Little Sisters Book and Art Emporium v Canada: Tragic, But the Right Decision

This is going to be the first of hopefully many “Point / Counter-point” segments at The Court. My post today will provide a supporting opinion on the recent decision in Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), 2007 SCC 2 [Little Sisters], and Corey Wall’s entry next Wednesday will provide a dissenting opinion. The decision has certainly created quite a stir, not only among the legal community, but among the Canadian public at large. The related Globe and Mail article engendered an impressive (though typically nonsensical) 224-comment discussion!

The Little Sisters Book and Art Emporium is a small store in Vancouver, BC which has fought an extremely long and frustrating battle with Customs. Little Sisters is suing Customs in order to (a) obtain the release of material currently being detained as “obscene,” and (b) force a broader inquiry into Customs’ practices and seek an explanation why 40 – 70% of all material detained as “obscene” is gay and lesbian material. They sought interim costs from the government to cover their legal expenses, because they can no longer afford to continue the litigation.

The Supreme Court formulated a three part test for the awarding of interim costs in British Columbia (Minister of Forests) v Okanagan Indian Band, [2003] 3 SCR 371 [Okanagan]:

1. The applicant must demonstrate a genuine inability to pay.
2. The case must be prima facie meritorious.
3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.

In this case, the SCC fractured over how to apply this test. The majority decided on an extremely high bar for each component of the test, but particularly the last. To satisfy the final criterion the situation must be such that a refusal of interim costs would result in an injustice both to the applicant and to the public at large. They say that such cases will be “rare and exceptional.”

The majority refused to allow the costs order because they characterize this case as essentially a private matter concerning the detention of a small amount of material. They characterized the systemic review into why Customs is detaining so much GLBT material as ancillary to the primary purpose of the claim. Further, they concluded that:

[N]ot all Charter litigation is of exceptional public importance, even if it involves allegations of infringements of freedom of expression. What must be proved is that the alleged Charter breach begs to be resolved in the public interest. Where, as here, only one of the possible results on the merits could render the case publicly important, the court should not conclude that the public importance requirement is met. It is in general only when the public importance of a case can be established regardless of the ultimate holding on the merits that a court should consider the public importance requirement satisfied.

I’ll let Corey discuss the dissenting opinion next week, but I’ll make mention of the Chief Justice and Justice Charron’s concurring opinion. It struck a balance between the majority’s claim that this case is not of sufficient public importance, and the dissent’s adamant assertion that it is. They argued instead that the third arm of the test should be characterized as “special circumstances making this extraordinary exercise of the court’s power appropriate.” They concluded that public importance is neither necessary nor sufficient, and while it was certainly present here, it was not special enough to warrant this exercise of judicial power.

As I said above, I support the SCC’s decision here, although I believe that the Chief Justice’s opinion provides a more coherent rubric for evaluating whether the costs award is justified. But in any event, this case is much larger than the narrow legalistic reasons the majority and the concurring minority gave to support their refusal to provide interim costs. The SCC’s decision amounted to a refusal to provide a public service through the structure of the court system.

This was, by all accounts, a case worthy of litigation. It should have been given the chance to be argued on its merits, but that is likely now impossible due to a shortage of funds. But that tragedy occurs to thousands of Canadians every year. It is happening more and more with cuts to legal aid and to the Court Challenges program. I, along with the majority of the legal profession (see the CBA website), was deeply proud of the Court Challenges program, and I was appalled when it was cancelled. It is perhaps the strongest measure of a democracy when its government encourages and supports challenges to the majority by the minority. But even given my support for the program, I don’t think it would be appropriate to effectively replace it with a system of judicial orders forcing the government to subsidize public interest litigation.

I am almost never on the “judicial-restraint” side of these types of arguments, but I do think there are some limits to the role of the judiciary in public life. Judges are very smart, and they’re usually fair, but they are still unelected, and that imposes some limits. It is a hallowed principle of English political history that the representative legislature alone holds the power to levy taxes and to pass money-bills that create public services from those taxes.

Two revolutions were fought over this principle: the Glorious Revolution of 1688 and the American Revolution in 1776. In both cases, the side supporting representative taxation and spending won. It’s been the foundation of English, Canadian, and American government ever since. As much as I disagree with the current government’s decision regarding the Court Challenges program, it was still theirs to make.

If the SCC had decided Little Sisters otherwise, i.e., to bestow the judiciary with a broad power to effectively fund Charter challenges, they would be replacing a now defunct government service with an identical one under the auspices of judicial discretion. Of course, the courts retain their equitable jurisdiction to award advance costs (this was first recognized in 1742). I think they should continue to retain it (and so do they, as evidenced by this case and Okanagan), but it should only be used in the most extreme cases.

I think that the SCC struck an appropriate balance here; on the one hand, they did not stray into the outright and inappropriate provision of a government service. On the other hand, they retained the ability to offer interim costs if the situation is so much an affront to our country that it demands to be heard. This is not to say that the government shouldn’t subsidize underfunded litigants. They should. But the courts shouldn’t.