Home News Articles Reviving the court challenges program is the wrong way to address a real problem

Reviving the court challenges program is the wrong way to address a real problem

By | National Post on Feb 02 2016

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Photo Courtesy of Marc Lostracci under CC BY 2.0

The Court Challenges Program of Canada was effectively kaput by the time I took over as executive director of the Canadian Constitution Foundation. It was the Conservative government of Stephen Harper that stopped the arms-length federal program from accepting new cases in 2006, though the program was partially restored two years later for language rights cases. Whether the program was a necessary means of funding crucial suits against government for violating constitutional language and equality rights, or a wasteful use of taxpayer money that was biased towards radical causes and ended up being run by very the groups it was funding, depended on who you asked.

The Program has been back in the news lately for a couple reasons — both of them irritating to many of its critics —most recently because of a Canadian Human Rights Tribunal ruling. Earlier this month, the tribunal declared federal financing of First Nations’ child welfare services discriminatory, finding that the feds spent more money off-reserve for these services than they did on-reserve. The case ate up roughly nine years and millions of dollars worth of volunteer lawyer time, leading advocates and writers, including Dan Lett in the Winnipeg Free Press, to argue that the case shows the profound need for a federally funded program to finance such challenges.

The other reason we’re talking court challenges program again is that Prime Minister Justin Trudeau made resurrecting the program ones of his election promises. And now that he’s in power with a majority, boosters of the program are waiting eagerly for him to deliver.

While I agree with many of these boosters that procedural delay and outlandish costs make suing the government nearly impossible for average, if not most, Canadians, I’m not convinced a revived court challenges program is the best, or even a helpful, solution to the problem. Where program boosters see federal money as easing the burden of these suits, I see it as a potential for the taxpayer to be spending twice on what is at heart an inefficient and suboptimal process. Where boosters think adding plaintiff funding will even the playing field, I think this money will be both a pittance in comparison to the full costs of robust constitutional litigation and impotent in the face of the typical government practice that Mr. Lett rightly describes as “slowing down legal proceedings with motions that do not address the merits of the case.”

Only if we address the outlandish costs — in both time and money — of suing government will we actually approach a reality of constitutional litigation being a meaningful check on government power and a meaningful protector of Canadians’ rights. The details of who pays those costs are far easier to sort out.

The fact that challenging a law should not be as painless as, say, buying a sandwich, is worth mentioning. Only, we’ve ended up at such an extreme in the opposite direction, with a typical constitutional challenge quite easily requiring several millions of dollars and a good decade of time, that worries about opening the floodgates seem best left for later, once we’ve made battling for constitutional justice slightly more accessible than walking on the moon.

While it might be true that reducing the price tag of a constitutional case by even $50,000 or so (the amount at which the Court Challenges Program used to max out per matter) would help citizens hold government to account, reducing government delay, document dumping, and excessive procedural manoeuvring during constitutional litigation would be even more productive. Assuming that most Canadians who challenge a law are also federal taxpayers who’d be paying for both a Court Challenges Program and the legions of crown lawyers and other government employees defending the status quo, the plaintiffs would be getting a better deal with a streamlined judicial and litigation process than with a challenges program.

Achieving access to justice is complex, but cutting, rather than adding, bureaucracy is usually a dependably positive step.

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