La relation changeante entre la Cour suprême du Canada et la société civile : l'impact des acteurs sociaux sur l'accès à la justice et la production du droit

Starting from the premise that the Canadian civil society is increasingly involved in the public debate and is taking more and more steps to be heard by governments, this thesis shows that this phenomenon is also happening in courts, which results in a change of attitude on the part of the judiciary branch. More specifically, this project describes and assesses the impact of the increased participation of social actors in Supreme Court litigation through the lenses of access to justice and the creation of human rights law.   Part I analyzes this topic with a focus on access to justice. It begins with a historical portrait of the position of the Supreme Court towards the social actors acting as intervenors and public interest plaintiffs, which reveals some favorable cycles to citizen participation, predominantly sustained by principled reasoning, but also some unfavorable cycles, mostly driven by a consequentialist reasoning. Secondly, it presents a quantitative analysis of the Court records decided over the past few years showing that a growing number of social actors are willing to add their voice in the human rights legal debate and that the Supreme Court is welcoming this participation. Thirdly, an analysis of a recent Court’s decision involving interest groups suggests that the current situation marks the beginning of a new favorable cycle for the citizen participation in the legal forum, based on the principle of legality, which holds the proposition that there must be practical and effective ways to challenge the legality of state action.  Through twelve in-depth case studies involving the Charter, Part II investigates the impact of the increased citizen participation on the creation of human rights law at the Supreme Court of Canada’s level. Although this number of cases is not sufficient to make generalizations, it provides useful indications on how the social actors operate to influence the construction of legal norms. For example, the case studies show that their contentions are usually not designed around the fate of the particular litigant they support, but rather on the evolution of the law. It also illustrates how the social actors, in some circumstances, provide valuable input to legal debate and participate to law creation, through distinct arguments and authorities, contextual factors, reports stemming from the civil society and broader «social universe» and perspective submitted in their pleadings. This case-study approach also develops a reading framework enabling the assessment of the impact of social actors on Supreme Court’s decisions on a more objective basis.  In addition to furthering our understanding of the relationship between the Supreme Court of Canada and the civil society, this thesis is an opportunity to reflect on the input provided by the social actors in the development of legal standards and to emphasize on the usefulness of the argumentation and rhetoric theories to apprehend the constitutional adjudication process.

Keyphrases: Civil society, Supreme Court, Human rights, Citizen participation, Constitutional adjudication, Access to justice, Development of legal standards, Objectivity in law, Argumentation theories, Constitutive rhetoric