Interveners

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 marriage equality case alone.1,2

Canada’s closest analogue to the U.S.’s amici are called “interveners”.3 From 2000–2008, interveners participated in only about 50% of cases at the Supreme Court of Canada, averaging 2.4 interveners per case.4 This was despite the court granting 94% of the requests to intervene.

How has this changed since then? I wrote a Racket script to get the numbers 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.

interveners_2010-2016

To give a sense of who these interveners are, here are the parties that intervened at least five times over this seven-year period.5

intervener_list

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%.6 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.7 In 2016, only two of the fourteen appeals in that category attracted any interveners.

interventions_discretionary_v_as-of-right

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 […] 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.

divider

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.8

The “Amicus Machine” in the U.S. grew up over a period of about 15-20 years1, largely undirected, and not necessarily best designed to fill its ostensible role.9

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.


1. Larsen, Alli Orr and Devins, Neal, The Amicus Machine (November 15, 2016). Virginia Law Review, Vol. 102. Available at SSRN: https://ssrn.com/abstract=2741853

2. Franze, Anthony J. and Anderson, R. Reeves, Record Breaking Term for Amicus Curiae in Supreme Court Reflects New Norm (August 15, 2015). National Law Review.

3. Interveners are Canada’s analogue of the U.S.’s amicus curiae. Canada also has a role called an amicus curiae, but this is a person appointed by the court, not simply an interested third party.

4. Alarie, Benjamin and Green, Andrew James, Interventions at the Supreme Court of Canada: Accuracy, Affiliation, and Acceptance (October 8, 2010). Osgoode Hall Law Journal, Vol. 48, No. 3, pp. 381–410, 2010. Available at SSRN: https://ssrn.com/abstract=1498747

5. The full list is 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.

6. Burgess, Amanda Jane., “Intervenors before the Supreme Court of Canada, 1997–1999: A content analysis.” (2000). Electronic Theses and Dissertations. 2490

7. Criminal Code, RSC 1985, ss. 691-693.

8. There are various theories regarding the nature of amici in the U.S.: interest-group lobbyists, genuine friends of the court or of the parties, or a group of Supreme Court experts who have learned what information the justices crave and who are part of a managed strategy by the parties to win their cases.1 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.4

9. This idea was expressed in special episode of the First Mondays podcast, “Amici #7: One Big Superbrief“.

Washington v. Trump

Today, the 9th Circuit denied President Trump’s appeal that would have reinstated his Executive Order on immigration. This opinion addressed only a preliminary question of whether the Executive Order will remain in effect while its constitutionality is fully argued in a lower court, but it reveals the trouble that the Government will have defending it.

One of the Government’s arguments was that “the President’s decisions about immigration policy, particularly when motivated by national security concerns, are
unreviewable, even if those actions potentially contravene constitutional rights and protections.”

The court rejected that argument.

There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.

The Government also argued that “if the four corners of the Executive Order offer a facially legitimate and bona fide reason for it […] the court can’t look behind that.” In this argument, they were trying to prevent the court from considering statements, tweets, and interviews by President Trump and his advisors that could reveal that the Executive Order was, in part, religiously-motivated.

The court rejected that argument.

The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.

The Government also tried to rely on “authoritative guidance” from White House counsel that the Executive Order does not affect legal permanent residents. The Government argued that the court should understand the Executive Order based on the most recent interpretation by the White House counsel. The court was concerned about the Government’s “shifting interpretation”, and rejected that argument.

Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

The most interesting part of my past week was listening, along with a hundred thousand other people, to this case’s oral argument. It was a display of the kind of work the judiciary does every day: checking whether the case should even be before the courts, probing the limits of the arguments presented by each side, and at the core, just trying to understand the case and arguments before them so they can correctly apply the law.

There is nothing better than an adversarial dispute to crystallize the meaning of a statute, the limits of Government power, or the extent of our rights. I’ve spent as much time reading appellate opinions as any other material over the past few years. It’s not because I miss first year philosophy or want to be a lawyer; it’s because they contain tough questions that reveal how the various parts of our society fit together. And, much of it is decent writing. They are written as much for us as they are for lawyers. Good journalism answers “so what”, but nothing can sub in for the opinion itself.

Here are some of the law people I’m following on Twitter who give context to significant cases and insight based on their personal experiences with the courts (and also, some entertainment).

And here are a couple of sites that present primary sources: oral argument audio, transcripts, briefs, opinions.

I haven’t found anything close to the same for Canada. But, you can search our Supreme Court’s judgements by date, topic, party, etc. here. (Try to find the one where a farmer harvested, saved, and planted Monsanto seed across 95% of his farm and then claimed he wasn’t using it.)

Pilots, you don’t need to carry your radio licence

radiolicence

That you must carry your radio operator’s certificate with you on board the aircraft is a widely spread myth in Canadian aviation. It’s not true! Here are some examples of that claim in the wild:

There are a number of documents that must be on board in order to fly […] I carry a Restricted Radio Operator Certificate, restricted to aviation. (Bits of Paper)

During flight operations in Canada, the following documents must be carried aboard the aircraft […] Pilot radiotelephone operator’s certificate… (Required documents)

So an operating certificate is always needed wherever a Canadian pilot is operating a
radio on a Canadian aircraft […] They have not been inspecting Canadian pilots recently to ensure
that pilots are carrying this licence, but can do so at any time. (The AOPA/COPA Guide to Cross Border Operations, Page 31)

The following must be carried by the pilot […] A Restricted Radiotelephone Operator’s Certificate is only required if you intend to transmit on an aviation-band radio. (Are you legal?)

Also on board must be […] the radio operator’s licence of the pilot […] (From the Ground Up, 27th Revised Edition 1996, p. 100)

What do the regulations actually say?

A person may operate radio apparatus in the aeronautical service, maritime service or amateur radio service only where the person holds an appropriate radio operator certificate as set out in column I of any of items 1 and 3 to 15 of Schedule II. (Radiocommunication Regulations, s 33)

The holder of a radio authorization shall, at the request of an inspector appointed pursuant to the Act, show the radio authorization or a copy thereof to the inspector within 48 hours after the request. (Radiocommunication Regulations, s 38)

You only need to produce the radio operator certificate (or even just a copy!) within 48 hours of a request by an Industry Canada inspector. You do not need to be able to produce the document while exercising the privileges. When Canada wants you to have the document with you, it knows how to say that:

[…] no person shall act as a flight crew member or exercise the privileges of a flight crew permit, licence or rating unless (a) the person holds the appropriate permit, licence or rating […]; and (d) the person can produce the permit, licence or rating, and the certificate, when exercising those privileges. (Canadian Aviation Regulations, s 401.03)

You must be able to produce your pilot licence and medical while exercising their privileges. You don’t need to do this for the radio operator certificate.