Justiciability in Canada Compared to the United States

In previous blog posts, we touched on how, due to the existence of the reference procedure, Canadian courts do not shy away from adjudicating questions of a hypothetical nature, whereas, in the United States, the Supreme Court has held that Article 3 of the Constitution restricts the cases that federal courts may hear to “actual cases and controversies”. In this blog post, we will delve deeper into a comparison between the justiciability doctrines of Canada compared to the United States with respect to the components of political questions, standing and mootness.

In Operation Dismantle v. The Queen, a social activist organization filed sued against the federal government for allowing the United States to test cruise missiles in Canadian territory, arguing that this action contravenes Section 7 of the Charter of Rights and Freedoms. The Supreme Court of Canada dismissed the argument that it lacked jurisdiction over the matter because the matter was a political question. The case “was not insulated from review because it was a ‘political question’ since the Court had a constitutional obligation under s. 24 of the Charter to decide whether any particular act of the executive violated or threatened to violate any right of the citizen.”

In contrast, in the United States, the leading case of Marbury v. Madison included an admonition against adjudicating political questions: “Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”

In Baker v. Carr, the Supreme Court held that political questions are non-justiciable if they involve at least one of the following circumstances:

1. The Constitution explicitly gives the responsibility to another branch of government

2. “Judicially discoverable and manageable standards” are lacking

3. The court is called upon to make a political or policy determination beyond what judges have discretion to do.

4. Deciding the issue would show “a lack of respect for coordinate branches”

5. A decision would require “an unusual need for unquestioning adherence to a political decision already made”

6. The case would result in “the potentiality of embarrassment” if multiple branches or departments of government answer the question in different ways

Standing is the idea that certain rights may only be vindicated by certain parties and other parties may not seek to use the judicial system to vindicate those rights. The issue often arises in the context of a social activist organization filing suit to vindicate rights that do not merely belong to them in particular but belong to the public generally.

In Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, the Supreme Court held that three factors are relevant when considering whether to grant a plaintiff standing in a social activism case:

1. Whether the case raises a serious justiciable issue;

2. Whether the party bringing the case has a real stake in the proceedings or is engaged with the issues that it raises; and

3. Whether the proposed suit is, in all of the circumstances and in light of a number of considerations, a reasonable and effective means to bring the case to court.

When it comes to criminal law, a defendant may claim as a defense that the Criminal Code provision by which he/she is being charged violates the constitutional rights of others (and not necessary those of the defendant himself / herself). This was the holding in R v. Big M Drug Mart Ltd., where the defendant, a corporation, successfully argued that a law prohibiting the sale of goods or services on a Sunday violated the religious rights of natural persons.

In contrast, in the United States, third-party (e.g., social activism) standing is generally disallowed. There are only narrow exceptions like a taxpayer challenge to Establishment Clause violations or an overbreadth challenge to a free speech restriction. In criminal cases, there is also no equivalent to the rule in Big M Drug Mart. The only exception is that anybody, including a criminal defendant, may make an overbreadth challenge to a free speech restriction by which he/she is being charged – if the law is substantially overbroad, then it must be struck down.

Mootness is the issue that a court confronts when intervening circumstances impacts the parties to a case such that the court is no longer able to give a remedy of the same kind that the plaintiff was originally seeking – or any effective remedy for that matter. Continuing the case when it is moot means that the court is only deciding an abstract question rather than directly sorting out the rights and obligations of the parties. Mootness frequently becomes an issue when the appeal process is lengthy. It also becomes an issue when a party is elderly and dies while the process is pending.

In Canada, whether to dismiss a case for mootness is at the discretion of the court. In R v. Smith, the Court listed some factors that would “in the interest of justice” favor continued adjudication of a moot case, including: (1) the case implicates a legal issue of general public importance, particularly if it is otherwise evasive of appellate review; (2) the case implicates a systemic issue related to the administration of justice; and (3) whether continued adjudication would involve the court in free-standing, legislative-type pronouncements more properly left to the legislature itself.

The circumstances under which an American court may continue to adjudicate a moot case are similar to, albeit somewhat narrower than, the Canadian factors listed above: (1) if a case is moot because of a party’s voluntary cession of an action, then adjudication may be justified on the grounds that the party may begin again in the future; (2) where the alleged wrongful act is repeatable but, due to timing, is likely to evade judicial review again in the future, then continue adjudication may be justified.

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