This is the second part of my comments on the BC Supreme Court’s judgment striking down hearing fees the province imposed on litigants who wanted to go to trial, which I summarized here. Yesterday, I wrote about he separation of powers line of argument in Justice McEwan’s reasons. I turn now to the suggestion, which also runs through his judgment, that there is something like an individual right to go to court.
The Charter, of course, contains no such right. Well, at least not generally. Subs. 24(1) does provide, however, that “[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” Still, if that’s a right to go to court – that’s what it sounds like to me – it’s a narrow one. Most cases have nothing to do with the Charter. The dispute before Justice McEwan was about child custody, and before the question of the fees arose, the Charter was not at issue at all.
Justice McEwan makes two main arguments for why there is a right to go to court, and it is a general one. The first is that going to court is a form of democratic participation, protected by the democratic principle of the constitution. The second is that it is a feature of our constitutional order and a requirement of the Rule of Law.
Democracy, says Justice McEwan, is not just about voting. It is a about self-government more broadly. Voting is a way of participating in self-government through the enactment of legislation. But going to court, says the judge, is also a way of participating in self-government – by “participat[ing] in the amplification and interpretation of the law through the courts.” (Par. 341) In his view,
[s]elf-government clearly implies a process that begins with the law as it is or as it has been made by legislatures and includes the elaborations of the courts. Those elaborations, even in mundane matters, inform and enrich the law. … For this reason each case must be given the attention it requires, however small it may appear to be. The law is replete with examples of apparently inconsequential disputes which led to major changes or developments in the law, the most famous of which is arguably Donoghue v. Stevenson,  A.C. 562.
This is a bold and interesting claim, but I don’t find it wholly persuasive. For one thing, it depends on some controversial assumptions about the role of courts, notably the positivist claim that judges actually make (or at least modify) law. Not every legal philosopher, and probably not every judge, will agree with that, though many certainly will. But even assuming that it is correct, it is questionable whether the party whose dispute becomes the occasion of a “major change or development in the law” meaningfully participated in this change or development. Perhaps the arguments put forth by his lawyer caused or helped the court to change the law; perhaps the court acted more or less on its own. Litigation is a dubious form of participatory democracy (though perhaps test cases, designed to bring about changes in the law, are of that nature). Furthermore, democracy, as it is usually understood, is the privilege of citizens – which litigation is not, as Justice McEwan observes (par. 341). And equality – one person, one vote – is a fundamental feature in a democratic process. With litigation, even in the absence of any financial barriers, it seems absurd to speak of equality; some people have a dispute to bring to court; others don’t; it’s all a matter of chance. Chance was big in ancient Greek democracy, but we don’t like it so much.
The other argument Justice McEwan makes for something like a general right to go to court is that “[f]or … structural reasons … accessible courts are a premise of the Canadian constitutional arrangement. The references to the courts in the Charter do not confer a right of access that did not otherwise exist. Rather they presume the pre-existing availability of courts for Charter purposes.” (Par. 379) The main structural reason in question is the principle of the Rule of Law. It means that people have legal rights, against each other and against the government. But rights are no good unless there are remedies to enforce them, and neither rights nor remedies are any good unless there is a court to establish the existence of a right and grant the remedy.
This, I think, is a good argument, at least so long as one does not get too queasy about courts grounding their decisions in the structure and principles of the constitution rather than in its letter. Unfortunately, Justice McEwan does not develop it as much as he could, and I think should have. He shifts back into the separation of powers mode (arguing that “the imposition of impediments to access to the courts does upset the balance between the judicial branch and the other branches of government,” par. 385). I will try to develop the argument in his place.
Our legal rights arise under the constitution, statutes, or the common law. Superior courts have jurisdiction over both constitutional and common law rights, as well as many statutory rights (those arising under provincial statutes, while those arising under federal legislation are shared between superior courts and the federal courts). Provincial legislatures cannot modify constitutional or federal statutory rights. They can modify or even extinguish rights arising under provincial statutes or the common law but, generally speaking, must do so in clear terms. (So for example, in Wells v. Newfoundland,  3 S.C.R. 199, the Supreme Court held that a province has to keep paying an employee whose job, tenable during good behaviour, it has abolished, because the law abolishing his job did not specifically say anything about abolishing his entitlement to his salary.) Making it impossible for people to go to court to vindicate their rights arguably amounts to their de facto abolition – yet the province cannot abolish constitutional and federal statutory rights, and further, it is abolition by stealth, which is not permissible even for provincial statutory and common law rights. Indeed, in Air Canada v. B.C. (A.G.),  2 S.C.R. 539, the Supreme Court held that a province was not free to prevent people from asserting violations of their (constitutional) rights by limiting (in that case, through executive rather than legislative action) their ability to bring the necessary lawsuit. Justice McEwan, so far as I can tell, did not cite Air Canada, but I think that it might be the best authority for the proposition that Canadian governments are not entitled to bar people from resorting to courts of law to assert their rights, which the hearing fees had the effect, and indeed the purpose, of doing.
Apologies for the length. McEwan’s desease is obviously infecting me.