Earlier this year I was invited to address the National Conference of the Canadian Bar Association as one of two panelists at a session addressing “Religion and the State.” The conference was held last month in Newfoundland.

I chose as my topic: “The Context for Diversity and Accommodation in the Democratic State: The Need for a Re-evaluation of Current Approaches in Canada”.

What I want to write about here, however, is a point contained in that paper and relevant to a recent discussion regarding the Court Challenges Program (hereafter: "Program") and whether that Program should or should not be continued in Canada.

As virtually anyone who follows constitutional cases in Canada knows, this Program has run for many years with the goal of “furthering equality litigation.” It channels federal government monies so as to, in the wording with which we are all so familiar in Canada, further the pursuit of equality through cases that raise Charter issues.

I expect that it has funded people in probably every major case involving the main “women’s rights” or “sexual orientation” issues in Canada over the last decade. Certainly it seems to have provided assistance on virtually every case involving the freedom of religion with which I have been involved over the past decade. Interestingly, it has never assisted the religious side of those cases - - or those who appeared to argue for particular concerns by religious groups - - unless, that is, the religious issue supported the particular slant on the equality issue before the court – same-sex claims etc. The “traditional” side of religious beliefs didn’t get the support of the Program. When “traditional” groups did apply to the Program they were turned down.
Leaving aside the question of how fairly that Program has been administered and whether the use of federal government money beyond adequate reporting requirements (which happened a few years ago) is acceptable in an open society, I think there is a deeper reason that the Program should be scrapped; it is wrong in principle. Why is that?

It invites us to view law as a means of social re-structuring and will inevitably (as we have seen) provide a temptation to use law inappropriately to achieve legal outcomes of a particular kind not outcomes argued for in the give and take of democratic debate. To use legal victory as a means of achieving victory over others is not the role of law - - correction, not the proper role of law. While laws can and often are remedial (a principle of interpretation has it, in fact, that all statutes are assumed to be remedial and must be interpreted in a generous and liberal manner so as to further their purposes) it is quite another thing to view constitutional litigation itself as the means of achieving social change rather than just the protection against inappropriate state action. Why is this?

Because litigation is not suited for balancing interests. Those there, in the courtroom, are those who can afford to be there. Litigation is notoriously expensive. Nowhere more so than on large-scale constitutional cases. Many times cases before the court do not include those who have interests in the matter but cannot afford to be there.

Providing access to a privileged fund for litigation to those who fit a politically driven conception of “disadvantage” may sound fair but it is not when a framework of litigation itself end runs the possibilities of debate and balancing that can occur better elsewhere. Fund all the interests or none of them. That would be fair.

The way the Program has been set up skews litigation against tradition. That not only fails to make sense (embodying the most strident forms of “todayism”) it handicaps those who believe a particular set of beliefs or principles ought still to animate civil society - - whatever the numbers of those who believe this. In short, it does not assist those with a perfectly acceptable “traditional” view of a matter whether it is abortion, same-sex marriage or the funding of public education; it only assists those who oppose them.

I began my oral comments (I did not have time to read my full paper) at the Bar Conference by stating this: “Canada is not the Charter of Rights and the Charter of Rights is not Canada.” This needs saying because there are those, in fact quite a few, who seem to speak as if Canada will be developed, furthered and based “on the Charter” which is shorthand for saying “by the judiciary.” But soft, the Charter itself speaks of limits to the role of law. One is the rule of law. Another is the principles of a free and democratic society.

The very rule of law, therefore, posits necessary restrictions on the role of law. Yet to hear some people discuss the Charter and its role and the role of the judiciary it is as if someone closed Parliament and it need never re-open. Or it exists, at best, to simply enact what the judiciary wishes. The democratic chambers have become redundant to the faster, quicker, and thanks to the Court Challenges Program, cheaper way of achieving social ends by, frankly, anti-social means.

This is dangerous and utopian. In fact, part of the reason that judges ought not to govern a society is that they are not accountable in the way politicians are. There is virtually no check on their power once they decide they have powers beyond their proper jurisdiction - - powers, for example, to “read-in” to legislation or the constitution or the Charter itself.

With invitations to use the courts precisely to change society or, as it is put in the newspeak “advance equality seeking groups” the focus of social change and development is judicial not legislative. There are many reasons this is unwise in a democracy.

For one thing, litigation is no way to frame a society because litigation is a big game of “king of the castle.” Each case offers one side a win and the other side a loss. This is not good for society to rely upon. There are often, as in many current debates for example, a variety of views that should be tolerated in society even though they are in stark disagreement. Should the court give in to one side of these debates it tends to put pressure on the other side to shut up and leave civil society to the victors. Hardly a recipe for justice or for long-term civil peace or for long-term negotiated achievements. Some will shout: “but if this approach had been taken in Canada, we would not have achieved the results in equality we did in relation to abortion or same-sex advancement thanks to the Court (to name two examples).” That is as may be. We might also have had a more measured, nuanced and richer understanding of the necessary limits to various claims (on all sides of issues) once we sat down at the table and debated things without recourse to the guillotine of litigation.
This is not to say that constitutional rights are not important or that the court does not have a role in defending them particularly when the state is acting against individuals or groups. This is, however, different from assuming, as the Program does, that the courts should be a primary use for social change. In fact, one alternative to the Program as it currently operates would be to insist that its funds only be used after repeated and demonstrated failure to achieve political remedies has occurred with respect to the specific issue in play.

Cynical use of law as a foreclosure on debate (the way the late Liberal government did with the Marriage Reference) shows what happens to democracy when debate and analysis (best suited to Parliamentary and Legislative Committees) is truncated by premature recourse to judicial determination. It is well known that hearings by the Justice Committee of the day were simply cancelled once the Government of the day, with no caucus discussion, no discussion in the House, in short, no recourse to democracy, simply skipped the matter to the Supreme Court.

That court, to its lasting shame in my view, then refused to answer the fourth question (whether a heterosexual definition of marriage could survive under the Charter) for a variety of reasons, one being that the government of the day (which it had) indicated it wanted to bring in a same-sex marriage law anyway! A cozy arrangement if ever there was one. Looks like democracy; looks like the right approach to law……but don’t look too closely….

Let us hope such a cynical use of processes is not repeated in Canada on any issue in the future. It does no one any good in the long run because what is gained is, as same-sex marriage is in Canada, tainted by the corruption of the processes to achieve it, whatever other shortcomings it might have.

I had this to say near the end of my CBA paper when I quoted the Canadian philosopher Charles Taylor.

Litigation is not the best strategy for a state to use as a default for nation building or the creation of communities of respect. As Charles Taylor has noted:

Judicial decisions are usually winner-take-all; either you win or you lose. In particular judicial decisions about rights tend to be conceived as all-or-nothing matters. The penchant to settle things judicially, further polarized by rival special-interest campaigns, effectively cuts down the possibilities of compromise.[i]

When litigation is being used this way, however, because we are encouraging it to be so used, [footnote omitted] it would make sense to ask whether the kind of equality being pursued is just a “rhetoric of attack” under the guise of “equality” and whether the outcome is based upon an assumed “rights as trumps” model or the establishment of a genuine diversity respect around a modus vivendi. Judges should ask this sort of question and look for just this sort of approach and cut through the façade of those that sound nice but simply hide carefully crafted attacks on modus vivendi.

These concerns are the best reason why a Court Challenges Program is misconstrued in principle and should be ended. Letters thanking all of those involved for their time should be sent out and the offices closed.
When the Program is ended, its records can and should be saved from the shredder (except for those with genuine confidentiality concerns) and should go to the National Archive or some such repository where interested scholars can examine what that Program and its administrators did over its many years in existence.

I know there are many people like me who would be grateful for the researches of scholars that can show the “who”, “why” and “how much” of the Court Challenge Program’s operations over the years. After all, we paid for it.

It would shed light on an interesting period of history in Canadian politics and law. A period we need to leave behind, the sooner the better.

Iain T. Benson©

NOTE: This Program was announced as 'cancelled' by the Government on September 25, 2006.