To Encourage Civil Dialogue: A Principled Analysis for Governmental Support of Constitutional Development in Canada

November 6, 2006 - Iain Benson

A Presentation to the House Standing Committee on Justice and Human Rights

Parliament Hill,
Ottawa, Canada
November 6, 2006


Introduction

Constitutional litigation is in everyone's interest. No one group owns the constitution and no one set of aspirations controls how the constitution will change and develop as it is interpreted over time. In an open-society the capacity for self evaluation and criticism is a good thing. In that respect, having a system that permits evaluation of laws against a constitution is to a certain extent healthy. Similarly, providing financial assistance to those who cannot afford litigation, if done fairly and appropriately, can also, with some important caveats, be a good thing as well.

I am not concerned, today, to praise the CCP as it was or to bury it. There can be no doubt whatsoever that the CCP did important and formative work in Canada for many years and significantly achieved its outcomes of influence through constitutional litigation. It had advisors of the highest ability and strategists of considerable brilliance. Its track record speaks for itself.

Perhaps we now have an opportunity to rethink what sort of programs will serve the country best going forward: programs will come and programs will go. What is buried as a "dead duck" can sometimes rather quickly, show the characteristics of a Phoenix. The effects of the program cut leads to considerations well beyond the footprint of the previous program.

Those who wish continuance of the prior program form one of the most powerful lobbies in Canada today. So I would like to offer some principles which, it seems to me, ought to concern us all and be applied to considerations should such a program of financial assistance for constitutional litigation be considered again in Canada. First, I would like to raise a concern about such methods of governmental constitutional litigation support generally and, second, set out some principles that might be useful to consider should programs of constitutional financial assistance be considered again in the future.


PART 1: Why we should be concerned about governmentally supported constitutional litigation and why we should be careful how such support is set up and who will decide on applications.

It is often said in Canada that the relationship between the courts and the legislature is a "dialogue." If that is true then it is also true that, in a further sense, the debates within cases themselves are part of that dialogue. There is a dialogue and a debate about the nature of the constitution carried on within each case and then between cases over time. Society itself and the law that is part of it are dialogical. It changes over time, in part due to the debates and discussions and self-understandings that are part and parcel of our common lives together.

Thus, in cases on any particular theme, there are, as strategists well know, developments and a good strategist chooses cases carefully with a view to obtaining the desired outcome over time. Because the results affect everyone it is essential that the greatest access possible be given to citizens.

The Repatriated Constitution of 1982 and the Charter of Rights and Freedoms that forms a part of that constitution is no longer in its infancy. It is now, if we assume its birth in 1982, 25 years old. But it is, in fact, considerably older than that because, as scholars of the constitution know it is based much earlier and those principles, were not buried in order that the constitution of 1982 could live, but were incorporated in a very real way to provide the body within which such things as the Charter of Rights functions.

Interpretation of the Charter, now over two decades of it, has accomplished a great deal. Interpretation is an ongoing reality and our constitution is, as we are told frequently, a "living tree." It is useful to recall that trees are not usually found alone, they are not the only growing things and, second, they are dependant upon a soil that will nurture them. That garden, too, is a living reality. Threaten the soil and you threaten the tree itself. Constitutional documents are words on paper unless the living reality of the community breathes life into them in its day to day being.

It needs to be clearly understood that Canada is not the Charter of Rights and the Charter of Rights is not Canada. This is important to understand because there are those, in fact quite a few, who seem to speak as if Canada will be developed, furthered and based "on the Charter" which is shorthand for saying "by the judiciary" or within that "dialogue" between legislature and the courts. We must remember, however, that there are other equally important dialogues at work. One of these is the dialogue within cases themselves, the very debate of principles that is located within each piece of litigation. This dialogue needs to be as well developed as possible in order for the best arguments to be formulated for the benefit of courts or legislatures and, ultimately, the constitution itself.

This wider perspective has long been recognized as important in a constitutional assistance project. Recall that the Court Challenges Program funded not only litigation but conferences and even discussion between government officials and members of activist organizations on a particular theme1 and in recent Reports suggested that it should be extended to the provinces as well.2 In such an environment it is important that this be done openly and fairly and not just from one perspective.

Any method of governmental assistance for constitutional litigation needs to be aware of the problem of rights' disputes in terms of society itself3 and the fact that ALL citizens should be encouraged to be part of the dialogue that is constitutional litigation. If we assume that courts are not merely necessary but are sufficient for the maintenance of a constitution we assume too much about the role of law. That is the central point of my comments today.

For any program of constitutional litigation assistance to be just it must be open to everyone not just to those challenging laws but to those defending them or arguing against a particular sort of challenge (where there is no "law" as such in the area—which was the situation in the "same-sex marriage" cases). If constitutional litigation is going to effect everyone then those who may need assistance in relation to that litigation do not all come neatly labelled as "challengers" and therefore any program seeking to develop constitutional interpretation must do so on a neutral basis and not only assist one side of the arguments.

What is constitutional is not just what is new and challenging; it can also be what the parliament and legislatures, federal and provincial, may have brought into place already.

In addition to this we must realize, as well, that litigation is not the best strategy for a state to use as a method for nation building or the creation of communities of respect. There are serious drawbacks to litigation.

As Canadian philosopher Charles Taylor has noted:

Judicial decisions are usually winner-take-all; either you win or you lose. In particular judicial decisions about rights tend to be conceived as all-or-nothing matters . . . The penchant to settle things judicially, further polarized by rival special-interest campaigns, effectively cuts down the possibilities of compromise.4

When litigation is being used this way, however, because we are encouraging it to be so used, it would make sense to ask what kind of equality is being pursued. Is the outcome, for example, based upon an assumed "rights as trumps" model or the establishment of a genuine diversity respect around a modus vivendi.5

Any program suggesting that the courts are the best or only place to develop constitutional principles confuses the ability to do so with the appropriateness of doing so. It is true that the ultimate word of interpretation is the courts, but that is not to say that it is the only or best place to raise matters of interpretation and debate in relation to already established or currently wished for alternatives.

In other words, we need to consider that recourse to courts should be a last resort not a first one. To view "court challenges" as the best, only or most appropriate means of developing principles to "change society" asks too much of the litigation process due to the limitations of that process to which I have already referred.

It invites us to view law as a means of social re-structuring and will inevitably (as we have seen) provide a temptation to use law inappropriately to achieve legal outcomes of a particular kind not outcomes argued for in the give and take of democratic debate and social consensus. While laws can, and often are, remedial (a principle of interpretation has it, in fact, that all statutes are assumed to be remedial and must be interpreted in a generous and liberal manner so as to further their purposes), it is quite another thing to view constitutional litigation itself as the means of achieving social change rather than just the protection against inappropriate state action. Why is this?

Litigation is not suited for balancing interests. In the courtroom are those who can afford to be there or those who are being severely negatively affected by the costs of the litigation, nowhere more so than on large-scale constitutional cases. Many times cases before the court fail to include those, who while they may have an interest in the area, cannot afford to be part of the discussion. To that extent, governmental assistance for constitutional litigation could be a good and necessary thing, if done fairly and with the national interest in mind, so that everything it does is done in a fair, transparent and time-appropriate manner.

Providing access to a privileged fund for litigation to those who fit a politically driven conception of disadvantage and the necessary outcomes may sound fair, but it is not, when a framework of litigation itself end runs the possibilities of debate and balancing that can occur better elsewhere. In short, it does not assist those with a perfectly acceptable "traditional" view of a matter whether it is abortion, same-sex marriage or the funding of public education; it only assists those who oppose them.

With invitations to use the courts precisely to change society in a pre-ordained direction, or, as it is put in the newspeak "advance equality seeking groups" the focus of social change and development is liable to be judicial, not legislative and one-sided instead of inclusive. There are many reasons this is unwise in a democracy.

For one thing, funding one-sided litigation is no way to frame a society because litigation is a big game of "king of the castle." Each case offers one side a win and the other side a loss. This is not good for society to rely upon. There are often, as in many current debates for example, a variety of views that should be tolerated in society even though they are in stark disagreement. Should the court give in to one side of these debates it tends to put pressure on the other side to shut up and leave civil society to the victors. The results of such a strategy over time are hardly a recipe for justice, long-term civil peace or negotiated achievements—the kinds of "possibilities of compromise" already referred to.

There are good reasons why law should be understood to have its own limited jurisdiction. One is that many of the things that must inform the law (politics, philosophy and theology to name three) are outside it. As Chief Justice McLachlin observed in her Cooke lecture:

Canadians have embraced their constitution as a means to achieve justice; they have not yet established a consensus on where that justice comes from and on what it is based.6

Clearly the search for such a "base" will not be found entirely within the law itself but will involve the contributions of other disciplines—a further reason for the kind of comprehensive approach already recognized as important by the former CCP. This proposal would simply see such comprehensiveness broadly based rather than narrow but comprehensively driven (as with the CCP approach).

In a widely known passage, Chief Justice Dickson in Canada's first case dealing with Sunday closing legislation, speaking for the Court, stated that it was important to recall that "the Charter was not enacted in a vacuum, and must therefore...be placed in its proper linguistic, philosophic and historical contexts."7

In Egan v. Canada, the first Supreme Court of Canada Charter case to deal with whether a same-sex relationship should be considered a spousal relationship, Justice La Forest added "religious traditions" as a category to be taken into account as an aspect of the ground or basis of our legal tradition.8

How are we to best do this task of placing the Charter in its proper linguistic, philosophical, historical and religious traditions if we do not do it with maximal inputs from the people and groups who can best tell us what these are? In one of the Recommendations, below, I argue that litigation is not the best way to accomplish the kinds of reflection most suited to the effective judicial decisions.

Some will argue that taking the approach I am advocating, placing less emphasis on litigation, would not lead to the results we have seen through the courts in the first two decades of assisted litigation. They may point to such developments as equality jurisprudence or same-sex advancement as two examples where strategic litigation with a particular purpose in mind was successful. That may be so. On the other hand, Canada's current position in relation to both issues is hardly a sterling example of the creation of civic confidence.

Debate and analysis in relation to both subjects (equality and the scope and nature of sexual orientation protection and advancement) still exist and in relation to same-sex marriage might erupt sooner rather than later again. We would have had a more measured, nuanced and richer understanding of the necessary limits to various claims (on all sides of the issues) once we sat down at the table and debated things without recourse to the guillotine of litigation in the way that happened in Canada.

Canadians have not yet had any proper discussion about whether marriage is properly a matter for the state once the conditions of agreement about what marriage is no longer command general support. The state got into marriage very late in history after all. Yet the manner in which same-sex marriage challenges were pushed in the courts with careful strategy that skirted around the edges of marriage then dove into the heart of it did not leave room for a proper analysis of marriage in relation to the state. A big part of that failure of analysis was precisely the way in which litigation with its "winner take all" prize provided a goal for litigants.

Yes, constitutional rights are important and the courts have a necessary role in defending them, particularly when the state is acting against individuals or groups: but it is a necessary role the courts' have, not a sufficient one.

When recourse to law is used as a foreclosure on debate we see what happens to democracy when debate and analysis (best suited to Parliamentary and Legislative Committees and more flexible formats than courtrooms) are truncated by premature recourse to judicial determination.

It is well known that hearings by the Justice Committee of the day were simply cancelled once the government of the time, with no caucus discussion, no discussion in the House, in short, none of the usual opportunities for analysis and discussion, simply skipped the matter to the Supreme Court in the Marriage Reference.9

That was not our finest hour and our analysis of the optimum relationship between the irreconcilable views of citizens and the state with respect to same-sex marriage has suffered as a result. We have only seen the beginning of the disputes that will erupt in such areas as public education curriculum.


PART II: Recommended Principles That Should Apply to Any Government Initiatives to Assist Constitutional Litigation.

The items that follow are not intended to provide an exhaustive list of key principles but only some of the more important ones. Specifics will have to be worked out through discussion with stake-holder groups should it be deemed advisable to establish a constitutional litigation assistance program in the future. It is important to note that the focus of these recommendations is not litigation only or even primarily but as an adjunct to a more widely consultative and representative process than has existed in the past.


1) Assistance should seek to best elucidate the merits of both challenges and defence to laws since constitutional merit does not belong only to challenges:

Any program should not operate to assist only those challenging laws since there is or should be no principle of constitutional equity, express or implied, which states that "challengers are always right" or "defenders of the laws are always wrong." To give financial support only to "challenges" biases any support program against existing laws and those who support them—some of whom are, themselves, disadvantaged minorities.

Any litigation assistance program must operate, therefore, in terms of advancing the best arguments to assist the court to frame the issues before it, not to pursue a favoured outcome by one side of the argument. That has been a cardinal error in how the former program was set up from its inception; one glance at the title will make that clear.


2) So that all citizen groups may have confidence in its fairness any Constitutional Assistance Program should be set up with representative fairness:

Transparency and fairness apply not only to the Reporting requirements and accountability of any program giving out government monies, but also to the question of who staffs such a program and who decides about applications. As far as practicable it would seem to make sense to involve those from a variety of different groups themselves (we know from the history of litigation in this country over the last many years who these groups are) as part of a Board of Advisors or Members making decisions. This Board would have full access to all materials and would make up its own Report for the assistance of the government and the public. Currently there is a widely shared perception that the former program represented a narrow ideological band of Members leaving many groups "out in the cold." Annual Reports, for example, did not give a list of all the cases in which assistance was given by the program but only a "selection" of such cases: this is unacceptable.


3) Once the courts have granted Intervener Status to groups in a constitutional litigation, funding assistance to a certain level should flow to all sides of the litigation subject, perhaps, only to a "mean's test" principle:

This could be done on a demonstrated needs basis for individuals or for charitable or not for profit organizations. The elucidation, by the courts, of the application of the constitution affects everyone and it is unfair that only one side of the arguments are supported by the tax monies of all citizens. Once a judge has determined that particular bodies have an interest and valid representative status in a constitutional litigation it should follow that recourse to financial assistance is possible. This is not the place to spell out what rules would apply only that some rules are necessary to ensure fairness and the feasibility of such an assistance program should any be put in place again in the future.


4) There is a need to clarify the role of litigation participation/education and advocacy in relation to charitable status.

The history of certain groups10 in relation to the Canada Revenue Agency and generalized concerns expressed by many others, suggests that clear administrative statements showing why some groups are entitled to active legal and political involvement under the rubric of "education" while others are denied it, is in order.

Perhaps it is time to recognize frankly that legal intervention and advocacy necessarily have a political dimension and we should be careful that a political dimension to a group's work not be used to deny recognition or access to funding to those who might well have important contributions to make to debates of the day.

Given that constitutional matters require inputs from philosophy, political theory and theology/ religious studies, it is time to re-evaluate a restriction on the very groups whose participation might well assist constitutional reflection.


5) Instead of focusing governmental monies federally or provincially primarily on "court challenges," for some consider establishing a Constitutional Forum for stakeholders that will benefit all Canadians:

The establishment of a Constitutional Forum to foster discussion and debate from representative organizations will go a long way to encourage genuine dialogue and ameliorate a spirit of "sectarianism" between groups of differing perspectives on issues of the day. In line with what has been proposed above, such a body, if it is seen to have a role in a reinvigorated place for constitutional "dialogue," might well come to be seen as important to politicians and the judiciary for the analysis so often missing in the vast areas of non-discussion that end up seeking the "winner take all" results of court-based processes. Use of such a forum could, in fact, be incorporated into a litigation assistance program as a requirement prior to financial support being given. This would go a long way to restore confidence in the representative nature of any assistance program and the rigour of its analysis.

A constitutional forum of this sort would be innovative, creative and progressive in Canada. It would build upon and advance what has gone before while correcting the errors that became manifest in the Court Challenges Program.

THE FOREGOING IS RESPECTFULLY SUBMITTED
Iain T. Benson
Barrister & Solicitor
Executive Director
Centre for Cultural Renewal
Ottawa, Canada

November 6, 2006
www.culturalrenewal.ca


Notes

1 In its Report for the years 2000—2001 the CCP funded negotiations described as follows: 3.3 Negotiations EGALE—definition of spouse in federal legislation (Bill C-23)—This group undertook negotiations with the Federal Government concerning proposed changes meant to bring Federal laws dealing with relationship issues into conformity with the Charter. The Federal government's Bill C-23 amended the opposite-sex definition of spouse in 68 pieces of federal legislation to include "common-law partnerships" of either heterosexual or same-sex partners. The full Report may be found at: http://www.ccppcj.ca/documents/annrep0001.html

2 The most recent Report available from the CCP has an introduction by Chantal Tie, Chair of the Board, which shows the program's wider ambitions as follows:
. . . the importance of the Court Challenges Program (Program) cannot be overstated. Comprehensive strategies, which include social mobilization, academic analysis and commentary and strategic litigation, need to be developed in a coordinated and comprehensive manner. Now, more than ever, the expansion of the Program's mandate to include challenges to provincial legislation has become urgent for our members.

See Report 2004-2005, p. 4 available at: http://www.ccppcj.ca/documents/Annual-Report-2004-2005.pdf

3 Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991).

4 Charles Taylor, The Malaise of Modernity, (Toronto: Anansi, 2001) p. 116.

5 This theme is explored at greater length and with particular reference to contemporary political philosophy and the nature of two kinds of liberalism in the paper the writer prepared at the invitation of the Canadian Bar Association National Conference in Newfoundland, August 2006. That paper, "The Context for Diversity and Accommodation in the Democratic State: The Need for a Re-evaluation of Current Approaches in Canada" may be found at: www.culturalrenewal.ca under the heading "Resources."

6 Madam Justice Beverly McLachlin, "Remarks" given as the 2005, Lord Cooke Lecture, Wellington, New Zealand, December 1, 2005, at p. 13 see: www.scc-csc.gc.ca/aboutcourt/judges/speeches/UnwrittenPrinciples_e.asp

7 R. v. Big M Drug Mart Ltd. [1985] 1 S.C.R. 295, 18 D.L. R. (4th) 321

8 Egan v. Canada (1995) 124 D.L.R. (4th) 609 at 625 [emphasis added].
[M]arriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions. But its ultimate raison d'être transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate....In this sense, marriage is by nature heterosexual. It would be possible to legally define marriage to include homosexual couples, but this would not change the biological and social realities that underlie the traditional marriage.

9 For the views of a Liberal Party M.P. on the processes followed in relation to the Marriage Reference, see: Tom Wappell (Scarborough, South West, Lib.) Hansard, 38th Parliament, No. 060, Friday, February 18, 2005 available at: http://www.tomwappelmp.ca/Speeches/C-38.htm

10 Human Life International (deregistered); LexView 18.0 "An Uncharitable Threat"; Citizens Against Pornography (denied charitable status); Christians against Torture (deregistered). On the other hand, the Legal Education and Action Fund (LEAF) has not, as far as the writer is aware, had difficulty with CRA despite its clear involvement in law and political advocacy. In his Appearance before the House Standing Committee on Justice and Human Rights in July 2005 in relation to Bill C-38, Bishop Fred Henry of Calgary stated that he felt "harassed" by an official from the CRA on the position he had taken with respect to same-sex marriage in his capacity as a Bishop. Another group, Focus on the Family (Canada) was similarly subjected to an audit by CRA and warned about their advocacy of certain positions around the time of the 2004 elections. Other groups have also voiced concerned that their views are not "politically correct" according to CRA and are concerned that there will be taxation consequences to views that it is otherwise perfectly legitimate to hold in Canada. The Court Challenge Program itself supported the claims of a west coast women's advocacy organization that also fell afoul of the restrictive interpretations currently in use. Clearly, some changes are warranted.
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Originally Published

date: November 6, 2006
publisher: Cardus Centre for Cultural Renewal