The Charter’s challenges
TheStar.com – News – The document is widely lauded but recent federal funding cuts have made challenges even more difficult to mount
Published On Sat Apr 07 2010. Tracey Tyler LEGAL AFFAIRS REPORTER
Twenty-five years ago, a series of signatures on a rain-dappled document jolted Canada into a new era.
To some, the Charter of Rights and Freedoms, Pierre Trudeau’s greatest political legacy, was a supremely undemocratic development, weakening governments and handing judges the power to decide some of the most pressing social issues.
But for the vast majority of Canadians, the Charter has become a symbol of national identity, taking its place alongside the Maple Leaf, hockey and snow. In poll after poll, most embrace the Charter as a kind of national mission statement, asserting the country’s commitment to tolerance, fairness and equality.
And since that drizzly ceremony on April 17, 1982, when the Charter was entrenched in Canada’s newly patriated Constitution, hundreds of cases have gone to the Supreme Court of Canada to determine how far the country will go on abortion, same-sex marriage, the death penalty, private health care, police powers, Sunday shopping and freedom of speech.
A quarter-century later, the Charter is at a crossroads. While there may be much to celebrate, the process of using it to establish rights is time-consuming and expensive, almost entirely dependent on government subsidies and the benevolence of lawyers to bankroll cases, sometimes costing millions of dollars.
Restrictions on legal aid and a decision last fall by the Conservative government to kill the Court Challenges Program, which helped fund individuals and citizen groups fighting for constitutional protections, have made the Charter more inaccessible than ever.
Today, many experts are pessimistic about its future as a tool in battling for equality and fending off unwarranted government intrusions into people’s lives. Like fine champagne, the Charter is in danger of becoming a luxury many never taste.
“I’m really angry about it,” said Toronto lawyer Doug Elliott, a veteran of more than a dozen Charter battles, including the fight to legalize same-sex marriage. “It’s like the Dom Perignon that’s locked behind the door at the LCBO. It may taste great, but if you can’t get at it, what does it matter?”
This Thursday, a major conference at the Metro Toronto Convention Centre will look at the Charter and its impact over the past 25 years.
Unlike the United States, where people whose constitutional rights have been breached are often awarded significant sums of money by the courts, Canadians are rarely entitled to damages when their Charter rights are violated.
Without some way of subsidizing the litigation, average Canadians stand no chance of bringing a Charter claim, Elliott said.
“These cases cost millions of dollars. Millions – because governments fight them tooth and nail. Forget about legal aid. In most cases, you’re not going to get it,” Elliott said.
“It doesn’t seem right that the government enacts the Charter and commits itself to having individuals protected through our justice system, and yet makes it economically impossible for that to happen,” said Paul Schabas, a Toronto lawyer who’s fought Charter cases pro bono and heads an organization called Pro Bono Law Ontario.
Adding to the problem is a recent decision from the Supreme Court of Canada itself, which all but closed the door to advance funding to those battling alleged discrimination.
Little Sisters, a gay and lesbian bookstore in Vancouver, had asked the court to order the federal government to pay costs up front in its legal battle with Canada Customs over the seizure of homosexual literature at the border. The court refused.
The bookshop, which spent $500,000 on a legal battle with Canada Customs seven years ago, says it was forced back to court because the federal agency, despite pledges to the contrary, continues to seize its books at the border. The Court Challenges Program funded interveners in both cases.
Public interest groups had hoped a ruling in favour of Little Sisters would open a funding avenue for Canadians who believe their Charter rights have been violated.
“That decision really gets my blood boiling,” Elliott said. “The judges who were in the majority tag-teamed with Stephen Harper (in killing the Court Challenges Program) to choke access to justice in this country under the Charter of Rights.”
Corporations were initially among the biggest beneficiaries of Charter rulings. In 1986, for instance, the Big M Drug Mart chain succeeded in having restrictions on Sunday shopping struck down as a violation of freedom of religion.
Since then, the Supreme Court has worked hard, notably through equality rights decisions, to expand the Charter’s protections to minorities, said Lorne Sossin, a law professor at the University of Toronto.
But he said it’s only in rare cases that groups acting on behalf of the poor can afford to spend years slogging through the courts with a Charter claim.
“There is all this fancy language (in the Charter) and every day we have people complaining about Charter violations and human rights violations, but in a lot of cases we can’t help them,” said Atulya Sharman, a community legal worker with the South Asian Legal Clinic in Toronto.
No one knows that better than Hedy Halpern, the Windsor nurse who helped launch a Charter challenge against the ban on same-sex marriage, which was struck down in Ontario in 2003.
“When we first got involved in the marriage challenge, one of the things we were told was that in the unthinkable event we lost, we would be personally responsible for the full cost of the court challenge,” Halpern said. “Colleen and I looked at each other and said, `We have to do this.’ But we stood to lose our homes, our car, whatever…We are average working people with a home and mortgage and kids in school. So, it was pretty scary.”
People launching Charter cases can get a portion of their legal costs awarded if they win, but courts don’t always award costs – and almost never award full costs.
The Court Challenges Program was by no means expensive for the government. It had an annual pool of $2.75 million to help individuals and groups alleging violations of language and equality rights. Recipients of funding included disabled groups fighting VIA Rail for the right to full access to trains and Chinese Canadians seeking compensation for the head tax.
Rainer Knopff, a political scientist at the University of Calgary, said the program was “a biased boondoggle that had gone well past its `best before’ date.”
The program only funded groups on “one side” of the political spectrum while “socially conservative groups never got any money. Not a penny, as far as I know,” said Knopff.
He also echoed then-Treasury Board president John Baird’s suggestion, made in defending the decision to kill the program, that it made no sense for Ottawa to spend public money helping groups challenge its own legislation.
But Frank Addario, vice-president of the Criminal Lawyers Association, says programs of this kind serve a “valuable social purpose.”
“When someone says my Charter right has been violated because of some government action … they are surrogate litigants for the rest of us, forcing the courts to define the rights that the rest of us enjoy.”
“I don’t want to pay for surrogate litigants,” said Knopff, arguing public interest groups should raise their own money for Charter cases. “If they can’t raise the money – tough.”
But some Charter claimants may not attract much sympathy, let alone money.
William Brydges took on the state after being arrested in an Edmonton murder and denied access to a legal aid lawyer before police interrogated him, a case often described as Canada’s “Miranda” decision.
The Supreme Court ruled in 1990 that Brydges and every other person arrested by police had a meaningful right to counsel, which included information on how to contact duty counsel through legal aid, a decision that sparked the creation of 24-hour duty counsel systems throughout the country.
Richard Stroppel, Brydges’ lawyer, said Alberta’s legal aid plan funded the case all the way to the Supreme Court.
Ian Golden’s challenge to his treatment by Toronto police after being arrested for cocaine possession prompted the Supreme Court in 2001 to outlaw routine strip searches of anyone charged with a crime.
In finding the practice an unwarranted intrusion of privacy, the court adopted arguments put forward by the African Canadian Legal Clinic, an intervener, that members of the black community are often victims of racial stereotyping and likely to be hit hardest by the practice. The Court Challenges Program funded the clinic’s work in the case.
As “meagre” as the funding was – a maximum of $60,000 for a trial – it had a big impact when it came to groups intervening in support of Charter claimants, Elliott said. They served as a “counterbalance” to provincial attorneys general, who often intervene to support the federal government.
With public funding drying up for groups and individuals alike, one alternative might be to relax the rules on who can bring Charter claims, said Sossin.
Instead of limiting it to people whose rights are allegedly violated, the courts could let public interest groups bring claims on their behalf, he said. For example, in a case now before the courts in British Columbia, the Canadian Bar Association is trying to sue on behalf of the public at large for the right to legal aid in civil cases.
But these changes could take a long time, said Sossin. Until then, using the Charter will likely depend on “public-interest-minded lawyers” willing to take the case on a pro bono basis, he said.
Even Schabas, whose organization is dedicated to promoting pro bono work, says it’s not the answer.
“It’s haphazard and luck of the draw as to whether you can find representation,” he says. “Pro bono lawyers can help, but they shouldn’t be the solution.”
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