When legislative change stalls, administrative processes fail, and political pressure proves insufficient, legal challenges offer another avenue for policy change. Courts have transformed Canadian law and policy on numerous issues—Indigenous rights, LGBTQ+ equality, disability accommodation, environmental protection, and many others. Legal victories have achieved what political processes would not, establishing rights and compelling government action through judicial decisions. Yet litigation is slow, expensive, unpredictable, and limited in what it can accomplish. Understanding both the power and limitations of legal challenges helps advocates assess when courts offer promising paths and when other strategies make more sense.
How Legal Challenges Create Change
Legal challenges affect policy through several mechanisms. Constitutional challenges can strike down laws that violate rights protected by the Charter of Rights and Freedoms. Administrative law challenges can invalidate government decisions made improperly. Human rights complaints can require accommodation and remediation of discrimination. Treaty and Indigenous rights litigation can establish obligations flowing from constitutional recognition of Aboriginal and treaty rights. Each avenue offers different possibilities for those seeking change through legal means.
Charter litigation has dramatically shaped Canadian law. Section 15 equality rights have protected against discrimination and required government programs to include previously excluded groups. Section 7 life, liberty, and security of the person has limited criminal law and expanded health rights. Section 2 fundamental freedoms have protected expression, association, and religion. The Charter's guarantee of rights "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" establishes a framework for balancing rights against other objectives.
Indigenous rights litigation has profoundly affected law and policy. Supreme Court decisions have established duty to consult requirements, recognized Aboriginal title, interpreted treaty rights, and affirmed the honour of the Crown. These decisions have created legal obligations that governments must address regardless of political preferences. The ongoing development of Indigenous rights through courts continues to reshape Canadian law.
Human rights commissions and tribunals address discrimination in employment, services, and accommodation. Complaints to these bodies can establish that policies or practices discriminate, require remedies for individuals, and create precedents affecting broader practices. Human rights processes are typically more accessible than courts, though capacity limits how many complaints can be resolved.
Strategic Litigation
Advocacy organizations use litigation strategically to advance policy goals. Strategic litigation selects cases that raise important legal questions, involve sympathetic facts, and offer potential for broad impact beyond the immediate parties. Organizations like the Women's Legal Education and Action Fund (LEAF), the British Columbia Civil Liberties Association, Ecojustice, and many others pursue litigation as part of broader advocacy strategies.
Case selection significantly affects litigation success. The right case has facts that clearly illustrate the legal problem, a plaintiff whose circumstances generate sympathy, and a legal question the courts haven't definitively resolved. Finding this combination requires patience—advocates may wait years for the right case to bring forward an issue they want to litigate.
Test cases aim to establish precedents with broad application. Rather than just winning for one plaintiff, test cases seek rulings that change law or policy for many people. Success creates rights or obligations that apply beyond the case itself. This leverage is what makes strategic litigation worthwhile despite its costs.
Intervener participation allows organizations to contribute to cases brought by others. Courts grant intervener status to parties with relevant perspectives to share. This allows organizations to support litigation without bearing costs of bringing cases themselves, and to ensure courts consider perspectives they might otherwise miss.
Limitations of Legal Approaches
Litigation has significant limitations that advocates must consider when choosing strategies. Courts can declare rights but can't easily create programs, allocate budgets, or ensure implementation. Winning in court is different from achieving policy change on the ground.
Cost and time present substantial barriers. Litigation is expensive—legal fees, court costs, expert witnesses, and other expenses accumulate rapidly. Cases take years to resolve through trial and appeals. Only well-resourced organizations and individuals can sustain serious litigation, limiting who can use this avenue for change.
Legal capacity constraints affect ability to bring cases. There are limited numbers of lawyers with expertise in relevant areas, limited organizational capacity to support litigation, and limited resources to fund cases. Not every meritorious case can be pursued; selection among possibilities is necessary.
Courts interpret law but can't create comprehensive policy. Judicial decisions address specific legal questions; they don't design programs, set budgets, or establish detailed regulatory frameworks. Even when courts declare rights, implementation requires political and administrative action that courts can't guarantee.
Backlash to court decisions can undermine victories. Political opposition to judicial decisions may produce legislative responses that narrow impacts, reduce funding for implementation, or attack the judicial institution itself. Court victories that exceed public acceptance may prove hollow or provoke counterproductive reactions.
Uncertainty means outcomes can't be predicted. Legal reasoning doesn't guarantee results; judges have discretion and may reach unexpected conclusions. Investing heavily in litigation that ultimately fails wastes resources that could have been used differently. Risk assessment is challenging when stakes are high and precedents are limited.
Courts and Democracy
The role of courts in policy change raises democratic legitimacy questions. Judges are not elected; they're appointed and serve long terms to insulate them from political pressure. When courts invalidate laws passed by elected legislatures or require governments to act, they exercise power without direct democratic accountability.
Different perspectives interpret this role differently. One view holds that courts properly protect constitutional rights against legislative overreach, ensuring democratic majorities don't trample minority rights. Another view holds that courts should defer to elected branches on policy questions, limiting intervention to clear constitutional violations. These perspectives lead to different expectations about when judicial involvement is appropriate.
Section 33 of the Charter—the "notwithstanding clause"—allows legislatures to override certain Charter rights for renewable five-year periods. This provision reflects compromise between judicial review and parliamentary sovereignty. Its use remains controversial; invoking it attracts significant criticism but allows legislatures to maintain policies courts would otherwise invalidate.
The "dialogue" metaphor suggests courts and legislatures engage in ongoing conversation about rights. Courts identify constitutional concerns; legislatures respond with modified approaches; courts assess responses; the process continues. This framing presents judicial review as contributing to democratic deliberation rather than overriding it.
Complementary Strategies
Effective advocacy typically combines legal and political strategies rather than relying on either alone. Litigation may create pressure that makes political settlement attractive. Political organizing may create conditions where courts feel comfortable reaching decisions they'd otherwise avoid. The interaction between legal and political work often matters more than either independently.
Legal threats can motivate negotiated settlements. Governments facing significant litigation risk may prefer to settle or change policies rather than fight to uncertain judicial conclusions. The shadow of potential litigation affects behaviour even without actual court decisions.
Court decisions can create political momentum. Favourable rulings demonstrate that claims have merit, legitimate advocacy positions, and sometimes shift public opinion. Even losses may clarify issues, reveal government positions, or generate media attention that supports political strategies.
Implementation of court victories requires political follow-through. Declarations of rights don't self-execute; they require government action that advocates must often pressure for and monitor. Continuing advocacy after litigation succeeds ensures decisions actually produce change rather than remaining paper victories.
Canadian Examples
The history of legal challenges in Canada illustrates both power and limitations. Marriage equality came through courts before legislation confirmed it—litigation established the right; politics eventually affirmed it. Safe injection sites were legally protected against federal opposition through litigation. Medical assistance in dying was required by courts before Parliament legislated it.
Indigenous rights have advanced significantly through litigation. Duty to consult requirements, Aboriginal title recognition, and treaty interpretation have all been shaped by Supreme Court decisions. Yet litigation hasn't resolved fundamental issues of land rights, self-determination, and reconciliation that remain politically contested.
Environmental litigation has achieved some victories—requiring assessment processes, protecting endangered species habitat—while facing limitations in addressing systemic issues like climate change through judicial decisions. The courts can enforce existing legal requirements but struggle to compel the transformational policy changes environmental challenges require.
Disability rights have been shaped by human rights complaints and Charter litigation establishing accommodation requirements. Yet implementation gaps persist; rights declared in legal proceedings don't automatically produce accessible services and environments.
Questions for Reflection
What legal challenges have affected issues you care about? Did they achieve lasting change, or were outcomes limited? What factors influenced results?
For issues where political approaches have stalled, is litigation a promising alternative? What would make a strong legal case? What limitations would litigation face?
How do you think about the democratic legitimacy of courts invalidating legislation or requiring government action? When is judicial intervention appropriate?
What role should legal strategies play relative to political organizing, public education, and other advocacy approaches? How might they complement each other?
If you were advising an advocacy organization, how would you assess whether to pursue litigation? What factors would you consider?