Avvy Go, Metro Toronto Chinese and Southeast Asian Legal Clinic (MTCSALC) John Fisher, Equality for Gays and Lesbians Everywhere (EGALE)
The Court Challenges Program of Canada
616 - 294 Portage Avenue
Winnipeg, Manitoba R3C 0B9
Phone: (204) 942-0022 Fax: (204) 946-0669
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A. Introduction and Background
In preparation for its annual meetings and national consultation, the Court Challenges Program requested submissions for a number of discussion papers, including one on coalition-building, participatory litigation and strategic litigation. After discussion between the Program, the Metro Toronto Chinese and Southeast Asian Legal Clinic and EGALE, we decided that the theme of this discussion paper lent itself readily to a partnership effort, and so it has been the pleasure of Avvy Go and John Fisher to work together on this report on behalf of our respective organizations.
The information presented in this paper is drawn from a series of telephone interviews with members of different equality-seeking organizations. The purpose of the paper is to explore some of the issues relating to working in coalition, engaging in participatory litigation and strategic litigation, to examine some of the advantages and disadvantages of these models, to identify some of the obstacles most commonly encountered by the groups we spoke with, and to discuss some ways in which these obstacles may be overcome. As a discussion paper, this report is designed to stimulate discussion, to raise some of the issues and to serve as a starting-point for further debate at the Court Challenges meetings in September of 1998.
It might be helpful at the outset to provide some explanations of the terms used in this paper. Although it was clear that different members and member organizations in our communities have their own understanding of the various concepts, in the context of the work of the Court Challenges Program "coalition-building" was generally taken to refer to the process of different organizations joining together to involve themselves in a legal challenge, "participatory litigation" was seen as the process of developing legal challenges which are informed and driven by members of the affected communities, rather than just the direct parties to a case or their lawyers, and "strategic litigation" was seen as the process of identifying and bringing forward legal challenges which go beyond the narrow outcome of a particular case to advance a broader vision of equality and further equality jurisprudence generally.
Process of Developing the Paper
This paper is based upon a number of interviews with equality organizations that have had experience with working in coalition, participatory litigation and strategic litigation. A recent coalition of 13 different equality groups in the case of Rosenberg & CUPE v Canada was selected as a case study, a conference call was held with available members of the coalition and one of the counsel involved in the case, and individual telephone interviews were held with other equality-seeking organizations which either were not members of the CUPE Coalition or which were not available for the conference call.
In total, the following participated in providing feedback by way of conference call or telephone interview:
Apologies were also received from a number of organizations whose staff or directors were unavailable due to vacations. It is recognized that this by no means a comprehensive list of organizations and individuals with experience in coalition-building and strategic litigation; the purpose of the interviews was simply to obtain a reasonable cross-section of views on the themes identified in this paper, and to seek to identify some common threads.
All participants were sent a list of questions to promote discussion and feedback. The list of questions is attached as an appendix to this paper.
B. The Rosenberg/CUPE Coalition: a case study
The CUPE Coalition came together in late 1996 as a result of a combination of factors. Since both of the authors of this report were closely involved in the coalition, our perspective is hardly objective. Nonetheless, we were interested in the feedback of other coalition members, and felt that the origins and development of the coalition make an interesting case study of the interaction between coalition-building, participatory and strategic litigation, all of which was made possible only through the support of the Court Challenges Program.
By way of background, the Program had funded the intervention of EGALE before the Supreme Court of Canada in the case of Egan v Canada, the first Charter challenge involving lesbians and gays to reach the Supreme Court. Egan dealt with the entitlement of same-sex couples to equal benefits under the spousal allowance provisions of the Old Age Security Act. Although the Court found by a narrow margin of 5-4 that it was discriminatory to deny equal benefits to same-sex couples, the Court also ruled that the discrimination was justified under s.1 of the Charter of Rights.
Many members of the equality communities were shocked by the looseness of the s.1 analysis in that case and the ease with which the Supreme Court was willing to find that the discrimination was justified. Among the reasons given by the Court for justifying the discrimination were the "novelty" of the claim, the entitlement of governments to act "incrementally", or in small steps, on human rights issues, and the need for "judicial deference" to government decision-making, particularly where a decision might have implications for government spending. By "judicial deference", the Court meant that judges are often unwilling to challenge the government's role in developing laws or policies.
It became apparent that the rights of all equality communities were under threat if government discrimination could be justified merely by identifying the claim as novel, or invoking the doctrine of judicial deference. These concerns intensified when the Ontario Court (General Division) in CUPE v Canada rejected a challenge to the "opposite sex" definition of "spouse" in the pension registration provisions of the Income Tax Act, on the basis that the Court was "bound to follow the ... result" in Egan. Apparently, lower Courts were willing to rely upon the Egan decision to justify discrimination without even looking at whether the government had provided good evidence or reasons for the discrimination, which are requirements under s.1 of the Charter.
The Court Challenges Program funded an impact assessment of the Egan decision in which the concerns around the decision were examined in more detail and different means for minimising the negative impact of the judgment were explored. Based upon these conclusions, EGALE resolved to intervene in the appeal of the CUPE decision before the Ontario Court of Appeal. It seemed, however, that in their reluctance to recognize the rights of same-sex couples, Courts were willing to drastically reshape equality analysis in a way likely to have a harmful impact upon all equality groups. As a result, it seemed an ideal case for a coalition intervention, to enable equality groups to join together and present their common concerns to the Court about the need to maintain the integrity of the s.1 analysis. EGALE sent a one page backgrounder describing the CUPE case to about two dozen member organizations of the Court Challenges Program. We were pleasantly surprised (and a little overwhelmed!) to receive positive responses from 12 other organizations interested in participating in a proposed coalition.
An application for case intervention funding was made to the Court Challenges Program, and approved, and a series of conference calls were held to identify the working principles of the coalition, approve a budget and select counsel. EGALE was affirmed in the role of coalition coordinator, and an application for intervenor status was made to the Ontario Court of Appeal on behalf of the coalition. As a result, the coalition calling itself the "Equality Coalition" was accepted as an intervenor by the Court, comprised of the following organizations:
One lawyer had been selected to present the coalition's application to intervene. Two lawyers then worked together as co-counsel with the coalition to prepare for the hearing, one of whom was mainly responsible for preparing the factum setting out the written arguments provided to the Court, and the other of whom was mainly responsible for arguing the case before the Court. The first draft of the factum was developed by co-counsel based upon some guiding principles identified by the coalition. Various drafts of the factum were reviewed by the coalition partners, and feedback given to co-counsel, who often participated directly in conference calls. As filing deadlines grew tight, feedback was sometimes given directly to counsel by the interested groups.
The case was argued on October 20 and 21, 1997, and judgment was rendered on April 23, 1998, in favour of the people who had challenged the discriminatory law. The coalition was pleased to note that the Court took the opportunity to vigorously reassert the importance of a strong s.1 analysis before discrimination can be justified. On June 22, 1998, the federal government announced that it would not be appealing the decision to the Supreme Court of Canada.
A follow-up conference call was then held to enable coalition partners to share their experiences as members of the coalition.
By and large, the coalition intervention was described as a "success story". One participant expressed the view that the coordination role played by EGALE had been very helpful in moving the work of the coalition forward and keeping participants informed, while enabling group members to have their say. Coalition members had felt comfortable affirming EGALE in the role of Coalition coordinator, since the particular facts of the case revolved around an issue of particular importance to the lesbian and gay communities. It was recognized that it might have been more difficult to identify the most suitable coordinating partner from such a diverse coalition if the issue had not been so clearly linked to the concerns of a particular community.
Co-counsel, who also participated in the call, spoke from a lawyer's perspective about the importance of coordination so that the lawyer does not receive mixed messages from a variety of clients. The one difficult time had been when, with timelines pressing, coalition partners were invited to submit their feedback on the factum directly to her, with the result that it had been necessary to reconcile somewhat conflicting instructions.
All involved spoke highly of the willingness of co-counsel to participate directly in coalition meetings, counsel's openness to community participation and ability to communicate legal concepts in a clear and accessible way.
The degree of involvement of each coalition partner varied substantially from group to group, with some members even feeling apologetic that they had not been able to be more actively involved. Other group members pointed out, however, that there is nothing wrong with group members having different degrees of time and energy to contribute, and that it is important to have realistic expectations, based on the particular circumstances of those involved. Some felt that more could have been done to support those groups less familiar with the litigation process, by developing more backgrounders, taking more time to do introductions, explain issues and processes, etc.
It was recognized that timelines had been tight, often as a result of Court-imposed deadlines. The consequences of working with such a large coalition are that it is easy to underestimate the time required to circulate documents, receive feedback and reach consensus on common policy positions.
All felt that the quality of the factum and the oral intervention had been significantly strengthened by the fact of working in coalition. Although member groups generally seek to take into account the impact of their legal positions on other groups when developing court interventions, the broad range of perspectives brought forward by the coalition partners substantially assisted in the development of an approach designed to advance equality principles and case-law. One coalition partner gave the example that he was pleased to feel that poverty perspectives had been incorporated into the coalition's intervention. While it might have been tempting for the coalition to seek to distinguish the Egan case by pointing out that CUPE did not involve the same question of government spending, this would have created a negative precedent for poverty communities in future by suggesting that discrimination can be justified when it involves government spending. Instead, the coalition chose to directly challenge the finding in the Egan case that financial expenditure could serve as a basis for justifying discrimination.
The coalition partners also felt that the process of working together in coalition had helped develop their mutual understanding of the others' perspectives and strengthen alliances between community organizations which it is hoped will enable us to support each others' concerns again in future.
C. Telephone Interviews:
The experiences reported from members of the CUPE Coalition corresponded closely with the feedback received from other organizations during telephone interviews. Set out below are a number of specific comments that interviewees felt it was important to emphasize:
Many interviewees endorsed the importance of having a Coalition coordinator. As one participant noted, coalition work is time-consuming and doesn't "just happen". Another group experienced difficulties when it experimented with an ad hoc coalition, which lacked group leadership. There were few internal structures and group participants changed from meeting to meeting. As noted above, one counsel explained the challenges faced when a draft factum was circulated to coalition partners and she received feedback from a number of different groups, some of which was contradictory. As a result, somewhat arbitrary decisions needed to be taken shortly before the filing deadline to reconcile the opposing instructions being received.
A Coalition coordinator can help alleviate these difficulties by arranging for meetings, ensuring good communications through the regular exchange of documents, managing the finances of the coalition, passing instructions on to counsel etc. Not all of these roles need to be fulfilled by a single group or individual - one group might be responsible for administration of the project, for example, while another is designated as liaison with counsel. What is important, however, appears to be the need for one or more "designated drivers", who can ensure that the business of the coalition moves forward in a planned and structured way.
At first glance, the notion of designated leadership may seem inconsistent with the ideal of a coalition as an equal sharing between groups, all of which participate on an equal basis. Nearly all of those interviewed felt, however, that a coalition was practically unworkable in the absence of some form of leadership. It was emphasized that the role of the coalition coordinator is to ensure proper administration of the intervention, not to make important legal decisions on behalf of the coalition without consultation. As with any role involving authority, it is the responsibility of those with power to ensure that it is not abused. Similarly, the role of any individual or smaller working group of individuals designated to pass instructions on to counsel is not to authorize changes in the basic legal principles agreed upon by the coalition, but instead to enhance clarity of communication by ensuring that counsel receive these instructions from a single source. Minor decisions might be taken without the necessity to re-call the coalition as a whole, but the liaison with counsel should also be ready to identify when a decision requires prompt communication with other coalition partners. For example, it would be inappropriate for a decision to be made which raises a brand new argument not discussed by the coalition, or which conflicts with a principle already agreed-upon.
One key element was seen to be clarity of communication. The working principles of the coalition need to be clearly discussed and agreed upon at the outset. The coalition partners need to clearly understand and authorize who is designated to fulfill which role, and those so designated need to clearly understand what they are being asked to do, as well as the limits of their authority. One organization has developed comprehensive written policies which include check lists, policies on working in partnership with other organizations, policies on selecting counsel etc. These policies were developed in response to previous problems which had been experienced due to lack of clarity.
It was also emphasized that the role of coalition coordinator can be extraordinarily time-consuming, and those taking on this role should be aware of what they are letting themselves in for!
It might be noted that some of the groups interviewed might even go further, particularly in litigation driven by a particular organization, and assume a leadership role at the outset, managing budgets, selecting counsel etc without necessarily being affirmed in this role by the other coalition partners. In some cases, this might involve establishing the principles and processes before even approaching other groups. In other cases, the coalition may be formed first, but the "directing" organization may not seek their input on matters related to the administration of the case. It is questionable whether this model really conforms to the concept of a coalition at all. Such an approach may be workable where the issue being litigated squarely affects a single community - it is more likely to be problematic where the denial of equality is based upon multiple grounds of discrimination, and one community may feel that its perspective is being marginalized as "ownership" of the issue is assumed by another organization. Again, it appears that clarity is essential - if the group developing the coalition does not intend to create an equal partnership, it should at least be clear with the other organizations at the outset regarding the basis upon which they are being approached.
Closely related to working in coalition is the concept of participatory litigation. Participatory litigation is litigation which is community-driven and which seeks to further collective values rather than individual interests. It may be based within a single community, or it may involve the coming-together of a number of different communities. Both structures are likely to require coalition involvement, either as a coalition of groups and individuals within a community or a coalition of groups representing a range of equality communities.
All of the comments expressed above about working in coalition and the need for clear decision-making structures apply equally where participatory litigation is concerned. Another key feature of participatory litigation is that it requires a re-evaluation of the lawyer-client relationship, since different power structures are often necessary to ensure that the community perspective is what drives the litigation.
Relations with lawyers
Many groups had experienced difficulties in working with lawyers, particularly when counsel lacks experience in working with coalitions or engaging in participatory litigation. The problems most commonly experienced were a lack of willingness on the part of counsel to share decision-making power, the inability to express legal concepts in layperson's terms and a lack of respect for community perspectives. It was also felt that lawyers are often trained to win their cases and present the best legal arguments to obtain a victory, whereas community-driven participatory litigation has as its focus the development of sound equality jurisprudence, which may be more important than the outcome in a particular case. For example, an argument which might win a particular case, but set a negative precedent for other communities or close the door in future cases, would be inconsistent with a participatory approach to strategic litigation.
Other groups reported extremely positive relations with lawyers. In these cases, the lawyers involved usually had a strong community background, and understood well the value of a participatory model. They did not need to be "educated" or convinced of the importance of working within community structures, but embraced those structures readily, often because of their own history of participation and activism. Similarly, these lawyers were often best placed to articulate legal concepts in ways that were accessible to non-lawyers, and had a good understanding of the need to avoid arguments that may have a harmful impact on other communities or future cases.
Some discussion took place around whether it was better for a coalition to meet and then pass instructions on to legal counsel or whether counsel should participate directly in coalition or community meetings. Provided sufficient space is maintained for the intervention to be truly community-driven, most were agreed that it is preferable for counsel to be directly involved at the community level. It was felt that this helped break down the barriers between the community and the legal process, and helped counsel have a direct understanding of the community concerns and priorities to be addressed during the intervention. One counsel pointed out that direct participation enabled her to better understand the emphases that should be placed on different legal arguments. Receiving instructions through a third party after the fact was always a less desirable substitute since it was impossible to fully convey all the different perspectives and nuances which community members had expressed. Similarly, community members indicated that they felt they had more direct input into the legal process and the formulation of the intervention if they were able to express their opinions directly to counsel in the course of a meeting, ask questions, seek explanations and proffer alternatives.
It was noted that from a lawyer's point of view, working with coalitions is inevitably more time-consuming and therefore more expensive.
It was noted that working in coalition and participatory litigation are each essential to the development of coherent equality jurisprudence, but a significant obstacle is the additional cost, which can be substantial. The need for numerous conference calls and possibly in-person meetings, the substantial coordination required, and the increased demands placed upon the time of counsel all contribute to place coalition work and participatory litigation beyond the resources of many organizations.
A number of groups spoke highly about the willingness of the Court Challenges Program to recognize the increased costs of working in coalition and approve expenditures beyond the usual maximums. Groups felt this degree of support was essential if future coalition work is to be supported and encouraged. At the same time, the limitations on the mandate of the Program inevitably place limitations on the ability of groups to pursue coalition interventions in other cases, such as those involving challenges to provincial legislation.
In addition, although the Court Challenges Program may cover the increased costs of the coalition as a whole, individual member groups are still likely to incur internal expenses as they take positions back to their own organizations for feedback.
The other major resource difficulty is the time commitment required of participating groups. In an age of cut-backs, many organizations struggle with limited staff resources to manage the many projects of an organization, and not all groups have the staff or other resources to participate equally in the process of reviewing, researching or offering written feedback on a factum. Some interviewees felt that there is a responsibility on groups which are better-resourced and have more litigation experience to do what they can to support the other groups and maximise their ability to contribute. One group member suggested a buddy system, where more experienced coalition partners are paired with less experienced groups so that information and support structures can be shared.
Others pointed out that the Court Challenges Program could be more proactive in educating and assisting those groups which require more support. Just as the concept of equality does not involve treating all groups identically, so too Program support can be tailored to support those groups most in need.
The other consideration was that it is important to have realistic expectations about what can or cannot be accomplished through coalition work and participatory litigation. It should be accepted that not all groups will necessarily wish to make an equal time commitment to a project - some may simply wish to lend their names to support a coalition, others may give input at regularly-scheduled meetings, others may be closely involved in the detail work of writing a factum. Provided each group has the equal opportunity to contribute to the extent it wishes, there is nothing wrong with each group selecting the level of involvement which it feels best suits its needs, resources and interests.
Groups were agreed on the importance of identifying test cases, that is, cases which will advance an overall equality strategy. This can often be difficult, however, because litigation tends to be reactive, with organizations having to respond to legal challenges being advanced by others. Often, it is up to the litigators and their lawyer to decide whether they will be receptive to community input, and in some cases the litigators and lawyers may even resent what they perceive as community intrusion into the conduct of "their" litigation. In other cases, however, groups reported positive experiences in dealing with lawyers and clients who recognized that test case litigation, by virtue of its significant impact on the whole community, carries with it a responsibility to allow for community input.
It is difficult to drive the agenda, and few groups have the resources to identify potential litigants and initiate litigation. Acting directly as a litigant also creates potential conflicts between the interests of the parties directly involved and the interests of the community as a whole. When acting as an intervenor, organisations have more freedom to advance a broader community perspective. Acting directly as a party also carries a greater risk of court costs being imposed in the event of a loss.
Community consultations can be a good means of bringing people together to develop strategic litigation plans, and some organizations expressed regret that the only large scale gathering of different equality communities tends to be at the Court Challenges Program Annual General Meeting.
Most groups indicated that in formulating their legal positions, they strove to take into account the impact upon other communities. Many indicated that the ability to do this was significantly enhanced by working in coalition, where the perspectives of different communities could be shared directly. Groups also recognized, however, that there may be cases where the perspectives of different communities are irreconcilable. At least one group felt that it is acceptable for an organization to advance its own interests at the expense of others, since those other groups may also intervene to present their own points of view, and the role of community intervenors is not decision-making or reconciling conflicts, but presenting the Courts with diverse viewpoints. Other groups, however, felt that where potential conflicts are irreconcilable, it is better to choose not to proceed with an intervention, so that one group's rights are not won at the expense of another's.
The Role of the Court Challenges Program
Those groups which are well-versed in strategic litigation issues spoke highly of the Program's willingness to support coalition-building and strategic litigation, and to recognize the additional costs by authorizing extraordinary funding, where necessary. Groups with less litigation experience expressed concerns, however, that substantial barriers remain which prevent their ability to successfully access the resources of the Program. The Program was encouraged to develop its outreach efforts, as well as the resources available by Website. Materials that it was felt would be useful would be samples of successful funding applications that could be used as precedents by other groups or, if these are considered confidential, a "mock sample" which could show groups how best to prepare their application. It was also suggested that more resources in terms of legal research and education would be useful. The Website could include copies of all facta developed with Court Challenges Program support, as well as copies of any judgments arising from such cases.
Many groups expressed the view that while litigation funding is adequate (in those areas within the mandate of the Program), insufficient resources are available for case preparation before a case is developed (including, for example, funding to gather evidence and conduct social research), and legal research and education, both before and after a case is litigated. Legal research was seen as an important area if strategic litigation is to be successfully advanced, but few funds are available to cover this area. Resources to educate the public and members of particular communities about significant legal developments were also felt to be lacking. It was felt that the Program could be more proactive in developing and maintaining some resources itself, such as case lists and summaries of the important decisions in different areas of equality jurisprudence.
D. Summary of findings:
Certain key points can be summarized from the interviews conducted:
Advantages of working in coalition
Disadvantages of working in coalition
Obstacles to working in coalition and participatory litigation
Although most were agreed that working in coalition and becoming involved in participatory and strategic litigation were desirable objectives, groups identified a number of obstacles which make these models more difficult to attain:… Decision-making processes can be unclear, conflicts can arise which are difficult to resolve;
Overcoming the obstacles
Despite these obstacles, many groups had achieved significant success in developing processes and principles which enhance and strengthen the coalition and participatory litigation process:
E. Conclusions and Recommendations to the Court Challenges Program
While there has been a lot of consensus among all the participants on both the value of working as a coalition as well as the important role played by the Court Challenges Program to support coalition litigation, there remain differences in perspective among the participants about a number of key issues. As is reflective of the larger society in which equality seeking groups operate, there is inequality among the various groups with respect to their level of legal experience, their access to resources as well as access to the court. While many of the more "experienced" and "well-resourced" groups do acknowledge that the problem with unequal power often exists in a coalition setting, few see it as their role to address such inequity. As one of the participants pointed out, "You can talk all you want about participatory litigation - and when people don't even know what the Charter is - it means nothing".
Given that the Program is set up to advance the ideal of equality, and given its well-accepted role as the source of support for equality litigation, the Program is therefore best suited to address the issue of inequity among the various equality seeking groups. Consistent with the Program goal and its funding mandate, the authors of this paper would like to suggest some recommendations to the Program to further support litigation in a coalition setting:
List of questions sent to those interviewed for this report
I. Coalition Building
II. Participatory Litigation
III. Building Litigation Strategy