off season and seizing amounts of fish which exceeded the limits set out in the Saskatchewan Fisheries Regulations. The Regulations contain an exemption which is only available to Indians, as defined in the Indian Act. The Favels sought funding to argue that it was discriminatory to exempt Indians, one group of Aboriginal fishers, from the Regulations while imposing the regulations on other Aboriginal fishers with a similar historical right to fish.

Similarly, Ambrose Maurice received funding for a challenge to Canada’s Specific Claims Policy for Indian land claims as being discriminatory on the basis that it permits only Indian Bands, as defined in the Indian Act, to apply under the policy for negotiation of their claims or to take their grievances about the application of the Policy to the Indian Claims Commission. The applicant and other Métis persons from Saskatchewan and Alberta suffered the loss of their traditional resource harvesting activities, including hunting and fishing, as a result of the establishment and use of the Primrose Lake Air Weapons Range. Unlike Indian Bands in the same area, which successfully advanced claims for similar losses under the Specific Claims Policy, the Métis had recourse only to a much more onerous process under Canada’s Comprehensive Claims Policy.

The enactment of amendments to the Indian Act in 1985 (commonly referred to as "Bill C-31"), has given rise to a number of continuing equality issues which have come to the Program’s attention. The Government of Canada enacted the changes to restore Indian status and Band membership to women (and their children) who had lost their status by marrying non-Indians and to others whose status had been lost by operation of the pre-1985 Indian Act. A complicated set of rules applies to the restoration of status and membership to those affected by Bill C-31. After the amendments, Indian Bands were permitted to assume more control over their memberships and many have refused to recognize the membership of those reinstated under the amendments. Case development funding was granted during 1995-96 to 2 Indian women who have been deprived of the benefits which flow from Indian status and Band membership.

In addition, the Equality Rights Panel granted case funding to a group of off-reserve Band members of the Batchewana Band in Ontario, many of whom were persons reinstated under Bill C-31, for the case of Corbiere et al. v. The Queen and the Batchewana Band, [1994] 1 F.C. 394 (T.D.), to challenge the Indian Election Regulations, which deny them the right to vote. The applicants were successful at trial and are now defending an appeal by the Crown and the Batchewana Band.

Two applicants received funding for cases involving discrimination against persons with disabilities. The Panel granted case development funding to an individual for a proposed challenge to the eligibility criteria in the Canada Pension Plan Act. The applicant suffered from a progressively disabling medical condition which permitted him to work sporadically for many years but, in some of those years, prevented him from earning enough to allow him to contribute to the Canada Pension Plan. When his disability reached a point where he could apply for disability benefits under the Act, he had an insufficient number of contributory years.

Case development funding was also granted to a woman in Ontario who was denied landed immigrant status in Canada as a result of a provision in the Immigration Act which permits the Minister to deny landing to persons with disabilities. Her case development project will explore both the section 15 argument in her case and the section 1 justifications which may be advanced by the government of Canada.

Finally, the equality rights of children arose in a case development application in which the applicant asked for funding to pursue a challenge to section 43 of the Criminal Code, which provides that schoolteachers, parents and others standing in the place of parents are justified in using physical force against children for purposes of correction or discipline, provided the force is reasonable. The applicant was of the view that the provision justifies assaults on children and that this may be discriminatory.

 

Adverse Impact Discrimination

Adverse impact discrimination arises when a law, although neutral on its face, contributes to the inequality of disadvantaged groups. During this fiscal year, the Equality Rights Panel considered many applications in which adverse impact discrimination was at issue.

Case funding was granted jointly to two organizations representing federally sentenced prisoners at Stony Mountain Institution in Manitoba. The prisoners, in the case of McCorrister et al. v. The Queen (1995), 132 D.L.R. (4th) 136 (F.C.T.D.), challenged provisions in the Canada Elections Act which denied them the right to vote in federal elections. The applicants argued, in part, that because of the over-representation of Aboriginal persons among federally sentenced prisoners, the election law in this case had an adverse impact on Aboriginal inmates. These inmates, were and are disadvantaged in society through marginalization, political vulnerability, stereotyping, and social prejudice. The removal of their right to vote, therefore, has reinforced their social disadvantage.

In the Federal Court, Trial Division, the trial judge held that the Elections Act violates section 3 of the Charter by denying federal prisoners the right to vote and that the violation is not justified under section 1. Although this finding resolved the case, the trial judge also commented on the adverse impact and other equality arguments presented by the inmates. He stated that a claimant would be required to prove that the impact flows only from the law itself and not from some pre-existing or independent condition and that it is uniformly felt by all persons affected by the law. He concluded that the Stony Mountain inmates had not established a violation of the section 15 equality guarantees in the Charter.

The adverse impact of the law on women formed the basis of arguments advanced in 3 cases funded by the Panel in 1995-96. Case funding was granted to the British Columbia Native Women’s Association to challenge the Indian Act and a Land Management Framework Agreement recently entered into between the governments of Canada and B.C. and several British Columbia Indian Bands. Neither the Act nor the Agreement make any provision for the division of property on reserve in the event of marriage breakdown. Because Indian men have far greater control over property on reserve and over decisions about the allocation of that property, Indian women and their children are often forced to leave their homes and possessions and, in some cases, the reserve itself when their marriages end.

Lyne Périgny, in a challenge to the Unemployment Insurance Act, argued that the Act is discriminatory in its disproportionate impact on women. Ms Périgny’s case involved provisions in the Act which established higher eligibility requirements for new entrants and re-entrants to the workforce. She argued that the impact of these provisions is felt more deeply by women, who do not enter the workforce, or later leave it for an extended period, as a result of family responsibilities which are borne primarily by women in our society.

In a similar but unrelated case involving the Unemployment Insurance Act, Canada (A.G.) v. Faltermeier (1995), 128 D.L.R. (4th) 481 (F.C.A.), Angela Faltermeier argued that the definition given to "illness" in section 14 of the Act gave rise to adverse impact discrimination. Ms Faltermeier had been forced to leave work to care for her very sick child. Because the Act defined periods of illness for which benefits would be available only in terms of the illness of the employee, Ms Faltermeier was denied benefits. Once again, she argued that a disparate impact was felt by women who occupy the role of primary caregiver to children in a vast majority of Canadian families. The original decision was appealed to the Umpire, who concluded that, based on his understanding of the equality argument advanced by Ms Faltermeier, "illness" in section 14 should be interpreted as including the illness of a child. The Panel provided funding to Ms Faltermeier to defend an application by the Attorney General of Canada for a review of the Umpire’s decision. Following the hearing of the application, the Federal Court of Appeal overturned the Umpire’s decision, concluding that no violation of section 15 of the Charter had been established and that no basis existed for extending the definition of illness as the Umpire had done.

The Immigration Act’s technical requirements for landing in Canada were the subject of an application by the Somali Service Providers Action Network, a group representing Somali refugees. Under the Act, before an application for landed immigrant status will be considered, each applicant must produce satisfactory proof of his or her identity. Due to conditions prevailing in Somalia as a result of its civil war, including the destruction of documents and lack of a civil government, it is impossible for Somalis to obtain the required documents. For that reason, the provisions in the Act, while reasonable for many newcomers to Canada, create an insurmountable hardship for this group of recognized refugees.

Adverse impact discrimination arguments are being considered in 2 case development projects on issues related to disability. An organization with a specific interest in accessible transportation issues is exploring the potential for a challenge to federal legislation governing extra-provincial public transportation systems, which fails to set standards for transportation access for persons with disabilities which affect mobility. In the second case development project, an individual is proposing to challenge policies of the federal Public Service Commission, under which he was required to complete an entry test for employment which discriminated against him on the basis of a learning disability.

 

Interpreting the Law with Equality in Mind

Several applications were considered by the Panel this year in which the applicants sought to use section 15 of the Charter and substantive equality arguments to influence the interpretation of the law. In each of the following cases, which were funded by the Panel, the applicant was challenging an interpretation of the law which failed to recognize and respect the equality rights of disadvantaged groups.

The Council of Canadians with Disabilities (CCD) and People for Equal Participation (PEP) each received funding for its intervention in R. v. Latimer (1995), 126 D.L.R. (4th) 203 (Sask. C.A.), a Saskatchewan case involving the death of a severely disabled child. The child’s father admitted killing his daughter but sought to justify his actions by invoking the "necessity" defence and by asserting a right to "consent" on his child’s behalf to the killing. Neither consent nor necessity in the criminal law had previously been interpreted to include the circumstances which arose in this case. The father was convicted of second degree murder at trial and sentenced to 10 years imprisonment. CCD and PEP were granted funding to intervene in this case at the appeal level and argue that the interpretation of the law advanced by the father offends the equality rights of disabled persons.

The Women’s Legal Education and Action Fund (LEAF) received case funding to intervene and present arguments about the interpretation of the law in two other criminal cases. In the first, R. v. Beharriell, [1995] 4 S.C.R. 536, a trial judge’s order for pre-trial disclosure of the counseling records of a victim of a sexual assault was at issue on appeal. LEAF worked in coalition with the Aboriginal Women’s Council, the Disabled Women’s Network of Canada and the Canadian Association of Sexual Assault Centres. Building on its work in R. v. O’Connor, [1995] 4 S.C.R. 411, (funded by the Program in 1994-95), the coalition argued that such orders violated women’s equality rights. In particular, concern was expressed that women would either be driven away from the treatment and counseling they needed to deal with the trauma of sexual assault or be unable to participate in the prosecution of the perpetrators because of the fear that things said in counseling would be used to discredit them.

LEAF, again in coalition with other equality seeking groups -- the Canadian Association of Elizabeth Fry Societies, the Native Women’s Association of Canada and the Disabled Women’s Network of Canada -- received funding for a proposed intervention in the case of R. v. Neve. The accused, a 22 year old Aboriginal woman, was convicted of offences arising from the robbery of another woman. Following her trial, Neve was declared a dangerous offender under section 753 of the Criminal Code and given an indefinite sentence. During the dangerous offender hearing, Neve was repeatedly questioned about her sexual preference and was described as a "sadistic homosexual". On appeal, the coalition sought to argue that the interpretation given to section 753 was discriminatory in that the judge employed stereotypical assumptions about lesbians and members of other disadvantaged groups in his assessment of dangerousness.

In another criminal case, R. v. Sylliboy, the accused requested funding for an argument he wished to make in relation to the admissibility of his confessions. The accused was a young Aboriginal man who suffered from a learning disability. After his arrest, he was questioned by police in English, not his first language, and gave statements to the police without ever fully understanding what was being asked of him. The Panel granted case funding to permit him to argue that his confession should be excluded in that he had been discriminated against on the basis of language and/or disability.

The Vancouver Society of Immigrant and Visible Minority Women received funding for a challenge to the interpretation of a provision of the Income Tax Act (Vancouver Society of Immigrant and Visible Minority Women v. The Minister of National Revenue (1996), 96 D.T.C. 6232 (F.C.A.)). This community organization had applied for and been denied charitable tax status on the basis that its objectives and activities, which included advocacy, did not come within the common law definition of "charitable". The Society argued that the meaning attributed to the term "charitable" failed to take into account the inequality suffered by the immigrant and visible minority women it represented and its need to address that inequality in its work.

The interpretation of the custody and access provisions of the Divorce Act was the subject of the case of Goertz v. Gordon (1996), 134 D.L.R. (4th) 321 (S.C.C.). In that case, a custodial mother sought an order varying the custody and access order in her divorce proceedings so she could pursue her education and career in another country. The child’s father, who had been physically and emotionally abusive to both Ms Gordon and an older child, opposed the variation on the basis that his ability to maintain a relationship with his child would be affected. LEAF received funding for its intervention in this case at the Supreme Court of Canada, where it argued that, in interpreting the custody and access rights of parents, the court must be mindful of the equality rights of women. LEAF argued that, to permit the father to use his right of access to prevent Ms Gordon from making a new life for herself and her child would be to permit him to continue to abuse and control her, as he had done during the marriage. The Supreme Court of Canada upheld the order which permitted Ms Gordon to move. In reaching its conclusion, however, the Court focused its attention on the test to be applied to the assessment of the "best interests of the child" and appears to have ignored the equality arguments advanced by LEAF.

 

PROGRAM PROMOTION AND ACCESS FUNDING

Under the Contribution Agreement with the federal government, ten percent (10%) of the funding allocated to equality rights is available for activities which are not directly related to litigation but which promote the Program’s mandate and encourage and enhance access to its funding. The Court Challenges Program itself may use Program Promotion and Access funding in accordance with the Program’s funding guidelines and conditions imposed by the Equality Rights Panel to promote understanding of the Program. The Panel granted a total of $94,792.50 for activities in this category during 1995-96.

 

National Strategic Consultation Meetings on Equality Litigation Issues

The Court Challenges Program organized four (4) national strategic consultation meetings in Ottawa in November, 1995 on key equality issues. The Program worked in partnership with a co-sponsor organization for each meeting which, in consultation with their communities, assisted the Program to plan the agendas, select the participants and prepare appropriate discussion materials for distributions.

A meeting to discuss racial equality issues was organized with the assistance of an Advisory Committee of representatives from the following groups:

Minority Advocacy Rights Council

National Organization of Immigrant and Visible Minority Women

Canadian Ethnocultural Council

Chinese Canadian National Council

African Canadian Legal Clinic

Women of Colour Caucus/Immigration Committee, National Action Committee on the Status of Women

Centre for Research-Action on Race Relations

The agenda for their meeting included a discussion of the mandate of the Court Challenges Program and the barriers that exist for the use of litigation as a strategy for combatting racism.

Equality for Gays and Lesbians Everywhere assisted the Program with plans for a meeting on gay/lesbian/bisexual issues. Discussion topics for their meeting included a review of litigation priorities for the community and the impact of the Supreme Court of Canada’s decision in Egan and Nesbit v. The Queen, supra.

Equality issues in the area of euthanasia and assisted suicide formed the basis of the agenda for a meeting of representatives from the disability community. The Council of Canadians with Disabilities co-sponsored this meeting.

The Government of Canada’s introduction of Bill C-76 to eliminate the Canada Assistance Plan and introduce in its place the new Canada Health and Social Transfer were of critical importance to many equality seeking groups but especially so to those involved in poverty issues. The Charter Committee on Poverty Issues co-sponsored a meeting on the equality litigation issues arising from this fundamental change in the federal legislation.

Discussion Papers

Given the complexity of Charter equality litigation, groups and individuals who are considering litigation as an alternative, benefit greatly from consultation with those who will be affected by the cases and the sharing of understanding and expertise. The Equality Rights Panel encourages this approach, which provides support to individuals to whom this kind of litigation may be extremely overwhelming and enhances the quality of evidence and argument presented to the courts. Pat File, a lawyer with a long history in equality litigation, applied for and was granted funding for a two-stage project, the first part of which is the preparation of a discussion paper on the applicable principles and options for "participatory" models for equality rights litigation. In the second part of the project, Ms File will prepare a workbook to assist the Program’s applicants to choose and implement realistic and appropriate consultation plans, using funding granted by the Panel for that purpose.

Nitya Iyer received funding to prepare a discussion paper on the use of litigation to address systemic racism. Ms Iyer will explore the challenges posed by framing and litigating systemic racism cases and prepare a discussion document which will: 1) further understanding of the enormous challenge posed by such cases; 2) advance thinking about how to surmount these obstacles; and 3) clarify what such a case could look like so that the Program and groups may be better positioned to take up the challenge of addressing systemic racism through Charter litigation within federal jurisdiction in the future.

 

 

Equality Rights Pamphlet

The Program was granted funding to prepare a pamphlet on equality rights and the Court Challenges Program of Canada for distribution across Canada. This pamphlet will be used as a tool to promote the Program’s mandate and contribute to the community’s understanding of the equality rights set out in section 15 of the Canadian Charter of Rights and Freedoms.

 

ON THE HORIZON - THE ECONOMICS OF EQUALITY

As we enter our 1996-97 fiscal year, it is apparent that there are many challenges ahead for equality seeking communities in their attempts to use litigation as a tool for achieving equality. The courts appear somewhat reluctant to interpret section 15 in a manner which will address adverse impact discrimination. Very compelling cases argued on that basis have been dismissed (Faltermeier, supra and Stony Mountain, supra for example) and the tests for adverse impact, as articulated by some courts, have proven very difficult to meet.

As Nitya Iyer pointed out in her discussion paper last April, systemic discrimination cases continue to present special challenges, notably in the area of systemic racism. Although part of the very fabric of our society and our legal system, systemic discrimination has not to date been effectively addressed by litigation. Ms Iyer identified many barriers to using section 15 of the Charter to address systemic discrimination, barriers which exist within the courts and in the jurisprudence as well as those which arise from the limited resources available to support systemic discrimination cases. Ms Iyer points out that many such cases involve challenges to the actions of provincial governments, which are not eligible for funding from the Program under its Contribution Agreement with the federal government.

Cases involving the provision of social benefits to previously excluded groups are presenting special difficulties for equality seekers as well. In Egan and Nesbit, supra the court accepted the argument advanced by the Government of Canada that the infringement of the equality rights of gay and lesbian partners was justified under section 1 of the Charter. Some judges in the Supreme Court of Canada appear willing, in the face of a finding that an excluded group is being discriminated against, to defer to the judgment of legislators where the extension of social benefits is at issue. Equality seeking groups have expressed concern about the effect that this approach to section 1 may have on future cases involving "equal benefit of the law".

Economic considerations arise for equality seekers in another context and, in so doing, present another and quite different challenge for the coming years. Poverty, sometimes described as an economic or social condition, has not yet been recognized by the courts as a prohibited ground of discrimination in Canada. As governments across the country actively pursue their deficit-reduction agendas, Canadians disadvantaged by poverty are among those most negatively affected by the corresponding changes in social policy and program delivery, including cuts to social assistance and other programs which are essential to their health and well-being.

The effect of Bill C-76, enacted in 1995, introduces a new system for the transfer of federal funds to provincial governments under the Canada Health and Social Transfer, and eliminates the Canada Assistance Plan as well as national standards for social assistance. Several provincial governments have recently made significant cuts to social programs and poverty activists expect that there are more to come. Using section 15 litigation as a tool for challenging those changes is beyond the reach of most as few resources are available to support such litigation. The Court Challenges Program is unable, under its present mandate, to provide financial assistance for challenges to provincial law and policy and little is available from provincial legal aid systems or other sources.

It is in the face of these and other challenges that equality seekers will continue, as they have done for decades, to advocate -- and litigate -- for an interpretation of section 15 which serves to respect diversity and eliminate discrimination. In the words of Madam Justice L’Heureux-Dubé of the Supreme Court of Canada in Egan and Nesbit v. The Queen, supra:

. . . at the heart of s. 15 is the promotion of a society in which all are secure in the knowledge that they are recognized at law as equal human beings, equally capable, and equally deserving. A person or group of persons has been discriminated against within the meaning of s. 15 of the Charter when members of that group have been made to feel, by virtue of [a] legislative distinction, that they are less capable, or less worthy of recognition or value as human beings or as members of Canadian society, equally deserving of concern, respect and consideration.