Little Sisters, Round 2: Dark Days for Access

In his recent comment on The Court, Tom Schreiter is right to draw a link between the decision in Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), 2007 SCC 2 [Little Sisters 2], and the recent decision to cut funding for the Court Challenges Program. Both decisions stopped important Charter cases in their tracks, and both cut-off important lifelines for Canadians unable to afford the high costs of Charter litigation.

But while these two decisions resemble one another, Tom also argues that there is fundamental distinction between a government decision to fund (or de-fund) litigation via the Court Challenges Program, and a judicial decision to award advance costs to Charter claimants. Whereas the former is cast as necessarily legitimate (since governments are elected), the latter is cast as less legitimate (since courts are unelected). In fact, neither characterization is accurate.

First, Tom rightly notes that the legislative process has traditionally been the primary means by which democratic legitimacy is conferred on public policy. But there was nothing traditional about the legislative process that led to the death of the Court Challenges Program. Instead of asking Parliament to decide the Program’s fate, the Harper Cabinet canceled the Program’s funding, thereby financially suffocating the CCP, and achieving through the backdoor that which it could not achieve through the front. In recent years, tactics like these (whereby Cabinet uses its control over the proverbial purse strings to fund programs it likes, and starve those it dislikes) have grown quite common. While no doubt attractive to governments, however, tactics like these can hardly be said to produce democratically legitimate results.

Nor does the Court’s unelected status lead automatically to the conclusion that it lacks democratic legitimacy. Although judges are not themselves chosen by citizens, their decisions are nonetheless influenced by citizen input in significant ways. The Court cannot pull cases out of thin air; rather, it relies on citizens to initiate Charter claims, make legal arguments, and lay out the alternatives open to the Court. The Little Sisters saga is a perfect example.

Concerned that Customs officials were preventing the entry into Canada of publications that his customers had a right to see, storeowner Jim Deva took his beef to court, where he was joined by intervenors representing a wide variety of interests, from civil libertarians, to women’s groups, to advocates on behalf of gays and lesbians.

And a few years later, concerned that Customs officials were still violating the Charter’s guarantees of equality and free expression despite a favourable decision in Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69 [Little Sisters 1], Deva returned to court for Little Sisters 2, where he had additional support from groups including the Canadian Bar Association and the Sierra Legal Defence Fund. Of course, this is not to suggest that courts relying on citizen input can ever substitute for representative legislatures. But it is to suggest that legislatures cannot lay exclusive claim to the democratic legitimacy required to make decisions about the appropriate use of public funds.

A Second Concern

There also another, even more troubling facet to the recent ruling. Namely, it may have significant implications for the enforcement of Charter decisions. History has taught us that major rights victories in court rarely lead directly to actual reform on the ground. To use an old metaphor, the Court has neither the purse nor the sword to enforce its own decisions. Instead, its rulings are effective only to the extent that public authorities are prepared to comply.

As a result, rights claimants must often make several return trips to court to request enforcement orders, financial support, and the application of past rights rulings to new contexts. Too often though, a rights claimant’s resources are so totally exhausted by the time an initial claim succeeds that a return trip to court is all but impossible. Thus, public authorities continue to violate constitutional rights, and the rights claimant’s initial victory in court is rendered merely symbolic.

Little Sisters 2 was precisely such a case. Deva’s victory in Little Sisters 1 was widely hailed as a big victory for freedom of expression, and for gays and lesbians. But when Customs officials continued to block shipments of books to his store, Deva quickly discovered that his first trip to court had in fact achieved relatively little. Hence his decision to return to court.

Now, that return trip to court has been cut short. In an interview with the Globe & Mail last week, Deva made the announcement that supporters had feared—with no other means to fund the case, he was abandoning his case. Indeed, when the Court refused Deva’s request for advance costs last week, it may as well have reversed Little Sisters 1 entirely. For Jim Deva, the result would have been the same either way. Customs officials could continue to seize his books, and Deva’s customers would still be denied access to those materials.

In fact, the decision to deny Deva’s request for costs is almost worse than a decision to reverse Little Sisters 1, since it sends public authorities the message that they can safely ignore Charter rulings that favour rights claimants, and rest comfortable in the knowledge that those rights claimants will be too broke to continue pursuing them in court.