The Return of the Court Challenges Program: Timely, Critical & Deficient

It is an uncanny convenience that immediately following Prime Minister Trudeau’s abandonment of his electoral reform promise, the announcement of a revamped Court Challenges Program emerges. The Program provides some (or perhaps only a semblance of) comfort and recourse to the very same groups that feel marginalized by the first-past-the-post system. It is the perfect program to distract Canadians from the Prime Minister’s controversial vacationing, verbal blunders, and uninhibited deficit spending—not to mention the smoke rising from the burning bridges he built with both the left and the right that won him the majority government. The Program is a project that was created under his father, commemorating the Charter’s 35th anniversary. It is also one of his main campaign promises. Most importantly, it assures Canadians that while his government might look increasingly Harperesque, it will never be as centralized. In her article “A Democratic Defence of the Court Challenges Program,” Larissa Kloegman explains that the concern of centralization has been percolating in the hearts and minds of Canadians for quite some time: “A centralization of political power in Canada has been occurring for decades … As a result, traditional access points to government are diminishing ever more rapidly, forcing Canadians to use the courts in a last attempt to contribute to policy and legislation.” Or, as Edgar Schmidt explains, the government has gradually shifted the responsibility onto the citizenry to ensure the constitutionality of government legislation. Unsurprisingly, the new Program is widely celebrated.

The Program, with its $5-million in annual funding, will offer a minimum of $1.5-million per year for the defence of minority-language rights. The remaining funding will go the defence of equality rights, democratic rights, freedom of religion, expression and association, and the right to life, liberty, and security of the person. The program will provide funding both to groups that want to develop and litigate test cases and those that want to intervene in continuing cases.

It is easy to become enamoured with the Program’s veneer. It is, after all, a project aimed at ensuring the Charter rights of Canadians—particularly marginalized Canadians—by reducing one of the main barriers to the Charter process: the cost of litigation. Presumably, this will lead to a more robust debate on, and will help to assert, constitutional official language rights and human rights in Canada, giving life to the constitutional “dialogue” that the SCC imagined in Vriend v Alberta, 1998 SCR 493. However, for the reasons I will now turn to, I believe that while we should support such a Program, it is important to acknowledge that it is hampered by several shortcomings that demand substantial revision. I will then complete this post by commenting on why the Program is nonetheless worth saving.

Bias and Transparency

Perhaps the most oft-cited concern associated with the Program focuses on bias and lack of transparency. More specifically, that government proxies would use the Program to effect legal and policy changes that the government could not push through Parliament. I find this concern to be perhaps the least convincing. Even if this belief is true, the very crux of the Program is government accountability, based on the premise that it is very expensive to fight the state in court given its unlimited resources. Surely, if government wanted to find a way to sidestep Parliament, it would not do so by increasing its accountability. Moreover, given the recent actions of Mr. Trump, and the fact that Trump look-alikes appear to be waiting in the wings of Canadian government, Canadians are keenly aware, perhaps now more than ever, of why government accountability is necessary. I think a more appropriate critique in this regard is the one Ian Brodie offers us in his article “The Court Challenges Program.” Brodie wonders if the program encourages and facilitates “a complex dance of federal social animators and their favoured activists battling other government actions in court.” While I think Brodie’s argument is well founded, an important caveat to point out is that many of the civil society organizations, such as The Civil Liberties Association and the National Citizens Coalition, refuse to accept government money. This caveat aligns well with the argument of those such as John Carpay in his article “A Level Playing Field for Classical Liberalism: the Abolition of the Court Challenges Program Empowers a Diversity of Perspectives on Freedom and Equality,” who argues that such groups should be able to obtain their own funding to go court rather than receive government assistance, relying on the “compassion of Canadians” to contribute to worthwhile court cases.

At present, the government is in the midst of choosing the members of the Program’s two independent expert panels, an Official Language Rights Expert Panel and Human Rights Expert panel. While the seven members of each of the panels will “be selected based on their expertise in the relevant legal areas,” the positions will not be limited to lawyers and judges. Some posit, I think quite fairly, that the federal government should require the Program to follow strict conflict-of-interest rules, and appoint disinterested decision-making members. The previous version of the Program was highly criticized as being limited to only a few groups, evidenced by the fact that many members of the Program’s governing committees in the past were drawn from groups that had received funding from the Program. While the government has promised that it will make its selections more “transparent” this time around, transparency simply isn’t the only issue. More importantly, it’s the need for an enhanced, accountable selection process that will appoint disinterested members and thereby entrench the Program’s legitimacy.

The previous version of the Program was also criticized for its lack of financial transparency. For the reasons I have outlined above, it is clear that the Program should be open to regular review by the Auditor General, and the files should be open to the public under the Access to Information Act. So far, there have been no indications that this will be the case.

Concerns with Selectivity

A sub-issue of the argument above is that the previous Program failed to support both sides of the argument, and the new version does not purport to be any different. As Carpay explains:

“it is naïve to assume that supporters of these positions are poor, and that all of the opponents of these positions are wealthy. On a case-by-case basis, supporters and detractors of the policy positions set out above vary widely across income brackets … Charter litigation which influences public policy has been dominated by taxpayer-funded left-wing groups … [and] requiring people to pay for advocacy with which they disagree is fundamentally unfair … Equality demands that governments refrain from spending tax dollars to favour one side of a controversial issue, especially where the are several sides which should be heard, and not merely two.”

The minor quarrel that I have with Carpay’s critique is that often the “other side” in most cases is the government, already funded by taxpayer dollars. Regardless, I think Carpay’s point should be heeded: rather than being at the whim of its panel members, the Program needs a robust method of allocating subsidies, and tighter spending rules, to ensure support for those truly in need, regardless of what side of the issue they’re on.

Underlying Policy Concerns

Perhaps the most intriguing arguments against the Program are those that address its underlying policy implications. While there are many, I have selected the few that I believe to be the most poignant.

First, many argue that the Program encourages a flawed focus. Namely, some scholars posit that the Program is merely a Band-Aid solution that ignores our dire need for a more streamlined and affordable judicial and litigation process. I agree only in part: the Program is indeed a Band-Aid solution, and it should be treated as such. However, this alone should not militate against its existence.

Second, many worry that the Program will just be cancelled again when exposed to the whim of a Conservative government that will likely not take lightly to the fact that the Program encompasses more than just negative rights (in particular, see Brodie: “Will the Trudeau government design the Court Challenges Program to survive future changes of government?”). As aforementioned, I think government accountability is at the fore of Canadian political thought, and this should (hopefully) ensure that a Conservative campaign would see another scrapping of the Program as futile.

Third, some claim that the Program only encourages activist judges who create rights for social interest groups rather than defer to Parliament, essentially making the court a legislative, rather than a judicial institution. Again, as mentioned previously, I believe supporting “both sides of the argument” by establishing a stricter test for funding would address this problem sufficiently.

Finally, Leonid Sirota offers the most viable and troublesome argument. Sirota aptly observes that the choice of priorities for the Court Challenges Program is inherently problematic because, “in choosing to fund litigation based on language and equality rights, Parliament isn’t just sending the message it values these rights. It also says that it values these rights more than others … [which] in itself contradicts the principle of constitutionalism.” I wholeheartedly agree: privileging some rights over others can have serious implications for federalism, and a Program that treated all rights equally would be more appropriate.

The Program is undoubtedly worth saving if it were adjusted to include the changes I have outlined so far: a more accountable selection process; a more robust method of allocating subsidies; and an expansion to include all Charter rights.

A Program Worth Saving

 First Nations’ Child Welfare Services

Perhaps the best example that shows the need for the Program is the recent Canadian Human Rights Tribunal decision that federal financing of First Nations’ child welfare services is discriminatory. There, the Tribunal found that the government has spent more money off-reserve for these services than they have on-reserve. What is pertinent to the consideration of the Program is that, as Marni Soupcoff explains, “the case ate up roughly nine years and millions of dollars worth of volunteer lawyer time, leading advocates and writers … to argue that the case shows the profound need for a federally funded program to finance such challenges.” The irony of the matter is that the government has failed to follow through on the Tribunal’s decision, and arguably, the $5-million dedicated to the Program should have been spent on following the Tribunal’s order.

R c Caron

Another example is the case of R c Caron, 2011 SCC 5. There, Mr. Caron was charged with the regulatory offence of failure to make a left turn safely. He gave notice to the provincial court that his defence would consist of a constitutional languages challenge. Mr. Caron took the position that the proceedings against him were a nullity because the court documents were only in English. Mr. Caron insisted on a right to use French in any proceedings of the Alberta courts, and further argued that the Alberta Languages Act was unconstitutional in that it abrogated French language rights. To finance the litigation, Mr. Caron mobilized his own funds, sought funding from the Albert Francophone Association (the Association refused to fund his case, but he obtained two loans of $15,000 each from its supporters), tried to fundraise within his community, and secured some additional donations and $70,000 from the Court Challenges Program. Strategically (and unfairly), the Crown filed an immense historical record, and Mr. Caron was unable to continue: he simply didn’t have the funds to go through the massive historical record. The provincial court made an order for costs to be paid by the government to Mr. Caron (otherwise known as an advance costs order). The SCC upheld the provincial court’s decision, and in doing so, outlined a demanding test for future advance costs applicants. Namely, the court must consider:

1. Whether the applicant can genuinely not afford the litigation and there are not other realistic options;
2. Whether the claim is prima facie meritorious;
3. Whether the claims that are brought forth are of public importance;
4. Even if the above criteria are satisfied, the applicant still has to further demonstrate that the case is significantly “special” (“exceptional, “extraordinary,” or “rare”).

The SCC made it quite clear in Caron that it is concerned about cases in which the quality of the record itself suffers due to an inequality of resources. What is important to glean from Caron are Mr. Caron’s extensive efforts to raise funds, and his minimal resources (even with the assistance of the Program), in comparison to the unlimited resources of the publicly-funded Crown. Moreover, Caron still had to pass a scrupulous test in order to sustain his litigation. To me, Caron is a crucial, concrete reminder of the individuals who desperately need the Program to advance their constitutional rights. Mr. Caron was not a civil society group (in fact, he was denied funding by them), and even with funding from the Program, he was unable to continue. The rule of law principles that substantiate advance costs and the Program itself, are brought to life in cases such as Mr. Caron’s. More exactly, Caron seems to enliven Justice Dickson’s remarks in Re BCGEU [1988] 2 SCR 214, in which he affirmed that access to the courts is essential to the rule of law: “there cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice.” Justice Dickson also adopted the BC Court of Appeal’s statement of law: “access to the courts is under the rule of law on one of the foundational pillars protecting the rights and freedoms of our citizens.” This reasoning was affirmed in BC Trial Lawyers Association, 2014 SCC 59, which held that Canadians have a constitutional right of access to the courts. With a few tweaks, (and admittedly, perhaps more funding: Caron appears to be the most the Program spent on any one trial), the Program can become the lifeblood of that constitutional right.

Conclusion

According to Laura Payton, from 1994 to 2006, the Program funded 575 cases, including those in which it funded an intervener rather than one of the main parties to the case. The Program led to landmark decisions like Daniels v Canada, 2016 SCC 12, R v Ewanchuk, 1999 SCC 330, and Egan v Canada, 1995 SCC 513. We should not be discouraged by the partisanship that surrounds the debates over the Program, nor should we jettison its idea because of its deficiencies. The Program is critical to advancing the rights of people on the margins and improving defence of language rights, minority rights, and. indigenous rights against the deep pockets of government litigators. For example, many anticipate that the Program could help facilitate a challenge to the inadequate Medically-Assisted Dying law. It remains to be seen whether Trudeau’s resurrection of the Program is the beginning of an ushering in of an era of public consultation like his father’s, but in the meantime, we should do everything we can to support the resurrection, and correction, of a Program worth its weight in gold.