Christine Van Geyn: When governments pay to sue themselves on your dime
The government cannot hold itself to account by funding litigation against its own policies and laws.
By: Christine Van Geyn
The government should not fund lawsuits against its own laws with taxpayer money.
This should be obvious.
Yet quietly working its way through Parliament is a private member’s bill, Bill C-316, that would embed the controversial Court Challenges Program directly into legislation. The Court Challenges Program offers federal taxpayer funding to certain Charter challenges. The program is essentially the federal government handing taxpayer dollars to lawyers and activists to sue them.
The program has been called a political football by the Canadian Bar Association, punted back and forth by successive Liberal and Conservative governments. The government of Pierre Elliott Trudeau created the program in 1978 to indirectly attack Quebec’s Bill 101 without using the disallowance power or by challenging the law directly (which for Trudeau Senior’s government would have had obvious unwanted political repercussions). The program was initially expanded by the Mulroney government in 1985 before being withdrawn in 1992. It was reinstated by the Chrétien government in 1994, and abolished by Harper in 2006. When the program was scrapped by Harper, John Baird, then president of the Treasury Board, argued that it didn’t make sense for the government to pay people to fight its own laws in court. Indeed. But two years later, in 2008, the Harper government partially restored the official languages component of the program, and in 2017 the Justin Trudeau government fully reinstated the program with an annual $5 million budget.
Bill C-316 would entrench the Court Challenges Program into the Canadian Heritage Act, meaning that a future government wishing to repeal the program would need to change the legislation if they want to get rid of it. This would be a mistake.
The government cannot hold itself to account by funding litigation against its own policies and laws. Funding for the program will be inherently and inevitably politically skewed by the partisanship of the government in power. Information about which cases are funded is no longer disclosed. There is no transparency about the political or partisan tilt of whose cases do or don’t get funding. But we do know about old cases that were funded. For example, the landmark freedom of expression case Harper v. Canada, which was a challenge to federal election advertising spending limits by third parties brought by the National Citizens Coalition, was not funded. But Democracy Watch and the National Anti-Poverty Organization, who supported the government, did receive funding from the Program.
We also know that the minister of heritage appoints the expert panels who decide whether or not to grant funding to a particular case. The politics of many on the expert panel appear to be drawn from the left; the panel includes an academic progressive from Toronto Metropolitan University whose current feed on X is a firehose of anti-Israel propaganda. Another, who uses “she/them” pronouns, is a director at “Black Femme Legal.” While of course people are entitled to their own perspectives and politics, the views of the expert panel selecting which Charter challenges will get taxpayer funded are decidedly one-note.
Several of the panelists have had (or still have) formal roles with provincial human rights commissions. When faced with a question over funding a case involving the clash of rights, this could be a problem. As experts have pointed out, human rights law takes an expansive view of discrimination, emphasizes the victim’s perspective and is concerned with broad promises of equity. It seems likely that experts drawn from this field will inherently prioritize equity over freedom of expression, if asked to fund a Charter challenge involving controversial speech.
These problems aside, there is simply no need for a Court Challenges Program diverting more scarce tax dollars to lawyers. Civil society groups provide an extremely effective and unbiased check on government. One of the most important pieces of constitutional litigation in the last decade was the judicial review of the Trudeau government’s invocation of the federal Emergencies Act, which found that the invocation was illegal, and unconstitutional. That novel case was brought by civil society groups like my organization, the Canadian Constitution Foundation. The CCF received no funding from the program to achieve this result. The CCF has also successfully challenged other government laws, like portions of the federal Elections Act that also violated the right to freedom of expression, again, without taxpayer funding. This is the case with many other successful Charter challenges.
Indeed, the largest impediment to independent civil society groups holding government to account is delays within the judicial system exacerbated by the government itself, like underfunding of judicial resources and the failure to appoint judges. This is a problem the government could address that would do far more to improve access to justice than the controversial and potentially partisan selection of specific lawsuits.
The government should repeal bad laws or respond to legal challenges if the government believes their policies are right. That’s what governments are for, and that’s what we elect them to do. But paying to sue yourself makes no sense. This is a bad program that we should finally let die.
Christine Van Geyn is litigation director at the Canadian Constitution Foundation.
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The Court Challenges Program was part of a broader government-funded ersatz "civil society" project that used to fill discussion panels on CBC's The National and The Journal back in the '80s and early '90s. Remember the omnipresent National Action Committee on the Status of Women and its leader Judy Rebick? Remember how it slid out of sight when the federal government cut funding and it turned out there was next to no grassroots support to replace it? A vibrant civil society is an important sign of a liberal democracy; the problem is that Canadian governments confused cause and effect by thinking government funding could create something that needs to be the product of grassroots society.
The slightly more devious angle here is the use of the legal system to achieve partisan political aims without the burden of passing legislation. There's been a number of example in the US where an administration quietly arranges for a group or lower level of government to launch a court challenge of a law or regulation they don't like. Then they either decline to appeal a lower court ruling or agree to a settlement that accomplishes a policy aim without the need to pass legislation or change regulations through the normal process to achieve the same end. I really don't think the federal Liberals are above such tactics, as alluded to in the history of Pierre Trudeau starting the Courts Challenges program to attack Quebec language laws. Why do the hard work of introducing legislation and dealing with the political challenges of controversial policies when you can get a court to rule for you instead?
The author's point about getting the appointment of judges back on track is the way to go. From other bits and pieces I've read, this backlog of judicial appointments on J. Trudeau's watch is enormous, and for no good reason.