The Supreme Court of Canada has enormous power to effect dramatic social and legal change, but more often than not it seems too enervated to realize its potential.
Last month this sleeping giant could not be woken up to come to the aid of BC gay and lesbian bookstore Little Sister's in its struggle to overcome the systematic targeting by Canada Customs of its books and magazines. For two decades, Little Sister's has been fighting discriminatory conduct by Customs. Now the court has taken away the bookstore's ability to continue fighting by turning down its application to have its lawsuit funded out of the public purse through an award of "advance costs" against the government.
In most civil actions, the successful party will have most of his or her legal costs paid by the losing side at the end of the case. In extraordinary cases, a court can award advance costs to an impecunious plaintiff so that legal costs will be covered in advance by the other side regardless of whether the plaintiff wins.
In 2003 the Supreme Court of Canada awarded advance costs to the Okanagan Indian Band to defray an estimated trial bill of $814,010 required to defend aboriginal logging claims in British Columbia.
Obviously, there must be a compelling reason to allow a plaintiff to stick his or her hand into the government's deep pockets in order to commence or continue legal proceedings to challenge the government. Little Sister's fight to secure its right to freedom of expression through the importation of Meatmen comics or books entitled Of Slaves & Ropes & Lovers may seem frivolous in comparison to the plight of the Okanagan Band. But when you look at the entire history of the case, it becomes clear that this is actually a unique case for the awarding of advance costs, because the court itself is somewhat responsible for the bookstore's continuing legal difficulties.
It was clear to the judge at the original trial in 1994 that Customs officials had "wrongly delayed, confiscated, destroyed, damaged, prohibited or misclassified materials imported" by Little Sister's, and that these problems occurred because of the "systemic targeting" of gay and lesbian literature and pornography.
Customs usually inspects only 8 per cent of goods coming into Canada, but the court found that "virtually all" materials imported by Little Sister's were opened, inspected and often denied entry. Some of the books Customs prohibited were actually available in the Vancouver Public Library.
In 2000, the Supreme Court, though it agreed that the Customs officials' actions had violated the constitutional rights of freedom of expression and equality before the law, curiously would not provide Little Sister's with any meaningful remedy. The court did not order Customs to modify
its training or take any remedial action at all, because it claimed it had heard no evidence as to
whether Customs had voluntarily changed its policies in a constitutionally sound manner in the six years it took the trial and appeal to be heard. All the court was prepared to do was offer its condolences.
It also reminded the bookstore owners that the court's clear condemnation of the practices of Customs would provide "a solid foundation from which to launch any further action... should they consider that further action is necessary."
So instead of requesting fresh evidence about the current practices of Canada Customs, the sleeping giant sent Little Sister's back to the front to continue the fight. With that evidence, it could have made a specific order to ensure that Customs would act in accordance with the Constitution.
Customs appears to have done very little to change its practice in the interim. Going back to court in 2002 to challenge the detention of four books and magazines, Little Sister's showed that 70 per cent of gay and lesbian material is still detained at the border. Now the Supreme Court has shut the door on the last remaining avenue for funding, even though this case is one the court could and should have effectively resolved seven years ago.
Trying to vindicate constitutional rights through a civil lawsuit is far beyond the means of most Canadians. A simple two-day civil trial will cost anywhere from $5,530 to $15,700, according to a 2006 survey by Canadian Lawyer magazine. For complex litigation, the average person will have to mortgage his or her home or sell an internal organ on the black market just to pay the retainer. In fact, in the recent Little Sister's case, the costs of the proposed constitutional challenge were estimated to be $1 million.
Everyone knows that legal fees are a painful joke, and a court cannot compel a lawyer to work for free or even for a reasonable fee. But the court does have the authority to occasionally compel a wealthy litigant to provide funding for an impoverished opponent. In last month's decision, the Supreme Court acknowledged that "financial constraints put potentially meritorious claims at risk every day" and that the problems involving access to civil justice are "troubling," but once again the court was long on rhetoric and woefully short on action.