interveners.html.pm

#lang pollen

◊define-meta[page-title]{Interveners at the Supreme Court of Canada}
◊define-meta[short-title]{Interveners}
◊define-meta[featured-image-url]{assets/interventions_discretionary_v_as-of-right.png}
◊define-meta[original-date]{2018-01-24}
◊define-meta[edited-date]{2018-05-24}

◊declare-work[#:type "article" #:author-given "Alli Orr"
#:author-family "Larsen" #:author2-given "Neal" #:author2-family
"Devins" #:year "2016" #:url "https://ssrn.com/abstract=2741853"
#:journal "Virginia Law Review" #:volume "102" #:issue "8"
#:first-page "1901" #:title "The Amicus Machine" #:id "Larsen"]

◊declare-work[#:type "magazine/news" #:author-given "Anthony J"
#:author-family "Franze" #:author2-given "R Reeves" #:author2-family
"Anderson" #:url
"https://www.apks.com/~/media/files/perspectives/publications/2015/08/record-breaking-term-for-amicus-curiae-in-suprem__/files/publication/fileattachment/recordbreakingtermforamicuscuriaeinsupremecourtr__.pdf?"
#:title "Record Breaking Term for Amicus Curiae in Supreme Court
Reflects New Norm" #:publication "National Law Journal" #:year "19
August 2015" #:id "Franze"]

◊declare-work[#:type "article" #:author-given "Benjamin"
#:author-family "Alarie" #:author2-given "Andrew James"
#:author2-family "Green" #:year "2010" #:url
"http://digitalcommons.osgoode.yorku.ca/ohlj/vol48/iss3/1 " #:title
"Interventions at the Supreme Court of Canada: Accuracy, Affiliation,
and Acceptance" #:journal "Osgoode Hall Law Journal" #:volume "48"
#:issue "3" #:first-page "381" #:id "Alarie"]

◊declare-work[#:type "thesis" #:author-given "Amanda Jane"
#:author-family "Burgess" #:year "2000" #:url
"http://scholar.uwindsor.ca/etd/2490" #:title "Intervenors before the
Supreme Court of Canada, 1997--1999: A content analysis"
#:thesis-description "MA Thesis" #:institution "University of Windsor"
#:id "Burgess"]

◊declare-work[#:type "statute" #:title "Criminal Code" #:volume "RSC"
#:year "1985" #:chapter "C-46" #:url
"http://laws-lois.justice.gc.ca/eng/acts/C-46/FullText.html" #:id
"Criminal Code"]

◊margin-note{This is a repost of an article I originally wrote
◊a[#:href
"https://sanchom.wordpress.com/2017/08/08/interveners/"]{here}, with
some minor editorial changes.} Third parties submit amicus briefs
("friend-of-the-court" briefs) in almost every U.S. Supreme Court
case. 781 were submitted in the term spanning 2014--2015---an average
of 12 per case---and 147 in the ◊a[#:href
"http://www.scotusblog.com/case-files/cases/obergefell-v-hodges/"]{marriage
equality} case alone.◊note-cite["Larsen"]◊note-cite["Franze"]

Canada's closest analogue to the U.S.’s amici are called
"interveners".◊note{Canada also has a role called an amicus curiae,
but this is a person appointed by the court, not simply an interested
third party.} From 2000--2008, interveners participated in only about
50% of cases at the Supreme Court of Canada, averaging 2.4 interveners
per case.◊note-cite["Alarie"] This was despite the court granting 94%
of the requests to intervene.

How has this changed since then? In the period from 2010--2016,
interveners participated in appeals more frequently than they did from
2000--2008, but still at nowhere near the rate of amici at the
U.S. Supreme Court.

◊fig[#:src "assets/interveners_2010-2016.png"]{}

To give a sense of who these interveners are, here are the parties
that intervened at least five times over this seven-year
period.◊note{The full list is ◊a[#:href
"https://drive.google.com/open?id=0B3nt53-cMazsMjlEbXJMRVNmY1U"]{here}. I
didn't clean up the data, so the "Attorney General of Saskatchewan" is
treated as different from the "Attorney General for Saskatchewan". I
also didn’t separate the interveners when a group of them filed
together.}

◊fig[#:src "assets/intervener_list.png"]{}

Attorneys general dominate the top of the list, as they always
have. Together, they accounted for 25% of all interventions from
2010--2016. This is a noticeable decrease compared to the numbers from
10 and 20 years ago. In the period from 2000--2008, attorneys general
accounted for 37% of all interventions. In the period from 1997--1999,
they accounted for 42%.◊note-cite["Burgess"] Non-government
interveners like public interest groups, trade associations, and
individuals are participating more now than ever before.

In the midst of this general increase in interventions, one category
of cases continues to lag behind. Most of the caseload at the Supreme
Court of Canada consists of discretionary appeals: the appellant
requests that their appeal be heard, and the court decides whether
they will hear the case. But, about 20--25% of the caseload at the
Supreme Court of Canada consists of appeals that are heard "as of
right"---automatically. As-of-right appeals generally involve
indictable criminal offenses where one of the judges at the lower
court disagreed with their court's decision.◊note-cite["Criminal Code"
#:pinpoint "ss 691--693"] In 2016, only two of the fourteen appeals in
that category attracted any interveners.

◊fig[#:src "assets/interventions_discretionary_v_as-of-right.png"]{}

I can think of two reasons why these cases are getting less help from
interveners.

For a case to make it onto the court's discretionary docket, it must
pass through a filter. The court selects cases that involve "a
question of public importance or ◊elide an important issue of
law". As-of-right appeals sidestep this filter. This could lead to
these cases just not being as interesting to outside parties.

Another explanation could be that the appellants in these cases
(often, criminal defendants) don't have the same ability to wrangle
outside help for their position.

◊hr{}

The Supreme Court of Canada is getting more input from third party
interveners than ever before. This is potentially a good thing, but
that depends on which theory regarding the role of interveners is
true.◊note{Interveners in Canada have been described as: genuine
friends of the court who are trying to help the court make more
accurate decisions, interest-groups presenting the best partisan
arguments with which the justices can align, or interested third
parties that the court listens to in order to increase the legitimacy
of its decisions.}

The "Amicus Machine" in the U.S. was built over a period of about
15-20 years, largely undirected, and not necessarily best designed to
fill its ostensible role.◊note{This idea was discussed in a special
episode of the ◊em{First Mondays} podcast, ◊em{◊a[#:href
"https://www.patreon.com/posts/amici-7-one-big-13254791"]{Amici #7:
One Big Superbrief}}.}

As interventions become more frequent at the Supreme Court of Canada,
we (or rather, the justices) have the opportunity to direct how this
practice grows. In particular, we should be on the outlook for
potential disparities in access to justice that come from the parties'
differing access to interveners.