Court Challenges Program rises again

Posted on in Equality Delivery System

OttawaSun.com – Opinion/Columnists
May 03, 2016.   David Krayden

We thought we’d seen the last of the Court Challenges Program (CCP). But, like the vampire Dracula in so many horror film sequels, it may soon be resurrected from the policy netherworld and loosed upon the body politic in order to satisfy its ravenous hunger for taxpayer blood and rule by judiciary.

We’ve already seen how Prime Minister Justin Trudeau is keen to rebrand Canadian society with Liberal values. His pledge to restore the CCP is a part of that reclamation project.

It is also another direct link between his government and that of his father.

The CCP first saw life in 1978, when the Pierre Trudeau Liberal government decided that taxpayer-funded incentives were needed to encourage minority language rights litigation. With the adoption of the Trudeau-engineered Canadian Charter of Rights in 1984, all legislation immediately became subject to the sanction of the courts and the CCP developed real political muscle and rising costs.

Those costs led to its cancellation by the Mulroney government in 1992. But the undead corpse was again released from its tomb in 1994 by the new Chretien regime.

Dracula Returns — but not for long. The previous Conservative government very effectively drove another stake through the heart of the program in 2006 with a routine financial investigation by Heritage Canada’s parliamentary committee. The newly elected Harper government was anxious to kill the program, largely as a favour to its faithful social conservative base. They saw the CCP as both outrageous, in the sort of cases it championed, and schizophrenic, in the way it subsidized activists to use unelected courts to overrule legislation created by elected representatives.

Harper and the Conservative caucus thought so, too — but they lacked the courage or status of a majority government and did not want their opposition to be seen as rooted in social conservative principles so much as in fiscal responsibility.

Notwithstanding, the overwhelming number of cases approved under the CCP were for left-wing challenges to what was once termed, without a trace of sarcasm, traditional values. Critics could be forgiven for viewing the program as a slush fund for radical feminists and libertines.

So here we are again.

Restarting this program will not only create another rush by leftists to push the social envelope as far as possible — though they have been doing just fine with Liberal governments and a left-leaning Supreme Court that first promulgates then confirms friendly legislation.

But the very notion that a program exists to facilitate court challenges underlines the serious contradictions and inherent weaknesses of our Canadian political system.

When Pierre Trudeau repatriated our constitution and created a U.S.-style charter of rights, he did so within the legislative context of a British parliamentary system that is supposed to be functioning under the rule of Parliamentary supremacy. So Trudeau placed an American court system on top of a still functioning Westminster democracy — without the attendant separation of executive and legislative powers that allows for a strong American judiciary. The result has been an elected Parliament that is firmly adherent to unelected judges.

Conservatives who are furious about the revival of the CCP need to adapt to the system instead of merely fuming. Evangelical Christians, currently the most abused religious voice in Canada, should be considering how they can use the charter to reinforce religious liberty and how the CCP can assist in that fight.

Similarly, if criminal justice advocates are unhappy with Harper’s law-and-order legacy being consigned to the trash bin, they had better challenge these decisions in court. After all, if policy in Canada has all come down to how activist courts interpret the laws of the land, increasingly disenfranchised conservatives had better ensure that they become just as much an annoyance to the judiciary as the progressives once had to be to advance their agenda.

It’s called playing the game to win.

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