Legal program is an injustice to us all

It is difficult to imagine a policy decision that could be any more PR-friendly, and of any less practical value to Canadians, than the one the federal Liberals announced this week. They are resurrecting the Court Challenges Program, an armslength federal program that funds select constitutional and language-rights lawsuits – and that had become an incestuous mess by the time the Harper Conservatives effectively nixed it 2006. This time, the Liberals are bringing it back in expanded form.

In any well-functioning democracy, there must be a workable means by which citizens can hold the government to account if it is violating their constitutional rights. In theory, Canada’s current system offers such an opportunity: Anyone can mount a legal challenge to a law they believe violates the Canadian Charter of Rights and Freedoms. In practice, constitutional litigation is an astronomically expensive undertaking and often drags on for years, leaving it far outside the reach of most Canadians. Litigants who can afford the money and time must be also ready for the document dumping and excessive procedural manoeuvring — the infuriating and unfair stonewalling — that the government employs on a regular basis in its role as a defendant. In other words, the Liberals aren’t wrong when they talk about there being an “access to justice” problem. the last election, yet the Liberals have not addressed them with their new Court Challenges scheme. Nor have they rectified one of the program’s most glaring deficiencies: it plays favourites. As law professor and commentator Leonid Sirota has pointed out, even with the expansion of Charter rights covered by the Court Challenges Program, there are still many not on the list. Are your due process rights, protected by sections 8-14 of the Charter, being infringed by government? Well, too bad, you’re on your own. If you’d like to vindicate one of your constitutional rights that is not enumerated in the Charter (yes, those exist and many of them are very important), you’re also out of luck.

Even within the context of covered rights, who gets to decide which suits will be covered, and which won’t? The Liberals say the new Court Challenges Program will support litigation to vindicate religious freedoms. Would this include a litigant such as Trinity Western University, a private Christian institution that has drawn considerable public ire because it requires its students to sign a covenant that restricts sex to heterosexual, married couples? Or will help be available only to litigants whose religious practices don’t make the mainstream turn up its nose?

By re-establishing and expanding the Court Challenges Program, the Liberals are effectively acknowledging that government passing unconstitutional laws is a real and serious problem that is currently going unchecked. It is curious, then, that they are not taking the more direct step of getting more serious about scrutinizing proposed legislation for constitutional compliance before passing it. Better to stop violating the Constitution in the first place — or at least make every conceivable effort not to do so — than to unveil ineffectual infrastructure for correcting violations after the fact. Another step that would have a great deal more impact than the Court Challenges Program would be doing the extremely difficult and thankless work of streamlining the judicial and litigation process. But that’s a much more difficult press release to write.

At best, the Liberals have proudly made a meaningless gesture that will do nothing to improve Canadians’ access to justice. At worst, the Liberals have recklessly involved the government in choosing favourites in the one realm where equal treatment by authorities is more crucial than all others; human rights. That’s the kind of progress Canadian freedom could do without.