the daily snivel
The Story So Far...
A couple of weeks ago, the Conservative minority government decided to chop funding for a number of pet projects they have long despised, showing less concern for budget balancing or ensuring that funding dollars are well spend than simply for purging ideological irritants. Chief among those cuts were the eradication of the Court Challenges Program and the Law Commission of Canada. Both of these cuts have outraged a lot of Canadians, including myself, due to the striking animus shown towards useful programs that make a real and profound contribution to access to justice, the rule of law, and an evolving, progressive legal system.
The Law Reform Commission of Canada is -- or was -- an independent body formed in 1997, and designed to make recommendations to the sitting government on modernizing Canadian laws. In 2004, it recommended reforming Canada's electoral system by introducing proportional representation, which I feel would result in a far more representative and democratic system than currently exists, and (may I add) had we done so at that time, we might not be in the mess we are in now.
The Court Challenges Program provided funding to a certain number of rigorously screened cases where an individual applicant believed that his or her equality or language rights were being infringed by unconstitutional federal legislation could apply for funding to challenge that legislation in court. The program funded test cases, meaning equality claims that had not been litigated before.
The overarching motivation behind both cuts seems to be to appease Conservative voters by cutting programs long loathed by the party and seen as providing funding to groups that do not traditionally vote Conservative. With particular regard to the Court Challenges Program, Conservatives in Canada have been quite vocal in what they perceive to be "judicial activism," where the courts strike down sections of legislation that are inconsistent with the Constitution or "read in" remedial language so as to make the legislation operate in a valid fashion. One might argue that this is the very function of the judiciary, and furthermore that the requirement that legislation be consistent with our constitutional values is explicitly entrenched in our constitution by virtue of section 52, and what one will eventually discover is that what "judicial activism" really refers to is any decision by a judge concerning the state of the law that the beholder vehently disagrees with.
Accordingly, it seems hard to believe that the cuts were made in good faith. In fact, when he made the announcement, Prime Minister Harper defended the decision with words I am sure (and sincerely hope) he will someday be forced to eat at the polls:
So, what impact has the Court Challenges Program had on the state of Canadian law? Here are a few examples where the Program has fundied either parties or intervenors (intervenors are "friends of the court" who are given standing alongside the parties to address the court about the possible impact of the court's ruling on issues of great importance, particularly):
The cut was explained as a cost-saving measure designed to eliminate expenditures that were not providing enough "value for money" to Canadians, which seems hard to believe given that role the Court Challenges Program has played in some of the most critical issues of the Charter era. In fact, the program cut only saved taxpayers $5.6 million over two years, while ensuring that access to the courts no longer exists for litigants seeking to challenge an injustice. Given the recent announcement of a $13 billion federal surplus, it seems like money well spent if it means an important check is kept on discrimination against large numbers of Canadians, particularly where the alternative is simply that only the wealthy can afford to go to court and ensure that their rights are protected.
It is nice that Prime Minister Harper announced his intention to be part of a government that does not pass unconstitutional laws. The problem is in trusting any government to decide for itself that it is behaving in a way that respects the constitution and the equality rights of citizens. Some legislation is discriminatory in its effect -- that is, even laws that are completely neutral on their face can be discriminatory in application. Consider, for example, the situation in Eldridge v. B.C. (Attorney General), where legislation responsible for ensuring access to health care to residents of B.C. relied on the assumption that anybody who needed health care could come to a hospital and speak to a doctor about it. The appellants in Eldridge, however, were born without hearing, and could not communicate with a doctor without sign language interpretation. Without that sign language interpretation, Canadians who were deaf effectively did not have access to a government-funded service, and this was ruled discriminatory and unconstitutional, even though the issue simply never occured to those drafting the health care legislation.
In other cases, the government may take a deliberate choice to pass unconstitutional or discriminatory legislation because it feels its constituents demand it as a matter of policy (such as a pending decision by the Conservatives to re-open the debate on same-sex marriage in Canada, and then ram legislation through the House of Commons if that debate fails).
The courts exist to litigate complicated questions of law and fact, and make expert decisions consistent with the Constitution and legal precedent. While I don't agree with the Supreme Court of Canada in all cases, I respect its authority to decide the issues we send to it, as should the current (and temporary) Government of Canada. All these cuts do is deny access to justice in a miserly and mean-spirited fashion, while laws that may or may not be constitutional may or may not get the scrutiny they deserve.
Then, of course, just to ice the cake is the recent announcement by the Conservative Government that it will seek to impose a reverse-onus on those convicted of a third violent or sexual offence, requiring the offender to convince a court that he or she is not a dangerous offender. In the absence of this proof, the person will be designated a dangerous offender, the result of which will be the incarceration of that offender for an indeterminate period with no possibility of parole for at least seven years. I'm going to do a more in-depth analysis of the bill shortly, but in the meantime, consider whether you think on its face that this legislation is at all constitutionally valid.
Comments:The Law Reform Commission of Canada is -- or was -- an independent body formed in 1997, and designed to make recommendations to the sitting government on modernizing Canadian laws. In 2004, it recommended reforming Canada's electoral system by introducing proportional representation, which I feel would result in a far more representative and democratic system than currently exists, and (may I add) had we done so at that time, we might not be in the mess we are in now.
The Court Challenges Program provided funding to a certain number of rigorously screened cases where an individual applicant believed that his or her equality or language rights were being infringed by unconstitutional federal legislation could apply for funding to challenge that legislation in court. The program funded test cases, meaning equality claims that had not been litigated before.
The overarching motivation behind both cuts seems to be to appease Conservative voters by cutting programs long loathed by the party and seen as providing funding to groups that do not traditionally vote Conservative. With particular regard to the Court Challenges Program, Conservatives in Canada have been quite vocal in what they perceive to be "judicial activism," where the courts strike down sections of legislation that are inconsistent with the Constitution or "read in" remedial language so as to make the legislation operate in a valid fashion. One might argue that this is the very function of the judiciary, and furthermore that the requirement that legislation be consistent with our constitutional values is explicitly entrenched in our constitution by virtue of section 52, and what one will eventually discover is that what "judicial activism" really refers to is any decision by a judge concerning the state of the law that the beholder vehently disagrees with.
Accordingly, it seems hard to believe that the cuts were made in good faith. In fact, when he made the announcement, Prime Minister Harper defended the decision with words I am sure (and sincerely hope) he will someday be forced to eat at the polls:
"Mr. Speaker, this government intends to behave in a constitutional manner.
We do not intend to adopt unconstitutional legislation. We intend to respect the Constitution, including the division of power between the federal government and the provinces. We do not intend to pay Liberal lawyers to challenge unconstitutional laws."
So, what impact has the Court Challenges Program had on the state of Canadian law? Here are a few examples where the Program has fundied either parties or intervenors (intervenors are "friends of the court" who are given standing alongside the parties to address the court about the possible impact of the court's ruling on issues of great importance, particularly):
- In Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513, the Supreme Court confirmed that sexual orientation was a prohibited ground of discrimination under setion 15 of the Canadian Charter of Rights and Freedoms in a case where a member of a same-sex couple had applied for benefits under the Old Age Security Act. Although the Court concluded that the government's decision to limit funding to opposite-sex spouses could be justified, it opened the door to the recognition of the unambiguous equality rights of gays and lesbians in Canada.
- In R. v. R.D.S., a young black man was charged with assault against a police officer when the two were involved in an altercation. Both the youth and the officer had very different points of view as to what transpired before the youth was charged. In this case, Justice Sparks of Halifax, Nova Scotia found a reasonable doubt and acquitted the youth, commenting that "police officers do overreact, particularly when they are dealing with non-white groups." The Crown appealed this decision and argued bias, and the Nova Scotia Court of Appeal agreed. The case was then appealed to the Supreme Court, which concluded that Justice Sparks, who was also black, had not acted in a biased manner, but had drawn upon the context of the racial dynamic in Halifax in assessing whether reasonable doubt could exist between the two diametrically opposed stories.
- In R. v. Golden, an African-Canadian man was in a restaurant when he was arrested on the suspicion of committing an offence and was strip-searched in a public place. The argument was made that this search was unreasonable and therefore unconstitutional, and that the evidence obtained from the search ought to be excluded. After a number of appeals through the Courts, the Supreme Court of Canada agreed with Mr. Golden's arguments, and excluded the evidence and acquitted him. It noted the submissions of intervenors that because of the over-representation of African-Canadians and Aboriginals in the Canadian Justice system, it is important to develop a careful framework governing when and how strip searches are to be conducted to prevent unjustified invasions before they occur.
- In Sauvé v. Canada (Chief Electoral Officer) a majority of the Supreme Court of Canada decided in 2002 that a rule barring convicted offenders serving sentences of two years or more from voting in Federal elections was unconstitutional and violated section 3 of the Canadian Charter of Rights and Freedoms. The majority concluded that the right to vote was so fundamental that deference could not be afforded to the decision of the government.
- In researching this piece, I read a lot of schadenfreude about the demise of the program from those who believe it only ever assisted left-aligned "special interest groups," so I thought it was important to mention that the Court Challenges Program also provided financial assistance in the Reference Re: Firearms Act in 1998. While it was ultimately held that the legislation was constitutional and within the authority of the federal government's criminal law powers, I don't think you have to be a bleeding heart liberal to appreciate the vital role this program played. You just have to be a civil libertarian interested in fair government, justice, and the rule of law
- Finally, you should really read Harper v. Canada (Attorney General) (yes, that Harper), where the Court Challenges Program funded Democracy Watch as an intervenor against Mr. Harper's arguments, and decide for yourself if there was any extra animus involved in making this decision.
The cut was explained as a cost-saving measure designed to eliminate expenditures that were not providing enough "value for money" to Canadians, which seems hard to believe given that role the Court Challenges Program has played in some of the most critical issues of the Charter era. In fact, the program cut only saved taxpayers $5.6 million over two years, while ensuring that access to the courts no longer exists for litigants seeking to challenge an injustice. Given the recent announcement of a $13 billion federal surplus, it seems like money well spent if it means an important check is kept on discrimination against large numbers of Canadians, particularly where the alternative is simply that only the wealthy can afford to go to court and ensure that their rights are protected.
It is nice that Prime Minister Harper announced his intention to be part of a government that does not pass unconstitutional laws. The problem is in trusting any government to decide for itself that it is behaving in a way that respects the constitution and the equality rights of citizens. Some legislation is discriminatory in its effect -- that is, even laws that are completely neutral on their face can be discriminatory in application. Consider, for example, the situation in Eldridge v. B.C. (Attorney General), where legislation responsible for ensuring access to health care to residents of B.C. relied on the assumption that anybody who needed health care could come to a hospital and speak to a doctor about it. The appellants in Eldridge, however, were born without hearing, and could not communicate with a doctor without sign language interpretation. Without that sign language interpretation, Canadians who were deaf effectively did not have access to a government-funded service, and this was ruled discriminatory and unconstitutional, even though the issue simply never occured to those drafting the health care legislation.
In other cases, the government may take a deliberate choice to pass unconstitutional or discriminatory legislation because it feels its constituents demand it as a matter of policy (such as a pending decision by the Conservatives to re-open the debate on same-sex marriage in Canada, and then ram legislation through the House of Commons if that debate fails).
The courts exist to litigate complicated questions of law and fact, and make expert decisions consistent with the Constitution and legal precedent. While I don't agree with the Supreme Court of Canada in all cases, I respect its authority to decide the issues we send to it, as should the current (and temporary) Government of Canada. All these cuts do is deny access to justice in a miserly and mean-spirited fashion, while laws that may or may not be constitutional may or may not get the scrutiny they deserve.
Then, of course, just to ice the cake is the recent announcement by the Conservative Government that it will seek to impose a reverse-onus on those convicted of a third violent or sexual offence, requiring the offender to convince a court that he or she is not a dangerous offender. In the absence of this proof, the person will be designated a dangerous offender, the result of which will be the incarceration of that offender for an indeterminate period with no possibility of parole for at least seven years. I'm going to do a more in-depth analysis of the bill shortly, but in the meantime, consider whether you think on its face that this legislation is at all constitutionally valid.
