Thank you very much for the opportunity to discuss with you my experience and my recommendations regarding federal government funding for charter litigation challenging federal law, and based upon what my colleague has just said, maybe more than just federal law.
There are three reasons for my opinion that such a funding program would be ill advised. First is the issue of bias. The application process and the decision-makers under the original court challenges program were biased.
I had personal experience with the program, and for reasons of solicitor-client privilege I cannot go into the details. However, I can just tell you what I saw as I made application for funding on several occasions.
The bureaucrats took the position with respect to my arguments that the arguments were not going to be funded because, in their view, they did not have a reasonable chance of success. When I asked them, “How did you form that opinion?”, they said, “We contacted a law school dean or a law school professor, and it was their opinion that they didn't like your argument.” On the basis of a prejudgement of the arguments that I was going to present, the funding was never provided to any of my clients as we participated in the charter challenges program in the first iteration of that particular process.
In my view, the test should not be reasonable chance of success and law professors should not be the gatekeepers. If reasonable chance of success were the test, then Carter would never have been funded if it had come to the court challenges program for funding, because, of course, Carter was challenging a direct precedent against the position that Joe Arvay was arguing, and that was the Rodriguez case.
In my opinion, the previous court challenges program was almost unconstitutional because it was administered in a manner that was not consistent with the rule of law. Money was distributed on the basis of the opinions of individuals and not principles of law equally applied to all applicants for funding.
I have a second reason to oppose going into another court challenges program funded by Parliament, and that is Parliament's responsibility to get the law right in the first place. Public resources should be expended in Parliament and not the courts to ensure that all laws are charter compliant.
It may have been desirable 30 years ago to test old laws, but after three decades that argument no longer seems reasonable. Today, the work of the Attorney General, cabinet, the House of Commons and Senate committees, and three readings in each House, should give adequate opportunity to scrutinize the law and ensure that it is charter compliant. Funding for a charter lawsuit after this process is in a sense hypocritical and wasteful. It would be more prudent to measure twice before cutting once.
Furthermore, to fund charter lawsuits is to imply that Parliament is somehow subservient to the courts. Parliament should not assume that its opinions are any less important or valid than those of the court on the subject of charter compliance. Parliament would show a lack of confidence in its own judgment if it were to fund lawyers to challenge the hard work of parliamentary committees just like this committee here today.
Finally, the challenges program is redundant. In those rare occasions when a charter challenge is justified and is important to the public, the Supreme Court of Canada has shown the willingness to order public funding. That is what the Supreme Court of Canada said in Carter about cases that should receive public funding. I won't take the time to read the quote for you, but if you were to go to the Supreme Court of Canada decision 2015, at paragraph 140, you find the test that the Supreme Court has set for funding public interest litigation like Carter.
In light of this new practice in the Supreme Court of Canada, a renewed court challenges program is redundant. If Parliament nevertheless determines that it is in the public interest to fund charter litigation, I recommend that the law prohibit bias and require compliance with the rule of law. This means that a new program should include the following 10 rules, at the very least.
One, the opinions of bureaucrats, politicians, academics, former judges, and others should not be a factor in allocating funding. Two, the only rules that should be applied are those that are based on law. Three, no funding should be provided to re-litigate a question decided by the Supreme Court of Canada since adoption of the charter. Four, no funding should be provided where a litigant does not have facts that disclose a cause of action. Five, no funding should be provided where litigation is frivolous and vexatious. Six, no funding should be provided for a colourable or fraudulent purpose. Seven, no funding should be provided to another level of government. Eight, no funding should be provided to a non-resident or non-refugee of Canada. Nine, no funding should be available where the litigation is duplicative of litigation that is already before the courts. Finally, 10, funding should be provided equally on a first-to-apply basis to all otherwise qualified litigation proposals.
Thank you very much for your time this morning.