After much anticipation, the federal government has announced the reinstatement of the Court Challenges Program. Set to cost $12 million over five years, the CCP will assist Canadians with legal challenges to advance and protect their Charter rights. The decision is a welcome one.
The program's history spans some 40 years. It was introduced in skeletal form in 1978, applying only to minority language rights. In 1985, Prime Minister Brian Mulroney extended it to equality rights challenges to federal laws. Mulroney ended the Program in 1992, but the Liberals under Jean Chretien resurrected it two years later.
After coming to power in 2006, Prime Minister Stephen Harper could not end the Program fast enough. Given that his government was skeptical of the Charter, the move was unsurprising.
Some critics have claimed that it is illogical for the government to fund Canadians to sue it. That argument rests on a simplistic view of constitutional rights: that they represent an infringement on the government which it generally resists. Of course, any government is entitled to advance its policy goals, and is likely to vigorously defend its choices in court. But that hardly precludes government recognition of, and support for, the broader principle of judicial review. Recent events in the United States have demonstrated how critical that function is. We applaud the government's recognition that its role vis-a-vis the constitution is not purely defensive. Such recognition also counters the notion that taxpayers are unfairly footing the bill. Constitutional challenges are primarily directed to the public interest, and the government is right to support this initiative.
At least some of the earlier criticism of the Program can be traced to suspicion of so-called "judicial activism." On that count, the program eroded traditional democratic processes. Vulnerable groups used it to achieve social change by evading the appropriate venue for such change: the legislature. The legalization of same-sex marriage in 2005, for example, is viewed as the direct consequence of funding that was granted to LGBTQ organizations to pursue Charter challenges on the issue. This critique overlooks the fact that in a constitutional democracy, parliamentary sovereignty is necessarily limited. Democratic values are enriched, not threatened, when all members of society, especially those who lack political power, can hold the government to account.
One might also wonder why a...