Week 7 - Interest Groups and the Court Party Thesis

What does Morton and Knopff’s Court Party thesis entail?

• Canada has experienced a charter revolution

• Court party: Advocates for expanding the courts’ role in the policy-making process and actively work to promote, protect, and institutionalize judicial power, which forms the foundation of the court party thesis

  • Tied to anti democratic thesis as well

• Morton and Knopff: believe judges are very sympathetic to court party cases - court party charter litigation is what allows them to interfere in policy realm and to grab onto more power in political realm

What is ‘standing’? What is an intervener?

• Participate in charter litigation as interveners

• Standing: who may appear before the court, who may speak to court during litigation/charter complaint, who has the right to participate in litigation

  • Common law rules for standing (judge made) - the only people to have standing to appear in court are the parties in case, if you are not one of the parties, you cannot participate in litigation/appear in court

  • Under certain circumstances, some can appear in court even if they are not parties to a case 

• Intervener: third parties (distinct form legal parties) that get to participate in litigation as ‘interveners’

What changes to the rules of standing occurred in 1987? What impact did the rule changes have on intervener access to the SCC?

• Intervener status was not as common pre 1987. Now, regular public interests interveners in public litigation

• Canadian Civil Liberties Association lobbied to relax rules and allow more groups to intervene

• SCC asked Canadian Bar Association to look into matter and make recommendations to court, in 1987 SCC relaxed rules of standing, making it much easier to gain intervener status

  • Creation of open door policy allowing many more third party interests to intervene

• You must apply to seek leave to intervene, up to court hearing case to determine whether you are granted leave to intervene (not all applications approved)

  • Ask whether applicant has sufficient interest in litigation (what stake do they have), whether intervener submission likely to be helpful (diverse pov), purpose of intervening to advance your own argumentation on legal issues determining by court, not to support one particular side, whether there is an imbalance of litigation in terms of number of interests present on both sides, whether parties are receptive to those interveners and whether or not admission of intervener might jeopardize case of trial (fair trial interests always win)

• Intervener limitations: cannot challenge findings of fact, cannot introduce new legal issues to try and expand scope of case, restricted to address legal issues identified and raised by parties, cannot call or cross examine witnesses

• Intervener’s allowed to: provide court with written factum to present arguments to court raised by parties, make oral submissions in court (court decide how long factums and oral submissions in court may be - 10 pages 5 mins)

  • Attorney general for federal or provincial government, or territorial minister of justice: can intervene as right, get more space for factums (20 pages instead of 10)

• What impact did the rule changes have on intervener access to the SCC? Relaxing rules for standing allowed many more opportunities to participate in litigation as interveners

  • Success rate of applications to act as interveners, reflect all cases heard before SCC: 1983-86 - fewer than half of all applications to intervene accepted by SCC; 87 rule change - 1987-90 success rate jumped to 85%; 

  • Success of number of group interveners: 1984-93: 230 group interventions in total across all years; 2000-08 182 interveners participated annually before SCC

    • 2015-2018: 252 interveners participated annually before SCC

• What does this mean for the court party thesis? Is it more viable? - access definitely improves for everyone, including court parties (as interveners, not litigants) allowing them to push their agendas, but it may not make it more viable

  • Created a lot of expectations for groups in society, expectation to access court as interveners

According to Danielle McNabb, who intervenes the most in Charter litigation? Do her research findings support or contradict the Court Party thesis?

• McNabb undertook a study to see who was intervening in Charter cases before SCC - April 2013 - December 2021

  • Equality seeking interests groups have an irregular presence in court as interveners

  • Covered 103 charter cases, 675 applications for leave to intervene

    • Rate at which applications to be accepted where high (91%), 86 of 103 charter cases had interveners participating 

    • Who is intervening the most? Is it court party groups? - repeat interveners did not come from a wide range of groups, powerful interests were repeated interveners, court party not a part of this

    • 3 dominant repeat interveners - in order: (disproportionately large amount of interveners) 

      • governments (attorney general of ON participated in 45% of cases of study, QC AB BC also frequent interveners) - want to influence outcome of case, governments often defensive

        • Some like that we have government interveners: example of democratic dialogue

      • Legal associations: Canadian Bar Association, Criminal Lawyers Association

      • Civil libertarian organizations: Canadian Civil Liberties Association

    • LEAF did not make top 20

  • When court party interests did intervene, they were siloed in two types of cases: s7 case (life, liberty security of person case) or s15 case (equality rights case)

    • While Morton and Knopff say that there is a gap where court parties are systematically engaging in court litigation, according to McNabb this is not the case

      • The imbalance is among the overrepresentation of powerful groups, court parties are underrepresented

      • Answer to disparities: access to resources and power structures that are needed to intervene (governments have budgets to litigate and intervene, cannot be matched by minority social group interests)

        • Ex. LEAF forced to cut back on litigation activities because of budget constraints, now focused more on political advocacy than legal advocacy

Some scholars have applauded the SCC’s open-door policy on intervening, arguing that it has a democratizing influence. How do the McNabb study and the SCC’s 2021 Notice to the Legal Profession concerning interveners undercut this belief?

• Judicial democrats believe courts should actively protect democracy and individual rights, even if that limits what elected governments can do

  • Judicial democrats argue that because Canada’s electoral system prioritizes regional and provincial identities rather than social identities (such as gender or disability), Charter litigation allows minority social groups to be represented through the courts, making democracy more responsive.

• Hein argues that minority social groups who engage in Charter litigation (often referred to as court parties) should be understood as judicial democrats because their legal actions strengthen democracy.

• McNabb notes that minority social group interests are often underrepresented among interveners, which is problematic because when equality-seeking groups do not intervene, their perspectives are not fully considered or prioritized.

• This raises the question of how successful court party interests have been when advancing claims under section 15 (equality rights) of the Charter.

• Bruce Ryder sought to examine what is actually happening in section 15 litigation.

  • Ryder analyzes the success of Charter claimants (court parties) in litigating equality rights claims

How successful have Court Party interests been when advancing claims under s.15 (equality rights) of the Charter?

• Bruce Ryder set out to examine what was actually happening in section 15 (equality rights) Charter litigation.

• His focus was on Charter claimants (court parties) and how successfully minority social groups have fared when bringing equality-based Charter claims.

• Ryder analyzed the success rates of section 15 claimants, asking whether minority groups were effective litigants under the Charter.

• Between 1989 and 2004, the Supreme Court of Canada decided 43 section 15 cases, with a success rate that was consistently lower than for all other Charter sections.

  • The average success rate for all Charter claims was 33–35%, compared to 27.9% for section 15 claims.

• By 2004, 6 of the 9 enumerated grounds of discrimination in section 15 (including race, national origin, ethnic origin, colour, and disability) had never resulted in a successful section 15 claim, which challenges the court party thesis.

• Age discrimination claims had a success rate of 20%, while sex discrimination claims succeeded 25% of the time—notably, the successful s*x equality claimants were men.

• Overall, there were very few section 15 cases, reflecting the high cost and difficulty of Charter litigation, and even when cases reached the Court, success rates were low.

• From 2004 to 2018, the SCC heard 21 section 15 cases, of which only 2 were successful, representing a 9.5% success rate.

• There was a nine-year period (2008–2017) in which no section 15 equality claims succeeded on any ground of discrimination.

• Taken together, Ryder’s findings suggest that court party interests have not fared well as litigants in equality-based Charter cases.

Charter Revolution

• Canada has experienced a charter revolution, refers to enhanced policy making role that court has under the charter

  • Antidemocratic transfer of political policy making power from elected officials to unelected judges

  • Reject interpretavism, judicial review, creating new rights by reading in, placing positive obligations on governments to make them comply with court decisions

• Morton and Knopff’s main reason for this: court party

Court Party

• Collection of interests that prefer policy making power of court to policy making power of legislatures (of less democratic work of judges over democratic work of elected officials)

• Minority social groups, media, left leaning academics, members of bureaucracy

  • All interested in court engaging in policy making and encourage courts to make judicial review, expand role of state and positive obligations on governments

• Principle focus: minority social groups 

  • ‘equality seeking interest groups’ - engaging in systematic charter litigation, litigating to get policy concessions

• Morton and Knopff: Court party made up of these groups who cannot build up support for their interests, hard for numerical minorities to have legislatures take up their causes

  • Rallies around court asking it to give what they know they can’t get through legislative channels

  • Court party more significant than charter itself and the judges who interpret it - they are driving antidemocratic nature of charter

  • They are the ones bringing charter cases that allow judiciary to make policy decision making, fuel growth of judicial power in political realm, continuously asks judges to intrude in public policy decision making (ex. positive obligations on governments), expanding their power in political realm

    • They want to empower court in policy realm, work systematically to promote and defend judicial power (basis of court party thesis)

Intervener/Amicus Curiae/Friend of the Court

• Not parties to case or litigants, outside interests beyond parties that get to participate in litigation because they have a stake in the outcome of the case

• Litigation that involves a public interest element, where the outcome of a Charter challenge matters to more people than just the parties involved

  • Can see ‘leave to intervene’

Leave to Intervene

• Ask to participate as an intervener, purpose is to try and influence outcome of court case

  • Get court to see issue from your pov

• Value for allowing interveners: allow court to hear diverse perspectives for court consider, decide what the impact of their decision will be on society (parties and interests beyond parties)

  • Interveners have a democratizing influence on charter proceedings by allowing for more views to be heard

Law Society of British Columbia v. Trinity Western University (2018) (SCC)

• Private Chrisian institution, wanted to create a new law school at TWU

  • Students and faculty must follow a code of conduct, prohibiting s*xual intimacy outside of context between man and woman

  • Goes to different law societies across Canada to accredit it, law societies of ON and BC said they didn’t want to accredit their law school (it’s a delegated government power)

    • Law societies subject to the charter, TWU is not subject to eldridge

• TWU brought a charter challenge to law societies of BC and ON because they argued that they violated s2(a) - freedom of religion

  • Refusal to accredit their law school violated their freedom of religion

  • 26 interveners applied to leave, SCC granted leave to 9 (surprising based on 1987 open door policy)

    • Not a single LGBTQ+ group granted to leave as intervenor, criticisms of court ensued, and four days later court reverse decisions and approved all 17 leave applications (caved to public criticism - looks like court ignores the minority group that this court case affects)

  • Sometimes a group is forced to intervene when their interests are attacked by charter litigation

LEAF (Legal Education and Action Fund)

• Created because of Charter, a feminist legal organization founded in 1985 - purpose to use s15 of Charter to challenge legislation

• LEAF wanted to systematically litigate gender discrimination cases, wanted to occupy field and become expert litigators on s15

  • Pick winnable cases, influence the way SCC interprets s15 in a way that is favourable to feminist outcomes (Morton and Knopff’s nightmare - court party)

• LEAF unable to do this, had to constantly expend resources constantly, ended up in court as interveners where women’s interests attacked, trying to protect rights of women and children (ex. To not allow extreme intoxication to be a defense)

  • Early on intervened a ton, among top 10 interveners in Charter cases in Canada

  • Originally wanted to bring forth their own charter cases, but the fact that they had to consistently intervene defensively did not allow them to pursue their original goals - limits ability to use resources elsewhere (especially in charter litigation)

Judicial Democrats

• Judicial democrats believe courts should actively protect democracy and individual rights, even if that limits what elected governments can do

• Electoral system prioritizes regional/provincial identity markers (not gender, disability, etc.), when minority social groups engage in charter litigation their participation has a democratizing effect by being represented by courts, making our system more responsive to the Canadian population

• Hein argues that minority social groups (court parties) that engage in charter litigation should be understood as judicial democrats that enhance democracy through their charter litigation