ISSN 1062-7421
Vol. 12 No. 8 (August 2002) pp. 443-447

FRIENDS OF THE COURT: THE PRIVILEGING OF INTEREST GROUP LITIGANTS IN CANADA by Ian Brodie. Albany: State University of New York Press, 2002. 161 pp. Cloth $54.50. ISBN: 0-7914-5299-9. Paper $17.95. ISBN: 0-7914-5300-6.

Reviewed by Shannon Ishiyama Smithey, Department of Justice Studies, Kent State University.

Ian Brodie has produced an interesting, well-written book about the relationship between interest groups and the Canadian Supreme Court. I found it engaging and very informative. I highly recommend it, particularly to scholars interested in judicial agenda setting, interest group litigation, and the expansion of judicial power.

Brodie starts his book with a puzzle. Since the adoption of the Charter of Rights and Freedoms in 1982, the Canadian Supreme Court has been "remarkably activist," but "despite having imposed policy losses on many governments and other political interests, the Court's activism has not yet sparked a notable political backlash" (p. xi). The absence of political backlash is not due to any particular deference towards judicial authority in Canadian culture. Nor do Canadians lack the means to limit judicial authority--the Charter's notwithstanding clause allows unpopular court decisions to be set aside for renewable periods. How, then, has the
Canadian Supreme Court managed to expand its role so significantly without inspiring retaliation?

Brodie's answer is that the Supreme Court of Canada has developed a reciprocally beneficial relationship with a series of interest groups. "The Court's willingness to accept interest groups in its work has legitimized the Court's activism and, in turn, the Court's activism has legitimized its willingness to accept interest groups in its work" (p. xiv).

The primary means for the development of this relationship has been the Court's increasing willingness to grant groups the ability to intervene in its cases (interveners are equivalent to amici curiae in the U. S.). Traditionally, the Canadian Supreme Court limited participation in its cases to the parties except in extraordinary circumstances. This reluctance to hear from interest groups became increasingly controversial after the adoption of the Charter. A variety of groups put pressure on the Court to lower the barriers to intervention. The Court responded to this pressure by holding formal consultations with the leaders of many of the protesting
groups in 1986. New rules for intervention were released the next year. It was then that the Court began to liberalize access.

The pattern is clear in the Brodie's data. He presents the number of interest groups that applied to intervene, and the rates at which they were granted access, for each year between 1976 and 1999 (p. 37). These data show there were few applications to intervene, and the Court was relatively reluctant to grant them, in the first years under the Charter. Conversely, the number of groups applying to intervene, and the Court's willingness to accept them,

Page 444 begins here

increased substantially after the adoption of the new rules. Between 1987 and 1999, the rate of application increased (hitting a high of 125 in 1996), and the Court granted approximately 90 percent. Access is now routine for most groups wishing to intervene in Charter cases.

Brodie does a nice job of demonstrating the range of interests that are seeking access to the Court. He breaks intervening groups into four broad categories (governments, economic interests, citizen groups and individuals), which are further broken down by type or interest--for example, the economic category is divided into business groups, professional groups, unions and corporations. Additionally, he provides a list of the most frequent interveners, the number of times they
petitioned for access, and their acceptance rate (p. 38). Then, focusing on Charter cases, he provides the number of interveners participating each year, broken down by type (attorney general, other government, non-government) and whether they supported or opposed rights claims (pp. 43, 46). Thus, he paints a most useful portrait of the players in Supreme Court politics.

Brodie then turns to the central claim of the book, which is that the Court has played favorites in its decisions to grant access. The Court grants more than half of the petitions filed by all categories of groups. Even so, "the Court has not treated all groups alike. Some get a chillier reception than others" (p. 69). "Unions, native groups, and individual Canadians have had the most trouble getting into the Court's hearings" (p. 41). The rationale for inclusion and exclusion are not completely
clear-the justices reject petitions from groups that seem as well qualified to participate as those they accept (for example, hearing from B'Nai Brith but not the Holocaust Remembrance Association in a case about Holocaust denial). The justices are not obligated to explain their decisions.

Brodie's explanation is that the Court has fashioned a role for itself as the protector of the disadvantaged. There is a "club of frequent applicants" that is routinely granted leave to intervene. Clearly in the club are the feminist Women's Legal Education and Action Fund (LEAF) and the Canadian Civil Liberties Association (the two most frequent non-governmental interveners), neither of whom was denied access between 1987 and 1999. Language rights groups also regularly intervene.
Conversely, groups representing more conservative viewpoints have been less successful in obtaining access.

Many of the frequent interveners share what might be called a post-material agenda. Rather than seeking economic benefit per se, many of these groups are seeking "social change in the name of equality…[including] the expansion of government and the entrenchment of redistributive programs so that government can remake society to be fairer based on gender, sexual orientation, race and other kinds of identities" (p. xvi). These groups have addressed most of their efforts to cases arising under Section 15, which prohibits discrimination based on race, ethnicity, color, religion, sex, age or disability. These groups argue that the Court should combat
societal inequality in its interpretation of the Charter. Many of the justices have endorsed the idea that Section 15 should be used to protect groups "suffering social, political and legal disadvantage."

Brodie argues that granting access to groups representing the "disadvantaged" has decided benefits for the Court. "When the

Page 445 begins here

Supreme Court embarked on its new activism in the 1980s, it needed both a constituency and a justification to legitimate its new role…By importing the concept of disadvantaged groups into its jurisprudence, it gained those groups as allies" (p. xvii). More importantly, it allowed the Court to develop a reputation for protecting societal underdogs. By positioning itself as friendly to these groups, the Court tapped into a powerful political myth, which Brodie dubs the "political disadvantage theory." This theory argues that judicial power is legitimate because judges are more likely than elected officials "to correct the political process on behalf of the disadvantaged." The disadvantage theory creates a kind of political Teflon against criticism since "anyone who criticized the Court would be accused of wanting to attack disadvantaged groups" (p. xvii).

Brodie takes issue with the factual underpinning of this legitimating myth. His analysis indicates that there are at least two important misperceptions. First, these groups are not as disadvantaged as they claim. Second, the Court is not their sole protector. These groups enjoy a range of official support. In many cases, group constituencies enjoy statutory protection under the auspices of provincial human rights codes. The state also provides considerable financial support. Since the
Trudeau Administration, the national government has funded groups as part of a campaign to mobilize citizen participation. State money makes up significant proportions of many group budgets.

The most striking aspect of state sponsorship is the Court Challenges Program (CCP), in which the state pays the cost of lawsuits brought against state programs. Twenty-two percent of interventions by public interest groups between 1984 and 1995 were paid for by the CCP (p. 118). The CCP does not fund litigation by groups which oppose the "disadvantaged" agenda. Brodie's conclusion is that the "disadvantaged" groups therefore have a number of political advantages. "If they have access to government funding…they cannot be terribly disadvantaged in access to political power. Rather they are tied to networks of state power" (p. 125). For Brodie, state support for these groups makes the Court's reliance on the myth of political disadvantage for its legitimacy highly problematic.

One major drawback to Brodie's argument is that he implies more judicial favoritism toward groups than he substantiates. Although his data do show that some groups enjoy enhanced access, he does not explore whether they win once they've been admitted. Since the title suggests that these groups are the Court's friends, he really ought to investigate their success in getting the Court to accept (not just hear) their arguments. In fact, equality claimants often lose on the merits. York (1996) found, for example, that between 1988 and 1995, equality claimants lost in 35 of 38 cases brought under Section 15. I am not sure that groups which
regularly lose on the merits will consider themselves as "privileged" as the title suggests.

What, then, are groups getting from their participation before the Court? Brodie argues that it is often status, the "recognition in a hierarchy that lets those who hold it stake preferential claims on the political resources of the state" (p. 75). These groups are competing for a privileged position of favor, in this case from the Court. They want to be elevated for special protection under Section 15.

Page 446 begins here

The Court created a "market for status" by interpreting Section 15 broadly. The Court decided, at the urging of interest groups, that Section 15 would protect against discrimination based not just those traits listed (race, sex, etc), but also traits that have led to similar kinds of discrimination. Numerous groups have lobbied the Court, seeking to have their constituency declared "disadvantaged" and therefore protected by Section 15.

Section 15 status is beneficial because it elevates groups' interests above those of groups without that protection. Such status turns political losses into constitutional violations. Drawing on rational choice theories, Brodie argues that status is most beneficial when it is exclusive; the rewards diminish as they are distributed more widely. As such, Brodie expects to find that the "disadvantaged" groups will argue against including other groups under the protection of Section 15.

Here Brodie is essentially indicting group claims that they are seeking equality. From his perspective, they are not asking to be brought back to where they would have been in the absence of societal discrimination. Instead, he sees them as seeking better treatment than that available to others. This is a controversial way to approach the issue, reminiscent of the debates over affirmative action and other programs designed to compensate for discrimination. Is asking to be treated the same really equivalent to asking to being treated better than? Brodie probably ought to acknowledge that his approach is based on an essentially contested
premise. He does not have to accept group claims on their face, but he assumes the contrary position without justifying it.

In fact, he finds that groups do not argue against protecting other groups under Section 15. "Protected groups did not actively oppose the extension of protected status to new groups ...[they] did not oppose dilution of their status" (p. 96). This may be because they are sincere in their understanding of societal discrimination and the meaning of Section 15. Or, it may be that the value of Section 15 status is not based on its exclusivity. Perhaps what matters is that one's own group has it, not how many others have it as well. Or, perhaps an insufficient number of groups have sought Section 15 status, so that group leaders haven't yet felt a need to police the boundaries of the club.

Brodie does not speculate much on the reason for his findings. I would have liked to see him spend more time considering the importance of the results for his general argument about the Court and its friends. I would like to see him go further in a few other areas as well. I wonder why groups that are disadvantaged in the parliamentary process make such good allies for the Court. Do they really have enough resources to provide the political support necessary to champion its increased power? Brodie asserts that politicians would be afraid to criticize the Court because it is viewed as the protector of the disadvantaged. Clearly the Warren Court in the U. S. came under fire for defending the rights of African Americans and to a lesser extent the poor. What is it about Canadian political
culture that makes protection of the disadvantaged such an asset? Why aren't Canadians willing to criticize these disadvantaged groups?

A greater discussion of these aspects of the Canadian political landscape would make for a more satisfying book, though it is quite a contribution as it currently stands.

Page 447 begins here

REFERENCE:

York, Andrea. 1996. "The Inequality of Emerging Charter Jurisprudence: The Supreme Court Interpretation of Section 15(1)." UNIVERSITY OF TORONTO
LAW REVIEW 54: 327.

***************************************************************************

Copyright 2002 by the author, Shannon Ishiyama Smithey.