A guardrail of democracy

The Macdonald-Laurier Institute released a purported "bombshell" report recently attacking Canada’s Court Challenges Program (CCP).

Designed to help Canadians assert their Charter rights in court, the report accused the CCP of being politically biased and supportive of "progressive activism." But despite the dramatic framing, it offers nothing new. It just recycles the same tired arguments, which lack any real factual backing and have already been debunked.

A flawed argument of political bias

At the heart of the report’s argument is the claim that the CCP aligns with the Liberal government’s priorities. This premise is fundamentally flawed. As every lawyer knows, Charter challenges inherently arise when individuals or groups believe the state has violated their rights. If the litigants who receive CCP funding were truly aligned with the current government, there would be no need for litigation. Therefore, the suggestion that the program simply reinforces government priorities is logically incoherent. The authors are undoubtedly aware of this but still attempt to erroneously paint funded litigants as being in the government’s back pocket.

The report points to two CCP-funded interventions in the Greenhouse Gas Pollution Pricing reference as evidence of bias. Yet, it conveniently ignores the fact that more than 20 parties intervened in that case before the Supreme Court of Canada—some supporting the federal government, some opposing it, and others taking nuanced positions that defy any such simplistic categorization. Notably, the CCP does not disclose which of these parties received funding. The report concedes this, yet concludes “it is clear the interventions were in support of the tax’s constitutionality.”  The claim is, at best, unsupported in evidence and, at worst, simply misleading.

Even if one were to assume—in the absence of evidence—that CCP-funded intervenors supported the federal government in this matter, the numbers simply don’t back up claims of systemic political bias. Nearly all other funded cases by the program's Human Rights Expert Panel directly opposed the current government’s actions, laws or policies, further undercutting the report’s claim that the program serves the Liberal agenda.

Misguided concerns about government expenditure

The report’s authors do raise a fair point: government legal spending deserves scrutiny. But if they were genuinely concerned about fiscal responsibility, they should focus on the real money pit.

In 2024, CCP provided $4.2 million to litigants—a drop in the bucket compared to what the government spends fighting Canadians in court. In 2023-2024, the Department of Justice’s annual budget was close to $1 billion, and part of these funds were spent on lawyers battling Canadians seeking to assert their rights in court. For example, the federal government has spent more than $14 million over the last 18 years fighting in court against efforts to advance the equality rights of First Nations children. 

These numbers, not mentioned in the report, do indeed reveal a political bias in the way public funds are spent on litigation, but it is not in favour of so-called progressive or activist causes, as contended by the authors. On the contrary, government funding of the CCP is a fraction of the public funds that go towards supporting what the authors would classify as conservative positions, such as “reduction or maintenance in government funding and services; reduced or maintained eligibility for citizenship, refugee protection, and immigration; more restrictive rules for those in the criminal justice system; or an approach to equality associated with procedural fairness or equality of opportunity.”

The report conveniently ignores these expenses, as well as an additional crucial point made by constitutional scholars: Charter challenges wouldn’t be necessary if governments did more to proactively respect human rights in their policies, laws, and practices in the first place. If governments took their Charter obligations more seriously, they wouldn’t have to foot the bill for the CCP while also spending hundreds of millions of dollars on their own lawyers in costly legal battles.

Given the authors' stated concern with fiscal prudence, the fact that the government has spent three times as much on a single case as the program allocates annually to individuals seeking to assert their constitutional rights should surely warrant their attention. Yet, the report focuses on the modest budget of the CCP while remaining silent on the government's virtually unlimited taxpayer-funded legal war chest to participate in ligation that could be avoided by proactive compliance with the Charter. This raises the troubling suggestion that it is the authors, rather than the CCP, who are engaging in politicized rhetoric.

A guardrail of democracy

We need only look beyond our borders to understand why the CCP is indispensable. As Americans witness restrictions on U.S. citizenship, the deletion of vital information on public health websites, restrictions on voting and violation of their privacy rights, Canadian commentators have correctly observed that courts are the last and only guardrail left in the United States to protect democracy and individual rights. Yet, they can only fulfill this role if individuals have meaningful access to justice. Put simply, the CPP’s annual budget is a worthwhile investment for anyone who believes in accountability, democracy, and human rights.

South of the border, we’ve seen how quickly these values lose ground when up against purported concerns over government spending. But even then, ‘DOGE-style’ cries of wasted taxpayer money would be more aptly aimed at the government’s failure to prevent Charter rights violations—and its multi-million-dollar budget for fighting Canadians in court.