COURT CHALLENGES PROGRAM OF CANADA
PROGRAMME DE CONTESTATION JUDICIARE DU CANADA
ANNUAL REPORT 1997-1998
"[T]he BNA Act planted in Canada a living tree capable
of growth and expansion within its natural limits".
With these oft quoted words from the case of Edwards v. A.-G. Can. [1930] A.C. 114, a case known to most Canadians as the "Persons" case, Lord Sankey of England's Privy Council justified the Council's finding that the term "person" in Canada's Constitution included both men and women, even if that it may not have been the intention of those who had drafted its text. With the advent of the Canadian Charter of Rights and Freedoms and its advances in the protection of language and equality rights, the metaphor of the "living tree" has become even more meaningful. Canada's Constitution now challenges our courts, government, and indeed, all Canadians to support the growth and development of a civil society which respects the human rights of all of its members.
Drawing on the vision of our Constitution as a "living tree", the Court Challenges Program of Canada has tried to show that our human rights are rooted in a strong Constitution and Charter, but that the people of Canada and our governments must give life to these commitments, through means provided by initiatives such as the Court Challenges Program. And in giving life to these commitments, Canadians will create a society where values such as education, access, diversity, participation, and social justice flourish and become a reality for all.
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.
The following individuals contributed to the preparation of this report:
Valérie Bazile, Suzanne Birks, Melina Buckley, Shelagh Day,
Bonnie Gembey,Richard Goulet, Danielle Hince, Mala Kanna,
Sylvie Léger, Sarah Lugtig, Stacy Nagle, Ken Norman,
Carmen Paquette, Yvonne Peters, and Claudette Toupin.
Editing: Doug Smith
Translation: Majestran inc.
Layout and Design: The Art Department
ISBN # 1-896894-04-6
For further information, please contact
The 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) 946-0669
Web Site: http//www.ccppcj.ca
Electronic mail: info@accppcj.ca
Copyright 1998
TABLE OF CONTENTS
MESSAGE FROM THE CHAIR
PART I- INTRODUCTION AND BACKGROUND
Introduction
Historical Background
Mandate of the Court Challenges Program
Structure of the Court Challenges Program
Financial Resources of the Program
Funding for Cases and Other Activities
PART II- ADMINISTRATION
Introduction
Members
Board of Directors
Panels
Panel Selection Committees
Advisory Committees
PART III- AUDITED FINANCIAL STATEMENTS
PART IV- EQUALITY RIGHTS TEST CASES
Introduction
Case Examples Funded Under the Court Challenges Program
Provincial Equality Cases
PART V- LANGUAGE RIGHTS
Introduction
Education Rights
Language of Work, Communications and Services
The Linguistic Aspect of Freedom of Expression
Judicial Rights
Legislative Bilingualism
Conclusion
PART VI- TABLES
Statistical Information - Equality Rights Program
Statistical Information - Language Rights Program
PART VII- LIST OF PUBLICATIONS
General Information
Papers
MESSAGE FROM THE CHAIR
On behalf of the Board of Directors, I am very pleased to present to you the fourth annual report of the Court Challenges Program of Canada.
This report contains an overview of the activities undertaken and funded by the Court Challenges Program over the past year. The document cannot do justice to the actual work carried out under the aegis of the Program, nor does it indicate the significance of this uniquely Canadian institution to all Canadians, most particularly to those who must suffer and battle against the disadvantages and indignities of poverty, racism and other forms of discrimination. Nor can it adequately reflect the tremendous energy and commitment of all those involved in the struggle to ensure that the equality and language rights contained in the Canadian Charter of Rights and Freedoms and in other constitutional provisions are meaningful guarantees.
It is more than a question of the number of applications received by the Program or of cases funded, and it is more than an issue of individual cases won or lost, although we have experienced both victories and defeats over the past year. The Program’s impact is subtler. The advances of the jurisprudence, the spread of awareness about these rights, and legislative responses all contribute to building a fairer Canadian society that recognizes and celebrates the diversity of our population.
As we approach the millennium, the Court Challenges Program and its member groups face both challenges and opportunities. While we live in a time of unease, it is also one of optimism.
On the one hand, we share the reality facing much of the industrialized work that changing times and economic forces have given rise to an array of social ills which we ignore at our peril. Different times demand that we consider new and more effective solutions to these social ills. For example, the long-standing position of the provinces that Ottawa not use its spending power to set or enforce terms of reference in areas of provincial jurisdiction — health care is the most current instance — can have a significant impact on both equality and language issues. Competition for funding will and does affect access to justice and other human rights matters.
On the other hand, those who work and advocate in the current climate are responding by regrouping, sharing their strengths, and finding ways to increase collaboration. The Program can facilitate this process through information sharing, co-ordinating research on emerging issues, and by supporting relationships within and outside of the equality and language rights-seeking communities.
Over the past year, the Board’s most important activities have been in the area of program evaluation, renewal of our funding agreement, and revitalization of our internal staff structure. We have made a marked effort to increase our rapport with our membership and the members of our Panels and Advisory Committees. The Board has also taken steps to enhance communication across the two sides of the Program.
We are pleased to celebrate with you the extension of our funding agreement with the Government of Canada until 2003. This funding exemplifies the real commitment of Minister Sheila Copps and the Federal Government to language and equality rights.
The Court Challenges Program has developed a strong base during the first four years of operation as an independent corporation, building on the experience of the Program in its earlier incarnations. This base will serve as a springboard to growth, so that the Program can carry out its full mandate, develop further partnerships, and become an even more active participant in the evolution of Canadian society.
I would like to take this opportunity to express the Court Challenges Program’s appreciation to past Chair of the Board, Fo Niemi, for his excellent leadership during an especially challenging period and to Paul Charbonneau for his exceptional contribution during his tenure as treasurer.
Finally, I would like to recognize and extend my gratitude to the members of the Board, staff, Panels, and Advisory Committees for their hard work, dedication, and support. Many of these individuals took on additional responsibilities during a period of transition in the past year and a special thanks is owed to them.
Melina Buckley
Chair of the Board of Directors
PART I --- INTRODUCTION AND BACKGROUND
1.0 Introduction
The Court Challenges Program of Canada is a non-profit corporation funded through a Contribution Agreement with the Federal Government. Established first in 1978 and reinstated on October 12, 1994, the Program’s mandate is to clarify the constitutional rights and freedoms related to equality and official language rights by providing financial assistance for test cases of national significance.
This annual report provides an overview of the major activities undertaken by the Court Challenges Program for the period commencing April 1st, 1997 and ending March 31, 1998.
The annual report is divided into seven parts. Part I provides an overview of the history, mandate, structure and financial resources of the Court Challenges Program. Part II describes the various activities that were undertaken in the 1997-1998 fiscal year. Part III contains the audited financial statements. Part IV discusses the major cases funded by the Equality Panel. Part V focuses on the significant cases whose funding were approved by the Language Panel. Part VI summarizes by tables the statistical information on applications received and funded in the last four years. Part VII enumerates various background papers and other material available through the Program.
1.1 Historical Background
The history of the Court Challenges Program is one of a program in search of long-term stability. The Program was initiated in 1978, when the Department of the Secretary of State of the Government of Canada began to provide funding to individuals wishing to clarify, in the courts, the extent of their language rights under Sections 93 and 133 of the Constitution Act, 1867. At that time the Federal Government determined which cases were to be funded.
In 1982, the Canadian Charter of Rights and Freedoms came into force, entrenching basic freedoms and democratic, political, legal, equality, language and Aboriginal rights, as the fundamental law of the land. That same year, the mandate of the Program was broadened to include language rights guaranteed under the Charter and the Constitution.
In 1985, the Government of Canada expanded the Court Challenges Program to cover challenges to federal legislation, policies, and practices related to equality rights under section 15 of the Charter. Because Canada could find itself in a conflict of interest now that the Program funded court challenges related to matters of federal jurisdiction, the government decided to vest the administration of the Program in the Canadian Council on Social Development (CCSD). The CCSD administered the Program from September 1985 to March 1990. It set up two independent panels, one to study and decide which applications relating to language rights would be funded and the other to review and approve funding for applications relating to equality rights. To assist the Panels, a Director, legal analysts and administrative staff were also hired. In 1990, the Program’s administration was transferred to the Human Rights Research and Education Centre at the University of Ottawa, which continued to use this administrative model.
In February 1992, the Federal Government abolished the Court Challenges Program. This prompted strong protests from equality-seeking groups, language rights groups and individuals from Canada’s academic and legal communities. A report of the all-party Standing Committee on Human Rights and the Status of Disabled Persons, entitled "Paying Too Dearly" recommended the Program’s restoration. In June 1993, the United Nations Committee on Economic, Social and Cultural Rights, recommended that "the Federal Government implement the recommendations of the Standing Committee on Human Rights and the Status of Disabled persons … to restore the Court Challenges Program and that funding also be provided for Charter challenges by disadvantaged Canadians to provincial legislation".
During the period from October 1993 to the fall of 1994, the Federal Government consulted with equality and language organizations, members of the bar, academic and other interested groups about the reinstatement of the Program. During the consultations, the groups decided to work together to create a non-profit autonomous corporation to administer the reinstated Program.
On October 12, 1994, the Court Challenges Program of Canada was formed by Letters Patent registered under the Canada Corporations Act. On October 24, 1994, the Court Challenges Program of Canada and the Minister of Canadian Heritage, the Honourable Michel Dupuy, signed a Contribution Agreement committing the Government to provide the Court Challenges Program with $2.75 million annually from October 12, 1994 to March 31, 1998.
At the Program’s first annual meeting in November 1995, By-laws were adopted establishing the various entities involved in the Program’s work.
1.2 Mandate of the Court Challenges Program of Canada
According to the Letters Patent, the objects of the Court Challenges Program are:
To provide assistance for test cases of national significance (without regard to geographical factors), put forward on behalf of or by groups or individuals, which will promote and enhance the language rights of Canada’s official language communities or the equality rights of historically disadvantaged groups and to administer test-case funding according to contribution agreements with the Federal Government and any other source of funding. In so doing, the program should recognize:
the inequality that has existed for historically disadvantaged groups and official language minorities, and the significance of the recent development of Canadian law and jurisprudence regarding equality and the rights of official language minorities;
Canada’s commitment to ensure respect for, and to promote and enhance the rights of official language minorities and historically disadvantaged groups;
the need to ensure access to the courts that will enable historically disadvantaged groups and official language minorities to secure the realization of their rights and to ensure the execution of the judgements regarding their rights; and
the international human rights obligations to which Canada has agreed to be bound.
Under the Contribution Agreement the Court Challenges Program is committed to the clarification of the following constitutional rights and freedoms:
such official language rights as guaranteed by the interpretation or application of section 93 or 133 of the Constitution Act, 1867, or as guaranteed in section 23 of the Manitoba Act, 1870, sections 16 to 23 of the Constitution Act, 1982, or parallel constitutional provisions, or the clarification of the linguistic aspect of freedom of expression in section 2 of the Canadian Charter of Rights and Freedoms, when invoked in an official language minority case; and
the equality rights guaranteed in sections 15 (equality) and 28 (gender equality) of the Canadian Charter of Rights and Freedoms, including the clarification of sections 2 (fundamental freedoms) or 27 (multiculturalism) when invoked in support of arguments based on section 15.
This objective is to be achieved through the provision of financial assistance for test cases of national significance put forward by or on behalf of official language minority or disadvantaged individuals and groups. The current Contribution Agreement stipulates that financial assistance can only be provided for equality cases that challenge federal law, legislation, policies or practices.
1.3 Structure of the Court Challenges Program
The Court Challenges Program is organized around the dual purposes of funding constitutional litigation relating to equality and language rights. The corporation’s structure consciously reflects the distinctiveness and uniqueness of this duality. The organization is composed of the following elements:
A membership
Two decision-making panels
Two panel selection committees
A Board of Directors
Two advisory committees
The following section describes the roles and responsibilities of these entities.
1.3.1 Membership
The need for meaningful ongoing participation in the Program is a key issue for equality and language groups. Article II of the Program’s By-laws provides for the creation of three categories of Members:
Equality Members: Equality-seeking organizations representing disadvantaged communities and individuals
Language Members: Organizations representing minority official language communities
Director Members: Persons who are members of the Program’s Board of Directors
Any non-profit organization from an official language minority community interested in pursuing the Program objectives may become a Language Member. In the same way, any non-profit organization working in the field of equality interested in pursuing the Program objectives may become an Equality Member. There is no membership fee. Organizations submit their membership applications to the Board of Directors, which determines whether the organization meets the established criteria.
Membership entitles representatives of Members to attend the Program’s Annual General Meeting and any other meeting called for the purpose of considering the Program’s business and to vote on motions at those meetings. In order for a motion to be carried, a majority of votes in at least two of the three membership categories is required. Prior to the Annual General Meeting, Equality Members appoint or elect two individuals to sit on the Board of Directors, as do the Language Members. At the Annual General Meeting, Members ratify all appointments to the Board of Directors. Through the year, Members receive the Program’s Annual Report and other information produced by the Program.
1.3.2 Panels
All decisions regarding applications for case funding are made by either the Program’s Equality Panel or its Language Panel. The Equality Panel consists of seven members, each of whom brings to the Panel expertise in equality and human rights issues as well as considerable experience with a broad range of equality-seeking groups. The Language Rights Panel has five members, each with a special understanding of language rights and minority official language communities in Canada.
Panel members are appointed for a two-year term. Each Panel selects the cases to be funded based on the Contribution Agreement requirements. The Panels function as autonomous decision-makers and their decisions are final.
1.3.3 Panel Selection Committees
The members of the Equality Panel are appointed by an Equality Panel Selection Committee. Similarly, Language Panel Members are selected by a Language Panel Selection Committee. The members of the Panel Selection Committees, which number not less than three and not more than five, are appointed by the Program’s Board of Directors and are chosen for their expertise in either equality or language rights.
When the appointment of new Panel members is required, the Program solicits nominations from its members and other community groups. The names are forwarded to the Panel Selection Committees, which appoint the most qualified persons to the respective Panels.
1.3.4 The Board of Directors
The Board of Directors is responsible for the administration of the Court Challenges Program, including budget, human resources matters, establishing policies, and long and short term plans for the effective operation of the Program. Its basic role is to ensure that the Program’s mandate is fulfilled and the Contribution Agreement is respected.
There are seven positions on the Board of Directors. Two Directors are elected by the Equality members; two Directors are elected by the Language Members; one Director is nominated by the Law Faculties and Bar Associations across Canada; and the chairperson or one co-chairperson of each of the Equality Panel and the Language Panel is appointed a Director. At the Annual General Meeting, the Program Members confirm the appointments of the Directors. Directors hold office for two years or until their successors are appointed and confirmed.
The Board appoints the Chairperson, the Vice-Chair, the Secretary and the Treasurer and any other officers, which the Board deems to be required. The officers’ terms are for one year from the date of appointment or until their successors are appointed. The Chairperson, the Directors appointed by the Equality and Language Panels and the Executive Director constitute the Executive Committee who administers the affairs of the Corporation between meetings of the Board of Directors.
1.3.5 Advisory Committees
The Program’s By-laws enable the Equality Members and the Language Members to each establish an advisory committee and to determine the committee’s mandate and composition. The Members have created the Advisory Committee of Equality Members and the Advisory Committee of Language Members.
1.4 Financial Resources of the Program
In the 1997-1998 fiscal year, the Program received all of its funding through a four-year Contribution Agreement with the Federal Government that ended on March 31, 1998. According to the Agreement, the $2.75 million provided by Canada is allocated in the following annual amounts and for the following purposes:
Program Administration 20%
$550,000.00
Language Rights Funding 20%
$550,000.00
case development
75,000.00
litigation
412,500.00
negotiation
55,000.00
impact studies
7,500.00
Equality Rights Funding 60%
$1,650,00.00
case development
225,000.00
litigation
1,237,000.00
program promotion and access
165,000.00
impact studies
22,500.00
At the end of each fiscal year, an assessment is made to determine how much funding remains in each of these budget categories. The unused amount of the funding at the end of each fiscal year from Program Promotion and Access and Negotiation is transferred to Litigation funding. If Program Administration money remains unspent, it is transferred in proportionate shares into equality and language litigation. All other unspent funding can be carried forward, each fiscal year, in its own category until the end of the Contribution Agreement.
1.5 Funding for Cases and Other Activities
The Court Challenges Program is permitted to give financial assistance to official language minority and/or historically disadvantaged individuals, groups or non-profit organizations. Before funding will be granted, the Program must be satisfied that the applicant requires financial assistance in order to be able to proceed with the case. Funding may be granted to a party, i.e., a person or group whose rights are directly affected by the case or to an intervener, i.e., person or group who wishes to raise important constitutional arguments not made by others in a case.
Cases, which receive funding, must involve federal and provincial language rights protected by the Constitution of Canada or challenges to federal laws, policies and practices based on equality sections of the Canadian Charter of Rights and Freedoms. Applications for financial assistance shall not be considered for complaints or procedures filed under the Official Languages Act or the Canadian Human Rights Act. Cases will only be funded if they deal with a problem or raise an argument of national significance that has not already been argued before the courts and has the potential to change a law, policy or practice in a way which will ensure the respect of equality and language rights. Funding cannot be awarded if an alternative dispute resolution method exists, but the applicant can reapply if the alternative method does not resolve the dispute.
Under the Contribution Agreement there are three categories of funding for test cases. The Program has established a maximum amount of funding available to a qualified applicant for each funding category as follows:
Case Development Funding. The Program may provide up to $5,000 for doing legal research and other development work to determine whether or not an applicant has a good test case. An additional $5,000 may be available for consultation with lawyers, individuals or groups with relevant experience relating to the issues of the case being developed.
Litigation. The Program may provide funding to pay expenses such as lawyers’ fees, photocopying, telephone, fax, and other technical costs and taxes on those amounts, associated with taking a case to court. Program funds may be used for witness fees, travel expenses and other special costs. The maximum amount of case funding available is $50,000 at trial level, $35,000 for each appeal and $35,000 for each intervener. The maximum amount available for Case Funding will be reduced by the amount of Case Development Funding received.
Impact Study Funding. This funding may be granted to a qualified person or group to do research on an important court decision and to prepare a paper to discuss the possible effect it will have. Such research is to help individuals and groups better understand a court decision and to prepare for future cases. The amount for Impact Study Funding is at the discretion of the Panels, but the practice has been to limit the amount to $5,000.
Ten per cent of the funds allocated for Equality Rights Funding is earmarked for Program Promotion and Access Funding. These funds are granted to applicants for activities, which promote awareness of, access to, or capacity to use the Program or for consultation on specific litigation within the Program’s mandate, including meetings with community representatives and legal experts. Funding cannot be used for public education, community development, lobbying or other forms of political advocacy.
Negotiation Funding of up to $5,000 may be granted for costs incurred only in language rights cases for the purposes of negotiating or attempting to resolve a dispute before the matter proceeds to the courts. The case must meet the criteria of national significance.
In rare instances, when a case is difficult or when special circumstances exist, the Program provides extraordinary funding to applicants. This funding is available over and above the limits discussed above.
PART II --- ADMINISTRATION
2.0 Introduction
The 1997-1998 fiscal year was a time of challenge and a time of growth for the Court Challenges Program. Major efforts were concentrated on ensuring that an outside evaluation of the Program proceeded smoothly and that a new Contribution Agreement was signed with the Federal Government. In addition, a number of internal changes were made to the staff structure. The following is a more detailed discussion of the activities that were pursued in 1997-1998 by the various constituents of the Program.
2.1 Members
On April 1, 1997, the Court Challenges Program’s membership was composed of 84 Equality Members and 13 Language Members. During the 1997-1998 fiscal year, the Board of Directors welcomed the following 14 organizations as new members:
New Equality Members
Alberta Association for Community Living
Action Committee of People with Disabilities
Atlantic Human Rights Center
Calgary Society for Women Plus
Centre for Research-Action on Race Relations/Centre de recherche-action sur les relations raciales
Indian Council of First Nations of Manitoba
Metropolitan Immigrant Settlement Association
Metro Toronto Chinese and Southeast Asian Legal Clinic
Multicultural Association of the Greater Moncton Area
Native Council of Canada (Alberta)
National ME/FM Action Network
Saskatchewan Voice of People with Disabilities
Saskatchewan Action Committee of the Status of Women
New Language Members:
Voice of English Québec
2.1.1 The Annual General Meeting
The Court Challenges Program held its third Annual General Meeting in Ottawa on September 28, 1997. The meeting was attended in total by 44 representatives of which 25 were Equality Members, 5 Language Members, 6 Director Members, 7 Panel Members, 7 staff and 4 observers.
The following topics were discussed:
the process of negotiations between Canadian Heritage and the Court Challenges Program to renew the Contribution Agreement,
the Prairie Research Associates evaluation of the Program,
mandate expansion,
the establishment of a committee on Racism and a committee on Poverty Issues
the future directions of the Program
the test cases and outreach work funded during the 1996-1997 financial year.
Members also elected and confirmed the appointments to the Board of Directors.
2.2 Board of Directors
On April 1, 1997 the Board of Directors consisted of:
Chair and Representative of the Equality Members - Fo Niemi (Québec), Executive Director of the Centre for Research-Action on Race Relations
Vice-Chair and Co-Chair of the Equality Panel - Shelagh Day (British Columbia), author and consultant on human rights
Treasurer and Co-Chair of the Language Panel - Paul Charbonneau (Québec) Executive Director of the Maniwaki General Hospital
Representative of the Equality Members — Raj Anand (Ontario) partner in the law firm of Scott & Aylen
Representatives of the Language Members — Yvan Beaubien (Alberta) Secretary-Treasurer of the Conseil scolaire francophone du Centre-Est No. 3 in Alberta and Suzanne Birks (Québec), associate in the law firm of Lapin Polisuk Mauer
Representative of the Law Faculties/Bar Associations - Melina Buckley (British Columbia), a lawyer specializing in legal research and policy development.
François Boileau, Executive Director of the Court Challenges Program was appointed as secretary to the Board of Directors.
At the Program’s 1997 General Annual Meeting, Chantal Tie (Ontario), a lawyer and Executive Director of the South Ottawa Community Legal Clinic, replaced Fo Niemi as one of the two representatives of the Equality Members and Louise Somers (New Brunswick), a lawyer in private practice in Saint Quentin, replaced Paul Charbonneau as one of the two representatives of the Language Members.
During a period of transition from September 28, 1997 to March 1, 1998, the officers of the corporation were:
Chair — Shelagh Day
Treasurer — Yvan Beaubien
Secretary and Acting Executive Director — Melina Buckley
Since March 31, 1998, the Board of Directors and officers are as follows :
Chair and Representative of the Law Faculties/Bar Associations - Melina Buckley
Vice-Chair and Co-Chair of the Equality Panel - Shelagh Day
Vice-Chair and Co-Chair of the Language Panel — Yvan Beaubien
Treasurer and Representative of the Language Members — Louise Somers
Representatives of the Equality Members — Raj Anand and Chantal Tie
Representative of the Language Members — Suzanne Birks
Claudette Toupin, the new Executive Director was appointed secretary of the Board of Directors.
During the 1997-1998 fiscal year, the Board of Directors met in-person in Ottawa from September 27-28, 1997 and in Winnipeg on February 27, 1998. The Board held 14 conference calls through out the year.
The Board focussed its time and energy on three major areas:
Program Evaluation
Renewal of the Contribution Agreement
Personnel and Strategic Planning
2.2.1 Program Evaluation
To prepare for the negotiations for a new Contribution Agreement, Canadian Heritage commissioned Prairie Research Associates, Inc. in association with PGF Consultants, Inc. to evaluate the Court Challenges Program since its reinstatement in 1994. The evaluation focussed on the following issues:
the degree to which the Program has achieved its objectives
the links between the Program’s activities, resource allocation, and objectives
the effectiveness of the Program’s delivery model
the effectiveness of the Contribution Agreement
Prairie Research Associates conducted interviews with key informants, reviewed background documents on the Program and summaries of the Program’s case files, mailed surveys to the Program’s membership and conducted two teleconference focus groups with leading constitutional commentators across the country.
Prairie Research Associates submitted its report to Canadian Heritage on September 26, 1997. The following summarizes the main findings of that report.
The Program has achieved its objectives. Since its inception, the Program has supported many cases that have made an important contribution to constitutional law. For example, the Program has been involved in almost all of the litigation across the country surrounding educational rights for minority official language communities. On the equality side, the Program has sponsored several cases that were unsuccessful in the courts but raised awareness of issues and ultimately resulted in changes in the law. Many important constitutional cases would not have proceeded without the Program’s financial support.
The Program’s importance is undisputed. Many of the Program’s applicants would be unable to mount effective challenges or conduct their consultations without the Program’s financial support and coordinating role. For many, the Program is the only source of funding and information available to them.
Features of the Program’s structure are sound. The Program’s corporate structure adequately reflects the duality of equality and language rights. Although there are perceived differences in management styles between equality and language-seeking groups, these tensions do not affect the day-to-day operation of the Program. The Program is seen to be an improvement over previous delivery models. Its independence from government and the mechanisms established for ensuring membership participation are seen as essential to the Program’s effective operation.
The Program’s delivery mechanism functions well. The granting process is seen by respondents to embody characteristics that directly support the Program’s objectives, including sensitivity to the risks of funding a case that is not perceived as important. Program staff is seen to be capable, proficient, and helpful to applicants in preparing their submissions. The Panel process for assessing applications is well respected and seen to be fair to applicants.
The Program should promote itself more widely. The Program is not known widely enough. Although the Program implemented a strong promotion and outreach program in 1996-1997, the outreach program needs to be monitored for future results.
Despite limitations, the Contribution Agreement generally worked well. Although some housekeeping changes are required to improve the agreement, the sole major point of contention with the Contribution Agreement is with respect to the restrictions established on the kinds of cases the Program is able to fund. The inability to pursue equality cases in areas of provincial jurisdiction and the inability to pursue language cases in non-constitutional jurisdiction are both seen as especially limiting.
2.2.2 Renewal of the Contribution Agreement
The initial Contribution Agreement funding the Court Challenges Program ended on March 31, 1998. In the 1997-1998 fiscal year, the Board of Directors initiated discussions with senior officials of Heritage Canada with a view to signing a new Contribution Agreement in September 1997. The discussion included:
the need for a five year agreement which maintains the present level of funding at $2.75 million a year,
the possibility that funds uncommitted in the current agreement be allowed to be carried over to the new agreement,
the flexibility for the carry over to be allocated in each funding category and not limited to certain categories,
an increase to the administration budget,
the possibility of having the Federal Government transfer at the beginning of each fiscal year the $2.75 million in a trust account from which the Program’s disbursements could be made as needed,
a clarification of sections of the Agreement which prohibit the Program funding complaints filed under the Canadian Human Rights Act or the Official Languages Act, and
access by language and equality seeking-groups to negotiation and program promotion funding.
To ensure that funding levels for the Program would not be reduced the membership initiated a letter writing campaign to the Minister of Canadian Heritage, the Honourable Sheila Copps.
On March 31, 1998, the Minister signed a new Contribution Agreement. The duration of the Agreement is from April 1, 1998 to March 31, 2003. The Program will be provided with $2.75 million annually to be disbursed in the same manner as in the old agreement. Program, Promotion and Access and Negotiation funding will be provided to both equality and language rights groups and individuals. Each area and sub-area has a carry over amount, which includes the accumulated uncommitted funds for that area from the last contribution and the previous fiscal year. The Program may now transfer monies between sub-areas of the test cases funds and from different areas to Program, Promotion and Access and Negotiation. Any surplus funds at the end of the Contribution Agreement will go back to Canadian Heritage.
2.2.3 Personnel and Strategic Planning
The Court Challenges Program lost two key senior personnel in 1997, Joan Dawkins, the Assistant Executive Director, who left the Program in June, and Executive Director François Boileau, who resigned in October. The loss of these two employees triggered a comprehensive review of the Program’s internal staff structure.
After broad consultation and discussion with the Program, the Board of Directors designed a new staff structure which includes a senior management team comprised of an Executive Director, a Director, Equality Rights Program and a Director, Language Rights Program (half-time). The Board approved job descriptions for these three positions and a hiring process was undertaken. During this period of transition, Stacy Nagle, the Program’s Finance Office Manager, and Yvonne Peters, a member of the Equality Panel, took on new and additional responsibilities which contributed enormously to the Program’s continued stability.
<< organizational chart>>
Claudette Toupin was hired as Executive Director and commenced work in February, 1998. Ms Toupin received a Bachelor’s Degree in Social Work and a Master’s Degree in City Planning from the University of Manitoba. She brings to the Program a wealth of administrative experience as a director of a senior citizens centre, manager of an urban renewal project in Winnipeg for five years and Manager of Urban Development and Legislation for Manitoba Urban Affairs for ten years. More recently, Ms Toupin was Director of Official Languages Programs and Administrative Services for Manitoba Education and Training. She has a keen interest in, and commitment to, both language and equality rights.
Sarah Lugtig, who has a background in both social work and law, has assumed the position of Director, Equality Rights Program. As a social worker and through her involvement in community work and social action, Ms Lugtig has worked with a number of equality seeking communities, such as persons involved with the child welfare and youth justice systems, women, First Nations and Métis communities, youth with disabilities, and new immigrants. Ms Lugtig also has knowledge of equality rights law, gained through her joint degree of Bachelor of Laws and Master of Social Work from McGill University and her experience clerking for Madame Justice L’Heureux-Dubé of the Supreme Court of Canada.
The position of Language Director has not yet been filled. In addition, Norma Won, the one of the two equality rights analysts, resigned from the Program to take a new position in Ottawa. When these two positions are filled, the Program will once again be at its full staff complement.
In light of the internal renewal process, the large number of new staff and the fact that the Program was about to embark on a new five-year funding agreement, the Board undertook a major strategic planning session at the end of February 1998. The forum was a joint meeting of the members of the Board, Panels, staff and representatives of the Advisory Committees.
Nineteen representatives from these Court Challenges Program bodies participated in a wide-ranging and open discussion. The main topics addressed were:
the Program’s future;
the role and responsibilities of the entities which constitute the Program;
financial security, mandate expansion and fundraising;
communication with members; and
the Program’s public profile.
The strategic planning session revitalize people’s commitment to the Program, set Program goals and objectives for the next five years, and helped develop more effective and harmonious ways to work together.
Following a resolution adopted at our 1997 Annual General Meeting, a representative of each Advisory Committee has been invited to participate in meetings of the Board of Directors in a non-voting capacity. This has greatly enhanced communication between our membership, through their representative Advisory Committees, and the Board.
2.2.4 Mandate Expansion
One of the Program’s objectives is the expansion of the Program’s mandate under the Contribution Agreement to fund equality cases in areas of provincial jurisdiction and language cases that involve certain parts of the Official Languages Act.
By limiting the Program’s influence on equality cases to areas of federal jurisdiction, the Contribution Agreement provides the Program with only a partial tool to shape substantive equality. While the Program’s cases certainly contribute to development in equality rights, many of the most recent advances have resulted from challenges to provincial laws and government actions. Provincial challenges will likely become all the more significant as the Federal Government withdraws from social programming and devolves its traditional areas of responsibility to the provinces. Mandate expansion is, therefore, critical to the Program’s mission of strengthening and clarifying the equality rights of all Canadians.
On the language side, in many provinces, key language rights are not provided by the Constitution but by statute or by policy. The Program cannot finance language claims in these areas and therefore is limited in assisting groups and individuals in protecting and enhancing language rights.
Because the Federal Government will not act unilaterally and substantial provincial cooperation will be required before the Program is able to finance cases in provincial jurisdiction, the Board of Directors decided not to include mandate expansion in negotiations over the renewal of the Contribution Agreement.
The new Contribution Agreement does not preclude the Program from seeking alternate funding sources to expand its mandate. With this in mind, the Board has established a subcommittee to develop an action plan that would secure federal/provincial governmental and private sector financial support for an expanded mandate.
2.2.5 Promotion and Outreach
As addressed in the evaluation, the Program needs to promote itself more widely. It was apparent again this year that many organizations know little or nothing about the Court Challenges Program.
To address this concern, Program staff made presentations in Brandon, Dauphin, Halifax, Ottawa, Tracadie-Sheila, Vancouver and Victoria to over 75 organizations during 1997-1998. Staff also made presentations at two national conferences.
During 1997-1998 the Program distributed the following information materials:
Information Kits — 2,262
Program Brochures — 17,532
Your Right to Equality brochure — 23,451
The Program web-site (http://www.ccppcj.ca) was also redesigned and completed. Information contained on the site includes:
the Program’s organizational chart
the Program’s general brochure
Your Right to Equality brochure
the information kit
biographies of Board members, Panel members and staff, and
information about the Program’s logo.
In addition, an on-going collection of Program materials, links to other web sites, and other information is available in the library. The library also contains an alphabetical listing of key words and can be searched for words or phrases. The site contains a discussion area called "Law Talk/Parlons droit". Interested people can contribute to the dialogue or catch up on a discussion.
Panels
Funding for equality and language rights litigation and other activities are determined by the Equality and Language Panels.
2.3.1 Equality Panel
The Equality Rights Panel reviews funding applications that involve challenges to federal legislation, policies or practices relating to equality rights protected by sections 15 (equality) and 28 (gender equality) of the Canadian Charter of Rights and Freedoms, or raise sections 2 (fundamental freedoms) or 27 (multiculturalism) in support of arguments based on section 15.
During the 1997-1998 fiscal year, the Equality Panel was composed of the following individuals:
Shelagh Day, Co-chair (British Columbia) — author, researcher and human rights consultant in Vancouver
Ken Norman, Co-chair (Saskatchewan) — professor at the University of Saskatchewan in Saskatoon and author of various reports on human rights, labour relations, administrative and constitutional law
Daniel Dortélus (Québec) — lawyer in private practice and member of the Quebec Human Rights Tribunal and involved in various racial equality-seeking groups in Quebec
Amy Go (Ontario) — Director of Senior Services at the Woodgreen Community Centre and an activist with racial minority and women’s communities in Toronto
Sharon McIvor (British Columbia) — member of the Lower Nicola Indian Band, practising member of the Law Society of British Columbia, professor of Aboriginal Law and author of numerous article on Aboriginal women’s rights, Aboriginal self-determination and gender equality in the legal profession
Carmen Paquette (Ontario) — private consultant in Ottawa who has worked in the areas of women’s issues, international development, literacy, minority rights, health issues, gay and lesbian issues and work-place innovation
Yvonne Peters (Manitoba) — lawyer and consultant for governments, community groups, labour unions and corporations on the impact of human rights legislation and the Charter and the advancement of human rights.
During the 1997-1998 fiscal year, the Panel met four times in Ottawa, Vancouver and Winnipeg, and six times by conference call.
The Court Challenges Program received a total of 137 applications for equality-related cases in 1997-1998. This is an increase of 24 applications or 21.2 per cent over the previous fiscal year. The increase was due in part to the enhanced awareness of the Program arising from the outreach efforts undertaken in 1996 and 1997. Three applicants (2.2%) withdrew their request, while the Panel rejected 26 applications (18.9%), withheld decisions on 19 applications (13.9%) and granted funding for 89 applications (65.0%) in the following categories:
Case Development
Number of Cases: 7
Amount of Money Granted: $135,455
% of Total: 5.9
Case Funding
Number of Cases: 44
Amount of Money Granted: $1,918,702
% of Total: 84.4
Impact Studies
Number of Cases: 6
Amount of Money Granted: $55,231
% of Total: 2.4
Program, Promotion and Access
Number of Cases: 22
Amount of Money Granted: $165,000
% of Total: 7.3
The Panel also considered 18 applications that were received prior to April 1, 1997. It rejected 10 of these applications and funded 8.
In 1997-1998 the Equality Panel Committed $2,274,388, an increase of 22.3 per cent from the $1,766,281 granted in the previous fiscal year.
2.3.2 Language Panel
The Language Panel approves funding for cases that relate to 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 Freedom, 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.
On April 1, 1997, the members of the Language Panel were as follows:
Marc Godbout, Co-chair (Ontario) — Vice-President of the Cité collégiale in Ottawa and
active in promoting minority education rights in Ontario
Yvan Beaubien, Co-chair (Alberta) — Secretary-treasurer of the Conseil scolaire francophone du Centre-Est No.3 in Alberta and community development worker in minority language communities and in international development organizations
Casper Bloom (Québec) — lawyer with the firm of Ogilvy Renault in Montréal, author and speaker on subjects related to the defence of English-minority language rights in Quebec
Louise Guerrette (New Brunswick) — an in-house lawyer for a major corporation in Québec City
Sylvie Léger (Ontario) — a lawyer, an assistant professor and Director of the Canadian Centre for Linguistic Rights at the University of Ottawa.
In 1997, Marc Godbout was offered a position with the Ontario Government and left the Panel. Ronald Bisson, a private management consultant who has worked with various French-language minority communities outside Quebec, replaced him. In January 1998, Kathleen Tansey, a practising lawyer and former teacher in Montréal, was appointed to replace Casper Bloom whose term on the Panel was ending.
During the 1997-1998 fiscal year, the Language Panel met a total of three times in Moncton, in Ottawa and in Winnipeg.
In 1997-1998, the Court Challenges Program received 28 applications for support for language-related cases. This was an increase of 3 applications or 27 per cent over the previous year. The Panel rejected 6 applications (21.4%), withheld decisions on 6 applications (21.4%) and granted funding for 16 applications (57.1%) in the following categories:
Case Development
Number of Cases: 7
Amount of Money Granted: $30,000
% of Total: 6.4
Case Funding
Number of Cases: 18
Amount of Money Granted: $432,702
% of Total: 92.5
Impact Studies
Number of Cases: 0
Amount of Money Granted: $0
% of Total: 0.0
Negotiation
Number of Cases: 3
Amount of Money Granted: $5,000
% of Total: 1.1
The Language Panel considered 13 applications received prior to April 1, 1997, granted funding to 7 of these applications and rejected 6.
The amount of money committed by the Language Panel in this period was $467,702, an increase of nearly 66 per cent over the $281,868 granted in the previous year.
Panel Selection Committees
On April 17, 1997, the Board of Directors appointed the following persons to sit on the following Panel Selection Committees.
Equality Panel Selection Committee
Akua Benjamin (Ontario) — Professor of Social Work at Ryerson Polytechnical University
William Black (British Columbia) — Professor of Law at the University of British Columbia
Andrew Cordozo (Ontario) — Director of the Pearson-Shoyama Institute (Mr. Cordozo took a new position with the Canadian Radio-television and Telecommunications Commission and resigned in December 1997).
Lucie Lamarche (Québec) — Professor of Law at the Université de Québec at Montréal
Gérald Miller (Québec) — lawyer and disability rights activist
On March 18, 1998, the Equality Panel Selection Committee met in Montreal and made five appointments to the Equality Panel. The terms of these appointments are to commence in May 1998.
Language Panel Selection Committee
Josée Bouchard (Ontario) — Professor of Common Law at the University of Ottawa
Gerard Lévesque (Ontario) — Lawyer and member of the Fédération des juristes d’expression française de l’Ontario
Guy Matte (Ontario) — Executive Director of the Association des enseignants et enseignantes franco-ontariens
Raymond Poirier (Manitoba) — Director of the Association des municipalités bilingues du Manitoba
Eric Sutton (Québec) — Lawyer with Girouard, Peris, Goldenberg, Pappas, Brabant and Sutton
During the 1997-1998 fiscal year, the Language Panel Selection Committee met once by conference call on January 28, 1998 to appoint two new members to the Language Panel.
Advisory Committees
Advisory Committee of Equality Members
The Advisory Committee of Equality Members is made up member organizations nominated and approved by the Members at the Annual General Meeting. The confirmed Member Organizations then appoint a person to sit on the Advisory Committees. In 1997-1998, the following organizations and persons were selected to sit on the Advisory Committee of Equality Members:
Equality for Gays and Lesbians Everywhere — Lawrence Aronovitch
Minority Advocacy and Rights Council — Indra Singh
African Canadian Legal Clinic — Margaret Parsons
Charter Committee on Poverty Issues — Bonnie Morton
Women’s Legal Education and Action Fund — Jennifer Scott
Ligue des droits et libertés — Noël St. Pierre
December 9 Coalition — Monika Chappell
Council of Canadians with Disabilities — Jim Derksen
Native Women’s Association of Canada — Theresa Woods
There were three vacancies on the Advisory Committee that were never filled and remain open.
Over the course of the year, the Advisory Committee of Equality Members operated with a rotating chair that was occupied by Lawrence Aronovitch, Indra Singh and Monika Chappell. In December 1997, Noël St. Pierre was appointed as the Advisory Committee’s representative to the Board.
The Committee was very active during 1997-1998 and held seven conference calls and one in-person meeting in Winnipeg. The Advisory Committee completed a draft of its terms of reference. It established two committees, one on Racism and the other on Poverty to develop a strategy to increase the number of equality rights cases and studies funded by the Court Challenges Program in these areas. It provided membership input to the Board on the following topics: the Program’s internal restructuring and staffing changes, the Equality Rights Litigation Consultation, renewal of the Contribution Agreement, the Program’s evaluation, mandate expansion, and the Program’s communication process.
Advisory Committee of Language Members
The following organizations and persons sat on the Advisory Committee of Language Members in 1997-1998:
Alliance Québec — David Birnbaum
Commission nationale des parents francophones — Armand Bédard
Fédération des associations de juristes d’expression française de common law — Jean-Paul Boily
Fédération des communautés francophones et acadienne du Canada — Richard Barrette
The members of the Advisory Committee of Language Members did not meet formally during 1997-1998. The Committee appointed Armand Bédard as its representative to the Board of Directors.
PART III --- AUDITED FINANCIAL STATEMENTS
May 15, 1998
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 de contestation judiciaire du Canada as at March 31,1998 and the statement of operations and fund balances 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 31,1998 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
COURT CHALLENGES PROGRAM OF CANADA
PROGRAMME DE CONTESTATION JUDICIAIRE DU CANADA
BALANCE SHEET
ASSETS - MARCH 31, 1998
CASH -- Operating Fund $106,911
CASH -- Litigation Fund $53,415
CASH -- Programs and Promotion Access Fund $6,654
CASH -- Negotiation Fund $8,032
CASH -- Case Development Fund $24,424
CASH -- Impact Studies Fund $(5,116)
CASH -- Total $194,320
CASH total for March 31, 1997 $364,159
ASSETS - MARCH 31, 1998 continued
ACCOUNTS RECEIVABLE -- Operating Fund $16,623
ACCOUNTS RECEIVABLE -- Litigation Fund $682,739
ACCOUNTS RECEIVABLE -- Programs and Promotion Access Fund $50,000
ACCOUNTS RECEIVABLE -- Negotiation Fund $ -
ACCOUNTS RECEIVABLE -- Case Development Fund $50,000
ACCOUNTS RECEIVABLE -- Impact Studies Fund $15,000
ACCOUNTS RECEIVABLE -- Total $814,362
ACCOUNTS RECEIVABLE total for March 31, 1997 $12,321
TOTALS OF BOTH CASH AND ACCOUNTS RECEIVABLE:
TOTAL -- Operating Fund $123,534
TOTAL -- Litigation Fund $736,154
TOTAL -- Programs and Promotion Access Fund $56,654
TOTAL -- Negotiation Fund $8,032
TOTAL -- Case Development Fund $74,424
TOTAL -- Impact Studies Fund $9,884
TOTAL -- Total $1,008,682
TOTAL total for March 31, 1997 $376,480
CAPITAL ASSETS (NOTE 3)
CAPITAL ASSETS -- Operating Fund $58,208
CAPITAL ASSETS -- Litigation Fund $ -
CAPITAL ASSETS -- Programs and Promotion Access Fund $ -
CAPITAL ASSETS -- Negotiation Fund $ -
CAPITAL ASSETS -- Case Development Fund $ -
CAPITAL ASSETS -- Impact Studies Fund $ -
CAPITAL ASSETS -- Total $58,208
CAPITAL ASSETS total for March 31, 1997 $73,748
ASSETS -- GRAND TOTAL
GRAND TOTAL -- Operating Fund $181,742
GRAND TOTAL -- Litigation Fund $736,154
GRAND TOTAL -- Programs and Promotion Access Fund $55,654
GRAND TOTAL -- Negotiation Fund $8,032
GRAND TOTAL -- Case Development Fund $74,424
GRAND TOTAL -- Impact Studies Fund $9,884
GRAND TOTAL -- Total $1,066,890
GRAND TOTAL total for March 31, 1997 $450,228
LIABILITIES - MARCH 31, 1998
ACCOUNTS PAYABLE AND ACCRUED LIABILITIES
ACCOUNTS PAYABLE AND ACCRUED LIABILITIES -- Operating Fund $181,742
ACCOUNTS PAYABLE AND ACCRUED LIABILITIES -- Litigation Fund $69,188
ACCOUNTS PAYABLE AND ACCRUED LIABILITIES -- Programs and Promotion Access Fund $ -
ACCOUNTS PAYABLE AND ACCRUED LIABILITIES -- Negotiation Fund $ -
ACCOUNTS PAYABLE AND ACCRUED LIABILITIES -- Case Development Fund $ -
ACCOUNTS PAYABLE AND ACCRUED LIABILITIES -- Impact Studies Fund $ -ACCOUNTS PAYABLE AND ACCRUED LIABILITIES -- Total $69,188
ACCOUNTS PAYABLE AND ACCRUED LIABILITIES total for March 31, 1997 $39,414
FUND BALANCES-- EXTERNALLY RESTRICTED (NOTE 4)
EXTERNALLY RESTRICTED -- Operating Fund $ -
EXTERNALLY RESTRICTED -- Litigation Fund $736,154
EXTERNALLY RESTRICTED -- Programs and Promotion Access Fund $56,654
EXTERNALLY RESTRICTED -- Negotiation Fund $8,032
EXTERNALLY RESTRICTED -- Case Development Fund $74,424
EXTERNALLY RESTRICTED -- Impact Studies Fund $9,884
EXTERNALLY RESTRICTED -- Total $885,148
EXTERNALLY RESTRICTED total for March 31, 1997 $261,798
FUND BALANCES -- INVESTED IN CAPITAL ASSETS
INVESTED -- Operating Fund $58,208
INVESTED -- Litigation Fund $ -
INVESTED -- Programs and Promotion Access Fund $ -
INVESTED -- Negotiation Fund $ -
INVESTED -- Case Development Fund $ -
INVESTED -- Impact Studies Fund $ -
INVESTED -- Total $58,208
INVESTED total for March 31, 1997 $73,748
FUND BALANCES -- UNRESTRICTED
RESTRICTED -- Operating Fund $534,346
RESTRICTED -- Litigation Fund $ -
RESTRICTED -- Programs and Promotion Access Fund $ -
RESTRICTED -- Negotiation Fund $ -
RESTRICTED -- Case Development Fund $ -
RESTRICTED -- Impact Studies Fund $ -
RESTRICTED -- Total $54,346
RESTRICTED total for March 31, 1997 $75,268
TOTAL LIABILITIES
TOTAL -- Operating Fund $112,554
TOTAL -- Litigation Fund $736,154
TOTAL -- Programs and Promotion Access Fund $56,654
TOTAL -- Negotiation Fund $8,032
TOTAL -- Case Development Fund $74,424
TOTAL -- Impact Studies Fund $9,884
TOTAL -- Total $997,702
TOTAL total for March 31, 1997 $410,814
STATEMENT OF OPERATIONS AND FUND BALANCES
Operating Fund - 1998
Revenue -
Contributions -
Government of Canada
Canadian Heritage $ 550,000
Interest 16,470
Human Resource
development 5,198
Total $571,668
Expenses -
Operating 608,130
Programs Delivery
Total 608,130
Excess of Revenue
over expenses
(expenses over revenue)
for the year (36,462)
Fund balance
(beginning of year) 149,016
Interfund transfer -
Fund balance, end of year $ 112,554
Operating Fund - 1997
Revenue -
Contributions -
Government of Canada
Canadian Heritage $ 550,000
Interest 21,658
Human Resource
development 5,822
Total $577,480
Expenses -
Operating 563,661
Programs Delivery
Total 563,661
Excess of Revenue
over expenses
(expenses over revenue)
for the year 13,819
Fund balance
(beginning of year) 413,672
Interfund transfer (278,479)
Fund balance, end of year $ 149,016
Restricted Funds
Year ended March 31, 1998
Litigation Fund
Revenue -
Contributions -
Government of Canada
Canadian Heritage $1,528,590
Interest
Human Resource
development
Total $1,528,590
Expenses -
Operating
Programs Delivery 1,074,710
Total 1,074,710
Excess of Revenue
over expenses
(expenses over revenue)
for the year 453,880
Fund balance
(beginning of year) 282,274
Interfund transfer -
Fund balance, end of year $ 736,154
Program Promotion and Access Fund
Revenue -
Contributions -
Government of Canada
Canadian Heritage $ 253,717
Interest
Human Resource
development
Total $ 253,717
Expenses -
Operating
Programs Delivery 140,372
Total 140,372
Excess of Revenue
over expenses
(expenses over revenue)
for the year 113,345
Fund balance
(beginning of year) (56,691)
Interfund transfer -
Fund balance, end of year $ 56,654
Negotiation Fund
Revenue -
Contributions -
Government of Canada
Canadian Heritage $ 40,922
Interest
Human Resource
development
Total $ 40,922
Expenses -
Operating
Programs Delivery 14,672
Total 14,672
Excess of Revenue
over expenses
(expenses over revenue)
for the year 26,250
Fund balance
(beginning of year) (18,218)
Interfund transfer -
Fund balance, end of year $ 8,032
Case Development Fund
Revenue -
Contributions -
Government of Canada
Canadian Heritage $ 124,000
Interest
Human Resource
development
Total $ 124,000
Expenses -
Operating
Programs Delivery 97,515
Total $ 97,515
Excess of Revenue
over expenses
(expenses over revenue)
for the year 26,485
Fund balance
(beginning of year) 47,939
Interfund transfer -
Fund balance, end of year $ 74,424
Impact Studies Fund
Revenue -
Contributions -
Government of Canada
Canadian Heritage $ 15,000
Interest
Human Resource
development
Total $ 15,000
Expenses -
Operating
Programs Delivery 11,610
Total 11,610
Excess of Revenue
over expenses
(expenses over revenue)
for the year 3,390
Fund balance
(beginning of year) 6,494
Interfund transfer -
Fund balance, end of year $ 9,884
Total
Revenue -
Contributions -
Government of Canada
Canadian Heritage $ 1,962,229
Interest
Human Resource
development
Total $ 1,962,229
Expenses -
Operating
Programs Delivery 1,338,879
Total $1,338,879
Excess of Revenue
over expenses
(expenses over revenue)
for the year 623,350
Fund balance
(beginning of year) 261,798
Interfund transfer -
Fund balance, end of year $885,148
Year ended March 31, 1997
Revenue -
Contributions -
Government of Canada
Canadian Heritage $151,226
Interest -
Human Resource
development -
Total $151,226
Expenses -
Operating
Programs Delivery 670,059
Total 670,059
Excess of Revenue
over expenses
(expenses over revenue)
for the year (518,833)
Fund balance
(beginning of year) 502,156
Interfund transfer 278,475
Fund balance, end of year $ 261,798
NOTES TO FINANCIAL STATEMENTS
March 31, 1998
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 Il 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 is non-taxable under Section 149 of the Income Tax Act.
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. The Corporation has entered into a new contribution agreement which sets out the terms and conditions for the period April 1,1998 to March 31, 2003.
2. Significant accounting policies
Fund accounting
The Corporation follows the restricted method of accounting for contributions.
Operating Fund
The Operating Fund accounts for the Corporation's administrative activities and reports unrestricted resources and operating grants.
Litigation Fund
The Litigation Fund reports restricted resources that are to be 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 reports restricted resources that are to be used for activities which promote awareness of, access to, or capacity to use the Program (equality rights only).
Negotiation Fund
The Negotiation Fund reports restricted resources that are to be 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 reports restricted resources that are to be used to provide financial assistance to develop a case for obtaining supporting jurisprudence and legislative provisions.
Impact Studies Fund
The Impact Studies Fund reports restricted resources that are to be used to provide financial assistance for the preparation of impact studies of important court decisions relevant to litigation under the Program.
NOTES TO FINANCIAL STATEMENTS continued
March 31, 1998
Revenue recognition
Restricted contributions related to general operations are recognized as revenue of the Operating Fund in the year the expenses are incurred. All other restricted contributions are recognized as revenue of the appropriate restricted fund.
Unrestricted contributions are recognized as revenue of the Operating Fund in the year received or receivable if the amount to be received can be reasonably estimated and collection is reasonably assured.
Investment income is recognized on an accrual basis as revenue of the Operating Fund.
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
3. Capital assets
1998
Computer Equipment
Cost $74,411
Accumulated amortization $32,411
Furniture and equipment
Cost $37,824
Accumulated amortization $18,616
Total cost $109,235
Total accumulated amortization $51,027
Net book value (1998) $58,208
1997
Computer Equipment
Cost $65,677
Accumulated amortization $18,702
Furniture and equipment
Cost $37,824
Accumulated amortization $11,051
Total cost $103,501
Total accumulated amortization $29,753
Net book value (1997) $73,748
Notes to financial statements
March 31, 1998
4. Externally restricted fund balances
Major categories of externally imposed restrictions on net assets are allocated as follows:
1998 -- Equality rights
Litigation Fund $394,662
Programs and Promotion Access Fund $56,654
Negotiation Fund $ -
Case Development Fund $54,400
Impact Studies Fund $7,639
Total (1998) $513,355
Total (1997) $96,060
1998 -- Language rights
Litigation Fund $341,492
Programs and Promotion Access Fund $ -
Negotiation Fund $8,032
Case Development Fund $20,024
Impact Studies Fund $2,245
Total (1998) $371,793
Total (1997) $165,738
Grand totals
Litigation Fund $736,154
Programs and Promotion Access Fund $56,654
Negotiation Fund $8,032
Case Development Fund $74,424
Impact Studies Fund $9,884
Total (1998) $885,148
Total (1997) $261,798
Notes to financial statements
March 31, 1998
5. Commitments
The Corporation's Equality and Language Rights Panels have approved commitments as follows:
1998 -- Equality rights
Commitments approved by Panels -- Litigation $1,918,702
-- Program Promotion and Access $165,000
-- Negotiation $ -
-- Case development $135,455
-- Impact studies $55,231
Total $2,274,388
1998 -- Language rights
Commitments approved by Panels -- Litigation $432,702
-- Program Promotion and Access $ -
-- Negotiation $5,000
-- Case development $30,000
-- Impact studies $ -
Total $467,702
Grand total for equality rights and language rights $2,742,090
1998 -- Disbursements paid 1,338,878
Sub-total $1,403,212
Restricted cash $(87,409)
Future commitments to be funded by contributions $1,315,803
1997 totals
Commitments approved by Panels -- Litigation $1,741,805
-- Program Promotion and Access $165,000
-- Negotiation $22,500
-- Case development $107,509
-- Impact studies $11,335
Grand total for equality rights and language rights $2,048,149
Disbursements paid $670,059
Sub-total ($261,798)
Future commitments to be funded by contributions $1,116,292
The Corporation has an operating lease commitment for office premises at an annual cost of $24,953 for a term that expires on April 15, 2003.
6. Statement of changes in financial position has not been included as it would not
provide any additional meaningful information.
SCHEDULE OF OPERAflNG EXPENSES
Year ended March 31
1998 1997
Advertising $ 12,217 $ 1,981
Annual meeting 9,423 7,377
Audit fees 5,175 5,175
Bank charges 556 542
Board members' lost wages 425 1,350
Contract labour 3,161
Depreciation 21,274 20,048
Facilities 19,928 28,745
Insurance 500 580
Legal fees 6,024 471
Office equipment and maintenance 14,905 4,268
Panel members' fees 17,315 18,625
Photocopying and printing 10,252 30,335
Postage 18,161 8,036
Public relations and outreach 10,708 24,882
Research material 570 4,910
Salaries and benefits 334,650 305,847
Supplies 9,474 8,803
Telephone and fax 21,569 14,144
Translation and interpretation 20,938 20,510
Travel and meetings 74,066 53,871
$ 608,130 $ 563,661
PART IV --- EQUALITY RIGHTS TEST CASES:
HIGHLIGHTS FROM THE 1997-1998 FISCAL YEAR
4.0 Introduction
A significant part of the equality rights work undertaken by the Program involves considering and, where appropriate, funding eligible recipients to challenge federal laws, policies or practices under section 15 (the equality guarantee) of the Charter. Because the Program’s mandate allows only federally related equality challenges, it cannot consider those matters that fall squarely within provincial jurisdiction. For this reason a number of important equality rights cases from the past year were not eligible for Program funding solely because of their provincial status.
According to the Contribution Agreement, to be eligible for funds the applicant must be an individual member of, or a non-profit organization representing, a historically disadvantaged group. Program staff reviews all applications for funding to ensure that they meet all funding requirements and advance the Charter's guarantee of equality. Applications that propose to challenge a federal law, policy or practice are then presented to the Equality Panel, which decides whether to grant funding and whether conditions should be imposed on such funding. For example, funding may be granted on the condition that the applicant work with a lawyer who has knowledge of and experience with equality rights litigation.
Test case funding is provided to applicants to begin their case at the trial level (the first court decision) and for any later appeals. Funding is also available for applicants who wish to intervene in a matter already before the court.
4.1 Case examples funded under the Courts Challenges Program
Many people view the litigation funding provided by the Court Challenges Program as similar to the funding provided by legal aid plans. However, there are many differences between the two types of financial assistance. The most important difference is that Program funding is provided exclusively for the purpose of supporting test cases that are of national importance and advance a comprehensive definition of equality as guaranteed by the Charter.
The Equality Panel granted funding to a party and/or intervener(s) in a number of exciting test cases this year. In keeping with the Program's requirement to respect the confidentiality of applicants, only general descriptions of the cases are provided. Case descriptions include the nature of the issue involved in the case and do not include information that could either identify the applicant or reveal the specifics of the applicant's arguments. These cases represent important challenges in the promotion of equality in a number of areas. Set out below is a summary of some of these cases. Some cases have received a final decision from the Court, while others are still awaiting a decision. We have also included up-dates where important events have taken place after the close of the 1997-1998 fiscal year.
4.1.1 Criminal Law
4.1.1.1 Racism
R. v. R.D.S.
At issue in this case are remarks made by a Nova Scotia judge in considering the credibility of both a police officer and R.D.S., an African-Canadian youth. The police had charged the young person with a number of criminal offences relating to an altercation between the officer and the boy. The youth and the police officer each gave a very different account of the events leading up to the charges.
Judge Sparks weighed the evidence of the two witnesses. She then determined that the youth should be acquitted, as the evidence raised a "reasonable doubt" as to R.D.S.’s guilt. In her oral reasons Judge Sparks observed that in some situations "police officers do overreact, particularly when they are dealing with non-white groups." The Crown challenged her remarks as raising a reasonable apprehension of bias. In its view, a reasonable person would think she had prejudged the case without giving proper consideration to all of the evidence. The Nova Scotia Court of Appeal agreed with the Crown and determined that Judge Sparks’ comments exhibited bias. A new trial was ordered.
The case was appealed to the Supreme Court of Canada. On September 26, 1997, it decided that Judge Sparks had not acted in a biased manner. Moreover, according to Madam Justices L'Heureux-Dubé and McLachlin, by paying attention to the racial dynamic in the case, Judge Sparks was simply engaging in the process of contextualized judging. As they stated, it is perfectly acceptable for judges to take into account not only the facts of a case, but also the social and psychological context within which the case arises. They recognized that judges are members of communities, have particular knowledge of such communities and are often guided by this knowledge. Consequently, as a person familiar with the racial dynamic of Halifax, particularly where the police are concerned, it was not unreasonable for Judge Sparks to apply this knowledge.
R. v. Williams
The central issue in this case was whether prospective jurors could be questioned about their racial bias to ensure a fair trial before an impartial (unbiased) jury. The accused was an Aboriginal man charged with robbery. The accused requested that he be permitted to question potential jury members about their ability to judge the evidence in the case free from racial prejudices and biases about "Indians". The accused argued that such questioning was necessary in light of widespread racism in Canadian society.
The British Columbia Supreme Court acknowledged the existence of a realistic possibility that a potential juror could be biased against an Aboriginal person charged with the robbery of a white person. However, the Court rejected the argument that widespread bias against Aboriginal persons was enough to warrant questioning the partiality of a juror. The British Columbia Court of Appeal upheld this ruling. To establish bias, an accused would have to provide evidence of racist attitudes that have particular links with the accused's trial.
The accused's right to question prospective jurors about their racial biases was considered by the Supreme Court of Canada on February 24, 1998. A ruling in this matter is of particular concern to groups who have experienced the effects of widespread racism within the Canadian justice system.
UPDATE - On June 4, 1998, the Supreme Court of Canada handed down its decision. It acknowledged that "Where it can be shown that widespread racial bias exists, it may be reasonable for the trial judge to assume that some jurors will have difficulty identifying and eliminating their biases." Consequently, where there is evidence of widespread racial prejudice, a realistic potential of bias on the part of prospective jurors exists. It is, therefore, reasonable for the accused to have the opportunity to challenge the impartiality of such jurors.
4.1.1.2 Sexual Assault
R. v. Darrach
Certain of the current sexual assault laws (sometimes referred to as the "rape shield laws") prevent the Court from admitting evidence of prior sexual activity on the part of a sexual assault complainant unless certain requirements are met. Specific procedures must be followed and the person accused of the assault must show that such evidence is essential to his/her defence. Accused persons continue to challenge the constitutionality of these provisions. To ensure that these provisions are not rolled back or watered down, and that they are interpreted by the court in a manner which complies with the equality guarantees of the Charter, women, children, and others who face the risk of being sexually assaulted find themselves in the position of having to defend these provisions.
At the heart of this case was a constitutional challenge by an accused, charged with sexual assault, to these rules of evidence. In considering the accused's claim, the Ontario Court of Appeal acknowledged that admitting evidence of prior sexual activity clearly infringes the complainant's privacy interests. It went on to say that these interests should be protected to the fullest extent possible while maintaining an accused's right to make full answer and defence. The court concluded that the current rules of evidence, that take into account the complainant's interests as well as the accused's interests, do not violate the accused's constitutional rights.
R. v. Mills (Disclosure of Counselling Records)
This is another case in which the accused is attempting to challenge certain provisions of the Criminal Code designed to protect the victims of sexual assault. Again, women, children, and other equality-seeking groups have had to take steps to ensure that the modest protection that exists for sexual assault victims is not undermined.
The accused is challenging the constitutionality of Bill C-46, an act to amend the Criminal Code. These provisions deal with the disclosure of a complainant's counselling records to an accused and expressly seek to balance the accused persons’ rights with complainants’ rights to privacy and equality. The provisions outline the procedure that must be followed and the factors which must be considered when an accused wishes to obtain disclosure of such records.
On October 31, 1997, the Alberta Court of Queen's Bench declared Bill C-46 to be unconstitutional. The complainant received leave under section 40 of the Supreme Court Act to bring an appeal directly to the Supreme Court of Canada. The case is still awaiting a hearing date.
4.1.1.3 Sentencing
R. v. Latimer
This case involves an accused found guilty of second degree murder by a jury for the death of his severely disabled daughter. The central issue in this case is the sentence imposed on the accused by a judge of the Saskatchewan Court of Queen's Bench.
On December 1, 1997, Mr. Justice Noble granted Mr. Latimer a constitutional exemption from the mandatory minimum sentence of ten years for second-degree murder, on the grounds that this minimum was a cruel and unusual punishment that violated section 12 of the Charter. He sentenced Mr. Latimer to two years less a day, with one year served in a correctional facility and one year confined to his farm. This case is being appealed to the Saskatchewan Court of Appeal by both the Crown and the accused.
Equality-seeking groups representing persons with disabilities are seeking to intervene in this case because they believe that exempting Mr. Latimer from the mandatory sentencing requirements increases the vulnerability of members of the disabled community. It is feared that if the lesser sentence is upheld it will encourage other parents and caregivers to follow Mr. Latimer's example and use mercy and compassion as a reason for killing a person with a disability.
4.1.2 Taxation
Vancouver Society of Immigrant and Visible Minority Women v. Canada (Minister of National Revenue)
In this case Revenue Canada refused to register the Vancouver Society of Immigrant and Visible Minority Women as a charitable organization for tax purposes. This refusal was based on the determination that the activities of the organization did not promote the advancement of education as required by the Income Tax Act.
The Federal Court of Appeal upheld this ruling. The Court stated that the organization's "purposes and activities are so indefinite and vague as to prevent the Minister, and this Court, from determining with some degree of certainty what the activities are, who are the true beneficiaries of the activities and whether these beneficiaries are persons in need of charity as opposed to merely being in need of help."
The Vancouver Society of Immigrant and Visible Minority Women, along with other equality-seekers, believe that Revenue Canada's refusal to grant them charitable status violates the guarantee of equality contained in section 15 of the Charter. Equality seekers believe that Revenue Canada’s definition of "charity", and particularly the type of educational activities which are considered charitable work, fails to recognize the type of basic training and education which immigrant and minority women require to overcome the high levels of unemployment and poverty they often face. They have appealed the case to the Supreme Court of Canada.
Rosenberg et al. v. Canada (Attorney General)
This case involves a pension plan set up by the Canadian Union of Public Employees for its employees. In 1992, C.U.P.E. amended its plan to provide pension benefits to partners in same-sex relationships. Revenue Canada refused to register the amended plan because it no longer complied with the definition of spouse in the Income Tax Act. The Income Tax Act permits the registration of a private pension plan with Revenue Canada only if the plan restricts survivor benefits to spouses of the opposite sex. If a plan provides survivor benefits to same sex partners, the plan cannot be registered and cannot therefore receive the tax benefits enjoyed by registered plans.
The Plaintiffs in this case tried to get a declaration from the Ontario Court, General Division that the definition of spouse contained in the Income Tax Act as it applied to registered pension plans violates section 15 of the Charter. Following the analysis set out in Egan by the Supreme Court of Canada, the Court declined to grant such a declaration. The matter has been appealed to the Ontario Court of Appeal.
UPDATE - On April 23, 1998, Ms Rosenberg and the other appellants won their appeal before the Ontario Court of Appeal. Relying on the analysis set out by the Supreme Court in Vriend v. Alberta, Judge Abella rejected the approach of some members of the Supreme Court of Canada in Egan, that is, their consideration of the overall objective of the legislation when determining whether the discrimination was reasonably justified. Justice Abella chose to examine the particular objective of the limitation alleged to infringe the appellant's equality rights. She observed that "aging and retirement are not unique to heterosexuals and that there is nothing about being heterosexual that warrants the government's preferential attention to the possibility of economic insecurity." On that basis she found that the government cannot justify its decision to exclude same sex partners from benefiting from registered pension plans.
4.1.3 Aboriginal Law
Corbiere et al. v. The Queen and Batchewana Indian Band
This challenge is to provisions of the Indian Act, which prohibit participation in Band elections by band members who do not live on reserve. Due to a shortage of land and housing, many members of the Batchewana Indian Band are forced to live off reserve. Particularly affected are women and children reinstated under Bill C-31 who have never had the opportunity to live on the reserve. A number of persons in this position are challenging the residency requirement as contrary to the equality guarantees in section 15 of the Charter.
Prior to 1951, the Indian Act permitted non-resident band members to vote in band elections. However, amendments to the Act in 1951 require that band members be "ordinarily resident on the reserve in order to be entitled to vote in band elections." The residency requirement was applied gradually, but in 1962 the Department of Indian Affairs and Northern Development took the firm position that members of the Batchewana Band ordinarily resident off the reserve were not entitled to vote.
The plaintiffs went to the Federal Court, Trial Division, and obtained a declaration that certain sections of the Indian Act dealing with Band elections are invalid under section 15 of the Charter. The case was appealed to the Federal Court of Appeal, which upheld the decision of the Trial Court. Leave to appeal this matter to the Supreme Court of Canada was granted on April 24, 1997.
Sawridge Indian Band v. Canada
In this case, a number of Indian Bands had brought a challenge to Bill C-31. This Bill amended the Indian Act to oblige Indian Bands to include in their membership persons who, for various reasons, have been excluded from such membership. Such persons included women who had become disentitled to Indian status under the Act through marriage to non-Indian men; these women’s children; those who had lost status because their mother and paternal grandmother were non-Indian and had gained Indian status through marriage to an Indian; and those who had lost status on the basis that they were the "illegitimate" children of an Indian woman and a non-Indian man. The Bands argued that they have the constitutional right to determine their own membership.
As Bill C-31 was meant to remedy the historic inequality experienced by those mentioned above, this case had important implications for the equality rights of Aboriginal women.
At trial, the provisions of Bill C-31 at issue were upheld. Regrettably the judgement conveyed a very negative view of Aboriginal rights or special status for all or some Aboriginal peoples. It also relied on critical, pejorative language about the relevant constitutional and statutory provisions of concern to Aboriginal peoples. Consequently, on appeal the judgement was overturned on the ground that the presiding judge appeared to have a bias; that is, a strong opposition to a special legal regime for some or all Aboriginal peoples. The Federal Court of Appeal concluded that the judge's comments would give a reasonable person the impression that the judge viewed Aboriginal rights to be racist and a form of apartheid. The Court ordered a new trial on that basis.
4.1.4 Immigration/Refugee Law
Baker v. Canada (Minister of Citizenship and Immigration)
This case involves a challenge by Ms Baker, a Jamaican-born woman, who worked illegally in Canada as a domestic worker for a number of years. After the birth of her fourth Canadian-born child, she suffered post-partum psychosis and was diagnosed as a paranoid schizophrenic. She underwent treatment at a mental health facility for one year. She then applied for landed immigrant status on humanitarian and compassionate grounds. Her application was denied and she was ordered deported. The Immigration officer had noted that she would be a "tremendous strain" on the social welfare system for the rest of her life.
Ms Baker appealed this ruling to the Federal Court, Trial Division. At trial, she relied on international human rights conventions and covenants, particularly the United Nations Convention of the Rights of the Child, to support her request to remain in Canada with her Canadian-born children. The Court dismissed her arguments and the deportation order was upheld. The Federal Court of Appeal also dismissed Ms Baker’s appeal. The case is now on appeal to the Supreme Court of Canada.
This case raises a number of issues of concern to equality-seekers. Of particular significance are firstly, the argument that international protections for human rights should guide the interpretation of the Charter’s equality guarantees; and secondly, the implications of the case for the equality rights of children, immigrants and refugees, persons with mental disabilities, and women in their role as mothers.
4.1.5 Social and Economic Rights
Granovsky v. Minister of Human Resources Development
This case involves a challenge to the Canada Pension Plan Act which denies benefits to those persons who, because of a progressive disability, are unable to work continuously and are therefore unable to qualify for disability pension benefits. Mr. Granovsky contributed for several years to the Canada Pension Plan. However, in 1980 he sustained an injury that eventually resulted in a permanent partial disability. For some time, it prevented him from participating in the work force and consequently from contributing to the Canada Pension Plan. As a result, he was unable to meet the "recent contribution" requirements of the Act and was denied access to disability benefits. Mr. Granovsky was not eligible to qualify, as a person with a disability, for pension benefits until the early 1990s.
Mr. Granovsky argued that this denial discriminated against him on the basis of disability. The Pension Appeals Board rejected this argument. The Board's ruling was appealed to the Federal Court of Appeal. The Court found that the Plan discriminated against persons with progressive disabilities contrary to section 15 of the Charter, but went on to find that the discrimination could be justified under section 1 of the Charter. The Court's decision is being appealed to the Supreme Court of Canada.
4.2 Provincial Equality Cases
While the cases funded by the Program certainly have contributed to the development of equality rights, some of the most significant advances in substantive equality in the past year have resulted from challenges to provincial laws and government action — challenges which the Program was unable to assist financially. Any summary of this year’s highlights would be incomplete without mentioning the following landmark decisions by the Supreme Court of Canada. These judgements have laid a strong foundation for future test cases to be funded by the Program.
In Eldridge v. B.C. (Attorney General), [1997] S.C.J. No. 86, the appellants — all of whom were born deaf and communicated through sign language – successfully claimed that the failure to provide sign language interpreters as an insured benefit under British Columbia’s medical and hospital services plan violated their right to equal benefit of the law under section 15 of the Charter.
The Court viewed this case as an instance of "adverse effects" discrimination on the basis of disability. While the plan appeared on its face to offer free essential health care for all, the effect of the legislation was to deny the appellants equal access to this benefit. According to the Court, the government has a duty under the Charter to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public. In this case, section 15 required the British Columbia government to provide for sign language interpretation in the context of insured medical care.
Winnipeg Child and Family Services (Northwest Area) v. D.F.G. [1997] S.C.J. No. 96, provided a powerful example of the indirect impact of substantive equality principles on the development of the common law, that is, law derived from judicial decisions as opposed to legislation. In that case, a judge in Manitoba ordered a young woman, who was pregnant and had an addiction to solvents, to be placed in the custody of the Director of Child and Family Services and detained in an addiction treatment centre for the remaining duration of her pregnancy. The woman, D.F.G., successfully challenged the power of a court to make such an order.
The Supreme Court held that an order detaining a woman for the purpose of protecting her foetus would require changes to the law that would have a significant impact on the rights of women. In the Court’s view, a court cannot change the law in this way. Only the legislature can, and only if it does so in a manner that conforms to the Charter.
A final example is Vriend v. Alberta [1998] S.C.J. No. 29. In this case (whose appeal was heard within the last fiscal year, but decided on April 2, 1998) the appellants were Mr. Vriend, a man who had been fired from his position as a college laboratory co-ordinator after he disclosed that he was gay, as well as three community groups which represent homosexual men and lesbians. Together they challenged Alberta’s Individual’s Rights Protection Act for its exclusion of sexual orientation from the grounds of discrimination against which the Act offers protection. In their view, this exclusion discriminated against them on the basis of their sexual orientation, violating their rights to equal protection and benefit of the law under section 15 of the Charter.
The Supreme Court of Canada agreed with Mr. Vriend and the other appellants, and ordered the government of Alberta to read "sexual orientation" into all provisions that listed grounds of discrimination. In so doing, the Court recognized a right on the part of all of the appellants to challenge the Act’s exclusion, not only in employment matters, but also in all forms of discrimination prohibited by the legislation. To require individual challenges for each form of discrimination would place an unjust burden of delay, cost and personal vulnerability on those who might eventually bring such cases. The Court further stated that denying homosexual men and lesbians recourse for discriminatory acts not only imposes a tremendous burden on these members of society, but gives the message that everyone is equal except homosexual men and lesbians, an effect which offends section 15.
Provincial challenges such as the ones mentioned here will become increasingly numerous and significant to the development of substantive equality as the Federal Government withdraws from social programming and devolves its traditional areas of responsibility to the provinces. These cases underline the importance of expanding the program’s mandate to cover such challenges so it can fulfil its mission of strengthening and clarifying the equality rights of all Canadians.
PART V --- LANGUAGE RIGHTS
5.0 Introduction
This section outlines the main court challenges that received funding from the Language Rights Panel. It is not intended to be a complete review of the language rights situation in Canada. In this regard, the annual reports of the Commissioner of Official Languages are an excellent source of information for anyone seeking an annual review of the state of language rights in Canada.
We have divided language rights into five categories:
education rights,
language rights involving the language of work, communications and services,
the linguistic aspects of freedom of expression,
legislative bilingualism, and
judicial rights.
5.1 Education Rights
Section 23 of the Charter confers two levels of rights on official language minority parents. At the first level, parents are granted the general right to have their children receive instruction in the official minority language. This right applies when the "number of children of citizens who have such a right is sufficient to warrant the provision…of minority language instruction". When this number is high enough, it can trigger a higher level of rights provided for in paragraph 23(3)(b) of the Charter, namely the right to have those children receive instruction "in minority language educational facilities". This has been recognized by the Supreme Court of Canada in Mahé v. Alberta, [1990] 1 S.C.R. 342, as the right to manage the educational institutions that provide this instruction. The Court had indicated that the overall purpose of this section is to preserve and promote the language and culture of official language minorities throughout Canada. To achieve this objective, the Court decided that it is essential that "the minority language group have control over those aspects of education which pertain to or have an effect upon their language and culture".
The degree of management necessary to ensure this control can range from guaranteed representation of the minority on a mixed school board and exclusive control over all cultural and linguistic matters to the creation of an independent school board.
Despite the Supreme Court of Canada rulings in Mahé and the Manitoba Reference (Reference re Public Schools Act (Man.)) and subsequent lower court rulings, school boards and provincial and territorial governments do not always meet section 23 requirements. Furthermore, even where the general principles of section 23 are recognized, a number of problems arise with respect to its implementation.
As a result, the Program has funded a number of court challenges in this area, including the following examples.
The francophone parents of Summerside, Prince Edward Island, and their representative body, the Fédération de parents de l’Île-du-Prince-Édouard, have been demanding the establishment of a French school in their community for several years. They went before the courts to challenge the Department of Education’s decision not to open a school in Summerside. In January 1997, the Supreme Court of Prince Edward Island sided with the parents by granting them the right to a French-language school. The government launched an appeal of this decision one month later.
The Fédération de parents de l’Île-du-Prince-Édouard obtained appeal level funding from the program to defend its lower-court gains. Funding was also granted to the Commission scolaire de langue française de l’Île-du-Prince-Édouard to intervene in the case in favour of the parents and to bring to the court the unique perspective of a school board responsible for implementing the right to instruction.
Elsewhere in the Maritimes, the education reforms carried out by the government of New Brunswick continue to have repercussions. The abolition of school boards and the establishment of a new Education Act gave rise to a Program-funded court challenge by the Comités des parents du Nouveau-Brunswick. As of the end of the fiscal year, no mechanism is in place to ensure the participation of parents and/or the minority community in decisions that affect the education of their children. According to the Comités des parents, the advisory powers that the government proposes to grant to entitled persons do not comply with the right of management provided for by section 23.
Also in New Brunswick, funding was granted to the Comités des parents des villages de St-Simon, St-Saveur et Sainte-Rose for an interlocutory injunction to prevent the closing of their schools. The Comités des parents du Nouveau-Brunswick also received funding to intervene in this matter. The provincial government yielded to parental pressure and decided not to close the schools before there was a hearing on the substance of the question.
In Ontario Bill 104 created seven new francophone school boards across the province. The Ontario Public School Boards’ Association and six other applicants filed an injunction to stop the government from applying the Bill’s provisions and thus, preventing the creation of francophone school boards. The Association française de conseils scolaires de l’Ontario was granted funding to intervene at the trial and appeal court levels to defend the statute’s constitutional validity. In August 1997, the Divisional Court of Ontario dismissed the application and upheld the constitutional validity of Bill 104. In January 1998, the Ontario Court of Appeal dismissed an appeal of this decision.
An interesting question concerning minority language educational rights has been raised in Ontario. English-speaking parents, Susan Abbey and her husband, had enrolled their three children in a French-language school at the start of the children’s education. When the family moved to another community, Mrs. Abbey enrolled her children in an immersion school, but quickly realized that the immersion program did not meet her children’s educational needs. The school board rejected her request to have her children enrolled in a French school and to have it pay the applicable tuition fees as, in its opinion, the plaintiff had no rights under section 23. This action raised the following question: can a non-entitled parent acquire the right to have his or her child receive instruction in the minority language through Charter subsection 23(2) when the child has received instruction in the minority language?
The Program funded this case at trial. In June 1997, the Divisional Court of Ontario dismissed the plaintiff’s arguments. According to the judge, the purpose of subsection 23(2), at issue in this dispute, is to ensure the continuity of language instruction for those who qualify under subsection 23(1). The children did not qualify, as their parents are not members of the official language minority in Ontario. The Program granted funding to Susan Abbey to appeal that decision.
In Manitoba, the new schools governance scheme has been in effect since September 1994 following the decision of the Supreme Court of Canada, which had considered the constitutional validity of certain provisions of the Public Schools Act in the Manitoba Reference. The Fédération provinciale des comités de parents feels that, in the matter of schools governance, constitutional rights are still being violated. The Program granted funding to the Fédération, which is preparing to challenge the relevant provisions of the Act.
Also in the West, the Conseil scolaire de Zenon Park in Saskatchewan obtained funding from the Program to bring an action against the government and the school board to oblige them to provide school facilities at least equivalent to those provided to the majority community. Before proceeding to litigation, the Conseil scolaire de Zenon Park also received funding to open negotiations with the Department of Education for a suitable permanent facility.
Although a number of issues were addressed by court challenges funded in this fiscal year, there are still several unresolved issues, especially with respect to the implementation of this constitutional right.
5.2 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 made a few comments, but it would be difficult to draw any definite conclusions about the effect of this section. It is difficult to say whether this section has only a declaratory effect or whether it grants specific rights.
Section 16.1 of the Charter is a unique provision that enshrines in the Constitution the equality of both official language communities in New Brunswick. To our knowledge, there is no case law with respect to this provision.
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; the tests of significant demand and the nature of the office restrict them.
Many questions about this section remain unresolved and open to challenge. The courts have given no exact definitions to "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.
Decentralization or administrative devolution
The Federal Government’s constitutional obligations with respect to language in its areas of jurisdiction have 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. An additional set of questions come into being as the Federal Government transfers programs appropriated over the years through its spending powers back to the provinces and territories.
The official language minority communities are asking:
Can these powers and/or programs be transferred to the provinces and territories without attaching to them the responsibility to fulfil obligations with respect to official languages?
Can constitutional language obligations be circumvented by the delegation of federal administrative responsibilities to provincial bodies?
Should the Federal Government ensure the fulfilment, 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?
These questions are giving rise to court challenges.
Since the Employment Insurance Act came into effect in July 1996, the Government of Canada has been negotiating agreements on labour market development with the provinces. An agreement with New Brunswick was signed in December 1996. However, neither the Employment Insurance Act nor the Canada/New Brunswick agreement contain provisions specifying that federal employees transferred to New Brunswick will be able to continue to work in their own language as is presently the case under the federal Official Languages Act.
The Program granted funding to the Société des Acadiens et Acadiennes du Nouveau-Brunswick to commence a legal action to verify the scope of Charter subsections 16(1), 16(2), 16.1(1), 16.1(2) and 20(2). The action is aimed at demonstrating that the whole of the New Brunswick civil service has the right to work in the official language of one’s choice, as do former employees of the Federal Government where there has been devolution or transfer of federal jurisdiction to the provinces.
5.3 The Linguistic Aspect of Freedom of Expression
Certain fundamental rights found in the Canadian Charter of Rights and Freedoms have a linguistic connotation. The most obvious example is freedom of expression that is protected by section 2 of the Charter. 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 1997-1998 fiscal year.
5.4 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.
One issue that might arise is 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.
The Program did not receive any applications for funding based on this issue in the 1997-1998 fiscal year.
5.5 Legislative Bilingualism
In the legislative area, the Program can fund actions aimed at clarifying the language obligations of the Canadian Parliament, the legislatures of New Brunswick and Manitoba and Québec’s National Assembly. Section 17 of the Charter guarantees the right to use English and French in any debates or other proceedings of Parliament and the legislature of New Brunswick. Section 18 requires that documents emanating from these two institutions be printed and published in both languages.
Sections 133 of the Constitution Act, 1867 and 23 of the Manitoba Act, 1870, which preceded the Charter, imposed similar obligations on Parliament and on the Manitoba legislature and the Québec National Assembly.
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. However, a number of issues require further clarification. They include:
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?
The Program did not receive any applications for funding based on this issue in the 1997-1998 fiscal year.
5.6 Conclusion
The large number of education rights applications attests to the fundamental importance of this right for official language minorities as well as the difficulties of implementing it in the twelve provincial and territorial jurisdictions. Whereas progress in implementing this right continues to be made, official language minorities find they must remain vigilant in order to ensure that their rights, ever vulnerable to political trends or budgetary constraints, are respected. To that end, recourse to the courts remains an important tool in obliging governments to fulfil their constitutional obligations.
An emerging issue of major significance for linguistic minorities is the administrative devolution of federal powers to the provinces and territories. Questions are being asked about the Federal Government’s constitutional obligations in the area of language rights where it has delegated its responsibilities to provide public services to the provinces or territories. Official language minorities will want to ensure that their rights are respected in the agreements providing for the delegation of these powers.
As indicated above, there remain many unresolved issues in the area of language rights in Canada. The cases funded during the past year attest to the fact that judicial recourse remains an important and effective way to ensure that the constitutional rights of official language minorities are recognized and respected by both levels of government in the Canadian federation.
Finally, it should be noted that the Program and the Federal Government has entered into a new five year Contribution Agreement that will take effect at the beginning of the next fiscal year. Under this agreement, a new category of funding was added to the language rights side of the Program. It is now possible to obtain funding for activities that promote awareness of, access to, or capacity to use the Program.
PART VI — TABLES
Statistical Information - Equality
Table 1 — Breakdown of Equality Applications Received October 24, 1994 — March 31, 1998
by Province/Territory
Province/Territory Yukon
% of Canadian Population .1
1994/95 0
% of Applications 0
1995/1996 0
% of Applications 0
1996/1997 0
% of Applications 0
1997/1998 1
% of Applications .7
Total 1
% of Applications .2
Province/Territory Northwest Territories
% of Canadian Population .2
1994/95 0
% of Applications 0
1995/1996 2
% of Applications 2.3
1996/1997 0
% of Applications 0
1997/1998 0
% of Applications 0
Total 2
% of Applications .5
Province/Territory British Columbia
% of Canadian Population 12.9
1994/95 16
% of Applications 28.1
1995/1996 14
% of Applications 15.9
1996/1997 17
% of Applications 15.0
1997/1998 18
% of Applications 13.1
Total 65
% of Applications 16.5
Province/Territory Alberta
% of Canadian Population 9.3
1994/95 5
% of Applications 8.8
1995/1996 7
% of Applications 8
1996/1997 8
% of Applications 7.1
1997/1998 13
% of Applications 9.5
Total 33
% of Applications 8.4
Province/Territory Saskatchewan
% of Canadian Population 3.4
1994/95 2
% of Applications 3.5
1995/1996 9
% of Applications 10.2
1996/1997 3
% of Applications 2.6
1997/1998 8
% of Applications 5.9
Total 22
% of Applications 5.6
Province/Territory Manitoba
% of Canadian Population 3.8
1994/95 7
% of Applications 12.3
1995/1996 15
% of Applications 17
1996/1997 11
% of Applications 9.7
1997/1998 24
% of Applications 17.5
Total 57
% of Applications 14.4
Province/Territory Ontario
% of Canadian Population 37.6
1994/95 19
% of Applications 33.3
1995/1996 29
% of Applications 33
1996/1997 45
% of Applications 39.8
1997/1998 54
% of Applications 39.4
Total 147
% of Applications 37.2
Province/Territory Quebec
% of Canadian Population 24.7
1994/95 3
% of Applications 5.2
1995/1996 5
% of Applications 5.7
1996/1997 15
% of Applications 13.2
1997/1998 12
% of Applications 8.8
Total 35
% of Applications 8.9
Province/Territory New Brunswick
% of Canadian Population 2.5
1994/95 3
% of Applications 5.2
1995/1996 0
% of Applications 0
1996/1997 6
% of Applications 5.3
1997/1998 1
% of Applications .7
Total 10
% of Applications 2.5
Province/Territory Nova Scotia
% of Canadian Population 3.1
1994/95 1
% of Applications 1.8
1995/1996 3
% of Applications 3.4
1996/1997 4
% of Applications 3.5
1997/1998 4
% of Applications 2.9
Total 12
% of Applications 3
Province/Territory Prince Edward Island
% of Canadian Population .5
1994/95 0
% of Applications 0
1995/1996 4
% of Applications 4.5
1996/1997 1
% of Applications 1
1997/1998 0
% of Applications 0
Total 5
% of Applications 1.3
Province/Territory Newfoundland/Labrador
% of Canadian Population 1.9
1994/95 0
% of Applications 0
1995/1996 0
% of Applications 0
1996/1997 2
% of Applications 1.8
1997/1998 2
% of Applications 1.5
Total 4
% of Applications 1
Province/Territory Outside of Canada
% of Canadian Population
1994/95 1
% of Applications 1.8
1995/1996 0
% of Applications 0
1996/1997 1
% of Applications 1
1997/1998 0
% of Applications 0
Total 2
% of Applications .5
Totals
% of Canadian Population 100
1994/95 57
% of Applications 100
1995/1996 88
% of Applications 100
1996/1997 113
% of Applications 100
1997/1998 137
% of Applications 100
Total 395
% of Applications 100
Table 2 Breakdown of Equality Applications Received October 24, 1994 ñ March 31, 1998 by Type of Application
(Transcriber's note: the 5 column headings are as follows: 1994/95 1995/96 1996/97 1997/98 TOTAL)
Aboriginal 9 19 21 32 81
Age 2 0 5 5 12
Citizenship 2 2 1 4 9
Colour/Race/National Origin/Ethnicity
-- Colour 0 7 6 4 17
-- Race 0 0 2 9 11
-- National Origin 2 1 3 2 8
-- Ethnicity 2 1 6 4 13
--General 2 5 9 3 19
Disability 7 12 10 19 48
Family/Marital/Parental 3 6 6 4 19
Geography 0 0 2 1 3
Language 0 2 1 1 4
Poverty 4 6 5 6 21
Prisoner/Criminal Record 5 2 3 3 13
Religion 2 1 0 0 3
Section 15 General 3 2 8 8 21
Sex 3 6 9 17 35
Sexual Orientation 6 11 11 9 37
Unknown 0 1 2 2 5
Other 5 4 3 4 16
TOTAL 57 88 113 137 395
Table 3 - Breakdown of Decisions Made by the Equality Rights
Panel from October 24, 1994 - March 31, 1998
(Transcriber's note: the 5 column headings are as follows: Decision Pending
Panel/Admin Rejection
Applicant Withdrawn
Panel Granted
Total
Aboriginal 1 12 10 58 81
Age 1 6 0 5 12
Citizenship 2 5 0 2 9
Colour/Race/National Origin/Ethnicity
-- Colour 0 5 3 9 17
-- Race 3 3 0 5 11
-- National Origin 2 4 0 2 8
-- Ethnicity 1 3 0 9 13
-- General 1 1 2 15 19
Disability 3 11 5 29 48
Family/Marital/Parental 3 10 1 5 19
Geography 0 2 0 1 3
Language 0 2 0 2 4
Poverty 2 7 1 11 21
Prisoner/Criminal Record 1 3 2 7 13
Religion 0 3 0 0 3
Section 15 General 1 1 3 16 21
Sex 2 9 4 20 35
Sexual Orientation 1 2 3 31 37
Unknown 1 3 1 0 5
Other 2 11 3 0 16
TOTAL 27 103 38 227 395
Table 4 - Breakdown of Type of Funding Granted by the Equality
Rights Panel from October 24, 1994 - March 31, 1998
(Transcriber's note: the 5 column headings are as follows:
Case Development
Case Funding
Impact Study
Program Promotion and Access
Total
Aboriginal 23 31 2 2 58
Age 2 3 0 0 5
Citizenship 0 2 0 0 2
Colour/Race/National Origin/Ethnicity
-- Colour 2 5 0 2 9
-- Race 1 3 0 1 5
-- National Origin 1 1 0 0 2
-- Ethnicity 2 3 0 4 9
-- General 2 5 0 8 15
Disability 8 12 2 7 29
Family/Marital/Parental 1 4 0 0 5
Geography 0 0 0 1 1
Language 1 1 0 0 2
Poverty 5 3 0 3 11
Prisoner/Criminal Record 1 4 1 1 7
Religion 0 0 0 0 0
Section 15 General 1 5 0 10 16
Sex 2 11 1 6 20
Sexual Orientation 7 15 2 7 31
Unknown 0 0 0 0 0
Other 0 0 0 0 0
TOTAL 59 108 8 52 227
Table 5 Breakdown of Case Funding Granted by the Equality Rights Panel October 24, 1994 ñ March 31, 1998 by Court Level
Case Funding Aboriginal
First Instance 20 (2 interventions)
Appeal 4 (1 intervention)
Supreme Court of Canada 7 (5 interventions)
Total 31
Case Funding Age
First Instance 2
Appeal 0
Supreme Court of Canada 1 (1 intervention)
Total 3
Case Funding
First Instance Citizenship
Appeal 0
Supreme Court of Canada 1
Total 2
Case Funding (Color/Race/National Origin/Ethnicity) Color
First Instance 2
Appeal 1
Supreme Court of Canada 2 (1 intervention)
Total 5
Case Funding Race
First Instance 0
Appeal 0
Supreme Court of Canada 3 (3 interventions)
Total 3
Case Funding National Origin
First Instance 1
Appeal 0
Supreme Court of Canada 0
Total 1
Case Funding Ethnicity
First Instance 3 (1 intervention)
Appeal 0
Supreme Court of Canada 0
Total 3
Case Funding General
First Instance 2 (1 intervention)
Appeal 2 (1 intervention)
Supreme Court of Canada 1
Total 5
Case Funding Family/Marital/Parental
First Instance 2
Appeal 2 (1 intervention)
Supreme Court of Canada 0
Total 4
Case Funding Geography
First Instance 0
Appeal 0
Supreme Court of Canada 0
Total 0
Case Funding Language
First Instance 1
Appeal 0
Supreme Court of Canada 0
Total 1
Case Funding Poverty
First Instance 3
Appeal 0
Supreme Court of Canada 0
Total 3
Case Funding Prisoner/Criminal Record
First Instance 3
Appeal 1
Supreme Court of Canada 0
Total 4
Case Funding Religion
First Instance 0
Appeal 0
Supreme Court of Canada 0
Total 0
Case Funding Section 15 General
First Instance 1
Appeal 0
Supreme Court of Canada 4 (3 interventions)
Total 5
Case Funding Sex
First Instance 5 (1 intervention)
Appeal 1 (1 intervention)
Supreme Court of Canada 5 (4 interventions)
Total 11
Case Funding Sexual Orientation
First Instance 6 (1 intervention)
Appeal 7 (4 interventions)
Supreme Court of Canada 2 (1 intervention)
Total 15
Case Funding Unknown
First Instance 0
Appeal 0
Supreme Court of Canada 0
Total 0
Case Funding Other
First Instance 0
Appeal 0
Supreme Court of Canada 0
Total 0
Case Funding Total
First Instance 55
Appeal 25
Supreme Court of Canada 28
Total
STATISTICAL INFORMATION - LANGUAGE RIGHTS PROGRAMS
Table 6 Breakdown of Language Applications Received October 24, 1994 ñ March 31, 1998 by
Province/Territory
Province/Territory Yukon
% of Canadian Population .1
1994/95 0
% of Applications 0
1995/1996 0
% of Applications 0
1996/1997 1
% of Applications 4
1997/1998 0
% of Applications 0
Total 1
% of Applications 1.1
Province/Territory Northwest Territories
% of Canadian Population .2
1994/95 1
% of Applications 7.1
1995/1996 1
% of Applications 4.3
1996/1997 1
% of Applications 4
1997/1998 0
% of Applications 0
Total 3
% of Applications 3.3
Province/Territory British Columbia
% of Canadian Population 12.9
1994/95 1
% of Applications 7.1
1995/1996 3
% of Applications 13.0
1996/1997 1
% of Applications 4
1997/1998 2
% of Applications 7.1
Total 7
% of Applications 7.8
Province/Territory Alberta
% of Canadian Population 9.3
1994/95 0
% of Applications 0
1995/1996 3
% of Applications 13
1996/1997 0
% of Applications 0
1997/1998 0
% of Applications 0
Total 3
% of Applications 3.3
Province/Territory Saskatchewan
% of Canadian Population 3.4
1994/95 0
% of Applications 0
1995/1996 1
% of Applications 4.3
1996/1997 0
% of Applications 0
1997/1998 2
% of Applications 7.1
Total 3
% of Applications 3.3
Province/Territory Manitoba
% of Canadian Population 3.8
1994/95 2
% of Applications 14.3
1995/1996 4
% of Applications 17.4
1996/1997 6
% of Applications 24
1997/1998 1
% of Applications 3.6
Total 13
% of Applications 14.4
Province/Territory Ontario
% of Canadian Population 37.6
1994/95 7
% of Applications 50
1995/1996 1
% of Applications 4.3
1996/1997 1
% of Applications 4.0
1997/1998 9
% of Applications 32.1
Total 18
% of Applications 20
Province/Territory Quebec
% of Canadian Population 24.7
1994/95 1
% of Applications 7.1
1995/1996 5
% of Applications 21.7
1996/1997 6
% of Applications 24
1997/1998 6
% of Applications 21.4
Total 18
% of Applications 20
Province/Territory New Brunswick
% of Canadian Population 2.5
1994/95 2
% of Applications 14.3
1995/1996 2
% of Applications 8.7
1996/1997 3
% of Applications 12
1997/1998 8
% of Applications 28.6
Total 15
% of Applications 16.7
Province/Territory Nova Scotia
% of Canadian Population 3.1
1994/95 0
% of Applications 0
1995/1996 1
% of Applications 4.3
1996/1997 3
% of Applications 12
1997/1998 0
% of Applications 0
Total 4
% of Applications 4.4
Province/Territory Prince Edward Island
% of Canadian Population .5
1994/95 0
% of Applications 0
1995/1996 2
% of Applications 8.7
1996/1997 1
% of Applications 4
1997/1998 0
% of Applications 0
Total 3
% of Applications 3.3
Province/Territory Newfoundland/Labrador
% of Canadian Population 1.9
1994/95 0
% of Applications 0
1995/1996 0
% of Applications 0
1996/1997 2
% of Applications 8
1997/1998 0
% of Applications 0
Total 2
% of Applications 2.2
Totals
% of Canadian Population 100
1994/95 14
% of Applications 99.9
1995/1996 23
% of Applications 99.7
1996/1997 25
% of Applications 100
1997/1998 28
% of Applications 99.9
Total 90
% of Applications 99.8
End of table 6
Table 7 Breakdown of Language Applications Received October 24, 1994 ñ March 31, 1998 by Type of
Application
1994/95
Education Rights 11
Judicial Rights 1
Language of Work and Service 1
Legislative Bilingualism 1
Other 0
Total 14
1995/96
Education Rights 11
Judicial Rights 3
Language of Work and Service 6
Legislative Bilingualism 2
Other 1
Total 23
1996/97
Education Rights 14
Judicial Rights 2
Language of Work and Service 6
Legislative Bilingualism 2
Other 1
Total 25
1997/98
Education Rights 20
Judicial Rights 1
Language of Work and Service 6
Legislative Bilingualism 0
Other 1
Total 28
Total
Education Rights 56
Judicial Rights 7
Language of Work and Service 19
Legislative Bilingualism 5
Other 3
Total 90
Table 8 Breakdown of Decisions Made by the Language Rights Panel from October 24, 1994 ñ March 31,
1998 by Type of Application
Decision Pending:
Education Rights 5
Judicial Rights 1
Language of Work and Service 1
Legislative Bilingualism 0
Other 0
Total 7
Panel/Admin. Rejection:
Education Rights 7
Judicial Rights 3
Language of Work and Service 8
Legislative Bilingualism 2
Other 3
Total 23
Applicant Withdrawn:
Education Rights 3
Judicial Rights 2
Language of Work and Service 2
Legislative Bilingualism 1
Other 0
Total 8
Panel Granted:
Education Rights 41
Judicial Rights 1
Language of Work and Service 8
Legislative Bilingualism 2
Other 0
Total 52
Grand total:
Education Rights 56
Judicial Rights 7
Language of Work and Service 19
Legislative Bilingualism 5
Other 3
Total 90
Table 9 Breakdown of Type of Funding Granted by the Language Rights Panel from October 24, 1994 ñ March 31, 1998 by Type of Application
Case development:
Education Rights 5
Judicial Rights 0
Language of Work and Service 5
Legislative Bilingualism 0
Other 0
Total 10
Case Funding:
Education Rights 26
Judicial Rights 1
Language of Work and Service 3
Legislative Bilingualism 1
Other 0
Total 31
Impact Study:
Education Rights 0
Judicial Rights 0
Language of Work and Service 0
Legislative Bilingualism 1
Other 0
Total 1
Negotiation:
Education Rights 10
Judicial Rights 0
Language of Work and Service 0
Legislative Bilingualism 0
Other 0
Total 10
Grand total:
Education Rights 41
Judicial Rights 1
Language of Work and Service 8
Legislative Bilingualism 2
Other 0
Total 52
Table 10 Breakdown of Case Funding Granted by the Language Rights Panel October 24, 1994 ñ March 31, 1998 by Court Level
First Instance:
Education Rights 29 (8 interventions)
Judicial Rights 1
Language of Work and Service 8
Legislative Bilingualism 1
Other 0
Total 39
Appeal level:
Education Rights 7 (3 interventions)
Judicial Rights 2 (2 interventions)
Language of Work and Service 1
Legislative Bilingualism 0
Other 1
Total 1
SCC Level:
Education Rights 0
Judicial Rights 0
Language of Work and Service 0
Legislative Bilingualism 1
Other 0
Total 1
Grand total:
Education Rights 36
Judicial Rights 3
Language of Work and Service 9
Legislative Bilingualism 2
Other 1
Total 51
PART VII — LIST OF PUBLICATIONS
List of Publications and Other Information Available from the Court Challenges Program
General Information
1994-1995 Annual Report — Court Challenges Program of Canada — a report of the activities undertaken by the Program from the time of its reinstatement to March 31, 1995.
Available in English, French and on computer diskette.
1995/96 Annual Report — Court Challenges Program of Canada — a report of the activities undertaken by the Program from April 1, 1995 to March 31, 1996.
ISBN #1-896894-00-3
Available in English, French and on computer diskette.
1996/97 Annual Report — Court Challenges Program of Canada — a report of the activities undertaken by the Program from April 1, 1996 to March 31, 1997.
ISBN #1-896894-02-X
Available in English, French and on computer diskette.
Court Challenges Program of Canada - a brochure on the mandate and the different types of funding available from the Program.
Available in English, French, audio-tape, large print, Braille or on computer diskette
Court Challenges Program of Canada Web Site - http://www.ccppcj.ca — the site includes the following:
a library — which is an on-going collection of Program materials, links to other web sites and other information. The library contains an alphabetical listing of key words and you can also search for words or phrases.
a discussion area called "Law Talk/Parlons droit". Interested people can contribute to the dialogue or catch up on a discussion.
the site also features: the Program’s organizational chart; the Program’s general brochure; Your Right to Equality brochure, the information kit; bios of Board members, Panel members and staff; and, information about the Program’s logo.
Can be viewed in English or French
Information Kit — Court Challenges Program of Canada — a series of information sheets which explain how to apply for funding from Court Challenges Program.
Available in English, French, audiotape, large print, Braille or on computer diskette.
Your Right to Equality - A brochure on equality rights and the Court Challenges Program
Available in English, French, audio-tape, large print, braille or on computer diskette
Papers
Charter Litigating for Racial Equality, Nitya Iyer, February 1996 — the paper address the comparative absence of Charter s. 15 cases addressing issues of racial inequality.
Available in French and English.
Equality Guarantee of the Charter in the 1990’s, The, Gwen Brodsky, April 19, 1996 — the paper provides an overview of equality rights litigation issues, concentrating on developments subsequent to 1992 when the original Court Challenges Program was cancelled.
Available in French and English
Le bilan des droits linguistiques au Canada, Benoît Pelletier, Août 1995 — the study examines the current state of language rights in Canada.
Available in French