Statement made before the Standing Committee on Justice and Human Rights
April 14, 2016

By:  C. Gwendolyn Landolt
National Vice-President
REAL Women of Canada

         Re:  Access to Justice System, Court Challenges Program (CCP)

REAL Women has had long experience with the previous CCP and its panel on equality rights.  Over the years, we have also closely followed the operation of this program.

Although the concept of the CCP is commendable in theory, in reality, from actual experience, we know that there are grave reasons why the program should not be reinstated. At the very least, the appalling defects in the previous CCP must be eliminated if it is reinstated.

The practical effect of the CCP was that the equality rights were undermined by the program and it became one of the most corrupt, discriminatory and biased programs developed in Canada.

Although funded by the taxpayer, the program was not accountable to the public, did not report to Parliament, and was not subject to the Access to Information Act.  The program by its biased practices was an embarrassment in that it betrayed human rights and democracy.

Mandate of the CCP

The CCP’s mandate was to assist “disadvantaged” groups in cases that had “legal merit” and promoted “equality” rights for Canadians.  This criteria was not defined in the mandate.  This omission became the basis of many of the problems with the CCP as it defined these expressions in a ideological basis, which denied access to justice to groups that did not share the ideology of those managing the program.

SPECIFIC PROBLEMS WITH THE CCP
 
1. Discrimination in the Application of the Definition of Equality

All women believe in equality, but there are different understandings and interpretations of its meaning.  To suggest women think alike is to insult the intelligence and integrity of women.

The CCP applied the definition of “equality” based solely on the ideology of feminism, and funded only legal challenges, purportedly on women’s behalf, undertaken by feminist organizations.

For example, the CCP funded the legal arm of the feminist movement, LEAF (Women’s Legal Education and Action Fund) in 140 cases on a multitude of issues which most women regarded as extreme and unreasonable.  By funding feminist organizations only, the funding did not benefit “women” but, rather, benefitted and promoted the feminist lobby, whose views are just a single thread among the many threads that make up the fabric of women’s views.

It was startling, therefore, that in the Minutes of the proceedings of the Committee on March 8th, 2016, Ms. Rachel Wernick, Assistant Deputy Minister at Canadian Heritage reported (page 4) that:

. . . but there was no indication in the evaluations that there was a problem in impartiality. [with the program]

A possible explanation for this discrepancy: according to the testimony of Mr. Yvan Déry, Senior Director, Policy and Research, Department of Canadian Heritage, at page 9 of the Proceedings of March 8, 2016:

. . . this is a program run by a third party . . . we don’t go into that level of detail.

Further, (at page 10) of the proceedings, Mr. Déry stated:

It’s [the CCP] run totally independently.  We have the reports.  Most of the information that we shared with you today is drawn up from the old reports of the CCP . . .

REAL Women has retained copies of the annual reports of the CCP, and we can attest with certainty that none of these annual reports included information as how the CCP actually operated.

The reality is that one had to be directly involved with the CCP to understand how it worked.  It is apparent that crucial information was not disclosed to the government officials who signed the contribution agreements with the CCP.

2. Questionable Interpretation of Financially Disadvantaged Groups and Individuals

Many groups funded by the CCP could not reasonably be defined as financially “disadvantaged”, such as affluent unions.

Examples of such irregular funding are referred to on Page 5 of our Brief.

3. Lack of Transparency

On April 27, 2000, a prothonotary, (a court official with the power to make certain decisions in the Federal Court Trial Division), declared that CCP applications and funding contracts be protected by solicitor-client privilege.  As a result, the CCP ceased disclosing significant information to the public about its funding practices and was no longer made accountable for its actions. 

The CCP, obviously, is not a “solicitor” and the groups who are funded by it are not “clients”.  The decision by the prothonotary was patently absurd.

4. Incestuous Relationship Between CCP’s Board of Directors, Advisory Committee and the Equality Panel

The members of the CCP’s Board of Directors, Advisory Committee and equality panel included representatives from the organizations who were also funded by the program.

For example, in 2006, four of the seven members of the equality panel were members of LEAF or other feminist organizations, and the remaining three members of the panel were representatives of homosexual organizations (EGALE).

According to Ms. Wernick, at page 5 of the Committee’s March 8, 2016 Proceedings:

The highest number of cases, representing about 20% of the total caseload, was for the Women’s Legal Education and Action Fund, Egale Canada . . .

This incestuous relationship among its administrators allowed the CCP to easily direct funding to those organizations that controlled the program.

In the March 8th, 2016 Minutes of the proceedings of this Committee, at page 8, the equality panel was described as consisting of a “panel of experts and leaders in that field which approved the litigation”.  They may have been “experts” in promoting their own organization’s agenda, but they could scarcely be described as impartial or objective “experts” regarding funding decisions.

Members of the equality panel served as watchdogs for their own organizations in order to channel funding to them. The panel also ensured that any organization with a differing ideology was refused funding.

5. CCP an Instrument for Social Change

Rather than providing economic benefit for disadvantaged groups, The CCP, in the name of equality, was an instrument for social change by judicial fiat.

As a substitute for the Parliamentary process, the CCP enabled select special interest groups to access the courts by providing funding that financed only those who shared its agenda.  Frequently, the same individual served the program simultaneously in several capacities.

There cannot be true equality when the court hears only one side of an argument.  As a result of its tight control, the program became a national powerhouse directing traffic to and from the courts to change the direction of Canadian society in order to adapt to the views of the special interest groups, which administered the program.

6. CCP Distorted the Purpose of the Charter

The Court Challenges Program distorted the purpose of the Charter as it was not used for the protection of individuals against the state, which was the intention, but, rather, to achieve a new social order.

RECOMMENDATIONS
 
1. Because of the enormous differences in the interpretation of what constitutes “equality” and the confusion, and complexity of determining what it exactly means it should not be defined only in accordance with progressive or liberal perspectives and to deny funding to organizations which support traditional culture and religious values.  It is recommended, therefore, in view of the difficulty in interpreting “equality”, that the reinstated CCP be limited to issues involving economic inequality and language rights only.
 
2. There must be a financial means assessment of those seeking funding.  Funding was previously provided to organizations, which were also funded by other government sources, and, therefore, could not reasonably be described as “financially disadvantaged”.

3. The administrators of the program must be impartial and objective in their assessment of those requiring funding.  They should not be affiliated with any special interest group, as this provides a platform to advance their own organization and ideology.
 
4. The program must be transparent, publicly accountable and answerable to Parliament.  It must be subject to The Access to Information Act.
 
5. Should the reinstated CCP continue to provide funding for “equality” issues, this will create a bias and discrimination against those who do not accept the CCP’s interpretation or equality.  It is recommended, therefore, that not just one side of an issue be funded, but that organizations having a different understanding of the equality issue in question should also, simultaneously, be funded.  This is critical as there cannot be true equality if the court hears only one side of an issue.

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Background:
Written Brief submitted to the Standing Committee on Justice and Human Rights
April 14, 2016 regarding  Access to the Justice System and the Court Challenges Program DOWNLOAD HERE