Interest groups and Supreme Court of Canada

by Brodie, Ian Ross

Since the Charter of Rights was added to Canada's constitutionallaw in 1982, Canada's courts have gaineci influence as political institutions. Cartndian poIitical sàentists have started to study the courts wah the varbus tools of social science aiid while this first generation research bas noted that interest groups are paying new attention to the courts, most of it bas been sporadicY unsystdc and anecdotal. This dissertation investigates two principai research questions. First, to what extent have interest groups taken advantage ofthe shiA of politicai duence towards the judiciaqt? Secondly, to what extent am the groups that have taken advmtage of the judiciary's new influence be considered "poiiticaliydisadvantaged"? The first chapter reviews how the "political disadvantagetheory"of interest group litigation emerged inthe US aad Canada. Since 1980, American scholars have concluded the theory is too aaorow, and 1 demonstrate that it never did descri'bethe Canadian expenence. Interest groups litigate to take advantage of the institutioaal structure of the courts. The second chapter traces the history of interest group intervention in the Canadian Supreme Court. During the 1980s, interest groups and legal commentators urgedthe Court to hear from more interest group intemeners. The Court responded by openiag its door to an unprecedented nwber of groups. Chapter three shows how the federal goverament used the Court Challenges Program to encourage interest group litigation. The fourth chapter argues that interest group litigation under the Charter's equaiity rigbts section creates a politics of status-seeking, and elaborates a mode1 to explain equality rigbts litigatïon. Chapter five proposes a theory of the Charter's impact on the institutional hmework of poiicy-makmg in Canada. It suggests how judicial review altas the influence of interest groups in poiicymaking. Finallyy chapter six considers the Supreme Court's justifications for hearhg iii interest groups in the light ofmodemcoILStitllfionalismlsconani for checks and balances. Although the politicai didvantage theory bas beenusedto legitimatethe Court's actMsm under the Charter ofRights, the disertation concludesthat it is a poor empirical explanation of the reality ofhterest group Litigation. Aclmowledgements Fifst, 1 thankthe Social Sciences and Humanities Research Councii of Canada (DoctoralFeiiowship 752-94-1495), the Alberta Heritage Scholarshïp Fund,the Külam Trust and the Department of Politid Sciencefor th& generous support ova the past four years. Some of the data used here were collectecl with research gants fiom the Department of Justice and the University of Calgary Research Grants Cornmittee. The staff ofthe Process CSce and the Court Records mceat the Supreme Court of Canaâa graoted me access to th& archives and patieutly accornrnodated my research needs. W~thouth& help 1 could not bave Wriffen key paris of this dissertation. Sonya Nerlund assisted me during my first visit to the Court's archives. The access to uiformation statfs of theDepartment of CanadianHeritage, the Department of Justice, the Department of the Secretary of State aml the Privy C o d Office courteously processed my mmy access requests.