Judges don’t like champerty, but lawyers sure do. Having a third party fund lawsuits to stir up strife clogs up courtrooms with troublemakers. Which naturally brings us to the subject of the Court Challenges Program (CCP), scrapped in September by the new Conservative government.
It was Pierre Trudeau who first started funding litigators of fortune back in 1978, even before the advent of the Canadian Charter of Rights and Freedoms, as a way of pressuring provincial governments to expand bilingual services. Trudeau could only get so far democratically. How much easier — and cheaper — it was for him to let loose lawyers to convince a handful of ideological judges to do what democratically elected provincial legislators wouldn’t.
Nearly 30 years later, the CCP hummed along at about $3 million a year, and in addition to funding language litigation, it focused on radical notions of equality rights. Three million dollars may not be much in the world of big-league corporate legal fees, but it fed an awful lot of activist lawyers who otherwise couldn’t get funding for their pet political projects. It’s unlikely that without funding from the CCP prisoners would have scraped together a legal kitty to win the right to vote, or the anti-spanking lobby would have financed their attempts to criminalize corporal punishment. Over the years, the CCP funded increasingly bizarre and counter-cultural projects that would have shocked even Trudeau himself.
So of course the Canadian Bar Association is for the CCP. A month before the Tory decision to nix it, the CBA passed a resolution calling upon the government not only to continue funding, but to increase it, “in order to ensure its long-term financial stability.” The program’s financial stability, not the bar’s financial stability, just to be clear.
Not surprisingly the CBA — too often a wing of the Liberal party — was ignored by the government. Prime Minister Stephen Harper himself was once the target of CCP funding. When Harper ran the conservative National Citizens Coalition, he challenged the federal government’s “gag law” that capped spending during elections by advocacy groups other than political parties. The CCP funded the left-of-centre lobby group Democracy Watch to intervene against Harper. Of course the government had plenty of its own lawyers in court that day, but the CCP’s slush fund allowed them to buy a few sock puppets, too.
There was a special irony to the CCP giving government money to favoured interest groups like Democracy Watch to go to court to prohibit blacklisted interest groups like the National Citizens Coalition from spending their own money.
In recent years, the CCP adopted a new policy of secrecy: It no longer disclosed which litigants it funded in court. “Public” groups showed up in court, with lawyers paid for by the government, intervening on behalf of the government, and nobody was allowed to know that they were paid agents of the government. Add the charge of collusion to champerty.
Harper himself was stung by the CCP. And the second most powerful man in Ottawa, Ian Brodie, actually wrote the book on the subject. It’s called Friends of the Court, in which he exposed the clique of leftist activists who run the CCP and purse out the money to their associates. When Brodie wrote that back in 2002, he was a harmless academic. Today, he’s Harper’s chief of staff.
Harper and Brodie aren’t against public interest litigation. Harper himself was in court constantly with the National Citizens Coalition. But as Brodie wrote in a Fraser Institute paper, “Is federally funded interest group litigation an example of marginalized individuals banding together to fight oppressive government policies? Or is it a complex dance of federal social animators and their favoured activists battling other government actions in court?”
It doesn’t take a lot of imagination to wonder what the CBA would say about the CCP if it had been a tool of Conservative interest groups — funding challenges to Medicare’s monopoly, like Dr. Jacques Chaoulli’s groundbreaking case (funded all the way to the Supreme Court by Chaoulli and his own family). It’s not judicial activism that the CBA likes. It’s leftist judicial activism
It’s smart politics for Harper to de-fund the CCP. By definition, groups that have to rely on government handouts lack public support. And lawyers whining about $3 million in lost fees are a politician’s dream opposition. Let public interest litigation flourish, but let it be true public interest litigation, not radical activists living out obscure ideological fantasies on the taxpayer’s dime.