McKinnon defends court challenges program as ‘critically important’ to democracy

In a debate that veered from the appeal of Cirque du Soleil to the legacy of former prime minister John Diefenbaker, Coquitlam-Port Coquitlam MP Ron McKinnon made his case for the court challenges program.

Introduced in 1978, the program is meant to offer financial backing for Canadians who need to go to court for an issue relating to human rights, language rights or equality.

“The court challenges program, however, has been on- and off-again over the years, and this is problematic,” McKinnon said during a recent debate in Parliament.

However, enshrining the program into law would create: “an enduring mechanism wired into legislation administered by arm’s-length, independent experts,” he said.

Calling it “critically important” for Canada, Liberal MP McKinnon said the program would help: “weigh and measure the laws that we enact.”

However, some MPs voiced concerns over just how that weighing and measure would be conducted.

“We’re legislating an undermining of Parliament, in a certain way,” said Kamloops-Thompson-Cariboo Conservative MP Frank Caputo.

While the University of Ottawa runs the program, two independent panels, both of whom report to the university, make funding decisions regarding test cases.

“Invariably, there will be winners and losers,” Caputo said. “It doesn’t seem to me like we know exactly how that’s going to be administered.”

Caputo also voiced concerns over the cost of the program.

The government puts $5 million toward the program each year, with $1.5 million earmarked for language rights cases and the remainder for cases dealing with human rights.

“By my estimation, about 30 percent of that alone, is bureaucratic costs,” he said.

After referring to former Prime Minister John Diefenbaker as: “a one-man court challenges program,” Conservative MP John Nater argued that the program was “already within the powers of the minister.”

Following a lengthy monologue on the virtues of Quebec culture which included references to both Cirque du Soleil and movie director Denis Villeneuve, Bloc Quebecois MP Denis Trudel said he had “serious doubts” about the bill.

Trudel argued that the court challenges program was initially enacted after French became Quebec’s sole official language.

The court challenges program: “enabled Quebec anglophones to challenges this major and fundamental legislation . . . with our own tax dollars,” Trudel said.

“And now the government wants to enshrine it further,” he added.

Despite those concerns, Trudel said he would likely support the bill.

While Bloc Quebecois MPs voiced concerns about the bill going too far, one NDP MP said it might not go far enough.

The bill’s mandate should be expanded beyond minority language and equality rights to do more for people with disabilities as well as trans kids, said Esquimalt-Saanich-Sooke MP Randall Garrison.

Garrison noted that in Saskatchewan, schools require consent from a parent or guardian when a student asks for their preferred name or gender identity be used at school.

It’s important the court challenges program is enshrined in legislation, Garrison argued.

“Because the Conservatives twice before have eliminated the court challenges program, and so the fear is that a future government . . . would be able – in the absence of this legislation – simply to eliminate this program without coming back to Parliament,” he said.

Garrison noted the role the court challenges program has played in matters relating to sex-based discrimination and Indigenous rights cases.

Garrison focused on the role the program played in rape shield laws, which prohibit someone accused of committing sexual assault from using the medical files or the sexual history of the complainant as a defense.

Garrison said he would support the bill, although he maintained it could be expanded and better funded.

In his closing comments, McKinnon emphasized the importance of opening up the legal system to Canadians without much money.

Challenging legislation, “cannot be the sole purview of those who are financially well-off and who can personally afford to ngage the legal process,” he said. “There must also be recourse for ordinary people to challenge laws that they believe are unjust.”

A further vote on the bill is scheduled for Wednesday.

Amid its reintroduction in 2017, the program received support from University of Ottawa law professors Kyle Kirkup and Carissima Mathen.

Writing in Policy Options, the professors argued the program was valuable in a situation where a new law has unintended effects or when a government presses ahead with a controversial law it believes can be defended.

“In such situations, Canadians should not be forced to depend on the pro bono services of lawyers and experts in order to vindicate their constitutional rights,” they wrote.