Feminists and the Courts: Measuring Success in Interest Group Litigation in Canada

Extract

This study proposes a new model for assessing success in interest group litigation. The model is applied to 47 appeal court rulings concerning feminist issues in 21 cases involving the Canadian Charter of Rights and Freedoms and 26 non-Charter cases. The study operationalizes the concept of ''success'' by including not just outcome (''who wins''), but also the effect of the case on the ''policy status quo'' (PSQ) and the creation of favourable or unfavourable legal resources (precedents). Feminist claims prevailed in 72 per cent of the cases. The PSQ optic reveals that previous studies overstate the significance of feminist losses (13), since only three of these changed the PSQ in a direction opposed by feminists. There were 17 cases that changed the PSQ in a direction desired by feminists. Feminist litigation has been most successful in the policy areas of abortion, private-sector discrimination and pornography. Success has been lowest in the areas of sexual assault and income tax. These findings suggest that interest group litigation can achieve significant policy change and that the scope of policy studies should be expanded to include judge-made policy.