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CANADIAN MUSLIM LAWYERS ASSOCIATION

SUBMISSION ON ACCESS TO JUSTICE


(COURT CHALLENGES PROGRAM)
HOUSE OF COMMONS COMMITTEE ON JUSTICE AND HUMAN RIGHTS
APRIL 19, 2016

ABOUT THE CMLA


The Canadian Muslim Lawyers Association (CMLA) was founded in 1998 by a small group of
Toronto-based Canadian Muslim lawyers. It now has over 300 members across Canada with
active chapters in Ontario and Quebec.
The CMLA is focused on four key areas of engagement. First, the CMLA helps build
professional relationships among Canadian Muslim lawyers and between Canadian Muslim
lawyers and members of other legal organizations. Second, the CMLA educates its members and
the broader Canadian Muslim community on law topics of interest. Third, the CMLA provides
peer support by providing law students and junior lawyers with mentorship and professional
development seminars. Fourth, the CMLA serves as an advocate on select issues of importance
to Canadian Muslim lawyers and the broader Canadian Muslim community.
With respect to advocacy, the CMLA has appeared as a public interest intervenor before the
Supreme Court of Canada. In addition, the CMLA has made submissions to and testified before
Parliamentary committees on national security, human rights and civil liberties on numerous
occasions since 2001. At the provincial level, the CMLA has been involved in matters of
policing, racial profiling and animal welfare.

SUBMISSION: ACCESS TO JUSTICE (COURT CHALLENGES PROGRAM)


CANADIAN MUSLIM LAWYERS ASSOCIATION

OVERVIEW
The Canadian Muslim Lawyers Association (CMLA) is active in the discourse on justice, human
rights and national security in Canada. We have made submissions to, and testified before,
Parliamentary committees examining human rights, national security and civil liberties on
numerous occasions since 2001. As well, we have been engaged on various matters of law and
policy at the provincial level in Ontario and Qubec.
We are pleased to make a contribution on the matter of access to justice and the restoration of the
Court Challenges Program.
The CMLA seeks to protect and advance the values of the Canadian Charter of Rights and
Freedoms (Charter), the rule of law and the dignity of all persons in Canada. As such, our
organization strongly supports the restoration of the Court Challenges Program (CCP). In
addition to restoration of the program, we recommend that the scope of the CCP be expanded
beyond that of its previous iteration to include section 7 of the Charter, that the new program
encompass provincial government action, legislation, policy and practice, and that the Board,
review panels and staff of the new CCP reflect the rich diversity of Canada.
While these submissions are not exhaustive, they contain the salient input of the CMLA on the
matter of the restoration of the CCP. We remain available to the Justice Committee, your
Parliamentary colleagues and departmental staff should you require clarification or additional
input from our organization.
NEED FOR CCP
The advent of the Charter was an historic milestone for Canada because it guaranteed
fundamental rights and further ensured that the rule of law became part of our political and legal
culture. The Charter is designed to serve as a check on government. It ensures that when
government acts, it does so in a manner that is respectful of fundamental values, subject to
scrutiny and justifiable.
The modern state is expansive and growing, touching on many aspects of the lives of individuals
and communities. That is why the Charter may be more relevant today than when it was
introduced.

Proclaiming and entrenching fundamental rights are essential first steps in establishing respect for
the rule of law and the dignity of all persons. However, that is not enough. Legal rights are not
worth very much if those they are designed to protect are not able to access them. This is starkly
clear where government action adversely impacts vulnerable or disadvantaged individuals and
communities who may not have the resources or capacity to access the justice system in order to
challenge government action.
Charter litigation is crucial in holding government to account and defining fundamental rights.
Arguably, because the disadvantaged and vulnerable in society do not have sufficient access to
the justice system they may become effectively invisible to that system; the courtroom door is
closed to them. As a result, Charter litigation and jurisprudence may become lopsided, reflecting
only the concerns and interests of those with the resources and capacity to hold government to
account. Over time, this lack of access to justice may distort the contours of Charter rights, or
ossify them, because courts are not able to hear and respond to the concerns of some people in
our society.
The Constitution is a living tree, meant to be alive and evolving. While this approach is rooted
in fundamental values, it remains relevant by being sensitive and responsive to the challenges and
concerns of the day. Access to justice for the disadvantaged and vulnerable in society is
important to ensure the equitable evolution of our justice system in a manner that reflects the
fundamental values outlined in the Charter. And, a new CCP is a key part of strengthening
access to justice in Canada.
THE NEW CCP
While financial resources are crucially important in aiding Charter litigation, financial resources
alone are not enough. That is why it is important for the program to provide other supports in the
form of strategic advice and expertise. As such, the CMLA supports the full restoration of the
CCP including the previous programs mandate to fund case development, litigation, negotiation,
strategic consultation, outreach and impact studies.
With respect to scope, the CMLA supports coverage for equality rights and minority language
rights as existed in the previous program. In addition, the CCP should include support for the
following:

challenges under section 7 of the Charter; and


challenges to provincial legislation, policies, practices and actions.

The CMLA also recommends that the new CCP reflects the diversity of Canada in its governance,
structure, operations and staffing.
Section 7 of the Charter
Section 7 of the Charter arguably consists of substantive and procedural elements. The
substantive guarantee of life, liberty and security of the person is broad and holds promise to

assist many disadvantaged and vulnerable persons in Canada. To be clear, the CMLA is not
recommending that section 7 be added only as a subsidiary right for CCP purposes, for example,
where a section 7 claim arises in the context of a section 15 enumerated or analogous ground.
Rather, the CCP should support section 7 claims in their own right because some forms of
disadvantage may not strictly fall within an enumerated or analogous section 15 ground.
Section 7 of the Charter may hold potential for socio-economic and other rights to assist
disadvantaged and vulnerable persons and communities in Canada. Arguably, basic socioeconomic security could be seen as an antecedent to enjoying and exercising other rights in the
Charter. Without socio-economic security other rights may not be realized or accessible. Some
may contend that a lack of socio-economic security dilutes equality of citizenship, thereby
denying full participation in society for the disadvantaged and vulnerable among us. In that sense,
section 7 of the Charter may contain a foundational prerequisite to achieve full and equal dignity
and opportunity for all.
Some may suggest that the CCP should not include section 7 of the Charter because it is largely
unexplored territory for Canadian courts and jurisprudence. However, this uncharted territory
and potentiality to assist the disadvantaged and vulnerable is precisely why the new CCP should
include section 7 of the Charter within its scope and mandate.
Provincial Law and Government Action
The new CCP should also cover challenges to provincial law, policy and government action
because the Charter is designed to be a check on state power. Leaving provincial governments
outside the scope of the CCP creates a significant blind spot for access to justice because
provincial actions touch upon the lives of many persons across Canada. In addition, litigation at
the provincial level can support broader Charter jurisprudence that can have national impacts and
also influence federal law and policy.
Diversity in CCP
The CMLA recommends that the program be designed such that Canadas rich diversity of
backgrounds, experiences and outlooks are reflected in the new CCPs Board, review panels and
staff. Being reflective of the nations diversity is important not only because it is fair, but
because it will add value and relevance to the operations and work of the new CCP.