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 arms-length 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 maneuvering – 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.
But the Court Challenges Program is not the solution. The money on offer to qualifying litigants is a pittance compared with the full costs of robust constitutional litigation. Even if the revamped program doubled its subsidy from about $50,000 (the previous amount awarded) to about $100,000 per case (which seems unlikely given that more constitutional grounds are now eligible for funding), that would still leave litigants having to dig into their own pockets for millions of dollars. And the taxpayer – which is to say all of us – will repeatedly end up in the absurd position of spending twice on a single case (once subsidizing the Crown and once subsidizing the program-assisted plaintiff) on what is at root an inefficient and sub-optimal process.