Canada’s Court Challenges Program has had more lives than the proverbial cat. Founded by Pierre Trudeau’s Liberal government in 1978, it was initially expanded and then scrapped by the Mulroney Conservatives of the 1980s. Then it was reinstated by the Chretien Liberals in the 90s, only to be killed yet again by the Harper Conservatives. Now it is about to be revived once more by Justin Trudeau’s Liberals.

This to and fro is hardly constructive – financially or administratively. It would be far better for taxpayers – and the Canadian justice system – if the program was designed and operated in a way that both conservative-minded and liberal-minded governments could support.

In the beginning the CCP was a tax-funded subsidy for advocacy groups seeking to defend or expand minority language rights through the legal system. After the 1982 introduction of the Charter of Rights and Freedoms, its mandate was broadened to support litigation by other rights-seekers including advocates for feminists, prisoners, aboriginals, homosexuals, and various other “historically disadvantaged” minority groups.

Both the Mulroney and especially the Harper Conservative governments argued against the CCP on the grounds that it abetted post-Charter judicial usurpation of parliament’s authority and responsibility to make laws. The Program was often portrayed as the playground of the “Court Party”, where leftists teamed up with constitutional lawyers to obtain public policy objectives through the courts that they could not achieve through the parliamentary process.

The liberal-left typically countered this argument by insisting that the courts have a right and responsibility to protect minority rights from the brute will of the democratic majority, and that the CCP was a necessary instrument to ensure minorities get their day in court. Accordingly, in the 2016 Budget the Liberals delivered on their election promise to reinstate the Program by committing $12 million over 5 years, rising to about $5 million a year in combination with “existing additional funding.” It is expected that the CCP will be back in business by January 2017.

Many Conservatives are probably looking forward to the day when they return to power and are able to scrap the CCP a third time. In my view, that is a reactionary, wasteful, and not particularly thoughtful or conservative ambition. Although the CCP has been flawed in the past and the newest Liberal version may turn out to be a dud, there are good conservative reasons to support the Program in principle, and some good ideas for making it work effectively.

Why Conservatives should support the CCP

Ideally, the Government of Canada should always be accountable to Canadians through the Constitution. However, accountability is typically viewed through the eye of the beholder, depending whether they are in or out of power. In theory, when Liberals are in power, the CCP is a check on their governance and a tool to protect the rights and freedoms established in the Charter and Official Languages Act. Conservatives may argue that Liberal proxies use the CCP to affect legal and policy changes that the Liberal government can’t get through Parliament (or doesn’t want to take direct responsibility for). However true that is, it doesn’t change the fact that conservatives could, and should, use the CCP to protect the rights and freedoms they hold dear. It does the conservative brand no good to be seen as dismissive or selective about government accountability, in or out of power.

While conservatives are congenitally opposed to government subsidies, they should make an exception for the CCP. It is very expensive to fight the state in court, and its financial resources are unlimited. The CCP gives groups and individuals a fighting chance and even an incentive to fight unjust laws. We don’t have to look far in contemporary headlines to see examples of governments restricting freedoms related to faith, speech, trade and much else. Surely conservatives could, and should, use a revived CCP to supplement their fights for freedom in the parliamentary arena.

A better Court Challenges Program

A major conservative complaint against the old CCP was that progressive special interest groups used it to subvert conservative social values. However true these allegations were, conservatives might be comforted if a new CCP included tighter spending rules that prevented the Program from spending money on promotional activities and effectively trolling for Charter challenges. The rules could insist a majority of funds be spent directly on operations, specifically case development and case funding. A spending cap would also limit opportunities for proactive and “strategic” test cases.

A lack of financial transparency was a perennial complaint against the CCP in its previous incarnations. Litigants could receive up to $60,000, but how the funding panels decided how much to give, and to whom, was completely opaque.  A future CCP must be fully open and accountable to the Treasury Board Secretariat and the Auditor General and, as a result, to the public.

Funding panels could develop a standard method of allocating subsidies in order to rationalize their choices. Introducing a means-test for litigants would weed out subsidy-seeking opportunists and ensure support only for those truly in need. This could also help bridge the gap of accountability and transparency that existed in the previous program.

In the current discussion surrounding the revival of the CCP, conservatives are reasonably concerned that interest groups are seeking to expand its mandate to beyond dealing with so-called “negative rights” – those which define what governments cannot do – to include “positive rights” – defining things which governments must do. For example, instead of CCP cases that defend, say, someone’s right to not be discriminated against, activists could start to push for rights that require public funds, such as the right to minimum wage or income.

This would dramatically change the mandate of the CCP from a focus on “equality of opportunity” into “equality of outcome”. The Program was trending in this direction under the Chretien Liberals and the Trudeau government is proposing to almost double the CCP’s budget, which raises reasonable concerns about an expanded mandate. Conservatives should insist that the new CCP restrict its funding only to litigation related to the negative rights enshrined in Section 15 of the Charter and in the Official Languages Act.

A properly constituted Court Challenges Program would help hold government accountable for its actions and give Canadians a way to help shape the evolution of constitutional jurisprudence. However, in order for the CCP to carry out this mandate, it must be able to function without the threat of being cancelled every time there’s a change of government. If the new CCP were to set spending caps on promotional activities, have more transparency on who is receiving funding and how much, and set barriers to prevent expanding mandates, it could help protect the rights and freedoms of all Canadians.