BRIEF ON THE COURT CHALLENGES PROGRAM

Court Challenges Program is an Abuse of the Taxpayers' Money

The Court Challenges Program "CCP" is an example of government corruption and taxpayer abuse. This conclusion is based on the fact that the CCP, although entirely funded by the taxpayer, is unaccountable to the public for its financial and other decisions because it is not subject to the Access to Information Act and does not report to Parliament. As a result, the directors of the Program have used the Program to promote an ideological left-wing agenda to the detriment of all those holding a different perspective.

Lack of Transparency

The Program argues that it cannot release details about the cases it is funding because of "solicitor-client" privileges. This is ludicrous. The CCP is not a "solicitor" and the applicants for funding are not "clients". To put forward such a shallow argument in defense of its secret operations indicates how little credibility the Program has. Further, the Program argues that any information required about its operation can be obtained from its Annual Reports available on its website. These Annual Reports, however, disclose very little information. For example, they touch only briefly on very few of the cases funded in the previous year. In short, the Annual Reports provide little useful information, which, no doubt, is deliberate.

The CCP's Mandate

The CCP's mandate is supposedly to assist "disadvantaged" groups in cases that have "legal merit" and which will promote "equality" rights for Canadians. Unfortunately, none of these expressions have been defined in the CCP mandate, which has enabled the CCP to interpret them in a subjective and undemocratic manner in order to promote a left-wing only agenda.
For example, applying its own "unique" interpretation of "disadvantaged" groups and individuals, the CCP has given grants to many financially well-off, left-wing individuals and organizations. For example:

• In 1992, the CCP funded a legal challenge by a Toronto Bay Street lawyer, Elizabeth Symes, who was one of the founders of LEAF, the legal arm of the feminist movement, (Women's Legal and Educational Action Fund). The CCP funded her legal challenge before the Supreme Court of Canada in which she argued that she was experiencing discrimination because she could not deduct, on her income tax return, the cost of her children's nanny as a business expense. At the time, evidence introduced in the court indicated that she had a family annual income of approximately $200,000.
  
  
• The privately owned, for-profit abortion clinic, Every Women's Health Centre, in Vancouver received funding from the Court Challenges Program to successfully argue before the court that the federal government's denial of a charitable status for the clinic, under the Income Tax Act, was a violation of "women's equality" under the Charter.
  
  
• In 1995, the CCP gave a five thousand dollar grant to a Saskatoon social worker, Ailsa Watkinson, to research the alleged discrimination of children caused by section 43 of the Criminal Code which permits children to be spanked, subject to reasonable force, by parents, guardians and teachers if such action is reasonable under the circumstances.

In 1999 the CPP funded a special interest group, The Canadian Foundation for Children, Youth and the Law to bring a legal challenge for the removal of section 43 from the Criminal Code. The Foundation, funded by the CCP brought its legal challenge through three levels of court, finally ending in the Supreme Court of Canada, where its legal challenge was rejected.

It is significant that these court challenges were brought forward despite the polls which indicated that the vast majority of Canadians do not agree with the position of the Foundation.

In each of the court challenges through the courts, REAL Women was obliged to intervene using its own funds to do so, in order to protect the rights of parents.

• Another so-called "disadvantaged" group that received funding from the CCP was the wealthy (by way of compulsory union dues) Canadian Union of Public Employees (CUPE). The latter was granted funding from CCP to oppose REAL Women in the Ontario Court of Appeal in the Rosenberg case, which gave marriage benefits to same-sex couples. CUPE also intervened against REAL Women's affiliate, Alberta Federation of Women United for Families (AFWUF) in the Vriend homosexual case, in which the Supreme Court of Canada required the province of Alberta to provide protection for sexual orientation in its human rights legislation. CUPE, by the way, is now funding a campaign to "save" the CCP and has even set up a website to further this campaign.

Women as a Disadvantaged Group

According to its website, the CCP has included "women" as a disadvantaged group in Canada.

There is serious disagreement, however, as to whether women, as a group, are, in fact, disadvantaged, allegedly caused by their being "victims" of a patriarchal society. Some individual women may be disadvantaged, but surely, not all Canadian "women". The vast majority of Canadian women are independent, capable and industrious and perfectly able to participate in the economic, social, and cultural life of this country by way of their own initiative. Yet, the CCP has heavily funded the legal arm of the feminist movement, LEAF, ostensibly to assist "women", on the assumption that women are in need of assistance to overcome discrimination against them. In fact, the CCP, by funding LEAF in its many court interventions over the years, has not benefited women at all, but has, in fact, served to benefit the furtherance of the feminist ideology by way of judicial fiat, rather that through Parliament.

Arrogance of the CCP

It is an arrogant presumption on the part of the CCP that the narrow views represented by LEAF reflect the views of Canadian "women", as a group. They do not. This premise presumes that "women" have a common point of view which is an assumption that is both absurd and demeaning. Such a fallacy implies that women are compliant and thoughtless followers who all think alike. On the contrary, women no more wish to have other women, i.e. LEAF, speak on their behalf than they wish men to do so. We're quite capable of expressing our own views. In short, it is as unacceptable to generalize about the views of women, as it is to generalize about the views of a particular race. Yet, the CCP, under the guise of promoting so-called "women's" interests, has promoted only an extremist, feminist ideology via the courts.

LEAF Not a Disadvantaged Group

By any stretch of the imagination, LEAF cannot be accurately described as a "disadvantaged" group:

• In the four year period since its inception, between 1985 and 1989, LEAF received $800,000 from the Status of Women.
  
  
• In December 1985, the Ontario Attorney General Ian Scott awarded LEAF $1,000,000 to carry out its court interventions.
  
  
• In the ten year period, 1992 - 2002, LEAF received $900,334 from the Status of Women.

Added to the enormous funding listed above, the CCP then generously funded LEAF in its activities. By 1992, 75% of LEAF's court interventions before the Supreme Court of Canada had been funded by the CCP, as was half of all LEAF's funding for litigation. In total, the CCP has funded over 140 LEAF cases.

CCP's Discrimination Against REAL Women

REAL Women of Canada has experienced directly the discriminatory practices of the CCP. REAL Women applied on three separate occasions for funding from the CCP and on each occasion, we were denied funding. This rejection was based on nothing less than ideology.

REAL Women's objects of Incorporation state that it supports policies for women that provide them with equal opportunities in education, employment and retirement.

Also, "equality" is a concept expressed in the acronym "E" for "Equal" in our name, "REAL Women of Canada" (Realistic, Equal, Active for Life). Yet, the CCP has rejected our applications for funding on the grounds that REAL Women does not promote "equal" rights for women!

Also, it is significant, that in each of the cases where REAL Women applied for funding, it was turned down by CCP. It did proceed to fund LEAF in these cases, despite the fact that both our organizations had equal status as interveners before the Supreme Court of Canada.

The three cases in which REAL Women applied for funding and were refused by the CCP are:

• Borowski v A.G. Canada [1989] 1 S.C.R. 142;
  
• Daigle v Tremblay [1989] 59 D.L.R. (4th) 609;
  
• R v LeMay and Sullivan [1991] 1 S.C.R. 489.

When REAL Women applied to the CCP for funding in 1989 in the Borowski case, (abortion rights) the CCP requested that we submit, for its review, the arguments we proposed to make before the Supreme Court of Canada, as set out in our Factum. On January 11, 1989, REAL Women received a seven page letter from the Program, in which it was stated that our arguments in the case:

…are not ones which would advance equality rights for women but would in the panel's view, be harmful to the equality rights of women.

There are many careful studies, however, which indicate that abortion is physically and psychologically detrimental to women - not to mention to their unborn children. There are alternatives to abortion that better serve women's needs. Objectivity and fairness, however, has never been a part of the CCP's funding decisions as, apparently, only the feminist perspective of abortion on demand, as argued by LEAF in that case, was suitable for the CCP to fund.

What was particularly significant about this rejection letter from the CCP was that it disputed our arguments on the basis of a feminist analysis of "equality." That is, every one of REAL Women's arguments raised in our factum was dismissed by the CCP from a feminist perspective, by its "legal expert", who we can only assume was a member of LEAF, since the latter presented arguments in its factum directly opposing ours.

In short, the CCP prejudged the issue of "equality" in order to promote the feminist definition before the court: one would presume that such an interpretation was the responsibility of the court, not the CCP.

When REAL Women next applied for funding in 1989 in the Daigle v Trembley case, (abortion rights) a letter, dated October 11, 1989 informed us, that funding was denied because:

The Panel was of the view that there was no federal government policy, practice or legislation being challenged in this case and therefore, the case lay outside the mandate of the Program.

Yet, this presumed difficulty did not in any way prevent the CCP from funding LEAF in that very same case.

When REAL Women applied to the CCP for the third time in the R v Sullivan and LeMay, (definition of a human being) we received a letter dated November 2, 1989, which rejected our application on the grounds that:

…the arguments put forward would serve to strengthen the rights of the state, the family and of men over reproductive issues and that these groups did not fit within the definition of a disadvantaged group under section 15 of the Charter as interpreted by the Supreme Court of Canada in the Andrews decision.

The CCP, however, again funded LEAF in that case, indicating once again, beyond a shadow of a doubt, that it supported only those cases as having "legal merit" which were feminist ones.

Homosexual Issues Funded by the CCP

From its very inception, the CCP has funded homosexual court challenges and their case development. This was made clear by the radical feminist newspaper "Broadside" as early as October 1988 when it listed the homosexual cases already being funded by the CCP.

The enormous financial support that homosexuals have received from the CCP is indicated by the fact that it funded 41 such cases between 1994 and 2005, as referenced in the CCP's 2004 - 2005 Annual Report (the last one available on the website).

Homosexual Angst on the Elimination of the CCP

According to the homosexual newspaper, Capital X'tra (October 19, 2006 issue):

No group has benefited more from Court Challenges funding than the queer community. Thanks to clever interventions from groups like Egale Canada we have achieved equal relationship recognition, and with the Charter of Rights as a backbone, we've fought homophobia and discrimination in classrooms and workplaces. Now the program is gone.

In another article, published in the same issue of Capital Xtra, it was stated:

Money from the Court Challenges Program helped EGALE win equal marriage rights through the courts in BC, Ontario, and Quebec. When government sent questions to the Supreme Court in 2004, EGALE was there to help make the legal case that gay and lesbian marriage was a Charter issue - with the help of the Court Challenges Program money.

'This will have a devastating effect on our ability to pursue legal cases, says Gilles Marchildon, executive director of EGALE.

Implications of Funding only Homosexual and Feminist Arguments

In many of these court challenges by homosexual activists, such as in the same-sex marriage cases, REAL Women has paid its own court costs in order to protect and uphold the traditional family of mother, father and children, whereas the homosexual activists' costs are paid by the Canadian taxpayer. There can never be equality when only one side is funded by the taxpayer.

It is a very significant matter that the traditional definition of family, defined as a mother, father and children has been severely impacted by these cases. It is now beyond dispute that children thrive best in an opposite-sex family environment where they learn gender identity and sex-role expectations from their biological parents. These children also do far better academically, financially, emotionally, psychologically and behaviorally.

It was because of concerns about the effect of same-sex marriage on children that the National Assembly in France rejected same-sex marriage in January 2006. Both the New York court of Appeal and the Washington Supreme Court rejected same-sex marriage in July 2006 because of concerns about its effects on children.

Yet, the CCP funded the adult homosexual challenges and the supposed "rights" of adults, while completely ignoring the rights of children.


Why CCP Has a Bias for Feminist and Homosexual Court Challenges

The decision by the CCP to provide funds for feminist/homosexual case development and legal challenges was due to the fact that both the CCP's Board and Advisory Committee included representatives from the feminist organization LEAF and other feminist organizations, such as the National Association of Women and the Law (NAWL) and the homosexual organization, the Ottawa based EGALE, and the Vancouver based December 9th Committee. Similar representation from lesbian/homosexual organizations were on the CCP's seven member Equality panel. Representatives of these organizations in the administrative and advisory committees of the CCP made it very easy for monies to be directed to their respective organizations. A very cozy arrangement indeed.

Moreover, the Chairpersons of the so-called Equality panels also have close ties with these special interest organizations. These equality panel chairpersons have included:

1. Kathleen Ruff - a feminist activist and a former NDP candidate;
   
   
2. William Black - Professor, University of British Columbia Law School, who has assisted LEAF in its case preparation before the courts.
   
   
3. Shelagh Day - former Vice-President of the National Action Committee on the Status of Women, (NAC) and one of the founders of LEAF. While serving as chairperson of the Equality Panel in 1996, Ms Day, a well-known lesbian, arranged for her partner Gwen Brodsky, to prepare a paper for the CCP on "Equality Rights Jurisprudence". This paper is still available on the CCP website, where it is listed as one of the Program's resources. Ms Day is now with the Canadian Feminist Alliance for International Action.
   
   
4. The Chair of the CCP for several years was Chantal Tie, who was and still is a member of LEAF's national legal committee. According to CPP's current website, four of the seven current members of the most recent Equality panel are either members of LEAF or have other feminist connections.

Summary

It is ironic that the CCP, funded by the Canadian taxpayer, which was established to support equality and non-discrimination, is one of the most biased and discriminatory organizations in Canada. It only distributes funds to those who share the CCP's ideology and particular vision of justice. It is very disturbing that the taxpayers are being forced to fund through the courts, not "justice", but the liberal position of select left-wing, radical, advocacy groups.

The CCP has not advanced the rights of minorities, but, with very few exceptions, has been used to subvert the democratic process and advance the cause of left-wing, special interest groups to change the social values of this country by judicial fiat. That is, CCP funding has allowed the courts, rather than Parliament, to decide controversial issues. At least Parliament hears both sides of an issue, makes compromises and has access to extensive research and to all the social facts involved in an issue. CCP funding has only permitted one side to be heard by the court, whenever those holding other views did not have the deep pockets to appear before the court. Also the federal Attorney General, under the Liberal government, usually supported the special interest groups in the court.

Moreover, the CCP funded only those challenging laws, while denying funding to those who were defending the laws. After all, such laws were put in place by Parliament and the legislatures, based on compromise and representations from many different groups, yet their position was ignored by the CCP. Constitutional issues should not be settled, with only one side of the issue being funded by the CCP.

If anyone doubts the conclusion that the CCP is serving only left-wing causes in Canada, they only have to look at the website set up by CUPE in hope of reinstating the CCP. Listed in support of the project are many of the left-wing organizations in Canada, which obviously appreciate the efforts of the CCP to ensure the continued left-wing direction of this country