The costs of Charter litigation / Alan Young.: J2-441/2017E-PDF

“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 this brief report, the author 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 the author has 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”--Intro., p. 2-4.

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