National Post

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Tuesday, March 21, 2000

Interest groups push judicial change: report
Corporations also use courts to fight government action
Luiza Chwialkowska
National Post

OTTAWA - Interest groups of feminists, environmentalists, aboriginals and civil libertarians are the major force pushing courts to scrutinize laws made by elected legislatures, concludes a study to be released today by the Montreal-based Institute for Research in Public Policy.

In an analysis of all Federal Court and Supreme Court decisions between 1988 and 1998, Gregory Hein, a lecturer in law at the University of Toronto, concludes that 62% of a claims challenging government actions and policies were made by non-corporate interest groups.

The remaining 38% were launched by corporations.

"Canadians can no longer ignore interest group litigation because it affects the style and substance of our political life," writes Mr. Hein. "It has become an important strategy for interests trying to shape public policy."

Corporate interests made 93 claims that challenged the substance or application of government policy over the 10-year period, followed by 51 claims by aboriginal people, 29 by so-called "Charter Canadians" including feminists and gays and lesbians, 24 by "New Left activists," including environmentalists, and 22 by civil libertarians.

Labour interests made only 12 claims over the period, while social conservatives, usually arguing against abortion rights or in favour of the traditional family, made seven.

Claims included lawsuits as well as interventions in suits brought by others.

"My study validates the criticisms of those on the right who say that New Liberals and social reformers are driving judicial activism," says Mr. Hein. "But it doesn't stop there. Corporations, where it is in their best interest, will not hesitate to use the same strategy and invite judicial activism."

Mr. Hein says the number of corporations who have used courts to challenge government is "stunning" and "surprisingly high."

He says his study was a response to an argument set out by Ted Morton, a University of Calgary political scientist, in a series of articles and upcoming book, The Charter Revolution and the Court Party, to be published next month.

Prof. Morton argues that the Supreme Court has allowed itself to be used as an instrument of partisan politics by a "court party" of interest groups who fail to enlist public support through the democratic process.

Prof. Morton argues that interest groups of the left and the Supreme Court have developed a relationship "of reciprocal support" over the past 15 years.

"The notion that our courts are being stormed by the left was provocative enough for me to want to see if it was the case," says Mr. Hein, who says judicial activism is a result of "democratization of the court."

He notes that since the adoption of the 1982 Charter of Rights and Freedoms, the courts relaxed rules allowing interest groups with no direct stake in a case to intervene before the court on issues that affect the public interest.

"It makes our political life messier and less predictable, but it means more democratization," he said.

The study found that corporate claims dominated the Supreme and Federal Courts' dockets, with 468 claims compared with 234 made by interest groups of the left. However, that was because of the high number of corporations -- 180,000 corporations exist in Canada compared with 1,600 interest groups. Though they represented a smaller percentage of the claims, the interest groups had a much higher propensity to litigate, with one in seven appearing before the court, compared with one out of every 385 corporations.

Prof. Morton, who has read the paper, says it is an "important and impressive" piece of research, with certain "limitations."

"Over half of his instances of litigation are corporations suing other, not going against government. It's hardly surprising. Every time something goes wrong in a contract, there's going to be litigation," he said yesterday.

Even those corporations that do challenge governments are usually challenging the administration of laws, for example, environmental regulations, and not their substance, he said.

In that respect, Prof. Morton says interest group litigation poses a greater danger to democracy.

"There's quite a difference between objecting to the enforcement of regulations and challenging a policy on the grounds that it is unconstitutional," he said.

"That's qualitatively different because it doesn't obstruct government policy to the same extent as a constitutional challenge," he said.

Prof. Morton also noted that the study did not analyze the success rate of various challenges.

"Needless to say, that's a crucial factor. A crucial element of my criticism has been that the courts have taken sides, resulting in inordinately high success rates for Charter Canadians such as gays and feminists. There would hardly be any criticism if these groups weren't winning month after month," he said.

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