Constitutional Law Conference At Osgoode Hall Law School To Show Shift In High Court
Supreme Court Now Major Focus For Interest Group Activity, New Study Shows

TORONTO, April 4, 2000 -- In more than half of the constitutional cases before the Supreme Court of Canada between 1996 and 1999, the country's top jurists handed down decisions with the benefit -- or burden -- of hearing directly from ëintervenors, ' people or groups who were granted the right to file written materials and sometimes to make oral arguments on cases for which they were not parties.

This finding -- which shows a shift in the Supreme Court which up until 1987 was criticized for restricting the right of third parties to make submissions -- is part of a study to be released during the Third Annual Osgoode Hall Constitutional Cases Conference on Friday, April 7, 9 a.m. to 5 p.m., Moot Court, Osgoode Hall Law School, York University, 4700 Keele St., Toronto.

This annual conference is co-chaired by Prof. Patrick Monahan, Director of the York University Centre for Public Law and Public Policy at Osgoode Hall Law School, and by Prof. Daniel Drache, Director of the Robarts Centre for Canadian Studies at York University. Now in its third year, the conference brings together leading experts from across the country to debate the Court's constitutional decisions of the previous year. Among the highlights of the conference:

Judicial Activism and the Constitution: Guy Giorno, Deputy Chief of Staff in the Ontario Premier's Office, Calgary Political Scientist Ted Morton, and Osgoode Hall Law School Dean Peter Hogg will argue whether the court has become too activist, using Hogg's thesis that the courts are engaged in a "dialogue" with legislatures in the interpretation of the constitution. (Morton's just-released book, The Charter Revolution and the Court Party, argues that outside interests have hijacked the court process since the Charter's inception);

Prof. Monahan's exclusive analysis of the latest trends in the Court's constitutional docket;

An analysis of the court's decision in M. v. H., dealing with same sex rights, including presentations by leading counsel who argued the case in the Supreme Court of Canada;

An Analysis of the Court's two decisions in the Marshall case on the aboriginal right to fish commercially in Atlantic Canada, including presentation by historian Stephen Patterson, the key government expert in the case;

Keynote address, The Judicial Role in a Democratic Society, by Ontario Court of Appeal Justice Rosalie Abella.

In his intervenor study, Monahan's review of the 112 constitutional cases decided by the Supreme Court from 1996-99 reveals that intervenors appeared in 60, or about 54 per cent, of the constitutional cases decided during those four years. And of the 354 interventions -- ranging from Societe des alcools du Quebec to The Commissioner of the NWT to the Ontario Multi-Faith Coalition for Equity in Education -- an average of almost six intervenors per case pressed their points before the Court. Intervenors, who sometimes get an audience with the Court as well as the right to submit 20 pages of argument, are intended to broaden the Court's perspective and knowledge base, not simply repeat arguments made by the parties.

"How significant and appropriate is this form of 'interest group politics' at the Supreme Court?," asks Monahan, adding that the intervenor study is only one aspect of the conference in which a stellar group of lawyers, academics, and, for the first time, top-ranking political staff, will provide frank and thoughtful criticisms and insights on the impact of the most important legal decisions of the year.

Who is Intervening?

Monahan said that governments are the most frequent intervenors, accounting for slightly more than one-half (168) of the 354 interventions over the past four years. This finding is not surprising, given governments' automatic right to intervene in constitutional cases. What is surprising, Monahan says, is that the Attorney General of Quebec, which intervened in 28 cases over the past four years, is the most frequent government intervenor before the Supreme Court. There are fewer constitutional cases from Quebec than from Ontario or British Columbia, so it's significant that the latter two provinces didn't take the lead on intervening, says Monahan. The number of interventions made by other governments from 1996 to 1999 follows: federal government (25), British Columbia (24), Alberta (21), Ontario (19), Prince Edward Island (3), Newfoundland (2), Nova Scotia (3) and New Brunswick (3).

Non-profit organizations, including registered charities, law-related organizations, industry associations, and other non-profits are the next single largest group of intervenors. Seventy-six separate non-profit organizations intervened before the Supreme Court during the last four years, including 27 registered charities, 14 law-related organizations (such as the Canadian Bar Association and the Criminal Lawyers Association), and five industry groups (such as the Canadian Manufacturers Association and the Retail Council of Canada). Nineteen aboriginal organizations, three trade unions, five corporations and 11 individuals also intervened over the past four years. A complete list is attached.

The review reveals that certain organizations tend to intervene more frequently than others. The Canadian Civil Liberties Association, for instance, intervened the most of all non-profit organizations -- eight times during the period of study. The Women's Legal Education and Action Fund (LEAF), the BC Fisheries Survival Council, the BC Wildlife Federation and Delgamuukw et al, each intervened five times. In some cases, the latter intervenors were urging the courts to uphold the legislation or government action that was under scrutiny. Only one trade union organization (the Canadian Labor Congress) and one private corporation (Canadian National Railway Company) intervened three or more times in the Supreme Court.

Monahan says this data is relevant to the continuing debate over the role of the courts in constitutional litigation. In the early years of the Charter, some Charter critics argued that only profitable corporations and wealthy private individuals would have the resources necessary to fund expensive litigation all the way to the Supreme Court.

"This data suggests that non-traditional interests, particularly charities, aboriginal groups and non-profit organizations, have effectively seized the opportunity to intervene in litigation before the Supreme Court. In this sense, the fears that the Charter would be utilized unduly by profitable corporations or the wealthy to reinforce their pre-existing privilege do not seem to be borne out by these statistics," said Monahan.

Has the Pendulum Swung too Far? Balancing the Roles of Intervenors and Parties

Monahan notes the strong tendency to have multiple intervenors in a single proceeding -- on both sides of the issue. For example, in the recent Mills case (R. v. Mills (1999) dealing with the right of an accused person to obtain psychiatric records of a complainant in a sexual assault case, 18 intervenors, including eight Attorneys General and 10 non-governmental bodies or persons, weighed in on the case. Most of them appear to have intervened in support of the constitutionality of the legislation and against the position taken by the accused, whose liberty was at stake in the proceeding.

Before 1987, it was generally not possible to intervene in a criminal case; the Court argued that criminal cases involve only the citizen and the state rather than third parties. Now, however, interventions are commonly granted in criminal matters. For example, in the past four years intervenors were heard in 28 of the 70 criminal law constitutional cases -- approximately 40 per cent.

"While this level of intervention is lower than for non-constitutional cases, it nevertheless raises some concerns about the appropriateness of the Court's current practice, since an accused individual may be forced to confront not only the Crown but an array of other groups and organizations," said Monahan, adding that these other organizations will typically be far better funded that the individual accused -- maybe even by governments or other organizations partly or wholly funded through grants, subsidies or the tax system.

The latest development came last August when the Supreme Court announced it would be strictly enforcing the 60-day time limit for applications for intervention to be filed, and restricting the number of oral submissions intervenors make to the Court. Monahan's analysis accepts the more rigorous enforcement as appropriate, particularly in the criminal law context. Granting intervenors the right to make written submissions alone seems to strike an appropriate balance between the need to obtain relevant information and viewpoints on the one hand, Monahan says, balanced against the fact that the actual parties to the litigation, whose interests are most directly at stake, should be the primary focus of the actual oral argument before the Court.

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For more information or a complete agenda, please contact:

Sine MacKinnon
Sr. Advisor/Director, Media Relations
York University
(416) 736-2100, ext. 22087

Prof. Patrick Monahan
Director, Centre for Public Law and Public Policy
Osgoode Hall Law School, York University
(416) 736-5568
YU/043/00

Backgrounder

Table 2: Appearances by Public Interest Organizations 1996-1999
Year	Registered Charities	Law-Related Organizations	Industry Groups	Misc. Non- profit orgs.	Total Appearances
1996	0	1	4	17	22
1997	18	10	1	10	39
1998	9	8	0	12	29
1999	14	4	4	15	37
TOTAL	41	23	9	54	127

Table 3: Appearances by Other Entities 1996-1999
Year	Trade Unions	Corporations	Aboriginal Organizations	Individuals	Total Appearances by Year
1996	0	3	14	12	29
1997	0	3	3	0	6
1998	1	0	4	4	9
1999	5	2	7	1	15
TOTAL	6	8	28	17	59