Quiz 2 Lec 7 Flashcards
1
Q
What does Morton and Knopff’s traditional understanding of judicial review entail?
A
- the idea that courts are objective and impartial, apply the law but do not make the law, respect the law vs. politics distinction, courts should exercise deference to the policy choices of elected officials, bound by original text, should not be engaging in positive activism, litigating is to be undertaken by individuals not groups
2
Q
What does M and K’s court party thesis entail?
A
- argues that Canada has experienced a charter revolution, which refers to enhanced policy making rule that the court has under the charter
- anti-Democratic transfer of policy making power from elected officials to unelected judges (who create new rights and place positive obligations on the state)
- the cause of the charter revolution is the court party - a constellation of interests and social groups that prefer the policy making power of the unelected court to the policy making power of elected legislature
3
Q
Who comprises the court party?
A
- social movements, the media, academics who study the charter, members of the bureaucracy, equality seeking groups that engage in systematic litigation ex. LGBTQ+, Indigenous peoples, feminists, disabled
- court party groups cannot get sufficient support because they lack the numbers, therefore the choose to bypass elected officials and go to the courts
- the court party drives charter revolution, they bring the claims that fuels that growth of judicial power, believes judges are sympathetic to these claims to gain power
- all of these interests encourage the courts to use their policy making power under the charter to interfere with the policy making of elected officials and to expand the role of the state by placing positive obligations on governments
4
Q
Who does not belong to the court party?
A
- the accused because their main objective is to go free not to change criminal justice policy
- corporations and corporate litigations: much less likely to litigate and do not do so systematically but instead engage in private litigation (want limited state and free market)
5
Q
What is standing?
A
- who is allows to appear before the court, parties to a dispute always have standing (those directly affected by the dispute)
6
Q
What is an intervener?
A
- those who are not parties in a dispute can participate in litigation as interveners/amicus curiae/friend of the court, those with outside interests or third parties that have a stake in the outcome of the case (public interest)
- leave to intervene can be granted so one can participate as an intervener
- ex. Carter v. Canada (2015 (SCC), case challenging criminal prohibitions on MAID, the parties to the litigation were Carter and the government of Canada, but others affected - doctors, people with disabilities, religious groups - sought intervener status
- those involved: the evangelical fellowship of Canada, the alliance for people with disabilities, the Canadian civil liberties association, the physicians alliance against euthanasia
- purpose of intervening: to influence the outcome of the case
7
Q
What changes to the rule of standing occurred in 1987?
A
- prior to 1987, intervention existed but the application to intervene was not routinely granted, however, after the charter was passed people wanted to talk to the courts, the SCC asked the Canadian bar association to make recommendations which led to new rules in 1987
- if you want to intervene you just seek leave to intervene, it is up to the courts to grant the application, this is done by considering:
1) whether the applicant has a sufficient interest in the litigation
2) whether the interveners participation is likely to be helpful to the court (offers a different perspective)
3) whether there is an imbalance in the litigation in the number of interests on both sides
4) If the parties agree to it
5) whether a non-government outside interest might jeopardize fair trial interests
8
Q
Restrictions for interveners
A
- can only address legal issues that the parties have already raised
- not allowed to call or cross examine the witnesses
- BUT they can provide the court with a written factum/legal memorandum where they present their arguments about the legal issues raised by the parties, can also make an oral presentation (5 minutes or 10 page written)
9
Q
In what ways are the new rule changes relevant to the court party thesis?
A
- changing the rules of standing has allowed many more to participate as interveners
- between 1983-86: fewer than half of all applications were accepted by the SCC
- 1987-1990: 85% success rate and has stayed above 80% ever since
- in Canada, between 1984-93, 230 groups intervened
- 2000-2008: 182 intervened per year
- 2015-2018: 252 per year
- % of appeals with at least one intervener: 2000-2018: 55%, 2015-2018: 63%
- more applications to intervene since 1987, more interveners participating annually, significant % of appeals involve interveners
- provides more opportunities for court party interests, proof of charter revolution, social groups now have expectations they will be able to appear before the court
10
Q
Law society of British Columbia v. Trinity western university (2018) (SCC)
A
- TWU is a private university that wanted to create its own law school
- students who attend required to follow a covenant: a religious based code of conduct that prohibited sexual intimacy unless married and between a man and woman
- law societies from both Ontario and BC said no to the law school and a section 2 claim was brought against the law society by the students
- 26 different interveners sought leave from the SCC to participate in the case but the SCC granted leave to only 9 (no LGBT groups)
- decision caused anger and was reversed 4 days later allowing all groups to intervene
11
Q
Who intervenes the most?
A
- governments are the most frequent interveners not interest groups
- federal and provincial attorney generals can intervene as of right in constitutional cases, they do not have to seek leave
- between 2000-2008, 97% success rate of governmental intervening
- seek to influence the outcome of the case, gov intentions are defensive because they want to protect they policy they have created
12
Q
Does the SCC favour court part interests over other groups when they are granting leave?
A
- no, between 2000-2008, all groups had a very high success rate when seeking leave to intervene, every group above 76% success rate, most groups had a success rate of 90% or higher (ex. Financial interest)
- groups intervene reactively, forced to intervene to protect their interests from hostile litigation
13
Q
LEAF - legal education and action fund
A
- feminist legal organization founded in 1985 by lawyers
- one purpose: to use section 15 of the charter to challenge legislation to systematically litigate on equality issues, wanted to become known as expert litigators on section 15 and push legal interpretations of equality rights in ways that advanced feminist agendas
- has not been able to achieve its goal because has had to expend the resources that it wanted to use to litigate on interventions
- among top 10 interveners in charter cases, forced in defensively to serve status quo (no net gain)
14
Q
What does Hein’s study of interest group litigation illustrate?
A
- Morton and Knopff did not attach any empirical evidence to their court party thesis
- Hein looked at all the cases appearing in the federal court reports and the Supreme Court reports from 1988-1998, wanted to look at interest group litigation to see who was litigating, created 9 categories: indigenous peoples, charter Canadians, civil libertarians, new left activists
- hein concluded there was empirical support for the court party thesis and that court parties do litigate systematically to shape public policy
15
Q
Hein - was the court party anti democratic?
A
- yes, the court party brought 52% of all claims that challenged cabinet decisions and public policy
- but he argues that the court party thesis is incomplete and misleading because it misses the fact that many more interests that are not court party interests are also litigating
- ex. Economic interests - litigation by corporations brought 468 legal actions (more than any other group studied)
- Hein: if the concern is really undermining democracy, then they should also be concerned about corporate entities because a lot of corporate litigation isn’t charter litigation - it is usually private litigation (38% of all claims challenging policy and cabinet decisions were brought by corporations)
- court parties are more inclined to litigate than corporations (brought 52% of all cases)
- the charter is mobilized by corporate litigants who also attack the decisions of democratically elected officials (Hein argues this must be accounted for)
