The Limits of Public Law Adjudication

• Author: Kent Roach
• Pages: 161-174

161

chapter eight

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 en-

tirely new to the Supreme Court, the Court’s role in Canadian politics

has changed signif‌icantly in t he last quarter of the century. Until 1974

the Court was required by law to hear any appeal in which the liti-

gants — often insurance 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 importance, primarily in the area of public law involv-

ing 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, permitted public interest groups as well as gov-

ernments 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 exer-

cises power like a third legislative chamber? Worse still, a legislative

chamber that has been captured by certain interest groups? Conserv-

ative critics of judicial activism say yes and argue that the Court has

become too eager to make law under the Ch art er, to hear from inter-

venors, and to impose f‌inal remedies on government.1

Although the Court has changed its procedure to adjust to its new

responsibilities under t he 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 t alking about the Char ter. The