Public Interest in Litigation

I have already mentioned the lawsuit by Aniz Alani, who is trying to have the courts declare that the Prime Minister must advise the Governor General to appoint Senators, which the Prime Minster is refusing to do. The government has filed a motion to strike his application, which will be heard about a month from now. In this post, I want to address not the substance of his case, but on the way in which Mr. Alani has let the public follow the case, which I think is an example to follow not only for other public interest litigants, but also for the government itself.

In addition to using Twitter to publicize his challenge, Mr. Alani has created a sober but eminently usable website that explains his case, provides background information and updates and, perhaps most  importantly (at least from the perspective of law nerd), makes Mr. Alani’s submissions and supporting materials publicly available. Other litigants had made steps in that direction before but, to my knowledge, not as comprehensively or as well. For example, the Canadians Voting Abroad website about the challenge to the provisions of the Canada Elections Act disenfranchising Canadian expatriates after five years abroad looks like it was designed in the 1990s and, more importantly, is missing some crucial documents, such as the factums submitted to the Court of Appeal. (I should note that, technically, this case is not public interest litigation, since the applicants are asserting that their own rights are being infringed. However, they are quite clearly presenting themselves as acting on behalf of others, and not only on their own.)

And others still have done nothing at all. The Barreau du Québec, for example, seems to have no information about its challenge to constitutionality of the mandatory minimum sentences enacted in recent years. (This is all the more paradoxical since the Barreau does have an exhaustive list of its public positions outside the courtroom ― letters to ministers, submissions to Parliamentary commissions, and the like.) Rocco Galati, the scourge of s. 101 courts and their former judges, appears not to have a website at all, while that of his compagnons d’armes at the Constitutional Rights Centre Inc. is bereft of any information.

The reason I am writing about this is that while ordinary litigants, who go to court to assert or defend their own legal rights and interests, are perfectly entitled not to care about what the public knows about their cases, it seems to me that public interest litigants, who ostensibly pursue matters not on their own behalf but on that of the public at large or at least of some section of the public, are, in my view, in a different position. The public, it seems to me, has a right to know what it is that those purport to represent it are up to. And this right is, if anything, even stronger in the case of those representatives who have appointed themselves to that position.

As the Supreme Court has progressively liberalized public interest standing, public interest litigants have grown into a great, yet (almost?) entirely unaccountable force in the Canadian legal, and even political, system. As Mr. Galati’s example shows, and as Mr. Alani’s might yet show, they have the ability to upset the plans and policies of elected officials, and impose considerable change ― for good or ill ― on the institutions of government. Surely, this force owes the rest of us an account of its actions. Public interest litigants say, often quite rightly, that they act to uphold the Rule of Law. But one of the values of the Rule of Law is transparency. Mr. Alani is setting an example in this regard, and others should follow him.

Those “others” include, by the way, a type of outfit that is not usually thought of as a “public interest litigant,” but which in a very real sense is exactly that: the federal Department of Justice and its provincial counterparts (which I will refer to as the DOJs). The DOJs represent (a certain understanding of) the public interest by definition. They act in our collective names. They are given the right to intervene in constitutional cases. And so they too ought to tell the public what they are up to, at least in constitutional cases, and perhaps in others too. Obviously, many of their cases are of limited relevance to the public. I’m not sure exactly where the lines should be drawn, with what exceptions, and so on. I’d love to hear suggestions. But the general point, I hope, is clear enough. Insofar as governments are litigating public interest matters, they too should ensure that those members of the public who are indeed interested are able to learn more about what is being argued on their behalf and in their name.

3 thoughts on “Public Interest in Litigation

  1. You make a great point about DOJ materials. At the very least I should think that proceedings in non-adversarial matters like references should be made public… and also probably cases that the provinces or feds bring to promote a particular policy decision, which might be of interested to the electorate. I am thinking division of powers cases primarily, but there are surely others.

  2. As the author of the website described, I wanted to share some thoughts on why I think sharing information about “public interest” litigation is useful both for the public interest litigant and, more broadly, for achieving “good” judicial outcomes.

    First, my thanks to Mr. Sirota for drawing attention to the website and, in turn, the information I try to share through it.

    From a purely self-interested perspective, providing easy public access to litigation materials might make it easier for those not directly involved in the litigation process to respond to the arguments being proposed in a way that can help the litigants clarify, refine, and perhaps even jettison some of their proposed positions. I know that in my case making the notice of application for judicial review publicly available at the outset facilitated thoughtful commentary that was much more focused than that which would have been possible without actually reading the source document. From the Twitter threads, blogs and other commentary that I followed, I’d like to think I benefited from ideas and perspectives that I wouldn’t have had the creativity to conjure up on my own. And, some of the arguments that I thought I might run were abandoned after reflecting on feedback that transparency made possible.

    Making case information publicly available also has the potential, I think, to facilitate better judicial outcomes (i.e., helping to get to the “right” answer), particularly in light of the liberalization of the rules for public interest standing. As Mr. Sirota points out, public interest litigants are essentially “self-appointed”. One of the potential obstacles I knew I faced at the outset was establishing “standing” to bring the case at all.

    It seems to me that the test for standing is fundamentally about providing the Court with comfort that the litigant advancing the case will do so competently. Even in the absence (to date) of an objection by the respondents as to standing, I have appreciated the real (and potentially lasting) damage that could be caused if I “dropped the ball” in terms of how I argued the case. Our adversarial system assumes, to some degree, that litigants will zealously pursue their interests with the sort of diligence that ensures that the Court has the benefit of the best arguments. If a “self-appointed” public interest litigant raises a significant issue but fails to competently articulate his or her case or marshal the appropriate authorities in support, does an adverse judgment mean that the litigant picked the “wrong” side of the legal issue or simply that the other side was victorious against a virtual “straw man”? Either way, the resulting case law could arguably do more harm than good.

    A benefit of transparency, to my mind, is that it makes it at least a little bit easier for other interested parties to recognize a public interest litigation train wreck before it’s too late and, if necessary, to apply to intervene or be added as a party.

    In my case, the most obvious potentially interested parties were provincial attorneys general. So although not required to do so, I provided notice of the proceeding to all 13 provincial and territorial AGs. It was open to all of them to apply for intervenor status, or, I suppose, refer the underlying question to their own superior courts. None has done either. Doubtless there are political factors for each to consider. In any event, by facilitating access to the case materials, I suppose any province or public interest group that has concerns about where the case is headed could take steps to get involved in some way. Without that access, they may be more inclined to wait until there’s a decision to be appealed.

    With a federal election on the horizon, the prospect of the issues in the litigation becoming moot before a decision on the merits is issued (or appealed) is a real one, so relying on appeal mechanisms to correct sloppy advocacy may be misguided.

  3. Pingback: A Bad Case | Double Aspect

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