ER 62: Interest Group Litigation and Canadian Democracy (Gregory Hein)
Interest Groups in Court: The Debate
• Charter litigation enables marginalized groups who have little leverage on the
processes of majoritarian dem. to have their interests taken under
• powerful corporate and eco. interests use courts to defend and advance their
• Charter litigation provides groups with less access to centres of power and less
money opportunities to influence public policy
◦ means that the Charter widens CA democracy
• groups at the centre of most policy debates
• stakes higher in the courtroom even
◦ impressive resources: teams of lawyers, expert witnesses
• interest group (IG) litigation affects style and substance of pol. life
• court challenges, IG participate in most cases
◦ civil libertarians guard free expression --> child pornography
◦ unions help workers and corporations challenge regulations that
frustrate the ability to maximize profits
▪ their adversaries also litigate
• raise moral, eco., pol. questions
◦ courts not designed to sustain public discussions on complex issues
◦ pits courts ag. legislatures by asking judges to reject choices made by
▪ judicial activism threatens democracy
• the Charter cannot create a forum of principle elevated above the fray of
politics, b/c courts are not immune from the public pressures, eco.
realities, and ideological contests that affect leg.
• activists on the left have been wildly successful because so many judges are
"removed from reality"
◦ these interests flood the courts b/c they cannot win the support of leg.
◦ they belong to a coalition called the "court party"
▪ fuel the growth of judicial power, circumventing the leg. process
• BUT this study says corporations also use the courts and pressure judges
• stable characteristics
◦ elevates the propensity to litigate
◦ interests more inclined to mount court challenges when they have
impressive legal resources, collective identities, and normative
visions demanding judicial activism
• changing circumstances
◦ make litigation seem attractive/essential
◦ counter immediate threats, take advantage of opportunities
• Aboriginals, Charter Canadians, civil libertarians, and new left activists have
the greets potential to influence public policy through lit.
◦ pulled and pushed into courtrooms by stable characteristics and changing circumstances
◦ called judicial democrats
◦ courts should listen to disenfranchised or poorer groups
◦ corporations do not have the stable characteristics that elevate the
propensity to lit.
• companies, unions, social movements, societies of professionals, legal
◦ unique claim to land and resources
◦ want recognition of land, treaty, and self-gov't rights
• civil libertarians
◦ stop the state from undermining traditional guarantees
◦ challenge laws that violate freedom of expression, of religion, and
protect rights of the accused
• corporate interests
◦ businesses that compete in wide range of sectors
◦ demand low tax levels, flexible regulatory regimes, and trade
• labour interests
◦ unions, advocacy groups, civil servants, etc.
◦ defend the welfare state and oppose trade policies that produce
◦ lawyers, judges, architects, etc.; most from private sector
◦ collective action to promote their interests and protect the integrity of
their respective professions
• social conservatives
◦ preserve tra