Political bias in ending federal subsidy program?

Keeping some advocacy groups out of court


February 03, 2007
THOMAS WALKOM

When Prime Minister Stephen Harper axed the Court Challenges Program last fall, Ottawa's rationale was that taxpayers shouldn't have to support interest groups trying to take elected governments to court.

"I just don't think it made sense for the government to subsidize lawyers to challenge the government's own laws," then-treasury board president John Baird explained.

Certainly, the program, with an annual budget of about $2.8 million, did fund controversial Supreme Court challenges.

Thanks in part to federal money, seniors won the right to collect employment insurance benefits, English-language rights were guaranteed in Quebec and gays were accorded constitutional equality protection.

But what Baird didn't mention is that taxpayers are still subsidizing interest groups that want to take governments to court. The big difference is that, now, proportionally more public money goes to fund conservative causes – including attempts to dismantle medicare.

The poster boy for what is, in effect, a hidden court challenges program is the Calgary-based Canadian Constitution Foundation. Founded in 2002, it opposes what it sees as the watering down of constitutional principles by governments and left-wing interest groups.

To that end, it is directly subsidizing a long-running court challenge against the 2000 self-government treaty between Ottawa, British Columbia and the Nisga'a people of that province. Executive director John Carpay says it is also helping to fund a constitutional challenge against Alberta's medicare system, launched last September by Calgary accountant Bill Murray.

"The Canadian Constitution is now under almost continuous barrage," the foundation says on its website. "And the forces assembled against it, with their own narrow interests and goals at their back, are varied, strong, relentless – and growing."
Until its demise last fall, the Court Challenges Program was front and centre among those dark forces. Its sin, in Carpay's words, was to give money "to special interest groups to advance their politically correct causes through the courts. ...
"Requiring people to pay for advocacy with which they disagree does violence to a person's conscience," he wrote in the Calgary Herald. "How would (pro-choice) supporters feel if their tax dollars were used for court challenges to recognize the right of unborn children?"

Which would be a reasonable argument if the legal playing field were level and if no advocacy group of any political persuasion received government money.
But in the real world, neither of those conditions holds. First, the playing field is not level. Constitutional court cases are prohibitively expensive for anyone without access to a lot of money. Second, the end of the Court Challenges Program may have reduced federal subsidies, but it has not ended them. It has merely redirected them.

The mechanism for this redirection is the registered charity. Thanks to the Canadian Constitution Foundation's charitable status, anyone who supports its particular political causes gets a tax writeoff that, in effect, all other taxpayers – including those who disagree with its aims – have to cover.

The more successful the foundation is in encouraging wealthy Canadians to support its particular brand of political advocacy, the greater will be the tax loss that other Canadians will have to make up.

True, it isn't the only political advocacy group to take advantage of Canada's loose charitable donation rules. The long-established and more left-leaning Women's Legal Education and Action Fund (LEAF) has been doing so for years.

Indeed, last year, it took in more tax-subsidized donations than the Canadian Constitution Foundation – $324,652 as opposed to $208,500.

The key difference is that LEAF does not directly fund individuals who want to argue constitutional cases. It might intervene in a case involving women's rights, says executive director Audrey Johnson. But the person initiating the action would first have to find the money to get the ball rolling.

Which is where the now-defunct Court Challenges Program used to come in.
I have some sympathy with those alarmed by the explicit politicization of the courts, a development encouraged by Canada's decision to entrench a charter of rights in its constitution.

Yet, unless we decide to eliminate the charter, we are fated to live in this world. And with the courts now explicitly political, it makes sense to ensure that all Canadians have equal access to them.

If that requires government subsidies, then so be it. But surely it is better to subsidize openly and fairly rather than have the taxpayers fund political actions disguised as acts of charity. That's dishonest.

Given that the direction of "charitable" political activity is ultimately determined by those with the most money, it is also unfair.