Constitutional challenges that are fair to all Canadians

In 2007, on behalf of the Canadian Constitution Foundation (CCF), I testified before the House of Commons Standing Committee on Official Languages, in support of the federal government decision to eliminate the Court Challenges Program. The Program provided taxpayer financed assistance for constitutional cases involving language and equality rights. All Canadians, through their tax dollars, paid to advance through the courts the public policy agendas of various special interest groups who received Court Challenges Program funding, whether taxpayers agreed with those agendas or not. This was unfair.

The groups funded by the Court Challenges Program successfully used the Charter and the courts to advance public policies that frequently resulted in bigger government and/or diminished freedom for individuals. Recipients of this government funding have advocated, among other things, that it should be a criminal offence for parents to spank their children. Those who disagreed with the ideology of the Court Challenges Program were routinely denied funding.

The federal government did introduce new litigation support funding shortly after eliminating the Court Challenges Program:  the Program to Support Linguistic Rights.  However, that program is confined to assisting anglophones in Quebec and francophones outside Quebec to defend their linguistic rights under the Charter.  As a result, the CCF is now the de facto “Court Challenges Program”—minus the government funding.

The CCF was incorporated as a charitable society under the Canada Corporations Act in 2002. The CCF is a registered charity which exists to protect the constitutional freedoms of Canadians through education, communication, and litigation. The CCF supports both individual freedom and economic liberty—i.e. the right to earn a living, and to own and enjoy property. It also supports equality before the law:  equal rights and equal opportunities for all Canadians, with special privileges for none. Unlike the defunct Court Challenges Program, the CCF is supported in its public interest litigation and related work by Canadians who voluntarily donate their money.

When government funds a constitutional challenge, it necessarily advances one particular philosophical viewpoint to the exclusion of others. But constitutional issues can be viewed from many different perspectives. There are other interest groups whose views may be diametrically opposed to the group that received funding. There are also individuals who do not feel represented by the group pursuing litigation in their name. For instance, many women disagree with the radical feminist agenda of the Women’s Legal Education and Action Fund (LEAF), an organization that frequently received funding under the Court Challenges Program.

The concept of “human dignity” has been for many years the central element of an equality analysis under the Charter. The Supreme Court of Canada held that in order for an impugned government action or law to infringe equality rights, it had to detrimentally impact a claimant’s human dignity by perpetuating or promoting the view that an individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society.

For some, such as those groups that have historically received funding under the Court Challenges Program, human dignity is violated when, for example, receipt of welfare is dependent on participation in job training programs. For them, a welfare law that reduces welfare payments for those who refuse to participate in training-related programs offends human dignity because human dignity can only emanate from the state via larger government and related expenditures.

However, for others, such “workfare” laws enhance human dignity because they foster independence from government rather than dependence, and feelings of self-worth rather than shame or embarrassment. Thus, while the pursuit of human dignity is capable of manifesting itself in the pursuit of substantive “equality of result”, it is also equally capable of manifesting itself in the pursuit of individual liberty and “equality of opportunity”. To fund only those groups that argue that only one vision of human dignity exists under section 15 of the Charter is unfair.

For the same reason that the federal government is scrapping the per-vote subsidy that Canadian federal political parties receive from taxpayers, Canadians should not be compelled through their tax dollars to contribute to causes with which they disagree. Canada's Constitution belongs to all Canadians, not just those who agree with the ideology of the Court Challenges Program. The elimination of the Court Challenges Program has put all groups on an equal footing, at liberty to raise funds from their own supporters to support their own legal causes. This is what the CCF is doing. This is fair.