Don't Bring Back The Court Challenges Program

This week, the Commissioner of Official Languages is arguing in a Federal Court case that the federal government should not have ended its funding for the Court Challenges Program (CCP). For taxpayers, this means the following: Their money is paying for a government entity to argue that the federal government should be required to give even more tax dollars to special interest groups so that those groups can advocate for yet more money to be spent on creating big government entitlement programs.

In November 2007, the Federal Court gave the Commissioner of Official Languages status to intervene in support of a court challenge brought by the Federation des communautes francophones et acadienne du Canada. Two weeks later, the Federal Court denied intervener status to our group, the Canadian Constitution Foundation, which opposes reinstatement of the CCP.

From the 1980s through to 2006, the CCP gave millions of tax dollars to radical feminists, gay-rights advocates and other left-wing groups. These groups successfully used the Charter and the courts to advance controversial public policies, most of them resulting in bigger government and/or diminished freedom for individuals.

For example, recipients of CCP funding have advocated:

• that receiving welfare payments is a constitutional right (Gosselin vs. Quebec);

• that people are entitled to collect welfare regardless of the income earned by a common-law spouse residing in the same house (Falkiner vs. Ontario);

• that more tax dollars should be spent on health services for non-citizens (Irshad vs. Ontario);

• that freedom of speech should be restricted in the name of "equality" and "Canadian values" (Kane vs. Alberta Report);

• that Canada Elections Act restrictions on independent citizens' advocacy are constitutionally valid limits on freedom of expression and freedom of association (Harper vs. Canada); and

• that it should be a criminal offence for parents to spank their children (Canadian Foundation for Children, Youth and the Law vs. Canada).

Throughout its existence, the CCP funded only those groups that agreed with its ideological slant. All Canadians were compelled to pay for this advocacy with their tax dollars, whether they agreed with these public policies or not.

Those who disagreed with the CCP's ideology were denied funding. For example, James Robinson is a Nisga'a Indian Chief who is asserting his equality rights as a Canadian in the face of a new, unconstitutional form of aboriginal government. His court action challenges provisions of the Nisga'a Final Agreement, which have created a semi-sovereign nation in northwestern British Columbia. Mr. Robinson applied for — and was denied — funding by the CCP. Without the means to pay for litigation himself, Mr. Robinson — also known as Chief Mountain — has pursued his constitutional challenge thanks to voluntary donations from Canadians who believe in his cause.

Requiring people to pay for advocacy with which they disagree is fundamentally unfair. Equality demands that governments refrain from spending tax dollars to favour one side of a controversial issue, especially when there are several sides which should be heard, and not merely two.

Canada's Constitution belongs to all Canadians, not just those who agree with the ideology of the CCP. The elimination of the CCP, while not reversing the results of previous CCP bias, has now put all groups on an equal footing: at liberty to raise funds from their own supporters to support their own causes. Hopefully, this argument for equality will prevail in Federal Court, even without the Canadian Constitution Foundation being there to present it.

John Carpay is executive director of the Canadian Constitution Foundation, and counsel for Chief Mountain. Chris Schafer is a director of the foundation, and was counsel for the foundation in its application for intervener status in the Federal Court action regarding the Court Challenges Program.