Deep Discount Justice:
The Challenge of Going to Court
with a Charter Claim and No Money

Prepared by:

Arne Peltz
with the assistance of Betsy Gibbons

For:

The Court Challenges Program of Canada
616 - 294 Portage Avenue
Winnipeg, Manitoba R3C 0B9
Phone: (204) 942-0022 Fax: (204) 946-0669


1999 Language Conference

Aussi disponible en français

 

The Charter and expeditious justice

There is nothing so inspiring, at least to lawyers, as the great principles enshrined in the Canadian Charter of Rights and Freedoms: liberty, equality, freedom of conscience and belief, freedom of expression, legal rights upon arrest or detention, and the others we know so well. The Charter is now 15 years old, and has impacted Canadian law and life in significant ways. As a "Charter believer", I would argue that the new regime of constitutionalized rights is basically working as the framers intended, with the judiciary struggling to maintain a role of reasonably constrained activism, and an ongoing healthy public debate about the balance between legislative and judicial policy-making. Nevertheless, there have been disappointments.

As an administrative lawyer, and a proponent of the view that tribunals are capable of delivering a quality of justice at least as good, and possibly better, than courts, I am disappointed that tribunal jurisdiction to consider the Charter and grant Charter remedies has been constrained. From the outset, based on principles of elementary common sense, I tried to argue, albeit unsuccessfully, that every statutory tribunal has express or implied power to determine questions of law, and necessarily enjoys jurisdiction over subject matter and remedies. Therefore every tribunal should be empowered to deal with the Charter as best it can. Of course, the rules of judicial review would prescribe a standard of correctness for such rulings, and tribunals would not have the last word on Charter claims raised before them. As the law has evolved, a few tribunals have been deemed worthy of exercising Charter jurisdiction, some have been denied the privilege, and for most, we still don't know for sure. Thus, when we think of advancing a Charter claim, as stated in the topic for this conference session, we typically think about "going to Court", and not "going to the board".

This is a shame, in the sense that tribunals continue to offer cheaper, less formal and more expeditious process than the courts. As Andrew Roman wrote, discussing the Douglas College/Cuddy Chicks/Tetreault-Gadoury decisions, the trilogy "is somewhat insensitive to the real need of ordinary people to obtain timely and inexpensive decisions from administrative tribunals, and that, surely, was the legislative intention."

Returning to the Charter itself, the second disappointment is the absence of any mechanism ensuring practical access to the remedies made available under the Charter. This important issue has been left to the vagaries of the market (those litigants with adequate funds are able to enforce their constitutional rights, those lacking funds may be deprived of rights they possess on paper) and to the vagaries of government programs providing legal counsel and other assistance in preparing a court challenge. The Charter has been used to require state-funded counsel for criminal matters, in limited circumstances, and the Supreme Court of Canada now has before it the question of entitlement to state-funded counsel in civil proceedings initiated by the government against a family, which will be argued based on section 7 and section 15 of the Charter. However, when the individual launches a Charter claim against the government, rather than responding to state litigation, she would seem to be responsible for finding the resources herself.

This paper will consider the practical challenges involved in mounting a Charter claim against the government on behalf of a client with modest or minimal financial and other resources. In a Charter case, particularly in the courts, evidentiary and procedural demands can easily overwhelm the ordinary litigant. The complexity and volume of Charter jurisprudence has become a major challenge in itself. Moreover, government counsel may choose to adopt a "scorched earth" policy, especially if they know that the challenger has limited finances available for the case. Like mushrooms after the rain, preliminary motions and objections may begin to sprout everywhere, while the prospect of a speedy determination on the merits fades slowly away. Civil litigation is not always civil.

From time to time, courts have fretted about a potential deluge of cases under the Charter which would bring judicial business to a halt. In my respectful view, the problem is exactly the opposite. It is far too difficult for a litigant of ordinary means to launch and sustain a challenge to government action or legislation. The current wave of civil justice reform sweeping the country, with its heavy emphasis on mediation and other forms of alternate dispute resolution, may not be appropriate for settling constitutional rights, leaving this class of litigants out in the cold. Under present circumstances, it is surprising that there is even a trickle of non-commercial Charter claims proceeding in the civil courts and tribunals.

Hopefully, in the following material, counsel for the claimant of modest means will find some helpful ideas for overcoming the inevitable obstacles in taking the government to court.

"Excuse me, but who's paying the bills?" A good first question.

For clients without means, there are not many options. It is therefore essential to utilize the resources that do exist as effectively and creatively as possible.

Understanding and using the Court Challenges Program

Although Canada has had a quasi-constitutional Bill of Rights since 1960, and a number of constitutional provisions granting enforceable individual rights since the earliest days of the federation, there was no public program to assist individuals in claiming their constitutional rights until the first Court Challenges Program was established by the federal government in 1978, dealing only with language rights. The program was expanded in 1982 with the proclamation of the Charter, and then substantially enlarged again in 1985, when section 15 came into effect, to encompass federal equality litigation under sections 15, 27 (multi-culturalism) and 28 (equality of the sexes). Despite rave reviews on a non-partisan basis in Parliament and elsewhere, the federal government abruptly terminated the program in 1992. A massive political lobbying effort secured promises during the 1993 federal election which resulted in restoration of the program in 1994. As noted recently:

The new Court Challenges program, too, occupies a unique and fundamentally important place in the quest for substantive equality in Canada. With the rise of political conservatism and the onset of the age of fiscal restraint by governments at all levels, other smaller sources of funding for equality cases which existed in 1985 have all but dried up. The Program finds itself under increasing pressure to fill the gaps left by shrinking legal aid budgets and chronic under funding of community organizations.

Court Challenges devotes approximately $550,000 annually to minority language cases and $1.65 million to equality rights. While most funding goes to actual litigation costs, the Program offers case development support, covering both preliminary research and consultation activities. In Charter claims, doing such homework is absolutely essential.

A typical error by counsel inexperienced in Charter work is to rush ahead, in all good faith, with an ill-conceived challenge. This can result in wasted effort and a negative precedent which is difficult to dislodge. From the Court Challenges Program's perspective, case development is encouraged because it avoids duplication of effort across the country, encourages innovative and sophisticated thinking and planning for litigation, and helps to ensure that equality claims advanced under the Charter are effective in materially advancing the interests of intended beneficiaries. When dealing with difficult social, political and economic policy issues, outcomes may not be as obvious as they seem. A lawyer who takes on a Charter case may think the cause is truly beneficial and just,

but sometimes there is considerable controversy about the benefits of the litigation, and almost always there are differing points of view about the arguments and evidence which ought to be developed and advanced.

The program will provide up to $5,000 for case development research and a like amount for consultation. Clearly, the client will have to find other resources to supplement such basic levels of funding, but on the other hand, working with the Program allows counsel to tap into a substantial body of pre-existing research, expertise and contacts across the country. The program funds generic impact studies from time to time, for example, which can be extremely useful as a general review of the emerging law, and usually avoids the need to re-invent the wheel. On the language rights side, there is modest funding available for negotiations aimed at resolving disputes without resort to litigation.

Case funding by Court Challenges is generally limited to $50,000 at trial, $35,000 on appeal and $35,000 for interventions. In extraordinary situations, additional funding up to $25,000 per level of court may be requested. Again, in most Charter cases, this will not be sufficient to fully pay the costs of litigation, but the Program assumes that there are pro bono donations and/or client contributions which will help support the challenge. In fact, case budgets required by the Program may include a column enumerating donated services. As well, there are maximum billing levels: $100 per hour for preparation and $150 per hour for court time. No one will be getting rich doing Charter claims in this fashion, but the psychic rewards should be remembered.

It bears repeating that the Court Challenges Program, while very useful when available, is restricted to a fairly narrow band of cases.

Cases which receive funding must involve federal and provincial language rights protected by the Constitution of Canada or challenges to federal laws, policies and practices based on section 15 (equality) of the Canadian Charter of Rights and Freedoms. Cases will only be

funded if they have the potential to change a law, policy or practice in a way which will ensure the respect of equality and language rights.

... In some situations, cases involving the fundamental freedoms in section 2 or multiculturalism in section 27 may be eligible for funding, if those sections are used to support equality arguments under section 15.

Whether a particular proposed challenge ensures 'respect for equality rights' may well be in the eye of the beholder. These are often controversial issues. To cite the most obvious example, some would see "the unborn" as a disadvantaged group deserving equality protection under law, whereas others would argue that only "the woman" holds legal rights. In the aboriginal context, there are numerous ongoing disputes over whether Charter section 15 applies to First Nation government decisions affecting women in areas such as Band membership and on-reserve services. Federal government policies which confine benefits to status Indians and exclude Metis people have also been challenged. The Program makes allocation decisions through two panels of experienced Charter litigators and analysts and has not shied away from making these sensitive funding choices.

The current Program policy on equality challenges omits all provincial laws, policies and practices, even where such provincial action has national significance or represents a common pattern across the country. In the past, the federal government has insisted on this restriction. The Program is presently engaged in renewal negotiations for another multi-year contribution agreement with the Minister of Canadian Heritage, and the government has written a letter of intent to renew for 5 years. Expansion of coverage to include some provincial equality challenges is being discussed. Clearly,

exclusion of provincial laws represents a major gap in the present program. However, at times, funding for such issues might be available if there is a federal involvement by way of cost sharing or delegated authority.

In 1996-97, the Court Challenges Program received 23 language rights applications and 110 equality rights applications. About 60% of requests have been approved.

Legal Aid for Charter challenges

Beyond the federal Court Challenges program, provincial Legal Aid programs are the other obvious source of potential case funding. In criminal law matters, where the federal government provides some national consistency by means of cost-sharing agreements, Charter claims have been fairly commonly advanced in the course of defences to criminal charges. However, for the administrative and civil law practitioner, the more relevant question is whether Legal Aid assistance is offered for Charter claims outside the domain of criminal prosecutions. Here, the picture is highly variable across the country.

In some provinces, the client is simply out of luck. New Brunswick, for example, provides no civil legal aid representation aside from very limited family law coverage. Other provinces are technically open to applications for a civil Charter claim, but given the severely restricted funding available for these Legal Aid plans, the chances of a successful application are remote. Officials with the Legal Aid Society of Alberta could not think of a single civil Charter case which had been funded; one human rights challenge involving the right of an unmarried partner to maintenance after separation was supported. In Saskatchewan, out of some 21,000 cases handled, 11 were civil non-domestic. However, criminal Charter cases are funded. Prince Edward Island has limited family law assistance and some mental health coverage. Discretionary assistance drawing upon Law Foundation funds, to a case maximum of $1,000, is now in jeopardy due to declining interest on lawyers' trust accounts.

Newfoundland, Nova Scotia, the Yukon and the North West Territories all take on substantial non-criminal case loads, which mainly consist of family law matters, but these programs are open to civil challenges subject to merit. Nova Scotia university and legal aid community clinics have advanced Charter claims utilizing staff lawyers.

The best hope of finding support for a Charter claim through Legal Aid arises in B.C., Manitoba, Ontario and Quebec.

The British Columbia Legal Services Society funds human rights cases and civil law cases, subject to merit and the seriousness of the consequences for the individual. The B.C. system includes an active community clinic network which has undertaken substantial Charter work. The independent B.C. Public Interest Advocacy Center specializes in Charter claims, among other areas of public interest litigation.

Legal Aid Manitoba provides coverage for a full range of civil matters, including test cases and appeals, and is receptive to a Charter claim which affects the general legal aid clientele. Most Charter litigation in practice is handled by the Public Interest Law Centre, a branch of Legal Aid which is non-government funded in order to preserve operational independence. A number of successful Charter claims have been undertaken, sometimes on a joint basis with counsel from private bar firms. The Ontario Legal Aid Plan operates a test-case funding program which has supported a number of Charter claims by both individuals and groups, with representation provided on a certificate basis by private counsel. As well, Charter claims and interventions have been advanced by counsel from the extensive legal clinic network operated as part of the Ontario Plan. As is well known, Legal Aid in Ontario is presently under active review, and no doubt significant changes are coming. However, the report of the recent review committee seems consistent with continuing support for civil Charter claims.

In Quebec, the Commission des Services Juridiques offers extensive civil coverage and in particular funds Charter claims. Quebec legal clinics handle about half of all cases, and staff lawyers may litigate Charter issues.

Litigating Charter claims pro bono with a hope and a prayer for costs

Notwithstanding all the foregoing, the grim reality is that a Charter claim on behalf of a client of modest means is likely to become, sooner or later, a pro bono case, in whole or in part. Some would argue that, at current Legal Aid tariffs, every legally aided case is already a pro bono matter. The duty of lawyers to ensure access to justice through pro bono work has been raised repeatedly, and in some American jurisdictions, the debate is about mandatory, regulated pro bono obligations. As Mr. Justice Major observed in a recent speech, "It is the renewal of the profession's commitment to its public interest duty that will increase the public's confidence in what lawyers do." This is all

well and good, and in at least one jurisdiction, the Bar has responded by entering a pro bono partnership with a public interest law centre. Still, carrying a Charter claim on a pro bono basis presents serious difficulties for lawyers and firms.

While lawyers are remarkably willing to donate their time, if they feel the cause is right, Charter claims often require a substantial investment in social science research in order to provide the necessary context which the courts have demanded in such cases. Conducting literature reviews and sometimes even original research, retaining expert witnesses, locating and fighting for the disclosure of Crown documents, exhuming ancient law and sometimes ancient history in order to understand the genesis of legislation - all of this is costly. In Charter claims, there is little prospect of a substantial damages award at the end of the day, which helps firms carry case disbursements in ordinary contingency fee situations.

In practice, when firms take on a Charter claim for a client of modest or minimal means, they generally do so with a charitable heart and a silent prayer that costs will be awarded at the end of the day, allowing for at least partial compensation to the lawyer-volunteers. The pro bono counsel no doubt feels she is doing an act of public service, so long as the legal point is reasonably arguable and the issue is one of public importance. Indeed, such advocacy is a valuable service to the public. In a handful of cases, a "one-way rule" has been applied, granting costs to the unsuccessful challenger and recognizing the benefit of having the issues ventilated, sometimes with Parliamentary reform as a by-product. If adopted broadly, such a rule could amount to a "judicial legal aid program", in that needy cases of public importance, especially when litigated against the government or a public body, would be judicially screened and publicly funded. This is exactly what we need in order to harness the pro bono spirit of the bar and ensure access to justice on Charter claims.

In aid of facilitating public interest litigation, there have also been calls for a "no-way rule", sometimes called the American rule, whereby each side always pays its own costs. This does not

put cash in the challenger's pocket to fund the case, but does serve to relieve anxiety over exposure to a burdensome award of costs if the challenge fails under the normal rule that "costs follow the event".

Alternatively, the Ontario Law Reform Commission has called for a variation of the "one-way rule", applicable where the litigation raises issues beyond the immediate interests of the parties, the litigation would not be justifiable on ordinary economic grounds to the challenger personally, and the defendant's resources are clearly superior. The challenger would receive costs if she succeeded, but be protected from costs if she lost. A recent analysis of costs decisions in public law cases concludes that the traditional "costs in the cause" approach is still the predominant approach, but there is confusion and uncertainty as courts struggle to address issues of access and fairness. In my

own experience, judges are often reluctant to order costs against litigants of modest means in cases raising novel or important public legal issues, but are willing more often to grant costs against a public body when the challenger succeeds. A "one-way rule" is in gestation, perhaps.

As to the propriety of introducing such a rule via judicial as opposed to legislative means, I would endorse the following argument:

In my view, there are no compelling doctrinal or philosophical reasons that, in principle, would prevent the courts from taking such a step. Establishing a "one-way" rule for public interest litigants does not entail a significant departure, in terms of judicial policy, from existing costs jurisprudence. As has been discussed, there is longstanding precedent for declining to award costs against an unsuccessful party where the suit raised a novel point of law, was a test case or in some other respect benefitted the public. Recognition of a public interest costs exception would simply transform - in appropriate cases - this broad discretion to grant relief into a judicial mandate. Moreover, the normative suggestion that costs rule reform is not the job of the courts is difficult to reconcile with the fact that it has been the courts, not the legislature, which gave birth and meaning to the concept of public interest standing.

In practical terms, when faced with a client of modest or no means who wishes to advance a Charter claim, the lawyer must decide not whether to act pro bono, but rather how much pro bono is reasonable and sustainable for the firm and the lawyer personally. By utilizing the available resources, as outlined above, many of the case disbursements and some professional time may be covered, probably at reduced rates. The rest is your donation to the cause of justice.

"Everything including the kitchen sink": Charter evidence and how to get it on the cheap

"The Charter of Rights has drawn Canadian courts much more deeply into the policy-making and policy-implementing processes of government. The increasing policy-making role of the courts has focused attention on the use of extrinsic evidence or 'social facts' by the courts." When presenting a Charter claim on a restricted budget, the lawyer must find a way to locate and adduce such evidence at a nominal cost.

The Internet is proving to be an excellent and inexpensive source of government, regulatory, legislative and judicial information. Still, it should be recognized that, despite growing coverage of the law on the Internet, availability of case law, for example, is not complete or consistent. Consequently, it cannot yet replace a tool such as QUICKLAW, which provides quick, easy and reliable (albeit, more costly) access to jurisprudence. The Internet can be viewed as another "tool" (like online databases and CD-ROM products) in the computer assisted research "workshop".

For those who are just beginning to find their way on the Internet, there are a number of useful articles and books that will provide both basic information on the Internet and helpful hints on doing effective searches. Attached to this paper are two brief articles that outline the use and capabilities of some of the Internet's search engines (finding aids).

Morton and Brodie develop a typology of extrinsic evidence ranging from the "hardest" social science evidence to the "softest" normative evidence. The best way to illustrate the use of the Internet and other electronic research tools for the identification of extrinsic evidence is to present some examples of research done for two recent Charter cases handled by our office. In Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), before the Supreme Court of Canada, the Public Interest Law Centre represented a coalition of intervenors. The case attracted wide-spread attention, and 11 different intervenors/coalitions were granted status at the Supreme Court level. In the case of Sauvé; McCorrister in the Federal Court of Canada, we represented the plaintiff McCorrister and other federal inmates, the Stony Mountain Inmate Welfare Committee and the Native Brotherhood Organization.

Mothers, babies and substance-abuse: overcoming emotion with evidence

In the G case, the appeal before the Supreme Court of Canada arose from legal proceedings commenced by Winnipeg Child and Family Services ("the Agency") against a pregnant woman who was sniffing solvents. The Agency sought an order confining the woman to treatment, pleading that she owed a duty of care to the unborn fetus and that her actions were violating this duty. The case was highly emotional and therefore the outcome was believed by many to be unpredictable, despite the clear existing jurisprudence against the Agency. The Public Interest Law Centre represented the Women's Health Rights Coalition who wanted to present a community health perspective and argue that a pregnant woman's problems should not be addressed by means of legal duties and court orders. Evidence identified by the clients and counsel as necessary to support this perspective included material on:

1. Good health care practices in cases of pregnancy and addiction, including policy statements and guidelines of major health care organizations and professional bodies in Canada, the United States and the United Kingdom;

2. Socio-economic data on fetal alcohol syndrome (FAS) in both Manitoba and Canada, including information on the relationship between impoverished conditions and the incidence of FAS and the incidence of fetal alcohol syndrome in aboriginal communities;

3. Government cutbacks in the health care arena, with particular reference to the impact of these cutbacks on addiction treatment and prevention programs for women;

4. "Healthy public policy" initiatives in the area of addiction and pregnancy which are available and recommended as an alternative to judicial orders; and

5. The inconsistency between aboriginal culture, both traditional and current, and forced addiction treatment programs.

Neither the clients nor our firm had the resources to retain expert analysts to research these issues and prepare material for use in the factum. The Agency, for its part, was investigating some of the same matters, but of course the Agency employs a large staff of social workers and other professionals who could carry out such work in-house. The Attorney General of Manitoba also intervened, in support of the Agency, and adduced material supplied by the Department of Family Services. To prepare their case, the impecunious intervenors therefore turned to the Internet.

We began our research by conducting a number of different "broad" searches on the Internet (trying several different search engines) and using different combinations of keywords such as "addiction and pregnancy", "chemical dependency and pregnancy", "fetal alcohol syndrome", and "women and substance abuse". Depending on the amount and type of material that was found we would then refine the searches as necessary. In several of the research areas we found a large volume of useful information. For example, in the areas of healthy public policy and good health care practices, we were able to find and download information from organizations such as the American Medical Association, the American Society of Addiction Medicine, the Centre for Reproductive Law and Policy, and the Canadian Centre on Substance Abuse. The Canadian Centre on Substance Abuse maintains an excellent FAS annotated bibliography which can be downloaded from their World Wide Web site. This bibliography proved to be very useful and it also helped us to identify a number of key professionals whom we could contact for additional information. Moreover, using e-mail, we were able to use the Centre's FAS information coordinator as a "reference librarian".

The Canadian and several provincial governments also have web sites with search capabilities, through which we were able to identify (and in some cases download) a number of government and/or parliamentary reports dealing with the government's awareness of and response to the increasing problem of fetal alcohol syndrome.

After "visiting" the web sites for U.S. National Institute of Health and the U.S. Department of Health, we were able to find reports on effective substance abuse treatment programs in the United States, which could be presented in the factum as alternatives to court-ordered treatment. At the section 1 stage of a Charter case, "minimal impairment" is usually the government's most vulnerable flank, so the efficacy of reasonable alternatives is always a vital subject. Also, these web sites (and their links) allowed us to identify and make e-mail contact with a number of knowledgeable individuals in the vast United States health bureaucracy. This same strategy was used to make contact with the Royal College of Obstetricians and Gynaecologists (U.K.), and we were then able to obtain a copy of their ethical guidelines on court-authorized obstetric intervention, opposing coercive measures. Past experience has shown that identifying this type of material from a traditional review of the literature would have been very time consuming, expensive and haphazard.

Although there is increasing electronic access to a number of scholarly journals via the Internet, a comprehensive review of the "academic" social science and medical periodical literature requires access to indices and databases which generally are not yet available without a hefty subscription fee. Using a number of SilverPlatter databases, we were able to find a significant number of articles which provided "hard empirical evidence" on the incidence of FAS and the link between FAS and socio-economic status. It is noteworthy that two of the SilverPlatter databases that we searched, namely Medline and HealthStar, may now be accessed free on the World Wide Web.

The significance of the type of medical, health and social science evidence discussed above can be inferred from the following passage in the G decision. Dealing with the question of the efficacy of treatment orders in diminishing the problem of injured infants, McLachlin, J., writing for the majority of the Court states at para. 43:

If it could be predicted with some certainty that all these negative effects of extending tort liability to the lifestyle choices of pregnant woman (sic) would in fact diminish the problem of injured infants, the change might nevertheless arguably be justified. But the evidence before this Court fails to establish this. It is far from clear that the proposed tort duty will decrease the incidence of substance-injured children. Indeed, the evidence suggests that such a duty might have negative effects on the health of infants. No clear consensus emerges from the debate on the question of whether ordering women into "places of safety" and mandating medical treatment provide the best solution or, on the contrary, create additional problems.

The G case began as an interlocutory emergency proceeding in the Manitoba Queen's Bench, and the motion record was almost completely bereft of social science evidence. Thus, Justice McLachlin's reference to "the evidence" in the above extract must be understood as referring to the array of materials filed before the Supreme Court by the parties and the various intervenors, entirely as "Brandeis briefs" and authorities. The Agency and its supporting intervenors lost "on the evidence".

Voting by penitentiary inmates: another hot button issue

In Sauvé;McCorrister, one of the arguments presented is that s. 51(e) of the Canada Elections Act, R.S.C. 1985 Chap. E-2, as amended by S.C. 1993 c. 19 s.23 (disenfranchisement for prisoners incarcerated for two or more years), violates s. 15 of the Charter. We are taking a two-pronged approach to s. 15 and submit that the legislation is both discriminatory on its face (with prisoners being an analogous class), as well as causing systemic discrimination against the poor and aboriginals. In order to make these types of arguments, we had to do a review of the literature in fields such as criminology, sociology and political science, with particular reference to material such as (1) empirical studies on the relationship between socioeconomic status and imprisonment, (2) studies on sentencing disparity, and (3) material on how society defines "criminal activity" and the class bias that may be involved in such definitions.

One of the resources we used for this type of cross-disciplinary research was DIALOG, a fee-based online electronic information service which provides bibliographic, abstracted, and in some cases full text references for a wide variety of social science and humanities periodical literature. In this case, the Academic Index and Social SciSearch databases were very useful. DIALOG can be

accessed via the Internet (or Telnet). The Sauvé;McCorrister plaintiffs were able to secure some litigation funding, which allowed for intensive research as well as the retaining of several expert witnesses to testify at trial on these subjects.

 

The impugned provisions were struck down by the trial judge in December 1995. Sauvé;McCorrister is currently on appeal to the Federal Court of Appeal. As a result of the trial decision in this case, federal inmates were able to vote in the June 1997 federal election. In preparing our factum for the appeal, we wanted to provide material on the enumeration and vote of penitentiary inmates. From the Elections Canada web site we were able to find a link and then download the Report of the Chief Electoral Officer of Canada on the 36th General Election. Although the report does not have an index and the Table of Contents makes no specific reference to correctional inmates, we were able to use the Adobe Acrobat PDF reader software to search and locate specific references, thereby considerably reducing research time.

As an interesting aside, it should be noted that despite the fact that the government filed an appeal of the trial decision in Sauvé;McCorrister in January 1996, there was no request for a stay of the trial court judgement until approximately one month before the June 1997 election. There was very little time to prepare evidence for this procedural skirmish. By searching the on-line Hansard text database, it was discovered that the stay motion resulted from an attack on the Minister of Justice the previous day by an opposition critic who castigated the government for neglecting to seek a stay, thereby allowing prisoners to join in the democratic process and demonstrating that the government (according to the opposition) was "soft on crime". Crime is a well known hot-button issue and was expected to be a contentious subject in the election. Based on the foregoing, we decided to argue undue delay and improper purpose, inter alia, in opposition to the motion for a Charter stay.

 

InfoGlobe (a fee based gateway service on QUICKLAW) was used to collect evidence on the anticipated timing of the federal election and to demonstrate the vast amount of information in the "public domain" about when a federal election would be called. In other words, the whole country knew an election was coming - surely the Attorney General knew it too. We searched in several newspaper, news service and news magazine databases. Due to the pay-per-view nature of the InfoGlobe service, we had to restrict our search to a select number of national and regional publications. As a result of this type of computer-assisted research, we were able to find evidence very quickly to show that as early as June 1996, there had been significant public discussion of a spring 1997 federal election, and thereafter, thousands of media reports. Moreover, we learned that in all the by-elections held after the trial judgement, prisoners had been allowed to vote without objection by the Crown, and exhibits were quickly obtained from the Chief Electoral Officer establishing these facts.

The requested stay was denied by the Trial Judge, a decision affirmed in the Federal Court of Appeal. Leave to appeal was denied by the Supreme Court in a special oral hearing three days before the election.

Conclusion

"Deep discount" practices are understandable, even desirable, if the product is groceries or snow tires. The same is not true when the commodity is justice.

This paper has reviewed strategies designed to allow impecunious litigants to have their day in court on a Charter claim. We do the best we can, but the situation is far from satisfactory. Governments and large corporate or institutional parties have a decided advantage over the ordinary individual or community group.

Surely we can do better. Having enacted a constitutional instrument to protect and advance civil and human rights, we must ensure that the job is finished. Rights are meaningless without real and accessible remedies. I suggest that this is a task which should be undertaken cooperatively by the bar, the judiciary and responsible legislators, each contributing in its own sphere.

 

November 1997

Arne Peltz - Brief Curriculum Vitae

Arne Peltz has been director and supervising attorney of the Public Interest Law Centre since 1982. Current practice emphasizes aboriginal law, human rights, social welfare and public utilities regulation. The Centre is a branch of Legal Aid Manitoba, but is independently funded, and undertakes test case litigation on issues of public law and policy. Members of the Manitoba Bar Association help support the Centre's work through donations of time and money, and by taking on pro bono public interest law cases.

Mr. Peltz was called to the Manitoba Bar in 1977. He has taught poverty law and administrative law at the Manitoba Law School and was course head for administrative advocacy at the Law Society of Manitoba Bar Admission Course. He has served as president of the Legal Aid Lawyers Association and is presently General Counsel to Legal Aid Manitoba. He is a past chair of the Manitoba Bar Association Administrative Law Section and current Chair of the Aboriginal Law Section.

For five years, Mr. Peltz was Vice Chair of the Manitoba Police Commission. He presently acts as a labour arbitrator under collective agreements and for the Manitoba Labour Board's expedited arbitration service.