Globe and Mail

Supreme Court fails on threat to silence groups, study says

The Globe and Mail
April 6, 2001

For all its threats to crack down on the number of intervening parties attempting to have their legal say at appeal hearings, the Supreme Court Of Canada has done precious little to stop the trend.

The number of governments, agencies and lobby groups permitted to put in their legal two-cents worth increased last year, according to a study released yesterday by York University in Toronto.

But the study, prepared by Patrick Monahan, a law professor, shows no evidence of any such shift in the trend.

"This was somewhat surprising in light of the court's specific reminder to interveners in 1999 that there would be no right to oral argument by an intervenor unless specifically ordered."

The study also confirmed a growing belief that the court has taken a conservative turn when it comes to striking down legislation or defying the will of government.

"There was little evidence of the sort of activism that has prompted critics in previous years to complain that the court was encroaching on the prerogatives of the legislature, the study concluded.

Prof. Monahan also found that:

Prof. Monahan said he believes there's nothing wrong with a busy appellate court carefully pondering its conclusions in cases that will be relied upon to offer guidance for decades to come.

"I'm not troubled by the drop [in rulings]," he said. "Getting consensus takes time."

Most parties wishing to intervene in constitutional cases are required to seek special permission from the court. (Governments have an automatic right to appeal.)

The most frequent non-governmental interveners in the Supreme Court of Canada are the Canadian Civil Liberties Association and the Women's Legal Education and Action Fund.

Last year, 75 different entities were granted "intervenor status" in 107 constitutional cases, a distinct increase over 1999, when 52 entities appeared 81 times.

Prof. Monahan said yesterday that apprehension swept through the ranks of intervenor groups in mid-1999 when the court announced its intention to cut back their involvement in cases.

The court said at the time that, with the Charter of Rights and Freedoms well past its infancy, there was less need for groups representing an array of interests to provide their perspective.

The study was released on the eve of a Charter conference organized by York University's Osgoode Hall Law School.

Copyright 2001 Globe Interactive, a division of Bell Globemedia Publishing Inc.