{"id":2165,"date":"2017-02-09T18:24:02","date_gmt":"2017-02-09T18:24:02","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=2165"},"modified":"2017-08-31T02:06:11","modified_gmt":"2017-08-31T02:06:11","slug":"still-playing-favourites-some-objections-to-the-court-challenges-program","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/still-playing-favourites-some-objections-to-the-court-challenges-program\/","title":{"rendered":"Still Playing Favourites: Some Objections to the Court Challenges Program"},"content":{"rendered":"

The federal government has officially announced<\/a> that it is bringing back the Court Challenges \u00a0Program, which provides money to individuals or groups who pursue litigation in which they assert certain constitutional or quasi-constitutional rights. In comparison with past iterations, the program will subsidize claims based on a broader range of rights \u2015 not only equality and language rights under the Canadian Charter of Rights and Freedoms<\/em> and the Official Languages Act<\/em>, but also those based on sections 2, 3, and 7 of the Charter (protecting, respectively, \u201cfundamental freedoms\u201d of religion, expression, and association; the right to vote; and the rights to life, liberty, and security of the person). Yet even with this broader focus, the program reflects a flawed and indeed disturbing approach to the constitution by the government.<\/p>\n

As I wrote in a post for the CBA National Magazine\u2019s blog<\/a> last year, we should question the government\u2019s decision to prioritize the enforcement of some parts of the constitution over others. I noted that the government does have a special statutory mandate, under the Official Languages Act, to promote the recognition of both official languages and, especially, the vitality of minority linguistic communities throughout the country \u2015 but of course a court challenges programme is only one of a myriad ways in which this might be done. And there is certainly no mandate to promote some Charter rights in particular.\u00a0Why are, for\u00a0instance, the due process rights protected by sections 8-14 of the Charter left out? Nor is there any reason, to promote the respect of Charter<\/em> rights but not that of other constitutional provisions, such as those pertaining to the division of powers.<\/p>\n

The choice of priorities for the Court Challenges Program is symbolic, and as I wrote last year<\/p>\n

the symbolism is wrong. In choosing to fund court litigation based on language and equality rights, Parliament isn\u2019t just sending the message it values these rights. It also says that it values these rights more than others. In other words, Parliament is playing favourites with the different provisions or components of the constitution. Yet they are all, equally, \u201cthe supreme law of Canada<\/a>,\u201d which Parliament is bound to respect in its entirety. Thus, in my view, signalling that it regards respecting parts of the Constitution more than the rest, in itself contradicts the principle of constitutionalism.<\/p>\n

The government\u2019s public statements today only confirm my impression. The Prime Minister has tweeted<\/a>\u00a0that the Court Challenges Program \u201cwill help protect the language & equality rights of all Canadians\u201d \u2015 singling out the rights targeted by the old versions of the programme, and omitting even those added by the one announced today. Meanwhile, the Justice Minister brags<\/a> about \u201creinstating the Court Challenges Program as we celebrate #Charter35\u00a0to show our commitment to human rights and the rule of law\u201d \u2015 without any mention of, you know, that other anniversary we are also celebrating this year, which someone committed to the Rule of Law might also want to notice.<\/p>\n

I have other objections to the Court Challenges Program too \u2015 notably, to the fact that it funds challenges not only against federal laws, but also provincial ones, which strikes me as disloyal behaviour for a partner in the federation. If provinces want to pay people to challenge their own laws, they do can do it on their own \u2015 but they should have the choice. And of course, it is doubtful that such a program is really the most effective way for the federal government to uphold the Rule of Law. Giving teeth to its internal reviews of proposed legislation for Charter<\/em> and Canadian Bill of Rights<\/em> compliance might be one good place to start instead; there are others as well.<\/p>\n

But as the program is first and foremost symbolic, and in light of the Prime Minister\u2019s and the Justice Minister\u2019s statements, my objection to the program\u2019s symbolism, to its playing favourites with the constitution which the government ought to respect in its entirety, is perhaps the most important one. Although plenty of people in legal academia (including Gr\u00e9goire Weber, who is currently an adviser to the Justice Minister) and the bar have praised the return of the Court Challenges Program, I have not seen a response to my objections. It\u2019s not that I am entitled to have my objections responded to, of course \u2015 but I would be very happy to publish a guest-post if anyone cares to do it. Any takers?<\/p>\n

This article was originally published<\/a> on “Double Aspect,” Mr. Sirota’s award-winning blog.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The federal government has officially announced that it is bringing back the Court Challenges \u00a0Program, which provides money to individuals or groups who pursue litigation in which they assert certain constitutional or quasi-constitutional rights. In comparison with past iterations, the program will subsidize claims based on a broader range of rights \u2015 not only equality …<\/p>\n","protected":false},"author":1256,"featured_media":2167,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[36],"tags":[304,107,303,190,56],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2165"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/1256"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=2165"}],"version-history":[{"count":5,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2165\/revisions"}],"predecessor-version":[{"id":2171,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2165\/revisions\/2171"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/2167"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=2165"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=2165"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=2165"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}