The Costs of Charter Litigation
The Author’s Experience in Mounting Constitutional Challenges
Since the early 1990s, I have had carriage of numerous constitutional challenges, most often seeking invalidation of Criminal Code offences. I have brought challenges to various offences— including those pertaining to obscenity,Footnote 9 drug literature,Footnote 10 gaming houses,Footnote 11 marijuana possessionFootnote 12 — and to our sex trade laws.Footnote 13 In addition, I have employed the Charter to secure a right to consume marijuana as medicine Footnote 14 and to create rules facilitating post-conviction disclosure and preservation of evidence. Footnote 15 Further, I have also had many occasions to employ the Charter in the course of ongoing criminal trials seeking remedies for procedural violations such as unreasonable search and seizure or denial of right to counsel. All of these cases were fundamentally different in terms of the time spent preparing and advancing the claim and in terms of the costs incurred in raising the claim.
Ironically, I have been asked to prepare this report on the costs of constitutional litigation despite the fact that I completed most of this work on a pro bono basis. It is likely that the high costs of constitutional litigation can be attributed to exorbitant legal fees; however, even when lawyers complete work pro bono, or on a highly-discounted, basis, for many cases there will still be serious cost issues relating to disbursements, and, in particular, expert evidence. Nonetheless, in my experience, there are many ways to reduce the costs of disbursements, and I have found that constitutional challenges can be brought in a way which is affordable to many Canadians—as long as legal fees are not excessive.
To advance the constitutional challenges I have brought in the past 30 years, I have relied upon three methods of funding (for disbursements). The challenge to the marijuana possession offence (which ended up in the Supreme Court of Canada) was funded entirely by donations from interested parties. In many constitutional claims, there is an ongoing political debate and there are often activists and supporters who are willing to donate small amounts of money for the "cause". In the marijuana challenge, the applicant/accused was able to raise $25,000, which was used primarily for expert witnesses. Most of these witnesses were willing to come to court and testify on a pro bono basis, and the funds were used for transportation and accommodation. Some witnesses were paid a $1000 honorarium, but most were willing to work without pay. In subsequent cases dealing with the right to use marijuana as medicine, modest funding (approximately $20,000) was obtained from American benefactors (George Soros’ Drug Policy Foundation and Peter Lewis’ Marijuana Policy Project). Although I was never able to find Canadian benefactors to provide disbursement funding, it must be remembered that many challenges involve issues which are currently a matter of political debate and activism. Therefore, there will always be supporters willing to donate funds, and in the digital era it has become easy to target these potential small-scale benefactors. In fact, for the recent Federal Court invalidation of the Marihuana for Medical Purposes Regulations, Footnote 16 the case was entirely funded by donations from patients and pro-cannabis supporters.
Due to the unpredictable nature of fundraising, I did not rely upon this method of disbursement funding in many cases. For other cases, I did rely upon two other sources of funding: the defunct Court Challenges Program and the Test Case Program at Legal Aid Ontario. Between 1999 and 2002, I received approximately $50,000 for two cases dealing with the right to consume marijuana as medicine. Footnote 17 Both cases were brought by an activist, James Wakeford, and both cases involved extensive legislative fact evidence, multiple hearings and appeals. I no longer have complete records of these files, but I do recall that the funding secured from the Court Challenges Program was largely needed to fund the extensive array of expert witnesses. As in most of my cases, I was able to obtain this expert evidence without having to pay fees for service (other than the occasional $1000 honorarium). At the end of the day, we did not incur high costs for transportation and accommodation (as the Crown chose not to bring these witnesses to Toronto for cross-examination) and there were some funds remaining to pay my fees and the fees of co-counsel. (I believe these fees did not exceed $10,000 for both cases.)
Being able to secure expert witnesses on a pro bono basis is partly a product of the fact that, as an academic, I am better able than a practising lawyer to persuade other professors to volunteer their time for free. More importantly, by working with a team of students, I am able to minimize the amount of work which is required of the expert, as my students will always take responsibility for drafting the expert’s affidavit so that the expert need only review the draft. Although the experts will spend a fair amount of time being interviewed by a student, they do not have to devote much time to the completion of the affidavit.
Most recently, I applied for Test Case funding from Legal Aid Ontario (LAO) to bring the Bedford challenge to our sex trade laws. I should note that the Court Challenges Program (in 2002) and the Test Case program (in 2006) both denied funding for this challenge in the belief that it was unlikely to succeed; however, I was able to finally persuade the Test Case Program to provide $30,880 in disbursement funding in 2007 (with another $14,389 provided in 2008). Before turning to some of the details of the Bedford funding, it should be noted that many provincial legal aid plans do have programs for test case funding based upon criteria similar in nature to the defunct Court Challenges Program. In Ontario, funding can be secured for "public interest" cases as defined by the following criteria:
A public interest matter is one that demonstrably, based on specific factors established by LAO:
- advances important public interests, in alignment with LAO’s access to justice mandate and strategic goals
- transcends individual interests
- addresses a serious issue that fundamentally affects low-income Ontarians or disadvantaged communities whose perspective would be unlikely to come before the courts but for the involvement of LAO
- is a an effective and efficient use of resources – a practical and realistic means of bringing an issue before the court Footnote 18
Despite the existence of these programs, I cannot speak to their efficacy as I have no information on the scope and nature of funding they provide. With respect to the Bedford challenge, it can been seen that the funding was indeed modest: $45,269 was awarded for a case involving over 60 witnesses (most of whom were cross-examined), 27,000 pages of documentary evidence, 7 days to hear the application and 5 days of argument on appeal in the Court of Appeal. (There was a different funding arrangement for the Supreme Court of Canada, as will be discussed.) As with my other cases, there were no counsel fees paid, and all of the experts waived any fees for service. The funding was primarily requested to allow for the transportation and accommodation of witnesses for the purpose of cross-examination on their affidavits; however, the proposed budget was created prior to the Crown responding to our record, and when the Crown tendered affidavits from approximately 30 witnesses, it turned out that our greatest expense ($11,720) was incurred for the transcription of the cross-examinations of the witnesses I had not anticipated being required to cross-examine. Another costly expense incurred related to the photocopying of an application record of 88 volumes of documentary evidence ($5749 – the total cost of approximately $16,000 for the reproduction of the record was split evenly between the applicants and the federal and provincial government). Appended to this report as Appendix A is a chart of all expenses incurred for the application – the chart shows that approximately $10,000 remained in our budget to use for the appeal to the Ontario Court of Appeal.
If expert witnesses are willing to waive fees (or if the challenge does not require extensive expert evidence), it becomes clear that the belief that Charter claims are cost-prohibitive will relate primarily to the issue of counsel fees. In Bedford, I was not willing to conduct the appeal in the Supreme Court of Canada without the assistance of other counsel, and I asked senior counsel Marlys Edwardh to assist me. A new application was then presented to the Test Case Program seeking disbursement funding and funding for the services of Ms. Edwardh.
With respect to funding for counsel, the Legal Aid plan will provide a funding of $109.13 per hour for Tier I counsel, with funding of $136.43 per hour for senior counsel. Clearly, these hourly rates for counsel are not exorbitant; however, for cases of some complexity, the hours of preparation can become unwieldy. In this case, for the appeal to the Supreme Court of Canada, it was estimated that 80 hours of preparation would be required for the leave-to-appeal application, and 490 hours of preparation would be allowed for the actual hearing in the Supreme Court. In addition, the Test Case Program provided $6,500 for disbursements for the leave application and $20,000 for disbursements for the hearing in the Supreme Court. In total, funding for taking the challenge to the Supreme Court of Canada amounted to $14,000 for the leave application and $71,876 for the appeal itself.
It is somewhat incongruous that the initial hearing and appeal cost $45,000, whereas the appeal to the Supreme Court of Canada amounted to $85,876. It must be remembered that by the time a case reaches the Supreme Court of Canada, all the "heavy lifting" has been done in terms of interviewing witnesses, drafting affidavits and attending and conducting cross-examinations. One would expect costs to be reduced as one ascends the levels of the court hierarchy. This reality underscores the significant cost to be incurred if legal fees are charged (even at the discounted legal aid rate).
To get a better sense of the potential costs that can be incurred with complex litigation and counsel fees, I did make some effort before the appeal to the Court of Appeal of Ontario to estimate the costs of preparing and arguing this case. Upon success in the Superior Court, the application judge unexpectedly awarded costs against the government, and I then made an attempt to estimate my fees in preparing to apply for costs. (Ultimately this application was never brought.) Putting aside disbursements (already paid for by LAO), I estimated that my counsel fees would be $200,520 based upon the following breakdown:
- 528.5 hours of preparation at $300/hr ($158,550)
- 23.5 days of cross-examinations at $1000/day ($23,500)
- 7.5 days of court hearing at $2,500/day ($18,750)
Although the hourly rates charged in this estimate are higher than the rates allowed under the Legal Aid plan, these are still discounted rates for senior counsel. Nonetheless, once counsel fees are introduced the cost of the Bedford application rises to $286,401 from $45,000 (Note that this does not include any fees associated with the appeal to the Court of Appeal, as no estimate has been done of the time spent on this appeal). Most significantly, it must also be recognized that most of my litigation work, including the Bedford case, is done with extensive participation of law students who either volunteer or who are paid the standard rate of $15/hr for research assistance. I estimated that I spent approximately 500 hours preparing this application and I believe that if I had not had extensive student assistance, my hours of preparation would have been closer to 1500 hours ($450,000 at $300/hr).
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