Week 7 - Interest Groups and the Court Party Thesis

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

• Where there is some sort of public interest component to litigation that makes outcome of charter complaint of interest/significance to more people than the parties

  • Can see ‘leave to intervene’

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

Canadian Bar Association and the SCC

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

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

Factum/Legal Memorandum

• 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)

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)

Criminal Lawyers’ Association

Policy Status Quo/PSQ

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

Bruce Ryder

• Bruce Ryder: wanted to see what was actually happening under s15

• Charter claimants (parties) - how have these court party interests fared as litigants in charter cases?

• Looked at success rate of s15 charter claimants - how successful were minority social groups when bringing up cases under s15

• SCC s15 cases between 1989-2004: 43 cases in total, success rate consistently lower than win rate for all other charter sections, avg success rate for all charter claims before SCC were 33-35%; avg success rate for s15 cases were 27.9%

  • By 2004, 6 of these 9 grounds of discrimination listed in s15 had never led to a successful s15 case (race, national origin, ethnic origin, colour, disability, ): does not support court party thesis

  • Age discrimination: 20% success; sex discrimination: 25% - two people that won sex equality cases were men

  • Very few s15 cases - cost of litigation, difficult to bring charter cases forward, when they do bring cases forward the success rate isn’t very good

  • 2004-18: 21 s15 cases before SCC, 2/21 were successful (9.5% success rate), 9 years in a row where there were no s15 successful charter complaint on any ground of discrimination (2008-17)