While constitutional cases generally follow the same procedural path as other cases, there are some important exceptions and special procedural rules to reflect the wide range of interests implicated and the importance of any decision for the future. The first concerns the representation of the public and other interests. A party who challenges the constitutional validity of a statute is required to give notice to the attorney general - provincial, federal, or both, as appropriate.2The attorney general has the right to intervene in the proceeding and to present whatever evidence or argument he or she deems necessary to defend the constitutionality of the law. This may seem to depart from the adversarial system by allowing for non-party participation, but, in fact, interventions by the attorney general reflect the underlying values of the adversarial system. A constitutional case implicates the public interest, and it is a basic tenet of the adversarial system that rights should not be affected without affording the right-holder a hearing. The intervention of the attorney general ensures that the public interest will be represented before the courts when the constitutionality of a statute is attacked.
A second important development in constitutional litigation, particularly at the level of the Supreme Court of Canada, is the generous allowance for public-interest groups to appear as intervenors.3While the courts were initially cautious in this area,4the discretion to permit public-interest groups to intervene has been frequently exercised. Once again, this is a reflection of the fact that the decision of the court on a constitutional matter will have broad public ramifications. Those who have particular interests that are affected and who can assist the court should be heard.
Certain public-interest groups have appeared regularly before the Supreme Court of Canada in Charter litigation and they have had a significant influence. Notable are the interventions of the Canadian Civil Liberties Association, a body that exists to defend the interests of civil liberties, and the Women’s Legal Education and Action Fund, or LEAF, a feminist group concerned with equality rights. There can be little question but that the reasoning of certain Supreme Court judgments has been influenced by, or even based upon, arguments presented by these groups. At the same time, it should be noted that these two groups have opposed...