The Costs of Charter Litigation
Concluding Thoughts on Reducing the Costs of Constitutional Litigation
I do not think it is natural or inevitable that constitutional challenges should always be million-dollar ventures. There is no question that some claims are intertwined with complex social science or natural science data, and often this data is a matter of academic and scientific debate. In these cases one would expect that high costs will be incurred for collecting, presenting and analyzing the data; however, even in cases of complexity there are ways in which costs can be reduced.
First, as mentioned earlier, whenever possible the claim should be brought as an application for declaratory relief and not as a civil action. The latter process is time-consuming, unpredictable and presumptively more expensive than a process in which most of the work is done outside of court in a more informal setting. Frankly, I am not a civil litigator and I cannot speak to available procedural mechanisms for expediting civil trials in a cost-efficient manner, but I can say that I have been able to utilize the application process in an efficient manner such that I have been able to conduct numerous challenges for a fraction of the costs associated with a lengthy court battle.
Of more importance than the choice of procedure is the question of lawyers’ fees, and it can be argued that Bedford, and other challenges I have brought, were inexpensive ventures due to the fact that lawyers’ fees were not charged. Nonetheless, even when counsel is not willing or able to do the case on a pro bono basis, there is a simple way to reduce costs significantly. In general, I do believe that many lawyers are content to undertake public interest litigation at the reduced Legal Aid rate. The rising cost of constitutional litigation is not a product of the rate of pay (which is low) but the hours of preparation required for completion of the challenge. It is virtually impossible to predict the amount of time needed to prepare and present the claim and capping hours often works unfairly for those who work countless hours on the file.
In my experience, I have seen the real benefit of having a team of volunteer, or low-paid, students doing the bulk of the preparatory work. Some law schools have test case programs (in which students volunteer to assist lawyers conducting public interest litigation) and Pro Bono Students Canada is available for matching students with lawyers in need of research assistance. Accordingly, I believe that one of the only ways a new funding program can manage the potentially high costs of lawyers’ fees is by developing a process and program in which law schools play a role in providing volunteer research assistance.
Finally, a great deal of thought needs to be directed to the issue of how to manage costs associated with the tendering of voluminous legislative fact evidence through numerous expert witnesses. Earlier, I mentioned that in my cases experts were willing to work for free partly because they did not have to draft their own affidavits, but rather just reviewed drafts completed by student research assistants. Beyond this facilitation of work, experts were often willing to assist for free because they believed in the "cause" and were happy to become involved, in what they perceived to be an "activist" role. Despite the savings in costs, recruiting experts who could be considered activists is a problem for maintaining the credibility and objectivity of the expert. Not only does one have to weigh the benefits of free evidence against the potential negative assessment of credibility, one has difficult choices to make in terms of the type of expert to be called. The best evidence always emanates from the original researcher who authored the study to be relied upon, but often this expert is not available and, even if available, there are often many other experts who have done similar studies in an effort to replicate results. Therefore, it may be more efficient not to call all of the original researchers, but rather call an expert who can provide a literature review, and methodological assessment, of available studies.
If there is any hope of managing costs with respect to legislative fact evidence, it is important to be pragmatic and prudent with respect to both the type of experts to recruit and the number of experts required in order to adequately prove the legislative facts being relied upon. Accordingly, funding programs should exercise some degree of supervisory control over the choices made and strategies adopted regarding the tendering of legislative fact evidence. Even though there are principled reasons why funding programs should not routinely exercise control and direction over choices made by counsel, it is important to ensure good choices are being made with respect to the collection and presentation of legislative fact evidence as it is this task which is primarily responsible for the belief, and the reality, that Charter litigation has become cost-prohibitive.
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