LANG Committee Report

HISTORY OF THE PROGRAM

            The Court Challenges Program was established in 1978 at a time of intense debate in Quebec following the adoption of Bill 101, which became the Charter of the French Language. In Blaikie,¹ the courts had to determine whether the bill violated sections 93 and 133 of the British North America Act. The court ruled that all Quebec legislation must be passed in both official languages. Similarly, in Forrest, in Manitoba, the court ruled that all of Manitoba’s legislation, which had been passed in English only for decades, violated the Manitoba Act, 1870, and was therefore invalid.² Anticipating the potential impact of the decisions in these cases, the federal government decided to provide financial assistance to the applicants in these two cases, and to establish a funding program providing for the courts to clarify the scope of the language rights established in the Constitution. From 1978 to 1985, the program funded cases pertaining exclusively to language rights, and the government retained full control over the funding and the cases selected.³

            Further to the adoption of the Canadian Charter of Rights and Freedoms in 1982, the CCP was altered to reflect the language rights covered by the Charter. In 1985, the equality rights established in the Charter became eligible for funding under the CCP, once Section 15 came into force.

            The inclusion of equality rights under the CCP led to administrative restructuring. Since the program was designed to fund cases that challenged federal legislation or decisions, the government would have been in a conflict of interest if it continued to administer the CCP itself. The Canadian Council on Social Development then took over administration of the program from 1985 to 1990.

            The renewal of the program in 1990 was the subject of lively debate. From June to November 1989, the Standing Committee on Human Rights and the Status of Disabled Persons conducted a study of the CCP and presented its report on December 11, 1989. Among other things, it called for the renewal of the program for ten years, until March 31, 2000; for the removal of the restriction regarding equality rights which limited funding to cases that challenged federal legislation or programs; and for the expansion of the program to include the protection of Aboriginal rights.⁴

            In its response to the report, the Government of Canada indicated that it was “prepared to renew the Court Challenges Program for a five-year-period” and, in response to the calls to expand the CCP, it indicated that, “given that there are still significant areas of language and equality rights which require clarification, the Government of Canada believes that it is currently preferable to retain the Program’s objective.”⁵ A new five-year contribution agreement was accordingly signed on July 20, 1990, and the University of Ottawa’s Center for Human Rights became responsible for administering the program, further to the Standing Committee’s recommendation.

            Facing budget issues, the federal government tightened its measures to cut spending in its budget of February 24, 1992, and two days later announced the cancellation of the Court Challenges Program. The Honourable Gerry Weiner, Minister of Multiculturalism and Citizenship, stated in the House: “There is now a solid base of jurisprudence for future years and the remaining finer points are now those of provincial jurisdiction.”⁶ A few days later, the Solicitor General of Canada stated that the Program had attained its objective and that other groups would now have to take over this role.⁷It was also noted that “during a period of fiscal restraint there are cheaper ways to manage the funding of Charter challenges, in particular: a department of government (i.e. the Department of Justice) could undertake this role on an ad hoc basis.”⁸

            In June 1992, the Standing Committee on Human Rights and the Status of Disabled Persons presented another report on the same subject, expressing surprise that the jurisprudence argument had been made since the Government’s Response to the 1989 report rightly noted that “there are still significant areas of language and equality rights which require clarification.”⁹

            After months of lively debate and protest by the opposition parties, Prime Minister Kim Campbell announced on August 30, 1993, that the program would be reworked and reinstated as the “Charter Rights Enrichment Program.”¹⁰

            ollowing the election of October 25, 1993, the Liberal government announced in the Throne Speech of January 18, 1994, that the CCP would be reinstated. The agreement reinstating the Program was signed on October 25, 1994, by the Honourable Michel Dupuy, Minister of Canadian Heritage. A non-profit organization was established to administer the Program, known as the Court Challenges Program of Canada.