Public Interest Standing Before the Supreme Courts of Israel and Canada: Are our Canadian courts accessible enough?

While similar in many ways, the Canadian and Israeli legal systems are quite distinct. A striking divergence can be observed by comparing the Israeli and Canadian Supreme Courts’ approach to public interest standing. Through an access to justice perspective, this post shall first explain the Israeli model, then provide an overview of the Canadian model, and finally provide a comparative analysis of the two approaches.

While Canadian Courts have somewhat restricted access to the courts for certain litigants, the Israeli Supreme Court has actually moved in the opposite direction, allowing for wide-ranging standing.

Supreme Court of Israel’s Approach
While Israel lacks a formal written constitution, its constitutional framework is well in place. Former Israeli Supreme Court President Justice Aharon Barak writes the Supreme Court of Israel has traditionally followed a two part process in regards to judicial review.

First, according to Justice Barak, Israel seeks to adopt an approach similar to its “modern” democratic peers, therefore foreign and international decisions play an influential role.1 Secondly, Justice Barak claims Israel’s Supreme Court seek to recognize all human rights present in these peer democracies.2 In fact, Justice Barak writes these rights provide the foundation for the Supreme Court’s statutory interpretation.3 Finally, Justice Barak pronounces that after the 1992 “constitutional revolution”, human rights approach guided by the concept of human dignity has permeated the activities of the Supreme Court of Israel.

While the Israeli government has been subject to much international criticism, one of its greatest critics has been the Israeli Supreme Court itself. It is interesting to note the nation which remains a nation and within a region of dramatic tension, division, security and terrorism threats, it nevertheless maintains one of the most liberal and progressive judiciaries in the world, at least in terms of accessing the Supreme Court. The particular features which stand out in Israel’s judicial system are those of standing and justiciability.

Standing before the Supreme Court of Israel
In regards to standing, former Justice Barak writes “the Supreme Court comprehensively liberalized the rules of standing”. This is a very notable feature of the Israeli system which Justice Barak claims stems the Supreme Court’s emphasis on strengthening the protection of human rights.

Justice Barak believes this position on standing recognizes the importance of “entities and institutions which lack a personal interest in the matter but whose role is to protect human rights”. Justice Barak highlights human rights organizations such as these bring cases before the Court in order to expand protection of human rights as well as expand awareness of their importance. This position allows for greater access for parties before the Court, a quite commendable approach.

Another important and interrelated issue is that of justiciability. Justice Barak writes the Court has limited the potential that non-justiciability defences being used to defeat claims in instances where a violation of human rights is alleged. Again, this is a unique feature of the Israeli system which allows for the possibility of broad access to the Israeli Supreme Court due to a lower threshold to achieve standing, allowing a greater amount of cases to proceed to the merits stage.

Finally, on a general level, because the Israeli Supreme Court (unlike Canada) is both a high court and appellate court, it adjudicates a high volume of cases each year. The volume of cases the Israeli Supreme Court hears each year runs into the thousands, which is a strong contrast to the Canadian Supreme Court as we shall see in the ensuing section.

Supreme Court of Canada’s Approach
Unlike Israel’s Supreme Court, attaining standing before the Supreme Court of Canada is quite difficult. Diverging from the Israeli model, Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236 is the determinative case on public interest standing in Canada thereby creating a three part test for standing in Canada.

In Canadian Council of Churches,  it was held the test for public interest standing in Canada requires answering three questions: is there a “serious issue of invalidity” (is the matter justiciable); has the plaintiff demonstrated a genuine interest; and is there “another reasonable and effective way to bring the issue before the Court”.

In this particular case, the Canadian Council of Churches passed the first two questions, but failed on the third as it was determined another party would be in a better position to bring the claim before the Court on that particular issue.

This decision is in stark contrast to the Israeli position which allows standing to everyone, as well as lowering the justiciability requirement when a human rights violation is alleged.

Secondly, the vertical structure of Canadian courts poses a difficult challenge for weaker parties. Several court levels must be exhausted prior to a plaintiff reaching the Supreme Court of Canada, therefore the appellate process in Canada is quite time and resource consuming, at times leading to litigation wars of attrition.

In Canada, generally, a trial level or court of first instance adjudicates a claim, then the claim may be granted leave to appeal to the provincial appeal court. If leave is granted only then will the merits of the case be argued. Yet if at this higher level court a decision is also rendered against that party, the party must then once again seek leave for appeal to the Supreme Court of Canada. If leave is granted, which is extremely rare, only then will the party find themselves before the Supreme Court of Canada to argue the merits of the case.

At every level, there is a high bar for standing and attaining leave, each level acting like a bottle-neck. In fact at the Supreme Court of Canada, the Court exercises significant discretion in deciding whether to grant leave by considering whether a case deals with an “issue(s) of national importance”, which in turn poses an additional challenge.

This entire process of accessing the Supreme Court of Canada is a very time and resource consuming process and cases usually run their course far before ever reaching Ottawa. Furthermore, in contrast to Israel, the Supreme Court of Canada only holds “three sessions a year during which it hears some 80 appeals”.

Greater Access to the Courts or Judicial Economy?
Each system appears to have its own strengths. However, the liberal and lower test for standing in Israel invariably creates greater access to justice for weaker parties. Conversely, by focusing its energies, the Supreme Court of Canada arguably renders its decisions in a more consistent manner.

As former Justice Barak writes, everyone has standing before the courts in Israel, especially where a human rights violation is alleged and for human rights organizations. Meanwhile, Canada has created a high threshold test for public interest standing, especially for human rights organization, through the Canadian Council of Churches case. Furthermore, the multiple levels of appeal required prior to accessing the Supreme Court of Canada may pose an additional challenge to resource deprived parties seeking to vindicate their human rights.

While some may argue these diverging positions are a result of a difference in  population between Canada’s roughly 34 million versus Israel’s 7.4 million, it nevertheless remains true that Israel is more prone to human rights claims yet oddly allows greater access to its courts than Canada.

Pragmatically, the stark difference between the number of cases adjudicated by the Israeli versus Canadian Supreme Court are proof that it is not simply an issue of population but rather a modus operandi. However, it should also be noted that the vast volume of cases produced by Israel’s Supreme Court at times causes an issue of inconsistency between rulings.

In summary, this post does not seek to deal with the substantive ruling of the decisions coming out of Israeli or Canadian courts but rather look at the issue of accessing the courts themselves. It would appear, through an access to justice perspective, the lower threshold in gaining access to the Israeli Supreme Court, especially where human rights are concerned, allows for greater access to the courts in Israel whereas a more restrictive approach has been adopted in Canada.

Are we correct in our approach or is there a lesson to be learned from Israel?