Backgrounder – Court Challenges Program
The reinstatement of a modernized Court Challenges Program (CCP) supports the mandates of the Minister of Canadian Heritage and the Minister of Justice and Attorney General of Canada. The federal budget of 2016 allocated $5 million annually to the new CCP, of which a minimum of $1.5 million annually will be dedicated to the clarification of official language rights. The remainder will be dedicated to the clarification of human rights guaranteed under the Constitution, including the Canadian Charter of Rights and Freedoms.
On this page:
- Expected results
- Independent organization
- Expert panels
- Funding priorities
- Targeted rights
- Precursors of the Program
The objective of the CCP is to provide financial support to Canadians to access the courts for the litigation of test cases of national significance, to help clarify and assert certain constitutional and quasi-constitutional official language rights and human rights in Canada.
The expected results of the CCP include the following:
- Individuals or groups have access to funding to initiate or participate in test cases pertaining to rights and freedoms covered by the Program;
- Perspectives of individuals or groups who receive funding are presented before the courts in test cases; and
- Rights and freedoms covered by the Program are clarified and strengthened.
The CCP will be implemented and managed by a third party to avoid any real or perceived conflict of interest on the part of the Government of Canada. The identified independent organization will be responsible for the general administration and delivery of the Program, including administering two funding decision-making Expert Panels, and Program promotion. On February 7, 2017, the Department of Canadian Heritage launched a proposal assessment process to select the independent organization.
Decisions regarding CCP funding will be rendered by two independent expert panels, an Official Language Rights Expert Panel and a Human Rights Expert Panel. The seven members of each of the Expert Panels will be selected based on their expertise in the relevant legal areas and will report to the independent organization. In the coming months, an open, transparent and merit-based process will be launched to identify the members of the Expert Panels.
A panel selection committee, composed of both senior government officials and experts on official languages and human rights, will have the responsibility to recommend a short-list of qualified candidates for the two panels to the Minister of Canadian Heritage.
Under the CCP, funding will be directed toward:
- test case development;
- test case litigation; and
- legal interventions.
The CCP will support official language rights and human rights derived from the following:
- Official language rights protected by:
- sections 93 and 133 of the Constitution Act, 1867;
- section 23 of the Manitoba Act, 1870;
- sections 16 to 23 of the Canadian Charter of Rights and Freedoms (the “Charter”);
- any parallel constitutional provisions; and
- the linguistic aspect of freedom of expression in section 2 of the Charter when invoked in an official language minority case.
- Justiciable parts of the Official Languages Act, which include:
- certain sections of Part I (Proceedings of Parliament);
- certain sections of Part II (Legislative and Other Instruments);
- Part IV (Communications with and Services to the Public);
- Part V (Language of Work);
- Part VII (Advancement of English and French); and
- section 91 (Staffing).
- Human rights protected by the Charter under:
- section 2 (fundamental freedoms, including freedom of religion, expression, assembly and association);
- section 3 (democratic rights);
- section 7 (life, liberty and the security of the person);
- section 15 (equality rights);
- section 27 (multiculturalism) – when raised in support of arguments based on equality rights; and
- section 28 (gender equality).
Precursors of the Program
Between 1978 and 2006, the former CCP was instrumental in helping Canadians to clarify and assert official language and equality rights guaranteed under Canada’s Constitution. The former program was cancelled in 2006. However, in 2008, following an out-of-court settlement, the Government of Canada committed to fund previously approved CCP cases (now called legacy cases) and to establish the Language Rights Support Program (LRSP).
A reinstated CCP will combine the former program and the LRSP with a more streamlined approach. As part of the transition process, measures will be put into place to the former programs and to ensure an efficient transfer of active files (former CCP legacy cases and current LRSP cases) to the new independent organization that will administer the new CCP.
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