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Stop playing favourites with the Constitution

What should the government do if it is genuinely concerned about making sure that our laws comply with the Constitution?

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Writing recently in CBA National, Justin Ling questioned the priorities of the Court Challenges Program, which the federal government is in the process of resurrecting. Why will it, he asked, fund challenges based on the linguistic and equality rights provisions of the Canadian Charter of Rights and Freedoms, but not those based on, say, section 7, at least insofar as these claims can also contribute to some marginalized groups quest for equality? That’s a fair question. But in my view, it is not nearly radical enough. It is important to ask why the government is supporting litigation that aims to enforce some elements of the Constitution, and not others.

When it comes to language rights, it is tempting to point to the government’s statutory mandate in section 41 of the Official Languages Act, to promote and enhance the vitality of minority language communities across Canada and to ensure the recognition of the status of English and French throughout the country. Yet there is any number of ways in which the government go about fulfilling this mandate. It is not obvious that funding court challenge ought to be one of them. And there seems to be even less of a reason for the government to specifically concern itself with supporting equality rights ― as opposed to freedom of expression, or voting rights, or for that matter the respect of the division of powers between Parliament and the provinces.

Speaking of federalism, the Court Challenges Program seems to me to sit uneasily with this fundamental principle of our constitution. It is one thing for Parliament to help people overturn its own laws, or the decisions of the people it hires to administer them. It is something else for it to help people overturn laws enacted by provincial legislatures, which did not vote for and might not support the availability of public funding to people who seek to undo their or their agents’ work. Insofar as federalism implies some duty of loyalty or co-operation, for one order of government to help citizens undermine the laws of another seems to go against these duties. (These duties, if they exist, are purely political of course ― the Supreme Court rejected the attempt to make co-operative federalism into a legal obligation in the gun registry litigation, and it was right to do so in my view.)

"It is important to ask why the government is supporting litigation that aims to enforce some elements of the Constitution, and not others."

But, subject to these concerns, isn’t it a good thing for Parliament to contribute to upholding the principles of the Rule of Law and constitutionalism by helping people challenge laws that might be unconstitutional? Of course, the resources that can be devoted to this task, as to any other, are limited, and so Parliament has to decide which sorts of constitutional infringements that it seeks to eradicate most urgently. But if the overall degree to which our legislation comports with the Constitution is thereby increased, should we object to its choices?

Parliament’s choice of equality and language rights is no doubt symbolic. It is a way of showing that it cares about some constitutional rights ― or that its masters in the cabinet do. But the symbolism is wrong. In choosing to fund court litigation based on language and equality rights, Parliament isn’t just sending the message it values these rights. It also says that it values these rights more than others. In other words, Parliament is playing favourites with the different provisions or components of the constitution. Yet they are all, equally, “the supreme law of Canada,” which Parliament is bound to respect in its entirety. Thus, in my view, signalling that it regards respecting parts of the Constitution more than the rest, in itself contradicts the principle of constitutionalism. (Needless to say, as with federalism, the contradiction is at the level of political morality. I am not arguing that courts could or should invalidate the Court Challenges Program.)

What should the government do, though, if it is genuinely concerned about making sure that our laws comply with the Constitution ― and not with just making a statement about its values or, say, with funnelling some taxpayer money to its friends in the public interest litigation community? It has a number of options, assuming that there is not enough money to simply expand the Court Challenges Program to fund litigation based on any constitutional provision at the levels it would, in its current form, fund litigation based on language or equality rights.

"It has better things to do ― if it actually means to take the constitution seriously."

One possibility is to simply open the program to all sorts of constitutional litigation without increasing its total budget or otherwise changing it. There would be more competition for funding of course ― but competition is usually thought to be a good thing. The other options would involve scrapping the Court Challenges Program and directing the federal government’s efforts at bringing Canadian law into compliance with the Constitution by other means.

The government could, for instance, take Marni Soupcoff’s advice and work at “reducing … delay, document dumping, and excessive procedural manoeuvring” by its lawyers “during constitutional litigation.” As Ms. Soupcoff suggests, this would likely save the government (and thus the taxpayers who unwittingly fund its abusive litigation tactics) money. More importantly, however, it would make it easier for everyone ― and not just to those whose cases happen to fit within the priorities of the Court Challenges Program ― to argue that the government is not complying with its constitutional obligations.

The government could also invest itself much more seriously in vetting bills for constitutional compliance before it asks Parliament to enact them. It could raise the standard for proceeding with legislation from “an argument could be made that this bill is constitutional” to “we believe that this bill is actually constitutional.” It could make its reasoning justifying this conclusion public. It could devote time to Parliamentary debates on this issue. There is, as it happens, an ongoing court challenge trying to bring about some of these changes. The government should quit fighting it. It has better things to do ― if it actually means to take the constitution seriously.

These solutions are better than the current proposal for reinvigorating the Court Challenges Program, because they do not play favourites with the Constitution. The last two are also respectful of federalism ― which, of course, is one of the Constitution’s most important underlying principles. And they happen to be better for the taxpayer as well. What’s not to like?