The Limits of Public Law Adjudication

• Author: Kent Roach
• Pages: 143-154

Chapter

8

143

The

Limits

of

Public

Law

Adjudication

Although

the

Depression cases

of the

1930s

and the

Quebec cases

of the

1950s

demonstrate that political controversy

is not

entirely

new to the

Supreme

Court,

the

Court's role

in

Canadian politics

has

changed sig-

nificantly

in the

last quarter

of the

century. Until 1974

the

Court

was

required

by law to

hear

any

appeal

in

which

the

litigants

—

often

insur-

ance companies

and

corporations

— had

claimed more than

$10,000,

even

if the

case raised

no

legal issues

of

public importance. Since 1974

the

Court

has

focused

more

on

resolving legal issues

of

national impor-

tance,

primarily

in the

area

of

public

law

involving

the

state.

In

order

to

deal with these public

law

issues,

the

Court

has

allowed litigants

who

are not

directly

affected

by

laws

to

challenge their constitutionality, per-

mitted public interest groups

as

well

as

governments

to

intervene

in

constitutional cases,

and

decided moot cases

and

issues that

it

could

have ducked.

Do

these changes

to the

Court's role

and

practice mean

that

it has

ceased

to be a

court

and now

exercises power like

a

third leg-

islative chamber?

Worse

still,

a

legislative chamber that

has

been cap-

tured

by

certain interest groups? Conservative critics

of

judicial activism

say

yes and

argue that

the

Court

has

become

too

eager

to

make

law

under

the

Charter,

to

hear

from

intervenors,

and to

impose

final

reme-

dies

on

government.1

Although

the

Court

has

changed

its

procedure

to

adjust

to its new

responsibilities under

the

Charter

and its new

role

in

Canadian society,

it

is a

mistake

to

ignore

the

limits

of

even public

law

adjudication.

Not

just anyone

can

walk into

the

Court

and

start talking about

the

Charter.

The

image

of the

Court

as an

overeager oracle

or as a

third

legislative

chamber open

for

business

discounts

the

continued need

for

litigants

to

engage

in the

formal

and

costly process

of

litigation. When

the

interest

group

Operation Dismantle wanted

to

challenge

the

constitutionality

of

the

testing

of

cruise

missiles

in

Canada,

it did not

simply

go to the

Supreme

Court

talking about

the

dangers

of

nuclear war.

It had

first

to

find

a

trial court with jurisdiction

to

hear

the

case, establish standing,

introduce into evidence enough

facts

to

decide

the

case,

pay

lawyers,

and, when

it

lost

because

it

failed

to

establish

a

nexus between

the

tests

and

threats

to

life,

be

responsible

for

paying

the

government's litigation

costs.2

The

whole process

was far

more elaborate

than

filing

a

brief with

a

Senate committee.