COURT CHALLENGES PROGRAM OF CANADA

PROGRAMME DE CONTESTATION JUDICIARE DU CANADA

ANNUAL REPORT 1996-1997

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, 1996 and ending March 31, 1997.

The annual report is divided into three main parts. The first part covers the administration, the meetings of the Board of Directors, the Annual General Meeting, the by-laws and regulations, the financial statements, 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!

The 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 in collaboration with Joan M. Dawkins

Translation: Institut Joseph-Dubuc

Layout and Design: The Art Department

ISBN # 1-896894-02-X

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) 946-066

Web Site: http//www.ccppcj.ca

Electronic mail: info@ccppcj.ca

© 1997

 

Table of Contents

President's Message

Introduction

Part I- Administration

Annual General Meeting

Board of Directors

Staff

Audited Financial Statements

Part II- Language Rights

Mandate

Language Rights Panel

Litigation Funding

Cases

Conclusion

Part III- Equality Rights Funding

Introduction

Applications for Funding

Equality Rights Funding 1996-1997

Conclusion

 

List of Tables

 

TABLE 1- Board of Directors

TABLE 2- Language Grants

TABLE 3- Breakdown of Decisions on Language Applications

TABLE 4- Language Applications by Provinces and Territories

TABLE 5- Language Applications by Category of Rights

TABLE 6- Breakdown of Decisions on Equality Applications

TABLE 7- Equality Applications by Application Type

TABLE 8- Equality Applications by Provinces and Territories

 

 

PRESIDENT’S MESSAGE

On behalf of the Board of Directors, I am very pleased to present to you the third annual report of the Court Challenges Program of Canada. With more than 350 language rights and equality rights files before it, the Program was most certainly kept busy during the last fiscal year.

Fifteen years ago, on April 17, 1982, the Canadian Charter of Rights and Freedoms came into force, entrenching basic freedoms and democratic, political, legal, equality, language and aboriginal rights in the fundamental law of the land.

Since 1982, the Charter has become a tool of liberation and equalization for those whose rights and liberties it seeks to protect and promote. As a country, we have undergone fast growth and change, perhaps not always in the way that many of us had hoped for where social equity, economic fairness and historical justice are concerned. But thanks to the Charter, the spirit that it inspires and the content which many ordinary people helped shape in the last fifteen years, and of course, the Court Challenges Program, Canadians of this generation can remain a bit more hopeful and proud of being part of the de jure and de facto bilingual, multicultural and pluralistic country where one person, through litigation, can still make a difference.

In this regard, the Court Challenges Program remains a unique, powerful symbol and tool to make the best of Canadian values and ideals into a concrete reality. It can also stand as a shining model for other pluralistic democracies in the world, especially those at the development stage, that wish to look towards Canada for guidance and inspiration where the empowerment of the disadvantaged and the disenfranchised is concerned. And at $2.75 million a year, our Court Challenges Program is simply and unquestionably the most effective national program, financially or otherwise, to help define and strengthen the state of Canada in all its glorious complex diversity, both at home and abroad.

On this 15th anniversary of the Charter and on the eve of the 50th anniversary of the Universal Declaration of Human Rights, it is only fitting that the Program be considered indispensable to Canadian nationhood and guaranteed support all the way to the next century.

As the second President of the Board of Directors since the Program was reinstated in 1994 and a Québecer at the helm of an organization embodying the linguistic duality and socioeconomic diversity of this country, I remain deeply humble to be bestowed this honor.

Unquestionably, one of the Board’s most important activities last year was to start the negotiation process with the Federal Government with a view to entering into a new Contribution Agreement. The current Agreement will end on March 31, 1998. For that reason, we met with the Deputy Prime Minister and Minister of Canadian Heritage, the Honourable Sheila Copps, in Ottawa on September 27, 1996. The Minister assured us that the Federal Government fully supports the Program and, as a result, the renegotiation process was begun. We would have liked to have announced in this report that an agreement had been signed but we will now have to wait until September 1997. The Federal Election of June 2, 1997 has clearly delayed the process.

We discussed with the Deputy Prime Minister the possibility of expanding the Program’s mandate to allow for funding of equality rights cases based on provincial legislation. We also broached the question of the Program’s language rights mandate. Although the Deputy Prime Minister did not give a definite opinion on this subject since it is a decision that would have to be made by Cabinet, she nonetheless was receptive to examining the question with us. We agreed that the Contribution Agreement renewal process would continue and that, as a parallel exercise, we would explore the question of expanding the mandate. Subsequent to this meeting, and in follow-up to the last Annual General Meeting, the Board developed a plan containing some initiatives that are currently under way.

We are especially proud of the fact that we managed to visit every province and territory during the past fiscal year as part of our outreach initiatives. Given our limited human and financial resources, this was indeed a notable achievement. We can already indicate to you that there has been a marked increase in funding applications as a result of our visits.

I wish to take this opportunity to thank my immediate predecessor, Prof. Fernand Landry of New Brunswick, who had diligently guided this ship through some treacherous waters in the restored Program’s first two years. I would also like to take this opportunity to acknowledge the invaluable contribution of all the past and present activists and partners to the Program, especially those who have served on both Panels and the Equality Advisory Committee. Last but not least, to my colleagues on the board and the Program’s staff I wish to show my deepest gratitude for their extraordinary support and devotion, particularly, their professionalism.

The truth is never more self-evident: with faith, a sense of common purpose and an everlasting spirit of accommodation of our differences, we can move forward together.

Fo Niemi

Chair of the Board of Directors

 

 

INTRODUCTION

We are pleased to present the third annual report of the reinstated Court Challenges Program of Canada. Like last year’s report, this year’s will afford you useful information on the Program’s main fields of activity. As is our custom, we will provide you with the latest Program statistics.

The report represents a source of information that complements other material already published by the Program. In addition, the first annual report (1994-95) is still available from the Program or on our Web Site. It deals primarily with the complete background on the reinstatement of the Program, while last year’s report expands more on our internal operations structures. Finally, this annual report contains a few references to other Program documents that are available either from us upon request or on our Web Site.

François Boileau

Executive Director

 

 

PART I - ADMINISTRATION

ANNUAL GENERAL MEETING

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.

 

The Meeting

The second Annual General Meeting of the Court Challenges Program of Canada was held in Ottawa on September 28, 1996. At this meeting, in addition to electing 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. Accordingly, the Board’s first priority is to renew the Contribution Agreement with the Federal Government. On this subject, the outgoing Chair, Fernand Landry, reported that the Board of Directors met with the Deputy Prime Minister and Minister of Canadian Heritage, the Honourable Sheila Copps, on the eve of the Annual General Meeting. On that occasion, the Deputy Prime Minister reiterated her total support for the Court Challenges Program and its objectives. She also indicated that she was receptive to renewing the Contribution Agreement as quickly as possible.

It was also clear from the Annual General Meeting that the membership continued to give priority to expanding the Program’s equality rights mandate to include provincial legislation.

The members also warmly thanked the outgoing Chair, Fernand Landry, the outgoing Vice-Chair, Avvy Go, and Victoria Percival-Hilton, for their exceptional contribution to the Program, especially regarding its reinstatement and the setting up of an entirely new organization.

 

BOARD OF DIRECTORS

<<TABLE 1>>

One Academic and/or Jurists' Association Representative

Two Representatives from Equality Seeking Organizations

Two Representatives from Language Organizations

Chair, Equality Rights Panel

Chair, Language Rights Panel

Composition

The members of the Board of Directors are: Fo Niemi, Chair (Québec), Executive Director of the Centre for Research-Action on Race Relations, located in Montréal; Shelagh Day, Vice-Chair (British Columbia), author and consultant on human rights; Paul Charbonneau, Treasurer (Québec), Executive Director of the Centre hospitalier de Maniwaki; Raj Anand (Ontario), partner in the law firm of Scott & Aylen; Yvan Beaubien (Alberta), Secretary-Treasurer of the Conseil scolaire francophone du Centre-Est no 3; Suzanne Birks (Québec), associate in the law firm of Lapin Polisuk Mauer; and Melina Buckley (British Columbia), a lawyer specializing in legal research and policy development. Yvan Beaubien is also Co-Chair of the Language Rights Panel, and Shelagh Day Co-Chair of the Equality Rights Panel.

All the members were confirmed in or elected to their positions at the Annual General Meeting of the Court Challenges Program. It should be noted, however, that the members of the Board of Directors decide among themselves who will hold the positions of Chair, Vice-Chair and Treasurer. A press release was issued on February 19, 1997 to announce the appointments to the Board of Directors.

The Board of Directors met twice in 1996-97, on September 27 and 28, 1996 in Ottawa, and February 15 and 16, 1997, in Winnipeg, and held at least fifteen conference calls.

 

Priorities

At its meeting on February 15 and 16, 1997, in Winnipeg, the Board of Directors adopted a new long-term strategic plan. The plan provides details on the Program’s various spheres of activity, namely administration, processing of funding applications, and public relations, including the distribution of information on Program activities. The Board of Directors reworked the strategic plan for the 1997-99 period, with five main objectives in mind:

  1. To assist in resolving nationally significant test cases (regardless of geographical
  2. considerations) brought by individuals or groups who assert and reinforce the language rights of official language minority communities or the equality rights of historically disadvantaged groups.

    The objective here is to ensure the daily processing of funding applications received by the Program at either the intake, research or Panel levels. This objective also involves the Program’s outreach plan. In fact, during the past fiscal year, we managed to visit every province and territory with the aim of providing information on equality rights specifically, and the Program in general. The result was an increase in the number of funding applications.

  3. To establish and maintain links with the equality and language rights advocacy communities

(including bar members and academics) to secure their firm support for, and elicit a feeling of belonging to, the Program.

The main idea behind this objective is to keep the Program membership, and the bar associations

and universities, informed through annual reports, fact sheets, and the Web Site, as well as to

ensure that the Program is represented at various symposia, meetings and conferences.

3.) To facilitate the exchange of information on equality and language rights.

Here, the Board’s objective is to transform the Program into a clearing house of resources for the official language minority communities and historically disadvantaged groups. On this subject, however, the Board remains sensitive to its financial and staff capabilities.

4.) To protect and expand the Program mandate.

The primary thrust of this objective is to secure the renewal of the Contribution Agreement with the Federal Government, and to keep the political decision-makers informed of the existence and importance of the Program. In addition to meeting with the Deputy Prime Minister, some Board members had the opportunity to meet the Honourable Hedy Fry, Secretary of State for Multiculturalism and for the Status of Women, during her visit to Winnipeg on August 18, 1996.

Finally, this objective also involves the whole question of expanding the mandate in the Contribution Agreement to include the provincial jurisdictions in equality rights issues, and certain parts of the Official Languages Act in the area of language rights.

5.) To obtain structural and operational support.

The objective is not only to guarantee sound general and financial management but also to study the possibility of diversifying our outside funding sources. The Board hopes to anticipate every eventuality including, for instance, the possible expansion of the Program mandate, by focusing on such possibilities.

The Board of Directors has established specific goals and actions to ensure that these objectives are met.

 

Renewal of the Contribution Agreement

As mentioned earlier, the Board of Directors had the opportunity to meet the Deputy Prime Minister and Minister of Canadian Heritage, the Honourable Sheila Copps, who is also the Minister responsible for the Program’s Contribution Agreement. The meeting allowed the Board members to attest to the Minister’s strong attachment to the Program. Ms Copps has also expressed her support on other occasions, for instance, in the House of Commons and before various parliamentary committees. Furthermore, she made her views known at the Symposium national sur la réparation constitutionnelle [National Symposium on Constitutional Remedies], held on October 18, 1996. In her speech, the government’s support for the Program was stated unequivocally and was particularly well received by those present. The speech was re-broadcast on CBC's Réseau de l'information (French equivalent of Newsworld).

Negotiations have begun with senior Federal Government officials with a view to signing a new Contribution Agreement in September 1997.

 

Mandate Expansion

Given the current Program’s inability to provide financial support for equality rights test cases under provincial jurisdiction, such as health and education matters, the application of section 15 of the Canadian Charter of Rights and Freedoms is compromised. For this reason, we organized a national meeting, as part of the Annual General Meeting of September 28, 1996, for the purpose of discussing various equality rights strategies, including expansion of the Program mandate. The participants decided to strike an advisory committee, details of which are provided below.

Everyone recognizes how important it is for the Program to be able to expand into provincial jurisdictions in the area of equality rights. The main problem continues to be funding sources, in that our current Contribution Agreement with the Federal Government prohibits us from funding cases involving provincial legislation.

On the subject of language rights, the membership recognizes the importance of broadening the Program mandate to allow for funding cases in respect of which the Commissioner of Official Languages cannot institute legal proceedings under the Official Languages Act.

Under its strategic planning initiative, the Board of Directors adopted an action plan that is already partly under way. The action plan reflects the members’ concerns in the area of equality and language rights.

 

Equality Rights Advisory Committee

The second Annual General Meeting of the current Court Challenges Program provided a rare forum for about 20 member organizations to discuss issues of common interest and to strategize and network.

Members believe the creation of an advisory committee of equality-seeking groups was important in ensuring that their interests were represented in the Program’s activities. Some wanted gender/regional/constituency representation but the consensus was that the advisory committee should be kept to a maximum of seven. However, Québec, as a region, would have representation because of the unique perspective on justice issues that its representative would bring to the table.

A nominations committee was struck and many members believed that the organizations represented on this committee — Charter Committee on Poverty Issues, Council of Canadians with Disabilities, Equality for Gays and Lesbians Everywhere, Minority Advocacy and Rights Council and Women's Legal Education and Action Fund — should be on the advisory committee, as well as a Québec and an aboriginal group. Following consultations with the membership, the advisory committee is made up of these five organizations, as well as the African-Canadian Legal Clinic, the December 9th Coalition and the Native Women's Association of Canada. A Québec organization is still to be added.

Instructions from Program members were that once the advisory committee was in place the following tasks were to receive immediate attention: (a) program renewal; (b) mandate expansion; and (c) development of coalition/collaboration strategies among equality-seeking groups.

The first conference call of the advisory committee was held on February 4, 1997, and the first in-person meeting is to be held on the weekend of April 26, 1997, in Winnipeg. The period to March 31, 1997, was spent discussing: renewal, financing of the committee’s work, various media through which the committee could communicate with members and highlights of past committees. The structure of a joint committee with the Board on mandate expansion is being worked out and will be finalized at the in-person meeting. Committee members plan to develop Terms of Reference, the method of communication with members and the type of participation with the Board on Program renewal at the Winnipeg meeting.

Lawrence Aronovitch of EGALE and Indra Singh of MARC were asked to be co-chairs until regulations were established with regard to these positions.

 

STAFF

There was very little change this year with respect to the Program staff. Under a partnership agreement between the Institut Joseph-Dubuc and the Community Legal Education Association (CLEA), we were pleased to welcome Jocelyne Vigier, an articling student, to the Program.

 

AUDITED FINANCIAL STATEMENTS

Price Waterhouse

Chartered Accountants

2200 One Lombard Place

Winnipeg, Manitoba

(204) 943 7321

Telecopier (204) 943 7774

May 2, 1997

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 d contestation judiciaire du Canada as at March 31, 1997 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, 1997 and the results of its operations and changes in its financial position for the year then ended in accordance with generally accepted accounting principles.

Price Waterhouse

Chartered Accountants

BALANCE SHEET

Assets

Current assets

Cash

For operations

March 31, 1997 - $102,361

March 31, 1996 - $354,875

For designated purposes (Note 5)

March 31, 1997-$261,798

March 31, 1996-$502,156

Accounts receivable

March 31, 1997-$12,321

March 31, 1996-$25,538

Sub Total Current Assets

March 31, 1997-$376,480

March 31, 1996-$882,569

 

Capital assets (Note 6)

March 31, 1997-$73,748

March 31, 1996-$87,409

Total Assets

March 31, 1997-$450,228

March 31, 1996-$969,978

 

Liabilities and Equity

Accounts payable and accrued liabilities

March 31, 1997-$39,414

March 31, 1996-$54,150

Designated funds

March 31, 1997-$261,798

March 31, 1996-$502,156

Equity

March 31, 1997-$149,016

March 31, 1996-$413,672

Total Liabilities and Equity

March 31, 1997-$450,228

March 31, 1996-$969,978

Approved by the Board

Fo Niemi, Director

Paul Charbonneau, Director

 

 

STATEMENT OF DESIGNATED FUNDS RECEIPTS AND DISBURSEMENTS

Year ended March 31, 1997

Designated funds, beginning of year

Litigation - $219,081

Program Promotion and Access - $125.336

Negotiation - $61,944

Case Development - $90,813

Impact Studies - $4,982

Total 1997 - $502,156

Total 1996 - $570,000

Transfer between designated funds per Contribution Agreement

Litigation - $187,280

Program Promotion and Access - ($125,336)

Negotiation - ($61,944)

Case Development - $0

Impact Studies - $0

Total 1997- $0

Total 1996 - $0

Transfer from equity

Litigation - $278,475

Program Promotion and Access - $0

Negotiation - $0

Case Development - $0

Impact Studies - $0

Total 1997 - $278,475

Total 1996 - $0

Designated fund contributions from the Government of Canada, Canadian Heritage

Litigation - $113,420

Program Promotion and Access - $11,342

Negotiation - $3,780

Case Development - $21,172

Impact Studies - $1,512

Total 1997 - $151,226

Total 1996 - $498,200

Designated fund disbursements

Litigation - ($515,982)

Program Promotion and Access - ($68,033)

Negotiation - ($21,998)

Case Development - ($64,046)

Impact Studies - $0

Total 1997 - ($670,059)

Total 1996 ($556,044)

Designated funds, end of year

Litigation - $282,274

Program Promotion and Access - ($56,691)

Negotiation - ($18,218)

Case Development - $47,939

Impact Studies - $6,494

Total 1997 - $261,798

Total 1996 - $502-156

Allocated as follows:

Equality rights

Litigation - $118,911

Program Promotion and Access - ($56,691)

Negotiation - $0

Case Development - $28,969

Impact Studies $4,871

Total 1997 - $96,060

Total 1996 - $259,852

Language rights

Litigation - $163,363

Program Promotion and Access - $0

Negotiation - ($18,218)

Case Development - $18,970

Impact Studies - $1,623

Total 1997 - $165,738

Total 1996 - $242,304

Total

Litigation - $282,274

Program Promotion and Access - ($56,691)

Negotiation - ($18,218)

Case Development - $47,939

Impact Studies - $6,494

Total 1997 - $261,798

Total 1996 -$502,156

 

 

STATEMENT OF REVENUE AND EXPENSES AND EQUITY

Revenue

Contributions - Government of Canada, Canadian Heritage

Year ended March 31, 1997 - $550,000

Year ended March 31, 1996 - $550,000

Interest

Year ended March 31, 1997 - $21,658

Year ended March 31, 1996 - $41,883

Human resource development

Year ended March 31, 199 - $5,822

Year ended March 31, 1996 - $0

Total Revenue

Year ended March 31, 1997 - $577,480

Year ended March 31, 1996 - $591,883

Expenses

Advertising

Year ended March 31, 1997 - $1,981

Year ended March 31, 1996 - $14,512

Annual meeting

Year ended March 31, 1997 - $7,377

Year ended March 31, 1996 - $6,558

Audit fees

Year ended March 31, 1997 - $5,175

Year ended March 31, 1996 - $5,350

Board members' lost wages

Year ended March 31, 1997 -$1,350

Year ended March 31, 1996 - $875

Contract labour

Year ended March 31, 1997 - $3,161

Year ended March 31, 1996 - $49,602

Depreciation

Year ended March 31, 1997 - $20,048

Year ended March 31, 1996 - $9,705

Equipment maintenance

Year ended March 31, 1997 - $4,268

Year ended March 31, 1996 - $7,359

Facilities

Year ended March 31, 1997 - $28,745

Year ended March 31, 1996 - $24,579

Legal fees

Year ended March 31, 1997 - $471

Year ended March 31, 1996 - $5,799

Office and supplies

Year ended March 31, 1997 - $62,440

Year ended March 31, 1996 - $84,594

Panel members’ fees

Year ended March 31, 1997 - $18,625

Year ended March 31, 1996 - $23,750

Public relations and outreach

Year ended March 31, 1997 - $24,882

Year ended March 31, 199 - $0

Research material

Year ended March 31, 1997 - $4,910

Year ended March 31, 1996 - $6,686

Salaries and benefits

Year ended March 31, 1997 - $305,847

Year ended March 31, 1996 - $265,179

Start-up costs (Note 7)

Year ended March 31, 1997 - $0

Year ended March 31, 1996 - $14,301

Translation and interpretation

Year ended March 31, 1997 - $20,510

Year ended March 31, 1996 - $19,606

Travel and meetings

Year ended March 31, 1997 - $53,871

Year ended March 31, 1996 - $60,239

Total Expenses

Year ended March 31, 1997 - $563,661

Year ended March 31, 1996 - $598,674

Excess of revenue over expenses (expenses over revenue) for the year

Year ended March 31, 1997 - $13,819

Year ended March 31, 1996 - ($6,791)

Equity, beginning of year, as restated (Note 3)

Year ended March 31, 1997 - $413,672

Year ended March 31, 1996 - $420,463

Transfer to designated funds

Year ended March 31, 1997 - ($278,475)

Year ended March 31, 1996 - $0

Equity, end of year

Year ended March 31, 1997 - $149,016

Year ended March 31, 1996 - $413,672

NOTES TO FINANCIAL STATEMENTS

March 31, 1997

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.

Capital assets

Capital assets are recorded at cost. Amortization is provided over the estimated useful lives of the related assets, using the following methods and rates:

Computer equipment - 5 years straight-line, no residual value

Furniture and equipment - 5 years straight-line, no residual value

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. Change in accounting policy

During the year, the Board of Directors adopted a new accounting policy for capital assets as described in Note 2. This new policy is in accordance with new recommendations from the Canadian Institute of Chartered Accountants for accounting for capital assets by not-for-profit organizations.

As a result of the retroactive application of this change in accounting policy, equity as previously reported has increased as follows:

Equity, beginning of year, as previously reported

1997 - $326,263

1996 -$420,463

Net adjustment arising from change in accounting policy

1997 - $87,409

1996 - $0

Equity, beginning of year, as restated

1997 - $413,672

1996 - $420,463

This increase to equity results from capital assets that were previously expensed. Under the new accounting policy, the cost of capital assets will be amortized over the estimated useful life of the asset.

As a result of this change in accounting policy, the excess of expenses over revenue for the year ended March 31, 1996 increased by $9,705 (1995 - nil) related to depreciation expense.

4. 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.

5. Commitments

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

Commitments approved by Panels

1997 Equality Rights - $1,766,281

1997 Language Rights - $281,868

Total 1997 - $2,048,149

Total 1996 - $1,912,107

Disbursements paid

1997 Equality Rights - $486,070

1997 Language Rights - $183,989

Total 1997 - $670,059

Total 1996 - $566,044

Sub Total

1997 Equality Rights - $1,280,211

1997 Language Rights - $97,879

Total 1997 -$ $1,378,090

Total 1996 -1,346,063

Cash held for designated purposes

Total 1997 - ($261,798)

Total 1996 - ($502,156)

Commitments to be funded by future contributions

Total 1997 - $1,116,292

Total 1996 - $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.

6. Capital assets

Computer equipment

1997 Cost - $65,677

1997 Accumulated Amortization - $18,702

1996 Cost - $60,670

1996 Accumulated Amortization - $6,067

Furniture and equipment

1997 Cost - $37,824

1997 Accumulated Amortization - $11,051

1996 Cost - $36,444

1996 Accumulated Amortization - $3,638

Sub-Total

1997 Cost - $103,501

1997 Accumulated Amortization - $29,753

1996 Cost - $97,114

1996 Accumulated Amortization - $9,705

Net book value

1997 - $73,748

1996 - $87,409

7. Start-up costs

One-time start-up costs associated with relocating the Corporation’s head office during the year ended March 31, 1996, including recruiting costs, have been written off during the year.

8. 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.

 

 

 

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, section 23 of the Manitoba Act, 1870, and section 2 of the Charter where it is used in support of the 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); Louise R. Guerrette (New Brunswick); and Sylvie Léger (Ontario).

 

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 up to $5,000.00 in funding for the development of cases which fall within the Program’s mandate. This enables groups or individuals who are considering court challenges to do further research or other development work to determine whether or not they have a good test case. 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 $5,000.00 in additional funding for consultation at the case development level.

 

CASES

Introduction

In 1996-97, the Language Rights Panel met three times and held one conference call. The Program received 23 applications for funding in the course of the year.

<<TABLE 2>> - Language Grants

Case Development 5

Impact Studies 1

Negotiation 3

Case Funding 5

Total 14

A total of fourteen applicants were granted funding by the Panel: five court challenges; five case development projects; three applications for negotiations; and one impact study. It should be noted that it is possible to obtain funding for negotiations in addition to funding for a court challenge or a case development project.

<<TABLE 3>> - Breakdown of Decisions on Language Applications made between April 1, 1996 and March 31, 1997

Panel Granted 14

Application Pending 5

Applicant Withdrawn 1

Panel/Admin Rejection 3

Total 23

The applications come from nearly all the provinces and territories 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 attention, as documented later in this report.

<<TABLE 4>> - Language Applications Received by Provinces and Territories between April 1, 1996 and March 31, 1997

Yukon 1

Northwest Territories 1

British Columbia 1

Alberta 0

Saskatchewan 0

Manitoba 5

Ontario 3

Québec 3

New Brunswick 3

Nova Scotia 3

Prince Edward Island 1

Newfoundland and Labrador 2

Total 23

 

This report outlines the main court challenges which received funding from the Language Rights Panel. It is not intended to be a complete review of the language rights situation in Canada. First, the 1995-96 annual report recapitulates the principal language rights rulings in the areas under the Program’s mandate. Secondly, the study on the current state of language rights in Canada, prepared for the Program by Prof. Benoît Pelletier of the Faculty of Law, Civil Law Section, at the University of Ottawa, is still highly relevant. Prof. Pelletier’s study, Le Bilan des droits linguistiques au Canada, (1995) 55 R. du B. 611, is available from the Program 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 state of language rights in Canada.

For the purposes of this annual report, 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.

<<TABLE 5>> - Language Applications Received Between April 1, 1996 and March 31, 1997 by Category of Rights

Education Rights 13

Judicial Rights 1

Language of Work and Services 6

Legislative Bilingualism 2

Other 1

Total 23

 

LEGISLATIVE BILINGUALISM

The Language Rights Panel granted funding to the Société franco-manitobaine for an impact study on section 23 of the Manitoba Act, 1870. The study will focus on the decisions handed down by the Supreme Court of Canada with respect to the legal scope of section 23. The key question for the Société franco-manitobaine is to determine which services provided by, or documents issuing from, the Government of Manitoba are protected under the section 23, including driver’s licences, licence plates and motor vehicle registration cards.

The scope of section 133 of the Constitution Act, 1867, and of section 23 of the Manitoba Act, 1870, has been clarified in numerous rulings handed down by the Supreme Court of Canada. A number of issues are still unresolved, however. Here are a few:

What distinction should be made between delegated legislation and the rules and directives of internal management? Does the bilingualism rule apply only to the regulations or to all orders in council, letters patent, licences, orders or other governmental documents? Does section 133 require that all documents tabled as part of parliamentary proceedings be in both official languages?

 

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 pleading in or process issuing from the courts established in certain provinces (Québec, New Brunswick and Manitoba) or by the Parliament of Canada. 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.

Part XVII of the Criminal Code supplies further protection to the rights provided under section 19. Certain issues remain, however, such as the question of the language in which evidence is to be disclosed [see R. v. Rodrigue (1994), 91 C.C.C. (3d) 455 (Y.S.C.)]. In R. v. Simard (1995), 27 O.R. (3d) 97, the Ontario Court of Appeal put an end to the debate on the question as to which language must be used in an information; the court ruled that an information must be translated into the accused person’s official language upon his or her request.

Where a trial in English before a judge and jury is elected 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 regard. In one case, the court found that paragraph 530.1(e) of the Criminal Code violates section 133 of the Constitution Act, 1867, because it denies the prosecutor his or her 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 is attempting to force the provincial Attorney General to assign English-speaking Crown prosecutors to his case. Should these challenges succeed, the Criminal Code provision would be inoperative in Québec and Manitoba, given the similarity between section 133, and section 23 of the Manitoba Act, 1870.

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. Unfortunately, the Court of Appeal dismissed the application for intervener status. The main question is how to balance the statutory right of an accused to choose the language of trial with the right of prosecutors (and judges) to choose the language they will use before the courts.

Other issues 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. Legal rights, 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 (The Equitable Use of English and French before the Courts in Canada, November 1995) reveals significant deficiencies in this regard in several provinces.

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 right to instruction

Section 23 of the Charter grants entitled parents of official language minority communities the constitutional right to have their children receive school instruction in their language. 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 minority language instruction which gradually increases with each upward step on the sliding scale established by the Court.

For example, francophone parents in Summerside, 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-Édouard 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.

In a decision handed down on January 8, 1997, Mr. Justice DesRoches of the Prince Edward Island Supreme Court ruled in favour of the Acadian parents of Summerside.

More notably, he was of the opinion that the preservation and flourishing of the French language and culture was at stake:

I am convinced such a program will most effectively encourage the flourishing and preservation of the French language and culture in the Summerside area, and in the Province in general, and will remedy past defects in the provision of French language educational services. (p. 43)

The ruling is not only of major importance for the Acadian community on Prince Edward Island but also for the other francophone communities across the country. It more firmly entrenches previous interpretations by the Supreme Court of Canada that section 23 is remedial in nature. The provincial government is, unfortunately, appealing the decision.

This ruling could bolster the case of the francophone parents of Laurier, Manitoba, who are demanding the right to have their children educated in a French first-language setting. In this respect, the Program has granted funding to the Fédération provinciale des comités de parents to assist the parents in obtaining a court declaration to the effect that they are entitled, under section 23, to have their children receive their education in a minority educational facility on an equivalent basis as that provided for the majority. Also sought is a declaration stating that the parents are entitled to manage and control the French-language instruction and their educational facility.

In a similar case from the St. Claude region in Manitoba, the francophone parents are unable to have their children educated in a homogeneous French-language school. The only program available to them is what is commonly called the 50-50 bilingual program. Here, too, the Program granted funding to the Fédération provinciale des comités de parents. In both cases, the Fédération also received funding for negotiations.

The right to management and control

Section 23 also grants the official language minority authority over the management and control of instruction and educational facilities. Section 23 establishes a sliding scale of rights based on the number of children whose parents meet the requirements of this section. This means at a minimum, the right to a program of instruction in the official language minority. At a maximum this could mean the management by the official language minority of its own public education facilities. However, the right to manage and control 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 jurisdictions. 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.

It should be emphasized that the official language minority communities have always based their development on their right to instruction and to school management and control. This is absolutely vital for the minority communities.

This year, together with the Association des parents francophones de la Colombie-Britannique, the Program celebrated its very first legal victory since it was reinstated. On August 19, 1996, Mr. Justice Vickers of the British Columbia Supreme Court handed down an important decision affecting the right of the francophone parents living in the region between Greater Vancouver and Victoria to manage and control their children’s education. This unappealed decision corroborates the fact that the mere existence of regulations is insufficient to ensure that a province will apply its section 23 constitutional obligations:

Apart from what has been said by the Supreme Court of Canada, it is my view that legislation, as opposed to regulation, is the manner in which this constitutional commitment should be met. Language rights are rights of a fundamentally different nature. Their realization may require creative or innovative measures. The burden of ensuring that the obligations imposed by s. 23 is a burden placed on both the government and the legislature of each province. Provincial legislation provides a measure of security beyond a regulatory scheme. Amending a statute is far more onerous than amending a set of regulations. As well, the presentation of legislation is more likely to ensure a better public understanding of this significant Canadian solution for the protection of language and culture, afforded to both French and English speaking Canadians. With debate in the Legislative Assembly comes the opportunity to advance a better understanding of our national heritage and the unique place it holds in the family of nations. (pp. 37-38)

In addition, this is the first time to our knowledge that a judge has required a provincial government to adopt new legislation within very strict time limits, and remained seized of the matter.

Unfortunately, negotiations with the provincial government have proven difficult. The Association des parents francophones de la Colombie-Britannique has been forced to launch further legal proceedings to have the right to school management and control recognized in the rest of the province.

At the opposite end of the country, the Fédération des parents francophones de Terre-Neuve et du Labrador has been granted funding by the Program. Although the Province recognizes the right to instruction in the French language, the new Education Act contained only two provisions relating to section 23, neither of which provided any direction regarding the implementation of the section’s requirements. Accordingly, the Fédération received funding to challenge the new act and related regulations by means of an action which sought a declaratory judgment. As of March 31, 1997, it appeared that negotiations with the provincial government were encouraging.

Again in the Maritimes, the Fédération des parents acadiens de la Nouvelle-Écosse proposes to challenge the decision of the Conseil scolaire acadien provincial (provincial Acadian school board) to maintain its bilingual and mixed programs. The Fédération is of the opinion that this is a violation of the parents’ constitutional right to have their children instructed in the French language in a homogeneous school managed and controlled exclusively by the Acadian community.

In New Brunswick, the provincial government has abolished all school boards, francophone and anglophone alike. The Fédération des comités de parents du Nouveau-Brunswick questions the wisdom of such a decision. The Fédération has been granted negotiation funding from the Program to allow it to participate in the legislative process and to air its concerns.

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 will undergo profound changes as a result of the passing of Bill 104, which finally grants the right to education management and control almost everywhere in Ontario. The coming into force of the new Act, set for January 1, 1998, will likely not occur without friction. Proposed legislation on the question of funding has yet to be adopted. For these reasons, it is important to monitor developments in this province as closely as possible, since there will obviously be repercussions for the Séguin, Bourgeois, Landry case.

Finally, the Fédération franco-téNOise has been granted funding from the Program to challenge the Northwest Territories Education Act. The Fédération decided on this course after organizing a major summit on education in November 1996, during which the right of francophone parents to manage and control French first-language instruction was reaffirmed.

As can be gathered, there are many court challenges on the issue of education management, and further challenges can be expected in the very near future. A number of issues still need to be raised for the benefit of the official language minority 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 parents’ mother tongue or on the language in which the parents received their primary education?

Should the government provide some kind of initial language training program when 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 following: 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 must, in fact, be equivalent to that provided in the majority language.

 

LANGUAGE OF WORK, COMMUNICATIONS AND SERVICES

Sections 16 and 16.1 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 a declaratory effect or whether it grants specific rights.

For example, can section 16 serve as a 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 the question as yet. In this regard, the Program has agreed to fund the action brought by Frantz Étienne against the Department of National Defence. Mr. Étienne alleges that he would have received a promotion had it not been for the lack of a training course in his official language.

In section 16.1, 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. This section applies solely to New Brunswick. To our knowledge, there is no case law with respect to this provision. There is no question, however, that the courts will soon be called upon to interpret its scope.

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 one’s choice. It also grants the right to communicate with and receive services from any other office of these institutions in the official language of one’s 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 and, more specifically the Royal Canadian Mounted Police. The Program has funded a case development project, which is aimed at determining whether the RCMP administrative policies to serve the public in both official languages at certain detachments comply with section 20 of the Charter. The question of federal Crown corporations will certainly arise in the future. The degree to which federal control of a Crown corporation is considered sufficient to apply Charter provisions to the corporation will have to be determined.

Many questions about this section remain unresolved. We might ask, for example, how exactly 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 corporations, groups and various associations, in addition to individuals? Canadian courts have not yet tackled the interpretation of "communications" and "services" in section 20. In two other case development projects funded by the Program, the notion of services is under study.

The question also arises as to what is meant by the terms "significant demand" and "nature of the office". Although these terms have been defined in the Regulations made under the Official Languages Act, of which the majority of provisions came into effect in December 1992, certain legal arguments could be raised to the effect that these definitions make the rights provided for under the Act more limited in scope than those guaranteed under 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 constitutional obligations 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 fulfill 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 provide 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 connotations. 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 Contribution Agreement with the Federal Government allows the Language Rights Panel to fund a case involving freedom of expression pursuant to paragraph 2(b) of the Charter, as long as the case also raises other Charter sections dealing directly with language rights. The Program did not receive any applications for funding based on this issue in the 1996-97 fiscal year.

 

CONCLUSION

The decisions on the question of the right to instruction and the right to management and control, handed down at opposite ends of the country, indisputably show that some encouraging progress has been made. Cautious optimism should, nonetheless, prevail on the issue of education rights. Current legislation on education management and control is still quite often weak. In addition, a closer look at the situation reveals that funding levels are inadequate or that the objective of full management and control over education remains difficult to achieve. Moreover, with few exceptions, the actions taken by the provinces in the education area often depend on federal funding, even though education clearly comes under provincial jurisdiction.

In October 1996, Program representatives participated in the Symposium national sur la réparation constitutionnel (National Symposium on Constitutional Remedies), organized jointly by the Commission nationale des parents francophones (National Commission of Francophone Parents) and the Canadian Centre for Linguistic Rights. Although several legal issues pertaining to constitutional remedies still remain uncertain, the outcome of the Symposium was to heighten public and government awareness of lingering inequalities in the various education funding structures, particularly for the francophone and Acadian communities.

As we have observed, there are still a great many unresolved issues in the area of language rights in Canada. Recourse to the courts remains an important way to clarify the language rights enshrined in the Canadian Constitution, and an appropriate avenue for the official language minority communities to pursue the recognition of their rights

 

 

PART III - EQUALITY RIGHTS FUNDING:

A Critical Piece of the Equality Rights Puzzle

 

Introduction

When the Government of Canada agreed in 1985 to expand the mandate of the original Court Challenges Program of Canada to include funding for equality rights cases arising under section 15 of the Canadian Charter of Rights and Freedoms, equality-seeking organizations and advocates were thrilled. In pushing for such a commitment, they had argued that, without a secure and independent source of ongoing funding for equality cases, the Charter would have little meaning for those who most needed its benefit and protection. It was clear that members of historically disadvantaged groups could not possibly bear the enormous cost of equality litigation themselves.

In the nearly 7 years that followed, the Program made an outstanding contribution to equality litigation in Canada. In particular, funding was made available to parties and/or interveners in such cases as Haig and Birch v. Canada (challenge to lack of protection for gay men and lesbians in the Canadian Human Rights Act), R. v. Seaboyer (an attack on the "rape shield" provision in the Criminal Code by a man accused of sexual assault) and Canadian Council of Churches v. Canada (a very important case regarding standing to bring an equality rights challenge). Although not all were successful, each of these cases and the many others funded by the Program contributed to the development of early equality jurisprudence. In addition, research and development of substantive equality arguments was supported through the provision of case development funding for a wide range of important issues.

When the announcement was made that funding for the Program would be terminated in February of 1992, it sent shock waves through the equality-seeking community. The largest and most secure source of funding for critical equality litigation was gone! It was only through the efforts of the Program’s many supporters that promises of reinstatement were secured from all major political parties prior to the next federal election.

The new Court Challenges Program, too, occupies a unique and fundamentally important place in the quest for substantive equality in Canada. With the rise in political conservatism and the onset of the age of fiscal restraint by governments at all levels, other smaller sources of funding for equality cases which existed in 1985 have all but dried up. The Program finds itself under increasing pressure to fill the gaps left by shrinking legal aid budgets and chronic underfunding of community organizations.

That said, it remains a reality that, under its Contribution Agreement with the Government of Canada, the Program is only permitted to provide funding for challenges to federal laws, policies or practices. In this fiscal year, the impact of this restriction on the ability of the Program to contribute to equality discourse in Canada has been particularly evident. A number of critically important equality cases have been before the courts but have not been eligible for funding from the Program.

By way of example only, in the case of Eldridge v. British Columbia (Attorney General), in which a deaf woman was asserting a positive right to sign language interpretation for communication with her physicians, complex issues regarding disability and accommodation arose. In Vriend v. Alberta, a gay teacher was prevented from bringing a human rights complaint against his former employer because the Individual Rights Protection Act of Alberta does not prohibit discrimination on the basis of sexual orientation. In a surprising decision, which was upheld in a split decision on appeal, the Court of Queen’s Bench deferred to the provincial legislature on the issue of human rights protection for gays and lesbians. In the Court’s view, resort may be had to the Charter only to challenge a government action but not where it has omitted to act. This interpretation of the court’s role has the potential to turn equality litigation on its head.

In these and other challenges to provincial legislation and policy, the parties are left to their own resources as no consistent source of funding exists. Equality-seeking groups which wish to intervene in the cases to present substantive equality arguments must resort to private fundraising or tap their own overburdened resources. The Program’s inability to assist the litigants and interveners is a source of frustration for all concerned. These feelings are exacerbated by the knowledge that, in the current political environment, the provinces are assuming greater responsibility for areas which profoundly affect the lives of members of historically disadvantaged groups.

The Equality Rights Panel, comprised of Shelagh Day (British Columbia) and Ken Norman (Co-chairs) (Saskatchewan), Daniel Dortélus (Québec), Amy Go (Ontario), Sharon McIvor (British Columbia), Carmen Paquette (Ontario) and Yvonne Peters (Manitoba), has not been deterred by this reality. Its members remain deeply committed to the pursuit of substantive equality for all Canadians. They recognize the impact of the Program’s mandate limitations on the ability of members of disadvantaged groups to have an effective voice in the cases and issues which most affect them and have taken steps to ensure that the greatest possible benefit is derived from the $1.65 million which is available for equality work each year.

In particular, the Panel has expressed a special interest in initiatives which offer the greatest potential for information sharing and cooperation in the development and presentation of equality arguments. Applicants are encouraged to consult with individuals and groups in the communities affected by their cases/projects and to be as inclusive as possible in their approach. The expenses associated with consultation and working in coalition with others are eligible for reimbursement. Extraordinary funding is available in appropriate cases involving large coalitions or multiple interveners, as these cases offer a unique opportunity for the sharing of ideas and perspectives. Organizations like the Women’s Legal Education and Action Fund, the Charter Committee on Poverty Issues and Equality for Gays and Lesbians Everywhere have offered leadership in this participatory model of test case litigation. In addition, the Panel encourages applicants to share their research and the insights gained through the consultation they undertake with others in the equality-seeking community. The Program’s internet website will soon include a greater range of information on equality rights and the work of the Program for use by the broader community.

As the Program enters the final year of its current Funding agreement with the Government of Canada, it is more important than ever that its valuable contribution to equality seeking efforts in Canada be fully recognized. In the following pages, the reader will find a synopsis of the work undertaken by the equality-seeking community and the support it has received from the Equality Rights Panel. Albeit a tightly defined piece of the larger equality rights puzzle, the Program is indeed a critical one.

 

Outreach

Through contacts made by Program staff during visits to Edmonton, Vancouver and Ottawa in 1995-96, it became apparent that key people in the communities the Program seeks to serve did not know much (or in some cases, anything) about the Court Challenges Program. Those who were aware of the Program’s existence were often confused about its mandate or unfamiliar with the funding and other assistance available.

Staff identified and pursued a number of approaches to address this absence of clear, understandable information. During the summer of 1996, an extensive list of equality organizations, activists and lawyers throughout Canada was compiled. Once the list was finished, information materials about the Program were forwarded to each name on the list.

In early 1996, the Equality Rights Panel granted Program Promotion and Access Funding for the preparation of a straightforward, plain language Equality Rights Pamphlet for distribution to individuals and groups in communities all over Canada. The pamphlet, which was officially "launched" in September, 1996, is now in its second printing.

Program staff were not convinced that the distribution of written material would, by itself, address the need for "outreach" in equality-seeking communities. An ambitious plan was developed early in the fiscal year for one or two members of the staff to visit key cities in each province and territory in Canada before the end of March, 1997. Beginning with Ottawa and Toronto in September, 1996 and ending with Montréal, St. John and Moncton in March, 1997, that is what happened. With the assistance of organizations on the newly developed list, staff were able to organize a variety of meetings and workshops in each location, all of which offered a wonderful opportunity to meet people, to share information and to learn of the communities’ priorities.

 

Mandate Expansion

At the Program’s Annual General Meeting in November, 1995, equality organizations asked the Board of Directors to address the issue of expansion of the Program’s equality mandate to include funding for challenges to provincial laws, policies and practices. The groups believed that their ability to pursue effective test case litigation strategies was compromised by the lack of a reliable source of funding for provincial cases.

The Board of Directors responded to the groups’ request by retaining Tina Head of Ottawa to prepare a strategic discussion paper on options for the expansion of the equality rights mandate. The Paper was presented to the Board in September, 1996 and made available in summary form to the Equality Members at the same time. Individuals participating in a National Consultation on Equality Rights Issues, funded and organized by the Program on the weekend of the AGM, had an opportunity to discuss the Paper. After looking at all the options presented by Ms Head, the consultation participants encouraged the Board of Directors to continue looking for a way to permit the Program to fund a full range of provincial challenges. An Equality Mandate Expansion Sub-Committee, comprised of members of the Board of Directors, Equality Advisory Committee and staff has been established and will report to the Board in September, 1997.

 

Other Activities

Aside from the activities organized by the Program, members of the Equality Rights Panel and Program staff had a number of opportunities to speak at meetings, workshops and conferences around the country about equality rights and the work of the Court Challenges Program. Although the Panel members are volunteers and already devote an enormous amount of time to their work for CCP, they stretched themselves a little further in order to provide invaluable assistance to the Program’s staff and to the organizers and participants of the various outside events they attended.

 

Applications for Funding

Although the activities described above received significant attention in this fiscal year, the efficient and effective disposition of funding applications remained the Program’s first priority. The CCP received a total of 110 new equality rights funding applications during the twelve month period from April 1, 1996 to March 31, 1997, representing an increase of 21 applications or 23.6 % over the previous fiscal year. The increase was due in part to the enhanced awareness of the Program which has resulted from recent outreach efforts and it is anticipated that the numbers will continue to grow significantly throughout 1997-98.

By the end of the year, a decision concerning funding had been made on all but 11 of the new files (10%). Of the 99 files on which decisions were made, 67 applicants received funding (68 %) and the remaining 32 were turned down (32%). Although the reasons vary from file to file, most unsuccessful applications resulted from duplication (for example, when another applicant has already been funded for the same legal issue), the fact that the case involves provincial legislation or action, rather than federal, or that the applicant has not presented a strong equality argument.

<<TABLE 6>> - Breakdown of Decisions on Equality Applications made between April 1, 1996 and March 31, 1997

Panel Granted 67

Application Pending 11

Unsuccessful 32

Total 110

Following is a breakdown of these new equality rights applications by application type. "Application Type" refers to the subject matter of the case and/or the characteristics of the affected group. For comparison purposes, the number of applications in each category for the 2 previous fiscal years are also included in this Table.

<<Table 7>> - Equality Applications by Application Type

Aboriginal

1994/95-7

1995/96-20

1996/97-20

Age

1994/95-1

1995/96-0

1996/97-4

Citizenship

1994/95-1

1995/96-2

1996/97-1

Colour/Race/National Origin/Ethnicity

1994/95-9

1995/96-14

1996/97-22

Disability

1994/95-8

1995/96-14

1996/97-9

Family Status

1994/95-2

1995/96-6

1996/97-6

Geography

1994/95-0

1995/96-0

1996/97-2

Language

1994/95-0

1995/96-0

1996/97-1

Poverty

1994/95-3

1995/96-7

1996/97-5

Prison Inmate

1994/95-1

1995/96-5

1996/97-3

Religion

1994/95-1

1995/96-1

1996/97-0

Section 15 General

1994/95-4

1995/96-2

1996/97-8

Sex

1994/95-5

1995/96-7

1996/97-11

Sexual Orientation

1994/95-6

1995/96-7

1996/97-11

Unknown

1994/95-0

1995/96-1

1996/97-3

Other

1994/95-5

1995/96-7

1996/97-4

Total

1994/95-53

1995/96-93

1996/97-110

The reader will note that the number of applications involving Aboriginal issues, sexual orientation and gender have remained consistently high throughout the Program’s history and that the number of cases and projects involving colour, race, national origin and/or ethnicity has grown steadily over the first three (3) years. Although not clear from Table 7, in this fiscal year, the latter category was further broken down:

Ethnicity - 5

National Origin - 3

Race - 7

Colour/Race/National Origin/Ethnicity - 7

The final 7 applications involved multiple issues or arguments, making them difficult to designate by only one of the descriptors. The Program will continue, in future fiscal years, to describe these cases as accurately as possible.

The CCP also compiles statistics about the province/territory of origin of its applications. As was the case at this time last year, the majority of applications are concentrated in specific regions, while few come from other areas. To place the numbers in perspective, the proportion of applications received from each province/territory has been compared to the percentage of Canada’s population in that province/territory.

<<TABLE 8>> - Equality Applications Received by Provinces and Territories between April 1, 1996 and March 31, 1997

Yukon

Number of Applications - 0

Percentage of Applications - 0.0

Percentage of Canada’s Population - 0.1

Northwest Territories

Number of Applications - 0

Percentage of Applications - 0.0

Percentage of Canada’s Population - 0.2

British Columbia

Number of Applications - 17

Percentage of Applications - 15.5

Percentage of Canada’s Population - 12.9

Alberta

Number of Applications - 8

Percentage of Applications - 7.3

Percentage of Canada’s Population 9.3

Saskatchewan

Number of Applications - 3

Percentage of Applications - 2.7

Percentage of Canada’s Population - 3.4

Manitoba

Number of Applications - 10

Percentage of Applications - 9.0

Percentage of Canada’s Population - 3.8

Ontario

Number of Applications - 43

Percentage of Applications - 39.1

Percentage of Canada’s Population - 37.6

Québec

Number of Applications - 15

Percentage of Applications - 13.6

Percentage of Canada’s Population - 24.7

New Brunswick

Number of Applications - 6

Percentage of Applications - 5.5

Percentage of Canada’s Population - 2.5

Nova Scotia

Number of Applications - 4

Percentage of Applications - 3.6

Percentage of Canada’s Population - 3.1

Prince Edward Island

Number of Applications - 1

Percentage of Applications - 0.9

Percentage of Canada’s Population - 0.5

Newfoundland and Labrador

Number of Applications - 2

Percentage of Applications - 1.8

Percentage of Canada’s Population - 1.9

Other

Number of Applications - 1

Percentage of Applications - 0.9

Percentage of Canada’s Population 0.0

Total

Number of Applications - 110

Percentage of Applications - 99.9

Percentage of Canada’s Population - 100

It is noteworthy that the number of Ontario applications is inflated somewhat by the number of national organizations which reside there. Although they are undertaking initiatives in various parts of the country, the applications routinely come from their head offices. Program staff continue to be concerned about the very small number of cases from Atlantic Canada, Québec and from the Far North.

 

Equality Rights Funding Granted in 1996-1997

The Equality Rights Panel is permitted to provide funding for equality rights litigation and for specific other activities designed to promote the Court Challenges Program or assist in the development of equality rights arguments.

 

Eligible recipients may receive funding for one or more of the following:

Case Development Funding

- to assist the applicant to develop its evidence and equality arguments before applying for full case funding; Case Development Funding may include an amount for consultation with persons and groups affected by the issues in the proposed case

Case Funding

- for the expenses associated with taking an equality case to court (including interventions), at the trial or appeal level

Impact Study Funding

- available to prepare a report on the expected impact of an important equality rights court decision

These three (3) types of funding make up the Program’s Equality Litigation Funding, for which $1.485 million (90% of total equality funding) is available each year.

The remaining ten percent (10%), or $165,000.00 annually, is earmarked for Program Promotion and Access Funding, which is granted to applicants for eligible projects, including: consultations and other meetings at which equality rights and/or the Program are discussed; preparation of pamphlets, videos or other educational or promotional materials; discussion papers on legal issues which come within the Program’s mandate.

The Equality Rights Panel met a total of four (4) times in person and ten (10) times by conference call during the fiscal year 1996-97. They granted Case Funding to 34 applicants as well as funding for 15 case development projects, 17 Program Promotion and Access initiatives and one Impact Study. The amount of money committed by the Panel in this period was $1,766,280.88, an increase of nearly 48% from the $1,194,329.79 granted in the previous fiscal year. With the exception of case development funding, there was a significant growth over 1995-96 in the number of successful applications and the amount of funding committed in each funding category.

 

Litigation Funding

Following is a summary of the cases and case development projects funded by the Panel in 1996-97. 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.

 

ACCESS TO EQUALITY RIGHTS/REMEDIES

Equality rights in Canada are meaningless if those who are entitled to their benefit and protection cannot gain access to the courts to argue their cases or obtain effective remedies once they get there. The Program supported two cases this year which dealt with issues of access and remedies.

Ranjit Perera and two of his colleagues, all persons of colour, are present or former employees of the Canadian International Development Agency (CIDA). They have extensive evidence to show systemic racism in the employment practices of this federal department. They are seeking an order from the court which would not only compensate them personally but would require CIDA to take positive steps, through strict new policies, to eliminate the discrimination which gave rise to the claim. This case presents an excellent example of the difficulties faced by individuals in gathering evidence and presenting cases involving systemic racism.

In the case of Cam Hoa Huynh, which was funded at the Federal Court of Appeal and Supreme Court of Canada levels, the appeal rights of refugee claimants were at issue. Unlike the appeal process in other cases in Canadian courts, the appeal rights of refugees are determined by the Judge who made the original decision. The applicant argued that the requirement for certification of the appeal issues by the trial judge discriminates against refugees and should be eliminated from the Immigration Act.

 

DISADVANTAGED GROUPS

The Court Challenges Program is committed to a view of equality which asserts that section 15 is designed to address group-based discrimination in all its insidious forms - instances in which members of historically disadvantaged groups in society, which are identified by gender, sexual orientation, race or colour, disability or other characteristics, are the targets of discriminatory laws or practices as a result of their membership in those groups. In the following cases, in which disadvantaged groups seek assistance from the court to achieve substantive equality, the applicants have suffered a direct form of discrimination.

Persons of Colour/Racial and Ethnic Minorities

The Midaynta Association in Toronto received intervener funding to participate in a case funded by the Program in 1995-96. Refugees from Somalia are challenging requirements for identification documents under which Canada has refused to grant them landing. Somalis are unable to produce the required documents because of the political situation in their country of origin.

Kenneth Roy Fagan had been in Canada for more than 20 years (the majority of his life), but had never become a Canadian citizen. When he was convicted of a criminal offence, he was immediately ordered deported. Fagan received funding for a challenge to the deportation rules, which left the judge with no discretion to consider his individual circumstances.

Aboriginal Persons

Cases involving the equality rights of Aboriginal persons represented the largest number of funding grants in this fiscal year - eight (8) cases and six (6) case development projects - with issues involving Aboriginal women and Metis persons dominating the list.

Since the enactment of amendments to the Indian Act in 1985 (commonly referred to as "Bill C-31") which were designed to address the discrimination against women, Aboriginal women have been forced to fight to actualize the benefits of those changes. These cases address a range of issues, including:

- the denial of the right to hold property on reserve or participate in Band elections, Vicky Scrimbitt of the Sakimay Band

- the denial of a share of funds from a claims settlement entered into by the Band, Caroline Barry and others from the Garden River Band of Ojibways

Two National Aboriginal organizations are also exploring a challenge arising from the failure of a federally funded training and employment initiative to provide adequately for Aboriginal women and off-reserve Band members. In addition, Tracey Smith, an Aboriginal woman with children in both the United States and Canada is challenging Immigration policies which prevent her from freely crossing the border into Canada.

In a key case involving the rights of Aboriginal women, the Court Challenges Program provided funding to the Native Women’s Association of Canada (NWAC) for its intervention in the case of Twinn et al. v. Canada et al.. In this case, a First Nation in Alberta is arguing that it has an Aboriginal right pursuant to section 35 of the Constitution Act, 1982, to determine its own membership and to refuse to admit women reinstated to Indian status under Bill C-31. NWAC is arguing that section 15 of the Charter applies to the Band’s membership decisions and prevents it from discriminating in this way.

Metis persons and organizations are at the center of three of this year’s cases. The Metis National Council received funding to intervene in the case of Maurice et al. v. Minister of Indian Affairs and Northern Development (funded in 1995-96), in which Metis persons challenge their exclusion from the operation of the federal Specific Claims Policy. The Labrador Metis Association (LMA) received case development and case funding to prepare and present a challenge to the federal Aboriginal Fishing Policy, under which the Minister of Fisheries and Oceans has refused to negotiate an Agreement with the LMA but has done so with First Nations and Inuit organizations. In another instance, Metis fisher, Charles Vermeylen, received case funding to argue that federal fisheries regulations in effect in Manitoba discriminate against Metis fishers by not according them the same exemptions as Indian fishers.

In other Aboriginal cases:

- an Ontario First Nation will explore litigation to address the difference in treatment of Aboriginal persons in inland fisheries as compared to coastal fisheries

- the adopted son of two Indian persons, who is himself not biologically Indian, will study the potential for a challenge to the revocation of his Band membership

Disabled Persons

Disability issues arise this year in cases involving a wide range of statutes and issues, including:

- a challenge by Angela Chesters to provisions of the Immigration Act and Regulations which permit Canada to refuse landed immigrant status to persons with disabilities, an issue which has been of concern to the disabled community for many years.

- an intervention by the Canadian Mental Health Association in the case of R. v. LePage. Mr. LePage had been found not guilty of a criminal offence by reason of mental disorder. At issue in his case before the Ontario Court of Appeal are the onerous release provisions in the Code for such persons.

Allan Granovsky, an individual who for many years suffered from a progressive disabling condition, was granted funding to challenge the eligibility requirements for disability benefits in the Canada Pension Plan Act. He argued that, although his condition did not originally come within the definition of "disability" in the Act, it prevented him from making sufficient contributions to qualify for benefits at a later time.

A case concerning federal civil service employment testing brought by Jeffrey Tapp in Ontario raises the controversial issue of accommodation and its relationship to section 15. Mr. Tapp will argue that section 15 must be interpreted to include a duty to accommodate disabled persons. While not everyone agrees with this approach to section 15, it promises to impact on the manner in which section 15 is argued in future cases.

 

Lesbians and Gay Men

In the Supreme Court of Canada’s 1995 decision in Egan and Nesbit v. The Queen, the Court held that section 15 of the Charter prohibits discrimination on the basis of sexual orientation - a victory for gay men and lesbians. However, the Court also held in that case that the discrimination in the Old Age Security Act was justified under section 1 of the Charter, for reasons which are difficult for many to understand. Since then, the lesbian and gay community has moved forward cautiously with litigation, hoping to minimize the negative impact of the section 1 finding.

In an early post-Egan case, the Canadian Union of Public Employees and Nancy Rosenberg and Margaret Evans, 2 employees from its national headquarters, are challenging the definition of spouse in the Income Tax Act, which excludes same-sex couples and has prevented C.U.P.E. from registering its pension plan. Equality for Gays and Lesbians Everywhere (EGALE) received funding for this case last year. In addition to Rosenberg and Evans, the Equality Rights Panel has also granted funding to William Dwyer, an intervener in this case, who successfully challenged his employer’s pension plan for failing to make provision for same-sex couples. The remedy being sought in this case is a declaration which is restricted to the impact of the Act on the registration of pensions.

A very important equality issue arises in a challenge to the Criminal Code which will be initiated by the December 9 Coalition, a British Columbia-based organization. In section 232, the Code provides that a charge of murder may be reduced to manslaughter where the "person who committed it did so in the heat of passion caused by sudden provocation". This section has been used successfully by individuals who have killed gay men but argue that they did so only after being provoked by sexual advances made by the victims. Sometimes called the "homosexual panic" defence, this interpretation of the law is clearly premised on prejudicial stereotypes and could justify hatred and violence directed at gay men. The coalition seeks to have the entire defence of provocation declared unconstitutional.

Also funded in this fiscal year were cases/projects involving:

- the right of a lesbian from the United States to remain in Canada while her non-Canadian partner completes her education at a Canadian University (Dara Lynne)

- an intervention by the Canadian AIDS Society in the case of Hodder v. Canada (Minister of Employment and Immigration), in which the Canada Pension Plan Act is challenged on the basis that it denies benefits to surviving same-sex partners

- development of a challenge to the Income Tax Act, which prevents same-sex partners from claiming the spousal portion of tax credits

 

Women

Following discussions at a national strategic consultation on issues related to federally sentenced women funded under the Program Promotion and Access Guidelines, the Canadian Association of Elizabeth Fry Societies (CAEFS) applied for and was granted funding to intervene in a case in which several women are challenging the Correctional Service of Canada’s right to transfer them to men’s correctional facilities against their will. CAEFS will argue that these transfers are part of a larger pattern of discrimination against women in the federal system and that they discriminate against women by housing them in facilities designed and built for male prisoners, isolating them from their peers and preventing them from accessing appropriate programs.

On February 27, 1997 the Supreme Court of Canada decided favorably in the case Benner v. Secretary of State. The highest court in the land held that certain provisions of the 1977 Citizenship Act violated section 15 of the Canadian Charter of Rights and Freedoms.

The appellant in this case, Mark Donald Benner, was born in 1962, to a Canadian mother and an American father. The 1977 Citizenship Act granted automatic citizenship to children born abroad of Canadian fathers. Children born abroad of Canadian mothers and non-Canadian fathers had to apply for citizenship, which involved, among other things, passing a criminal clearance check.

Mr. Benner applied for citizenship and was rejected when he did not pass the criminal clearance check. He subsequently appealed this decision with funding from the Court Challenges Program.

In a unanimous decision, the Supreme Court stated "[t]his legislation continues to suggest that, at least in some cases, men and women are not equally capable of passing on whatever it takes to be a good Canadian citizen. In fact, it suggests that children of Canadian mothers may be more dangerous than those of Canadian fathers, since only the latter are required to undergo an oath and security check." The Court found that the appropriate remedy would be to grant access to citizenship to the children born abroad of Canadian mothers.

 

Persons Living in Poverty

Because the Program is only permitted to fund challenges to federal law, policy or practice, there are few opportunities to provide assistance for issues which affect the growing number of Canadians who live in poverty. In this fiscal year, funding was granted for two case development projects. In the first, a possible challenge to the Canadian Human Rights Act will be explored. The applicant hopes to argue that the failure of the Act to protect poor individuals from the mistreatment which results from their income source, poverty or social condition is in itself discriminatory. Case Development Funding was granted to an anti-poverty organization to explore litigation issues arising from the impact of the new Employment Insurance system on persons living in poverty.

 

Children

Children are, without doubt, one of the most vulnerable groups in our society. Dr. Ailsa Watkinson, an educator from Saskatchewan, received case development funding to develop a proposed challenge to section 43 of the Criminal Code. That provision provides a defence to a charge of assault against a child victim to a parent or teacher who uses reasonable force for the purpose of "correction". At the conclusion of the case development, Dr. Watkinson presented a strong substantive equality argument for the elimination of this defence, which has resulted in acquittals in even very serious assaults against children. Case funding was granted for a court challenge, in which Dr. Watkinson will work with a national organization committed to the equality rights of children.

 

ADVERSE IMPACT DISCRIMINATION

Adverse impact discrimination occurs when a statute, policy or other action which is neutral on its face, results in significant hardship for members of an historically disadvantaged group. Cases in this fiscal year involving adverse impact included:

- McCorrister et al. v. The Queen, a case involving the voting rights of federally sentenced prisoners. The prisoners won their case at trial but the adverse impact argument was dismissed. The government has appealed and the applicants will have a second opportunity to argue that the denial of the vote to prisoners has an adverse impact on the poor and Aboriginal persons.

- a challenge by Fred Weeks, the father and caregiver of a severely disabled adult, to provisions of the Income Tax Act which do not allow him deductions from income for the costs of caring for his son. The impact of these provisions is to force caregivers to institutionalize disabled family members because there is too little money to provide adequate care.

- the case of Collins v. The Queen, in which Mary Collins seeks to eliminate distinctions in the Old Age Security Act which prevent former spouses (divorced, widowed) from receiving spousal benefits; although primarily advanced on the basis of marital status, Collins asserts that the provisions have an adverse impact on women.

Adverse impact discrimination is also at the center of an issue involving women who are sponsored to come to Canada by prospective spouses. The women face deportation on sponsorship breakdown, even when it occurs because the women are being physically, sexually or emotionally abused by their sponsors. Chau Ngoc Yen, a sponsored Vietnamese fiancee, is challenging the provisions of the Immigration Act which result in deportation in abuse cases. She will argue that these provisions, though neutral on their face, disproportionately affect women, who are more often the victims of abuse.

Recent changes in federal electoral boundaries in New Brunswick, made pursuant to the Electoral Boundaries Readjustment Act, are being challenged by Société des Acadiens et des Acadiennes du Nouveau-Brunswick. Although the changes result from shifting population numbers, their impact has been to leave the Acadian community, a unique and historic ethnic and linguistic minority, without an effective voice in the governance of Canada by dividing their number among several ridings. Previously, ridings existed in which a majority of the voters were from the Acadian community.

 

 

INTERPRETATION OF THE LAW

The equality-seeking community has continued to insist that the law, in all its aspects, must be interpreted in a manner which is consistent with section 15 of the Charter. The Women’s Legal Education and Action Fund (LEAF) received funding this year for its intervention in the case of R. v. Darrach, a criminal case in which the accused is charged with sexual assault. The accused is arguing that he should be permitted to adduce evidence of the past sexual conduct of the victim. At issue in the case are the most recent amendments to the guidelines in the Code regarding such evidence. LEAF will argue that the existing protections for victims should be preserved, on the basis that they are necessary if women’s equality is to be fully respected.

The Program provided funding to an African Canadian accused youth, R.D.S. and three interveners (Parent Student Association of Preston, LEAF and a coalition comprised of the African-Canadian Caucus of Nova Scotia and the Congress of Black Women) in a crucial equality case before the Supreme Court of Canada. The Court will rule on the interpretation to be given to "judicial bias", after an African Canadian Judge’s acquittal of R.D.S. was overturned on appeal on that basis. At issue is a judge’s right to bring to the bench her unique understanding of the injustice and discrimination suffered by members of an historically disadvantaged group in Canada generally and in the community in which the case arises.

 

Program Promotion and Access Funding (PP & A)

The Program is very pleased to report that the entire $165,000.00 available in this fiscal year for Program Promotion and Access was granted to equality-seeking groups for a wide range of initiatives.

PP & A FUNDING AT WORK IN THE COMMUNITY

Although the Court Challenges Program is an eligible recipient of PP & A Funding, by far the majority of the money supports community-based projects.

The Equality Rights Panel granted funding for a total of nine (9) consultation meetings on legal issues and litigation priorities. These meetings accorded the participants an opportunity to discuss test case litigation as an option to address significant concerns in the community. The issues, which are briefly described below, are as varied as are the groups which received the Program’s support:

Canadian Association of Elizabeth Fry Societies

- litigation strategies to address the equality rights concerns of federally sentenced women, including transfers to male facilities and discrimination in the security classification system

Canadian Council of Refugees

- Immigration Act, policies and practices, particularly as they relate to refugees

Community Legal Education Association

- a discussion paper, followed by a regional consultation, on equality issues of concern to members of ethno-cultural minorities in Manitoba

Community Unemployed Help Centre

- equality issues and litigation options following the introduction of the new Employment Insurance Act

December 9 Coalition

- litigation strategies regarding section 1 of the Charter following the disappointing section 1 decision of the Supreme Court of Canada in the Egan and Nesbit case

DisAbled Women’s Network of Canada

- the impact on women with disabilities of the argument that section 15 should be interpreted to include a "duty to accommodate"

Equality for Gays and Lesbians Everywhere

- a two-phase consultation to establish litigation priorities

Minority Advocacy and Rights Council

- deportation of long-term residents of Canada following criminal convictions

National Organization of Immigrant and Visible Minority Women of Canada

- legal strategies to address sexism and racism directed at immigrant and visible minority women

Saskatchewan Voice of People with Disabilities

- discussion paper and 4 local consultations on barriers which exist for Aboriginal persons with disabilities and strategies to overcome them

West Coast Women’s Legal Education and Action Fund

- regional meeting to discuss recent decisions and legislative changes regarding the disclosure to accused persons of the personal records of victims of sexual violence

The Program also funded two (2) meetings at which equality rights and the work of the Court Challenges Program were discussed more generally. The purpose of these meetings was to assist the participants to understand the Program’s work and to identify issues which might be appropriate for future litigation initiatives. The British Columbia Native Women’s Society held a workshop in Vancouver for its Board and members. The Iranian Heritage Society of Edmonton plans a one-day workshop at which it will present and discuss the information in the Program’s Equality Rights Pamphlet. Funding was provided for translation of the pamphlet into Farsi.

Funding was also granted to Equality for Gays and Lesbians Everywhere this year for the preparation of a Strategic Discussion Paper on the question of whether differences which exist from province to province in the grounds protected under human rights legislation is an actionable violation of section 15 of the Charter.

 

COURT CHALLENGES PROGRAM PP & A PROJECTS

The CCP received funding from the Equality Rights Panel to hold a National Strategic Consultation on Equality Issues on the weekend of September 27 - 29, 1996. The participants, most of whom were associated with organizations which are part of the Program’s Equality Membership, discussed a range of topics, including:

- litigation priorities and co-operative litigation strategies for the coming year

- challenges associated with test case litigation in the current political and economic climate

- limits on the Program’s equality mandate and strategies for change

- the role and composition of the Program’s Advisory Committee of Equality Members

The Program also received funding to improve its internet website by adding additional materials which may be accessed by equality-seeking groups across the country. PP & A funding will also be used to prepare a package of plain language outreach materials which will describe the Program’s equality work and provide examples of eligible cases and projects. These materials will be used by Program staff and others when speaking to groups and individuals about the Program.

 

Conclusion

There are many reasons for equality seekers to look forward to 1997-98. In particular, it promises to be a year in which several key equality cases are decided by the Supreme Court of Canada. Our highest court will have a renewed opportunity to address section 15, and its relationship to section 1 of the Charter, in such cases as Eldridge, G. and R.D.S. Each of these decisions has the potential to further shape the "face" of equality for years to come.

In addition, many of the initiatives funded by the Program during this fiscal year will come to fruition in 1997-98. Consultations will take place throughout Canada on a range of important issues; case development reports will be completed on such timely matters as human rights protections for persons living in poverty and the rights of Aboriginal women and off-reserve Band members to a fair share of employment training dollars; and a number of very important section 15 cases will be heard by the courts.

In a manner of speaking, the Program has really "hit its stride" in its equality work in this fiscal year. The new fiscal year promises to offer new opportunities to continue this work. The importance of outreach and making information about the Program broadly available cannot be underestimated. Although an excellent beginning has been made, much more needs to be done. Equality cases begin with real people in real communities and many do not yet realize that an actionable case exists or that financial assistance is available. The Program is committed to making sure that its resources are optimally used to ensure that Canadians have access to justice.

The Board of Directors, the Equality Rights Panel and the staff are justifiably proud of their efforts to date and excited about the year just beginning. A new contribution agreement with the Government of Canada is in the cards and careful consideration is being given to options for expanding the equality mandate to include provincial cases. It is a time of promise, a time of optimism and a time for some reflection on what has been and what may be. The Program welcomes this opportunity to continue in the important work it has begun.