The Costs of Charter Litigation
Introduction
The enactment of the Charter of Rights and Freedoms in 1982 fundamentally altered both the substance and form of constitutional review. In the first decade of Charter litigation, many novel claims were advanced and resolved, yet there still remained a great deal of confusion with respect to the scope of the substantive principles and the procedural mechanisms for raising and applying them. After 35 years, most of the relevant constitutional principles have been solidified and clarified, as have the guidelines on the procedures for mounting a constitutional challenge. However, despite the great achievements of the past three and a half decades, there remains a legitimate concern that most Canadians do not have the financial resources to mount such challenges. Many believe that there still remain serious problems regarding access to justice for ordinary Canadians.
In fact, a brief review of academic scholarship and popular journalism demonstrates that a consensus has emerged that most people cannot afford to mount constitutional challenges in order to vindicate their rights-claims. The conventional wisdom that most challenges are cost prohibitive for Canadians is repeated endlessly like a well-worn mantra. Within academic literature, we find the following statements:
- Individuals with legitimate Charter claims in the non-criminal context must bear the enormous costs of their actions or find counsel who will be prepared to work pro bono. … Thus, the great promise of Charter jurisprudence is dependent upon a litigant clearing the practical hurdle of costs. Footnote 1
- While our system of justice delivers quality results, it often does so at a cost that shuts the courtroom door to all but the well-to-do. Footnote 2
- It is a rare client with a Canadian Charter of Rights and Freedoms issue who has deep pockets, and deep pockets are required for almost any Charter challenge. … While not every Charter case is of transcendent importance, many of those that we have to turn away for want of funding had the potential to advance some very important values in Canadian society and, if successful, would make Canada a better place for minorities and those for whom the Charter was enacted in the first place. Footnote 3
- Unfortunately, as litigation is both timely and expensive, only the richest in society can afford to utilize this final resort without a litigation-support program such as the CCP (Court Challenges Program). Indeed, without the program, Canada’s most vulnerable groups will continue to be left out in the cold. Footnote 4
- One of the main impediments to obtaining effective and meaningful Charter remedies is the costs and delay of litigation.Footnote 5
- It will come as no surprise to those familiar with the process of litigation to discover that the cost of mounting a Charter challenge is extremely high. … Costs like these represent a formidable obstacle to disadvantaged and even middle-income Canadians who wish to pursue their Charter rights in the courts.Footnote 6
One finds similar sentiments expressed within popular journalism:
- While there may be much to celebrate, the process of using [the Charter] to establish rights is time-consuming and expensive, almost entirely dependent on government subsidies and the benevolence of lawyers to bankroll cases, sometimes costing millions of dollars. … Like fine champagne, the Charter is in danger of becoming a luxury many never taste. … It’s like the Dom Pérignon that’s locked behind the door at the LCBO. It may taste great, but if you can’t get at it, what does it matter? … It doesn’t seem right that the government enacts the Charter and commits itself to having individuals protected through our justice system, and yet makes it economically impossible for that to happen.Footnote 7
- In addition, the costs of litigation have sent the price of a Charter challenge soaring out of reach for ordinary litigants and many public-interest groups. … We are stuck with this Charter that looks wonderful on paper, but it’s just that – paper – unless people have the ability to enforce their rights. … Only those who drive a Cadillac get to use the Charter highway.Footnote 8
In this brief report, I will address the issue of whether Charter challenges are, in fact, beyond the means of ordinary Canadians by looking at the costs incurred both in challenges I have advanced and in other challenges for which there is some information regarding the costs of the challenge. In a nutshell, it is clear that in cases in which there is extensive legislative fact evidence, it is possible for the costs of a challenge to exceed $1,000,000, whereas in cases in which the challenge is advanced and supported largely by legal argument, and not evidence, the costs of the challenge will entirely depend upon legal fees. In many of these cases, the costs will be considerably less and will rarely exceed $50,000.
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