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Public interest intervention before the Courts

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Current judicial practice with respect to public interest intervention in court proceedings is in a state of flux. There is no Rule of Court under which British Columbia courts are empowered to allow individuals or groups to intervene in litigation in order to represent what they perceive to be the public interest. Nevertheless, the B.C. Court of Appeal has stated that the courts of this province have an inherent jurisdiction to allow intervenors to take part in court proceedings,1 and recently public interest groups have been permitted to intervene in a number of lawsuits in order to present new perspectives on matters of public importance.2 Pursuant to Rule 18 of the Rules of the Supreme Court of Canada, it is possible for persons interested in an appeal or reference pending before the Court to apply for and receive permission to intervene in the proceedings, and there is ample precedent for the use of this power by the Court, both under the existing rule and under its predecessor.3 On the other hand, it is often difficult for those interested in litigation to determine whether the Court will permit intervention, and recent experience seems to indicate an increasing reluctance on the part of the Court to grant intervenor status.4

We shall argue here that the question of what role public interest intervenors should play in the justice system needs to be addressed and resolved by the courts, and that the direction that should be taken follows, in largest measure, from this country’s recent decision to entrench a constitutional Charter of Rights. It is commonplace now that the Canadian Charter of Rights and Freedoms brought the courts into the centre of debate on matters of public importance as never before in our history. As an Association that gave evidence before the Special joint Committee of the Senate and the House of Commons on the Constitution in support of entrenchment of civil libertarian principles in our Constitution, we view this as an extremely positive development. It is not, however, a reason for complacence. Political scientist Peter Russell has observed that “a constitutional charter of rights guarantees not rights but a particular way of making decisions about rights in which the judicial branch of government has a much more systematic and authoritative role.5 We do not doubt the desire of the courts to perform this new role wisely and effectively, but we believe that they will better be able to do so if they are presented with a broad range of views from those who are affected by their exercise of this power. To the extent that we fail to develop adequate mechanisms for people to influence the exercise of the responsibilities imposed on the judiciary by the Charter, we believe that the effectiveness of the courts in exercising this authority will be undermined.

Why public interest intervention is justified

Fundamental to our belief that public interest intervention is justified, is the proposition that judges make law. Lord Reid observed more than a decade ago that “we must accept the fact that for better or for worse judges do make law, and tackle the question how do they approach their task and how should they approach it.”6 We recognize, of course, that Canadian courts make law primarily in the course of adjudicating concrete disputes between parties.7 We realize as well that, in many (perhaps in most) instances, the fundamental interest of all concerned is the resolution of the dispute, not the making of law. Nevertheless, the fact remains that, from time to time, courts are called upon to make law in the resolution of disputes, and with growing frequency, the establishment of a particular legal rule or principle itself is becoming the objective sought by litigants. We see nothing wrong with this; indeed, the BCCLA itself has engaged in litigation for this purpose, and hopes to continue to do so.8 But the ability of judges to make law in the course of carrying out their adjudicative functions does raise a fundamental problem in a democracy.

The problem is that, in a democracy, we believe that all laws ought to emanate from the democratically elected representatives of the citizenry, not from appointed officials, no matter how highly we hold those officials in regard. In the modem bureaucratic state, we have come to expect that simple notions of representative democracy will be modified somewhat to take the size and complexity of our governmental apparatus into account, but we continue to cling to the idea that citizens are entitled to participate in the process whereby the rules that govern their lives are formulated. Political actors realize the importance of public participation in decision-making, even where such participation is not required by law, Thus politicians, government departments, and administrative agencies have developed a wide range of format and informal mechanisms for consulting those who are most substantially affected by their decisions.

In the traditional litigation context, where those most substantially affected were presumed to be the litigants themselves, this participation value was satisfied by the hearing rights that the litigants were accorded by the courts. Indeed, where the important interests of individuals are put in jeopardy in an adjudicative context, the courts have established that as a matter of natural justice or fundamental fairness, we must presume that those individuals are entitled to be heard in defence of their interests,9 and we have been prepared to elevate this presumption to a constitutional requirement under Section 7 of the Charter.10 Yet when the range of persons who are affected substantially by a legal rule, which is proposed in order to resolve a particular dispute, has extended significantly beyond the immediate parties to the dispute, courts have tended to be very reluctant to expand the opportunity to participate in the litigation to everyone so affected.11

One does not have to search far for the reasons for judicial reluctance to expand participation rights. While this reluctance may be rooted in traditional English procedural notions that the parties to the litigation are entitled to control the range of issues put before the court, a much deeper concern is that, in seeking to deal with issues of broad concern to the population at large, a court that adopted a generous attitude to participation by non-parties might find itself engaged in a proceeding that was more akin to a Royal Commission than to a traditional judicial hearing. We do not dismiss these concerns lightly, and we will deal with them in the second part of our paper. Nevertheless, we believe that public participation in the judicial law-making process serves two important in our society that should not be overlooked.

The first of these is that a variety of inputs is likely to make for more informed, and therefore better, judicial decision-making. In the United States, where participation by public interest groups in litigation is a common occurrence,12 the value of submissions made by amici curiae has been the subject of commentary on numerous occasions.13 Sometimes public interest groups have been able to bring to the attention of the court background information (what are often described as “legislative facts”)14 that reveals in a telling manner the particular impact that a legal doctrine may have on their members. Thus, in the lawsuits that eventually resulted in the ending of judicial enforcement of racially restrictive housing covenants, a variety of organizations that submitted amicus curiae briefs were able to provide persuasive accounts of the harmful effects of discrimination in the provision of housing,15 On other occasions, amicus curiae submissions have raised legal issues or ideas that have not been developed by the parties, and these ideas have influenced the way in which judges have formulated their decisions. For example, the amicus briefs of the American Civil Liberties Union, supporting the notion of a constitutional right to privacy in cases such as Poe v. Uliman16 and Criswold v. Connecticut,17 are considered to have had a substantial impact on the development of that doctrine.18

The second value served by public interest participation is less obvious but perhaps more important, and that is the value of legitimation of the eventual decision rendered by the court. Everyone knows that judicial decisions create winners and losers. And nobody likes to lose, At the same time, we have a strong sense that losing is not quite so bad if we have had a fair chance at playing the game. Sir Robert Megarry once observed that the most important person in a courtroom was the litigant who was about to lose, and it was the primary duty of the court to convince that person that his or her point of view had been heard and understood, even if the court found it necessary to reject it.19 The same observation can be made at the level of judicial law-making, and one can be assured that, if important decisions are made in which those who are substantially affected are unable to make their views known to the courts, the esteem with which those decisions are held is bound to differ. Thus judge Jack Weinstein, a highly regarded United States District Court judge who has been involved in much important Public law litigation, has commented:

Widespread access to the courts for people as well as ideas is desirable. Generally, all those who may be affected by judicial decisions which are quasi-legislative in character should have some channel of communication with the court. Based on my own experience, I doubt that liberality [in creating opportunities for participation] will produce costs in terms of complexity that outweigh the advantage of access to the courts by those who may be affected by the judicial decisions.20 (emphasis added)

Public interest intervention helps to legitimize judicial decisions in the following two ways, even when it does not appear that the intervenors have had a significant impact on the outcome of the decision-making process. First of all, the willingness of courts to listen to intervenors is a reflection of the value that judges attach to people. Our commitment to hearing rights and public participation in governmental decision-making is derived not only from the belief that we improve the accuracy of decisions when we allow people to present their side of the story, but also from our sense that participation is necessary to preserve human dignity and self respect.21 Scholars may disagree about the extent to which “dignity values” require us to afford people the opportunity to take part in the process of defining our legal rights and obligations,(22) but few would deny that our respect for the courts and other governmental institutions is enhanced by their willingness to have regard for these values.

Secondly, participation by public interest intervenors in litigation creates a moral obligation on their part to respect the outcome of the litigation. It is inevitable that some people will be dissatisfied with the decisions that courts make about contentious issues, just as it is inevitable that some people will be disappointed by the outcome of a hotly contested election. But a willingness to take part in these processes is generally thought to imply a willingness to abide by the result.23

If public interest intervenors are shut out from the courts’ decision-making processes, their legal obligation to accept such decisions will doubtless remain, but their moral obligation to do so will be subtly undermined. And in a society in which the power of courts rests as much on their moral authority as on their ability to invoke the coercive power of the State, this is not a matter to be taken lightly.24

The British Columbia Court of Appeal has recognized the importance of allowing those who are likely to be affected by a decision to bring a variety of perspectives before the court ruling on an issue of public importance. Thus in Canadian Labour Congress v. Bhindi and London, the Court not only permitted the Canadian Labour Congress to intervene at trial in a case where the “closed shop” provisions of the Canada Labour Code were being challenged under the Charter, it also ordered that notice of this fact be provided to the Business Council of British Columbia and the Construction Labour Relations Association of British Columbia.

In the Bhindi case, Mr. Justice Anderson observed “that it is important in dealing with Charter issues raised for the first time that the courts have the assistance of argument from all segments of the community. The courts should not resist but should welcome such assistance.25 This, in our respectful submission, is the spirit in which the whole issue of public interest intervention ought to be approached. It is doubtless true that everyone who seeks to intervene in litigation has the objective of influencing the judicial decision-maker in order to attain what is perceived to be a favourable outcome, and in this sense the provision of assistance to the court is at best a secondary concern. In a more important sense, however, the object of all public interest intervention is to improve the process of judicial law-making, by ensuring that courts understand the point of view of those who will be affected by their decisions, and by ensuring that those who will be affected perceive that the courts understand their point of view, even if they disagree with it. It seems to us that this constitutes a very real form of assistance to the courts, and that the burden ought to be on those who would deny our courts the benefit of this assistance, to show why a generous approach to public interest intervention is unjustified.

Arguments against public interest intervention

Two types of argument are advanced against those who advocate a broad approach to public interest intervention. The first are what might be described as arguments of principle. What is considered objectionable about public interest intervention is that it is believed to be incompatible with the proper functioning of the judicial system, or that it is unfair to the parties, who may be deprived of control over the litigation. The second type of objection can be termed the arguments of practicality. Public interest intervention is not considered undesirable in and of itself, but only to the extent that it represents an unproductive use of the court’s time and energy.

1. Arguments of Principle

The idea that public interest intervention is incompatible with the proper functioning of the courts rests on certain assumptions about the nature of litigation and the role of the judge in the litigation process. There is a tendency in English law to think of the judge as a neutral arbiter, weighing the arguments presented by counsel in order to arrive at the resolution of the dispute. The active participants in this process are counsel, who may choose to advance, or refrain from advancing, such arguments as they see fit. In this type of legal framework it is considered inappropriate for judges to base their decisions on arguments that were not advanced by counsel; it is considered equally inappropriate for judges to do independent legal research or to make reference to authorities not cited by counsel.26

This system has much to recommend it, if the entire object of the exercise is the resolution of disputes. We do not find it excessively disturbing to imagine that the outcome of a contest between two litigants should be determined, in part at least, by the skill of their advocates. If, however, we believe that the making of law in the course of the resolution of the dispute is a major part of the exercise, our attitude is likely to change quite considerably. The idea that the quality of our legal rules might depend on the relative abilities of counsel, is one that gives rise to at least some measure of concern. Likewise, it would seem that if the independent research of judges and their law clerks results in better, or at least better informed, legal development, we should want to see this type of thing encouraged.

We do not believe that the recognition of interests extending beyond those of the parties to litigation forces the courts to transform their proceedings into something akin to legislative hearings. Courts are not equipped to act as roving commissions established for the improvement of our legal system, nor would we want them to be. We believe that there is some value in attempting to come to grips with difficult and complex issues in the context of a concrete situation, and our courts wisely have been reluctant to attempt to resolve points of law in a factual vacuum, even when such issues have been referred to them by government.27 Once a court is confronted with a situation in which it must make an important legal choice, however, it seems to us that it ought to use whatever assistance is available in order to make that choice a wise one. While we recognize the value of the traditional English system of litigation in ensuring the fair and just resolution of disputes, we think it would be regrettable if we considered ourselves unable to modify that system in order to reflect the increasingly important law-making functions that we have imposed on the judiciary.

At the same time, we must acknowledge that allowing intervenors to take part in litigation can impose a significant burden on the parties, and it is appropriate to consider whether the imposition of such a burden is unfair. We believe that people have a right to come to court to resolve disputes expeditiously and at a minimum cost. Accordingly, we believe that it is inappropriate for intervenors to expand the range of issues before the court if the dispute may be resolved on a narrow ground. Thus we agree with a British Columbia Supreme Court decision holding that, where a party to a collective agreement sought judicial review of the interpretation given by an arbitrator to the agreement, it was inappropriate for a non-party to the agreement to intervene to challenge the validity of the “closed shop” provisions of the agreement under the Charter.28 We also believe that there may be elements of a dispute that are not appropriate subjects for intervention, and courts should act to confine intervenor’s comments to those elements of the lawsuit upon which intervention is acceptable. In the context of a criminal case that raises issues of interpretation of the Charter, we believe that it would be appropriate for intervenors to comment on the question of how the Charter affects the Criminal Code provisions at issue, but that the intervenors should not discuss the guilt or innocence of the individual accused.29 Similarly, it makes sense to us that the British Columbia Court of Appeal confined the participation of the intervenors in the Bhindi case to certain issues involving the impact of the Charter on collective agreements.30

2. Arguments of practicality

To state that we are prepared to incur some degree of cost and inconvenience in order to enable public interest groups to participate in important litigation does not imply that unlimited cost and inconvenience is justified. Some opposition to public interest intervention is undoubtedly due to the belief that it represents a waste of resources and, in particular, of the court’s time. We are sensitive to the demands placed on the judiciary’s time by ever-expanding litigation dockets, and we agree that it is desirable to minimize the burden we place on our courts wherever possible. We do not believe, however, that judicial economy requires the elimination of public interest intervention.

Some degree of economy can be achieved with the co-operation of all concerned. To quote once again from Judge Weinstein’s remarks:

My experience… in handling at least a score of cases that might be characterized as public litigations is that granting an opportunity to be heard in such cases at the district court level is entirely practicable. The number of those who will want to appear in court is generally quite small in proportion to those who might be affected. Moreover, most people are quite sensible—they understand the burdens on court time and will accede to reasonable requests to limit participation.31

In this context, it is worth noting that intervenors with similar interests often have been prepared to make a joint submission to the court, and this is undoubtedly a practice that is deserving of encouragement. In Shewchuk v. Ricard, for example, five public interest organizations seeking leave to intervene (among them the BCCLA) adopted a common position on the legal issues raised by the case and agreed to be represented by the same counsel.32 The Shewchuk case is especially noteworthy because the intervenors were seeking to bring to the court’s attention arguments that were not advanced by the parties themselves.

It must be acknowledged, however, that the courts are entitled to take some initiatives in order to control the burden that public interest intervention may impose on them. We do not believe that it is necessary that intervenors have interests that are distinct from those of the parties to the litigation,33 nor do we think that a decision to allow a non-party to intervene implies any inadequacy in the representation afforded to the parties by counsel.34 On the other hand, it is desirable that the submissions of intervenors do more than simply repeat the arguments made by the parties. We note that in granting leave to intervene, some courts have commented upon the special knowledge and expertise that the intervenor has to offer the court, or the distinctive perspective the intervenor provides on the issues before the court .35 To the extent that courts find it necessary to restrain the numbers of those permitted to intervene in public interest litigation, it seems to us that this is the most promising basis on which to do so. We suspect that courts would find it easier to engage in this type of litigation management if they were able to deal collectively with all the prospective intervenors in a particular lawsuit, rather than being forced to deal with each application for leave to intervene in an informational vacuum. This could be arranged without prejudice to the potential intervenors if reasonable time limits were set for the filing of applications for leave to intervene.

3. Arguments of balance

Finally, it is necessary to address the criticism that public interest groups that intervene in litigation are themselves unrepresentative of the public whose interests they claim to be protecting, or that public interest intervention presents the courts with an unbalanced or unreliable picture of the world that will be affected by a particular judicial decision. At one level, our response to these criticisms is simply that, even if they are true, it is difficult to see how the alternative, which would be to make no attempt to allow for the representation of different perceptions of the public interest, would produce a more accurate or representative picture of society.36 At another level, however, it seems the self-selection process of those who will use the instruments afforded for influencing public policy decisions, is the best that we can offer in a democracy. The credibility that different organizations have with the courts is likely to vary with such things as the history of the organization, the quality of its submissions, and the extent to which it can make a plausible claim to represent a large number of people. It does not appear to us, however, that the courts should apply an initial litmus test of credibility (at least beyond the dismissal of those submissions that clearly are frivolous) before allowing individuals or organizations to intervene in litigation that affects them in an important way. To draw an analogy from the law of evidence, it seems to us that the factors mentioned above ought to go to the weight of the intervenor’s submission, not its admissibility.

In conclusion, it seems to us that none of the arguments advanced against public interest intervention reach the heart of the case in favour of it, which is that people in a democracy ought to be allowed to try to influence the decisions of those who exercise power over them. As we have noted, however, there are some ways in which it is appropriate to limit public interest intervention in litigation.

Proposals for a policy on public interest intervention

The BCCLA wishes to make the following five proposals for a policy on public interest intervention that could be adopted both by the courts in British Columbia and by the Supreme Court of Canada. In some instances, these proposals reflect existing practice and would simply involve a formal affirmation of this practice; in other instances, changes to existing practices would have to be made.

1. Public interest intervenor status

Much of the difficulty with public interest intervention arises because the intervenor has no clear status within the normal rules of court procedure. The closest analogy is with the amicus curiae, or “friend of the court,” familiar from English law. That status is inapt because the true amicus is a neutral participant seeking to apprise the court of the full range of issues before it, whereas the public interest intervenor actively advocates the resolution of the issues in a particular way.37 The term “intervenor” is used for those who wish to take an advocacy role in the litigation. The true intervenor, however, is a person who “has a direct interest in the outcome of a particular action between the particular parties,”38 and if added to the litigation, he or she has the same rights as the original parties, including, it would seem, the right to appeal.

Our tentative view is that public interest intervenors should be described as “intervenors,” but that they should not have the same rights or responsibilities as parties. In particular, intervenors should not have the right to appeal a decision nor the right to prevent alawsuit from being settled out of court. Intervenors should be responsible for their own costs regardless of the outcome of the litigation but, barring unusual circumstances, they should not be responsible for the costs of any of the other participants in the litigation.

It seems to us that this proposal represents an acceptable balance between the ability of the parties themselves to control the status of their dispute, and the ability of those substantially affected by a legal ruling to influence the court’s decision. Those who would qualify as intervenors in the more traditional sense would be able to use the existing rule to achieve status as parties, but it would not be necessary to accord such status to participants whose objectives are simply to advocate a particular solution to a legal issue presented by the litigation. Whether the particulars of this proposal are accepted or not, we believe that it is important that the status of public interest intervenors be acknowledged expressly in the appropriate Rules of Court, and that the legal profession be made aware of the principles upon which decisions to grant or deny intervenor status are made, in order to enable the profession to advise and assist clients.

2. Standing to intervene in litigation

As a general rule, we believe that individuals and organizations that have standing to raise a legal issue before the courts, ought to be entitled, with the court’s permission, to intervene in order to comment on those issues when they are brought before the courts by other litigants. The British Columbia Court of Appeal took this view in the Bhindi case, being prepared to grant leave to intervene where the applicant “is not a ’busybody’ and is ’affected by and has a reasonable concern with the matter to which the proceedings relate’.”39 As the British Columbia Court of Appeal has observed in the context of standing, organizations ought to be able to intervene as representatives of the interests of their members, and should not be required to demonstrate an independent “organizational” interest in the matter at issue.40

We recognize that this represents a very broad test for public interest intervention, and if everyone satisfying the test chose to make use of the opportunity to intervene, litigation quickly could become unmanageable. We would echo judge Weinstein’s belief that the likelihood of this happening is remote,41 and we believe that there are ways to deal with the problem if it should arise. We would emphasize, however, that courts ought to start from the position that everyone who has a legitimate interest in participating in litigation ought to be able to do so, to the extent that this is compatible with the effective management of litigation. Courts should he reluctant to erect initial barriers to participation; they should leek first to confine the scope and manner of intervenor participation to manageable limits.

It is extremely difficult to do this when the court cannot determine in advance the number of prospective intervenors and nature of the submissions they wish to deliver. We would recommend that time limits be established, within which all applications for leave to intervene would have to be filed. After this time limit had expired, the court would be in a position to deal with all applications together, rather than being forced to address the applications on a piecemeal basis. Knowing the number of potential intervenors and the general nature of their proposed submissions, the court would be in a position to take whatever steps are necessary to keep the proceedings manageable.42

3. Restricting numbers of intervenors

Should the court decide that the number of prospective intervenors, or the complexity of their proposed submissions, is such that participation by all of them would render the proceedings unmanageable or inefficient, the court may find it necessary to refuse to allow some individuals or organizations to intervene. We believe that this step should be taken with reluctance, but if it is necessary, we would propose that courts consider whether the proposed intervenor is specially affected by the decision facing the court, or has some special insight or expertise to bring to bear on the issues raised by the litigation, in determining whether or not to grant leave to intervene in particular cases. These criteria have appeared to be relevant to the courts in at least some of the existing cases on the granting of leave to intervene.43

4. Restricting the scope of intervention

The purpose of public interest intervention is to allow those who are affected by judicial law-making authority to attempt to influence the exercise of that authority. It is not designed to entitle people to interfere in the private disputes of others, though it may inevitably have that consequence. As we have indicated above, We believe that it is desirable to minimize this consequence by confining intervention to those areas where the exercise of judicial lawmaking authority is raised squarely in the litigation before the court.

Nobody, however, is entitled to preserve as a matter of purely private interest the legal rules and principles by which we are governed. This is as true of criminal law as it is of civil law. In our legal system, the guilt or innocence of a person accused of a crime is determined in a legal contest in which the public is represented by the Crown and by the Crown alone. Insofar as what is at issue is the guilt or innocence of the accused in the light of accepted legal standards, this is as it should be. But where the issue is what those legal standards ought to be found to be, it is our view that neither the Crown nor the accused is entitled to assert a monopoly on the range of inputs a court should consider in making its determination. This is especially true where what is at issue is the impact of the Charter on our criminal law. Those who are interested in criminal law developments may include people who want to preserve the possibility of certain types of legislative change to the Criminal Code, as well as those who wish to attack or defend the status quo. While it is true that special care must be taken to ensure fairness to the accused, it seems to us that a procedural system that allowed for no possibility of public interest intervention in criminal matters would be an unnecessarily impoverished one.44

5. Restricting the manner of participation by intervenors

In our view, participation in litigation by intervenors need not entail the ineffective use of judicial time and resources. When there are many participants in a lawsuit, however, some degree of repetition and wasted effort may be inevitable, and courts are entitled to take steps to minimize this inefficiency. We have acknowledged that public interest intervenors should not be treated as parties to the litigation, and it would seem to follow that intervenors should bear a greater share of the burden of judicial efforts at efficient litigation management than the parties themselves. We believe that this can be done without jeopardizing the ability of intervenors to make effective submissions to the court.

By dealing with applications for leave to intervene on a collective basis, the court might be in a position to suggest that some intervenors with similar views combine their efforts. The court might set out the range of issues upon which it was prepared to receive submissions from intervenors, and it might adopt a rule that intervenors would be entitled to make written submissions only, except in situations where the court made a specific request for oral argument. Rules could be designed to retain a significant measure of flexibility for judges, while providing some degree of guidance for Counsel.

We are confident in the ability of the judiciary, and of legal counsel, to act creatively to find ways to make public interest intervention work effectively from the perspective of both the courts and those seeking to participate as intervenors. The challenge, as we see it, is to tap that wellspring of creativity rather than to retreat into traditional modes of thought about the nature of litigation.

The BCCLA realizes that it is taking an unusual step in placing its views on the value of public interest intervention directly before the judiciary. We trust that these views will be received in the spirit in which they are presented, which is the desire to make the instruments of our system of justice serve our society as well as is humanly possible.

Notes

1. Canadian Labour Congress v. Bhindi and London (1 985) 61 B. C. L. R. 85 at pp. 93-96 (per Anderson, J.A.). Lambert, J.A. concurred with Anderson, J.A. and Taggart, J.A., who dissented, agreed with the observations of Anderson, J. A. on this point. See 61 B. C. L. R. at page 87.

2. Bhindi, supra note 1; MacMillan Bloedel Limited v. Mt41lin [19851 3 W.W.R. 308 (per Esson, J.A.); Shewchuk v. Ricard, Unreported judgement of Taggart, J.A. dated December 19, 1985 (Vancouver Registry CA004826).

3. Rule 18 reads: “Any person interested in an appeal or a reference may, by leave of the Court or a judge, intervene therein upon such terms and conditions and with such rights and privileges as the Court or judge may determine.” In an excellent article entitled “No Room at the Top: Interest Group Intervenors and Charter Litigation in the Supreme Court of Canada, ” (1 985) 43 U. of T. Faculty L. Rev. 204, Jillian Welch traces the history of public interest intervention in the Supreme Court. In the mid-1970s the Court’s approach to public interest intervention in cases involving the Bill of Rights was quite expansive, and this development was considered to be a distinctive Canadian contribution to procedural jurisprudence. See Bernard Dickens, “A Canadian Development: Non-Party Intervention,” (1977) 40 M.L.R. 666.

4. See Welch, “No Room at the Top.” Supra note 3, at 43 U. of T. Faculty L. R., pp. 215-22.

5. Peter Russell, “The effect of a Charter of Rights on the policy-making role of Canadian Courts.” (1982) 25 Canadian Public Administration 1 at page 32.

6. Lord Reid, “The judge as Law Maker.” (1972) I2J. of the Society Of Public Teachers of Law 22 at page 22.

7. In Canada, courts also make law from time to time in the course of answering questions of law referred to them by a federal or provincial government. In such instances, the case for public interest intervention may be enhanced significantly, as we point out below.

8. To take just one example, the BCCLA is currently undertaking litigation that seeks a declaration that the existing system of provincial electoral districts in British Columbia violates the Charter because the system underrepresents some voters and overrepresents others.

9. See L’Alliance des Professeurs Catholiques de Montreal v. Labour Relations Board [19531 S.C.R. 140; Nicholson v. Haldimand-Norfolk Regional Board a Commissioners of Police (1 979) 1 S. C. R. 31 1.

10. See Singh v. Minister of Employment and Immigration [1985] 1 S. C. R. 177.

11. See Borowski v. Minister of Justice of Canada (1 983) 144 D. L. R. (3d) 657; Solosky v. The Queen [19781 1 F.C. 609; The Queen v. Bolton [19761 1 F. C. 252.

12. 12.Between 1970 and 1980 amicus curiae briefs were filed in 53.4 percent of the non-commercial cases decided by the United State Supreme Court. Karen O’Connor and Lee Epstein, “Amicus Curiae Participation in U.S. Supreme Court Litigation: An Analysis of Hakman’s Folklore.” (1981-82)16 Law and Society R. 311 at page 316.

13. For example, in commenting on the new rules adopted by the United States Supreme Court in 1954, justice Hugo Black observed: “…I have never favored the almost insuperable obstacles our rules put in the way of briefs sought to be filed by persons other than the actual litigants. Most of the cases before this Court involve matters that affect far more people than the immediate record parties. I think the public interest and judicial administration would be better served by relaxing rather than tightening the rule against amicus curiae briefs.” (1954) 346 U. S. at page 947. The Canadian Civil Liberties Association’s submission “Interventions in Public Interest Litigation,” (1 984), provides a number of other examples of the important role that the amicus curiae has played in American constitutional litigation.

14. See Kenneth C. Davis, Administrative Law Text, 3d Edition (St. Paul, Minn: West Publishing Co., 1972) at pp. 291-317; Peter Hogg, “Proof of Facts in Constitutional Cases,” (1976) 26 U. of T. L.J. 386.

15. See Clement Vose, “NAACP Strategy in the Covenant Cases. (1955)6 Western Reserve L. R. 101 at pp. 133-44.

16. (1961) 367 U. S. 497.

17. (1965) 381 U. S. 479.

18. See Ernest Angell, “The Amicus Curiae, American Development of English Institutions.” (1967) 16 I.C.L.Q. 1017 at pp. 1040-41.

19. Sir Robert Megarry, V. C., “The judge.” (1 983) 13 Manitoba L.J. 189 at pp. 193-94.

20. Judge Jack Weinstein, “Litigation Seeking Changes in Public Behavior and Institutions—Some Views on Participation.” (1979-80) 13 U.C. Davis L. Rev. 231 at page 246.

21. See Jerry Mashaw, Due Process in the Administrative State (1985) at Pp. 177-80; See Carole Pateman, Participation and Democratic Theory (1970), who argues that participation is a form of civic education that enhances the dignity of the citizen.

22. See Mashaw, ibid, at pp. 158-71, 182-201.

23. See Peter Singer, Democracy and Disobedience (1974) at pp. 45-59. Singer illustrates this point by referring to a campaign, run by Americans who were opposed to the war in Vietnam, urging their fellow citizens not to vote in the 1968 Presidential election because both major candidates had taken positions supporting the war. He argues that these people intuitively understood that it was not proper for them to take part in a decision making process when they were not willing to abide by the result of that process. In Singer’s words at page 55), “To vote, and yet refuse to be in any way obliged by the result of the vote, is to take an advantage over those who are prepared to accept the majority decision.”

24. The creation of a moral commitment to respect judicial decisions is especially important in the area of entrenched constitutional rights where public feeling runs high and where governments refuse to give effect to the orders of the courts. Such a commitment will only be created if members of the public are able to engage themselves in the process of arriving at these decisions. As Peter Russell has observed:

It must be remembered that what is at stake in applying the norms of a constitutional charter of rights to the ever-changing details of our public life is the balance to be struck among our fundamental political values. In a democracy the public should not be disenfranchised from this area of decision-making. P. Russell, “The effect of a Charter of Rights on the policy-making role of the Canadian Courts.” (1983) 61 Can. Bar Rev. 30 at pp. 53-54.

25. 61 B.C.L.R. at page 97.

26. See Alan Paterson, The Law Lords (London: Macmillan Press, 1982) at pp. 38-45.

27. See McEvoy v. A. G. New Brunswick [ 1 9831 1 S. C. R. 704; Re Authority of Parliament in Relation to the Upper House [19801 1 S.C.R. 54.

28. B.C. Telephone Co. v. Telecommunications Workers Union, (1985) 65 B.C.L.R. 96. Cf. Re Clark and A.G. Canada (1977) 81 D.L.R. (3d) 33 at pp. 36-38.

29. See R . v. Seaboyer, (1986) 50 C.R. (3d) 395 in which the Women’s Legal Education and Action Fund (LEAF) was granted leave to intervene in an appeal by the Crown against the quashing of charges of sexual assault against the accused on the ground that ss. 246.6 and 264.7 of the Criminal Code were rendered inoperative by the Charter.

30. Bhindi, supra note 1, at 61 B.C.L.R. page 104.

31. Weinstein, “Litigation Seeking Changes in Public Behavior and Institutions,” supra note 20, at 13 U.C. Davis L. Rev. page 246.

32. Shewchuk v. Ricard, supra note 2; see also, MacMillan Bloedel Ltd. v. Mullin, supra note 2, at [19851 3 W.W.R. page 386, in which a number of native bands and organizations intervening in the litigation were represented by one set of counsel.

33. See Bhindi,, supra note 1, at 61 B.C.L.R. pp. 96-97.

34. See Re Schofield and Minister of Consumer and Corporate Relations (1 980) 112 D. L. R. (3d) 132 at pp. 142-43 (per Thorson, I—A.).

35. See MacMillan Bloedel Ltd. v. Mulliti, supra note 2, at (1985) 3 W.W.R. page 383; Shewchuk v. Ricard, supra note 2; R. v. Seaboyer, supra note 36; Re Schofield, supra note 42, at 112 D.L.R. (3d) pp. 138-39 (per Wilson, J. A.) and at page 141 (per Thorson, J. A.).

36. See Welch, “No Room at the Top,” supra note 3, at 43 U. of T. Faculty L. Rev. pp. 229-30.

37. See Re Clark and A.C. Canada, supra note 28, at 81 D.L.R. (3d) page 38; Samuel Krislov, “The Amicus Curiae Brief.. From Friendship to Advocacy. ” (1 963) 72 Yale L.J. 694.

38. Bhindi, supra note 1, at 61 B.C.L.R. page 94.

39. Bhindi, supra note 1, at 61 B.C.L.R. page 101, quoting Saanich Inlet Preservation Society v. Cowichan Valley Regional District (1983) 44 B.C.L.R. 121 at pp. 127-28.

40. Saanich, supra note 39, at 44 B.C.L.R. page 128.

41. See supra, note 31.

42. In cases where it appeared to the court that public interest groups probably would want to participate, it would be desirable that they be notified of the deadline for applications for leave to intervene. Such notification could be given directly to a selected number of organizations, or it could be provided more generally through advertisement.

43. See supra, note 35.

44. See R. v. Seaboyer, supra note 36.