April 16, 2011

Harper's Flank Attack on the Charter

Twenty-nine years ago, on April 17th, 1982, the Charter of Rights and Freedoms was entrenched as part of Canada’s constitution.  Though not yet thirty, my research suggests the Charter’s glory days may already be gone.  The number of Charter equality cases heard by Canada’s highest courts has been steadily declining over the last decade, with the Supreme Court of Canada and Federal Court of Appeal hearing twenty-four equality cases in 1999, and only eleven in 2009. 

While this decline has several causes, including deep funding cuts to legal aid, the endangered equality case is also a victim of the Harper government’s ongoing flank attack against the Charter.  This assault is aimed not at the Charter’s provisions, which remain both extremely popular and extremely difficult to amend, but rather it targets Canadians’ ability to enforce their Charter rights.

The broad rights protections contained in the Charter must be distinguished from the narrow remedy available to enforce them; a protracted and expensive lawsuit against the behemoth resources of a federal or provincial government.
The bridge between Charter rights and Charter remedies consists of money, expertise and time, each in large quantities.  Taking a Charter case through the labyrinthine judicial system to the Supreme Court of Canada takes years and can cost millions of dollars in lawyers’ bills, expert evidence and court fees.  To say that Charter rights are inaccessible for the average Canadian, who earns about $38,400 annually, is an extraordinary understatement.
Thankfully, groups representing vulnerable Canadians provide a bridge between Charter rights and remedies by fundraising, recruiting legal help and preparing test cases to challenge unconstitutional government action.  These groups assemble resources from private entities, but they also rely on modest government funding.
What do we get in return for our small public investment?  Significant savings in time and money, as well as an excellent safeguard of our constitutional democracy.  Public interest litigation is economical because it aggregates and settles the claims of many individuals through a single court case, saving millions of dollars and thousands of hours for both individuals and governments.
More importantly, Charter litigation audits our government’s compliance with its constitutional obligations, in much the same way as the Auditor General audits the government’s compliance with its financial obligations.  Without the prospect of constitutional challenges, there is little to deter governments from violating individual rights.
Plank by plank, the Harper government has quietly deconstructed the bridge between Charter rights and remedies over the past five years.  The biggest of these planks was the Court Challenges Program, which funded landmark challenges to federal government equality and language rights violations.  In September 2006, shortly after Ian Brodie, an outspoken critic of Charter rights and the CCP, became Harper’s Chief of Staff, the CCP was cancelled on the grounds of “wastefulness” and “administrative inefficiency”.  This despite three parliamentary committee reports attesting to the CCP’s efficiency and effectiveness (two reports are available online here and here).
The budgetary rationale for the CCP’s cancellation is also suspect given that its paltry $2.75 million budget was roughly equal to the interest accumulated in one day on the proposed $35 billion fighter jet program.  More likely, Harper wanted to dismantle the CCP’s conduit to Charter rights enforcement. As Harper said in a leaked videotaped speech to Conservative party faithful, “[i]nstead of subsidizing court challenges…by left-wing fringe groups, we have been bringing in laws to crack down on criminals”.

The CCP is not the only victim of Harper’s flank attack on the Charter.  In 2006, the Department on the Status of Women, historically a significant funding source for women’s equality groups, saw twelve of its sixteen offices shut down, and its mandate changed to exclude the pursuit of “equality” and the funding of advocacy activities.  In recent years, the Harper government has systematically defunded dozens of public interest groups which participated in Charter litigation, including the Native Women’s Association of Canada, Rights & Democracy and the National Association of Women and the Law.

Ultimately, a government which upholds the Charter rights of its citizens has nothing to fear from an occasional audit of its constitutional compliance.  Conversely, one which furiously attacks the means by which its citizens can enforce their human rights raises serious doubts about its commitment to the constitution.

In a call to arms against public interest litigation, Mr. Brodie once wrote, “The Charter is simply a document, and documents are not self-enforcing.  Without groups ready to litigate, the Charter can have little impact.”  The decline in equality cases in the wake of Harper’s dismantling of access to Charter remedies suggests that Mr. Brodie is right.  With few left standing to enforce Charter rights, there will be little to celebrate on April 17th.

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