The Supreme Court of Canada
Op-Ed: Designing a legal system that serves the needs of its users
The following Op-Ed was written by Sarah Lugtig, director of experiential learning in the Faculty of Law and chairwoman of the Canadian Bar Association’s standing committee on access to justice. This article originally appeared in the Winnipeg Free Press on Dec. 23, 2015.
The Trudeau government has announced it will bring back the court challenges program. This deserves Canadians’ attention.
Before the Harper government’s cuts in 2006, the program served as an important safeguard against unequal and unfair treatment of vulnerable individuals and communities. All Canadians lost out when the program disappeared.
Full disclosure: from 1998 to 2003, I was the director of the equality-rights program of the court challenges program, with its headquarters in Winnipeg. The program operated as an independent, not-for-profit corporation that distributed federal funding to support precedent-setting cases under the equality and language rights in the Constitution. Historically disadvantaged individuals and groups were eligible for equality-rights funding to challenge federal laws policies or practices in court. Those from English- and French-speaking minorities were eligible under the language-rights portfolio. Funding was also available to research cases, to consult those affected, to promote access to the program, to negotiate and to study the impact of important judgments.
The program was intended to ensure governments don’t make laws that create “second-class” citizens based on characteristics such as indigenous ancestry, race, gender, religion, disability or age. Language rights have a similar impact while also reflecting important commitments made upon the establishment of Canada as a country. These rights are part of our Constitution — governments must respect them when making laws and policies.
This is a great system as long as we are able to take the government to court. Not surprisingly, the court challenges program became a model other countries sought to copy.
The impact of such a program is profound. Cases and projects the court challenges program supported advanced our right to marry the person we love, to participate in school or work, to receive public benefits and services others enjoy, to reunite with loved ones after being separated by war, to keep and care for our children, to vote for the people who govern us, to be safe, to bring people who hurt us to justice and to be treated as an equal once in the justice system. Access to these and other essential aspects of life is critical to a modern society if we want to have strong and flourishing individuals, families and communities.
Key to the success of a new challenges program will be building on the strengths it already had in place. Independence from government is an obvious one. Funding for negotiations and activities that build communities’ capacity to use the program and the courts effectively also seems critical.
Perhaps most important, in my view, is to continue to have a structure firmly grounded in the communities that use the program. The former program achieved this with representation of diverse communities, in its membership, decision-making panels, its board and advisory bodies. It held community consultations in conjunction with its annual general meeting on topics of mutual interest. These measures helped the program respond to the needs of the communities it served while bringing people together to develop inclusive approaches to human rights.
Recent calls to address serious gaps in access to justice in Canada talk about “putting people first” in legal system reform. This means designing a legal system that serves the needs of its users (the public) first, rather than those of lawyers or judges. The Reaching Equal Justice report of the Canadian Bar Association’s standing committee on access to justice, of which I am the chairwoman, started from this premise in promoting a full accessible justice system by 2030. The community-based approach of the court challenges program provided a compelling example of this principle in action. It is even more relevant today than when the program opened its doors.
Prime Minister Justin Trudeau has said he wants an updated, modern program. Things have changed since 2006. The social and legal landscapes in Canada have both evolved considerably.
The role of the rights and interests of indigenous individuals and communities in a modern — possibly parallel? — version of the program also deserves examination. Growing income inequality makes funding for equality challenges to provincial law and policy all the more important, an expansion of the program’s mandate supporters long advocated. Also on the wish list would be a protected fund to support the program so it no longer depends on political will for survival.
All said, the first order of business will be to talk to the community, to once again “put people first” in designing a program that protects our fundamental rights and collective well-being.