Good afternoon, Madam Chair.
My name is Josh Dehaas. I'm counsel with the Canadian Constitution Foundation.
The CCF is a non-partisan legal charity dedicated to defending Canadians' rights and freedoms through education, communications and litigation.
The CCF is funded by individual donors across Canada who support our view of a freer and fairer Canada. One might think the CCF would be first in line to defend a program that hands out billions of dollars per year to fund litigation on constitutional and quasi-constitutional issues. After all, it's easier to apply for thousands of dollars of taxpayer funding than to build up a litigation fund $50 or $100 at a time. However, the CCF doesn't support the Court Challenges Program, and it should not be entrenched into law.
We don't support the Court Challenges Program for three reasons.
First, this program takes the debate about the meaning and content of rights out of Parliament and legislatures, where the debate more often belongs.
Second, the Court Challenges Program risks warping the Constitution through the ideological biases of the minister in charge of the program and those who decide which particular cases get funded.
Third, there are better ways to strengthen constitutional rights and freedoms than by appointing a small group of elite law professors to divert tax dollars to their preferred legal challenges.
Allow me to elaborate on my first point that the Court Challenges Program removes the debate on the meaning and content of rights from the proper venue.
The program encourages citizens to push for their preferred social policies through the courts rather than by convincing their fellow Canadians. One example of this is the medical assistance in dying case, Carter v. Canada. In Carter, the applicant had an irremediable medical condition that made it physically impossible for her to end her own life and therefore stop her suffering. The courts were well placed to decide whether the state prohibition on MAID violated Ms. Carter's rights. However, intervenors used that case to push for recognition of a broader right to euthanasia, which led to a rushed implementation of a MAID law that didn't properly take into account many stakeholder concerns.
Parliament was much better placed to decide this difficult policy question than the courts. MPs are democratically accountable, which forces them to consider a wide range of viewpoints. Parliament also has structures in place in its law-making, such as debate and committee hearings like this one. Courts, by contrast, are limited by the evidence and the facts that are before them and ill-equipped to take on this type of social policy-making. Yet, that's what the Court Challenges Program tends to encourage.
This brings me to my second point, which is that this program risks warping the Constitution through ideological biases.
The Court Challenges Program is administered by a management committee that consists mostly of academics and administrators from the University of Ottawa. Despite the program making decisions about which lawsuits are of such national importance that they ought to be funded by all Canadian taxpayers, the program is overseen by a small group of academics and administrators working inside the Ottawa bubble. The seven expert panellists, who make the case-by-case funding decisions, are also drawn from an elite group of legal academics and human rights experts; they don't represent the breadth of Canadian viewpoints of the law or of which issues are of national importance. The current panel, for example, consists of several legal progressives, but no apparent legal conservatives. That means a tiny clique of left-leaning academics is giving out millions of taxpayer dollars each year to decide which proposed constitutional challenges are more likely to be heard.
The ministers who have overseen the program in recent years appear to have appointed mostly people who share their viewpoint on the Constitution and are more likely to fund cases that are more likely to push the constitutional jurisprudence in the direction they want it to go. The same risk exists with a future Conservative government, whose ministers might be tempted to appoint only legal conservatives, thereby warping the jurisprudence in a different direction.
The only way to avoid this sort of political bias is to abolish the program entirely.
This brings me to my third and final point. There are better ways to ensure the Constitution is respected. First, politicians could ensure that judges are appointed in a timely manner so that those—