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In defence of interveners

Trials & Tribulations
|Written By Gillian Hnatiw
In defence of interveners

It was difficult to miss the United States Supreme Court’s decision legalizing same-sex marriage earlier this month.

As our neighbours to the south celebrated (or decried the Ends of Days), many Canadians felt a tinge of smug amusement that marriage equality is still a matter of such vigorous debate south of the border.

After all, the 12-year anniversary of the Court of Appeal’s decision legalizing gay marriage in Ontario just passed. The Supreme Court’s decision in the marriage reference is now more than a decade old. Marriage equality is now a well-settled fact in this country. The sky has not fallen. Our civilization has not crumbled into the sea. One could almost be forgiven for forgetting the vigour with which we once debated the issue at all.

What you may have missed, however, in the week preceding the U.S. SC’s ruling, is our Federal Court of Appeal’s decision denying six public interest groups leave to intervene in R. v. Ishaq . Commonly referred to as the “niqab case”, Ishaq is a Muslim who has been granted Canadian citizenship, but will not be considered a citizen until she takes the oath of citizenship. As current government policy requires her to remove her niqab during the oath, she is at an impasse, stuck between these “rules” and her religious beliefs.

To resolve the impasse, Ishaq brought an application to federal court challenging the government’s policy on a number of grounds, including freedom of religion and equality rights under the Charter. She was successful. The government has appealed.

(I pause here to note that the case also raises questions about whether government policy is binding upon citizenship judges, an issue that I do not address here).  

The Supreme Court has stated that “an intervention is welcomed if the intervener will provide the Court with fresh information or a fresh perspective on an important constitutional or public issue.” In this case, where resolving the appeal may require the court to grapple with different ways of balancing the competing rights, six public interest organizations — including the Canadian Civil Liberties Association, the Ontario Human Rights Commission, and the National Council of Canadian Muslims — sought leave to intervene. Each of these organizations has proven expertise that would enable them to lend unique insights and perspectives to the issues engaged by the appeal. In fact, all of them were granted leave to intervene before the Supreme Court in R. v. N.S., which addressed the question of whether a complainant in a criminal case can be required to remove her niqab while testifying.

Nonetheless, by employing a narrow and technical approach to the test for intervention and an even narrower view on the concept of judicial notice, the court dismissed all six applications wholesale. The crux of the decision is that the organizations could not advance their proposed arguments without social science evidence to back them up. The existing record was found to be insufficient to support the arguments advanced, and the court determined that it could not take judicial notice of any of the facts necessary to support them. The court proceeded to offer a list of ideas that could not be referenced in argument, even abstractly, without the benefit of social science evidence. These included the phenomenon of violence against women and the historical disenfranchisement of women.

The court then went on to find that, because Ishaq’s had raised only two of the enumerated grounds — religion and gender — in the context of her s. 15 claim, the would-be interveners were enjoined from raising the other enumerated grounds of national origin and race on appeal as they were “without a factual basis.” Given the case is centred on her citizenship oath, it is difficult to understand why the court could not take judicial notice of the fact that Ishaq is of different national origin. Further, if Ishaq is in court, what further “evidence” would the court need to establish that she is non-white?

Tragically, this decision threatens to stifle public and judicial discourse about our fundamental rights.

Suggesting that these organizations should simply intervene before a lower court ignores several practical realities. First, there is no system by which cases of import come to broad attention early in the process. Often, it is only once a decision is rendered at first instance that they show up on the public’s radar at all.

To ask public interest organizations to create such a system, or to proactively intervene in a broad spectrum of cases, ignores the reality of their finite time and resources.

Second, and perhaps more importantly, the suggestion that organizations file evidence at first instance flies in the face of the long-standing expectation that an intervener must pledge not to augment the record or expand the issues. In my view, this requirement cannot be reconciled with the court’s decision.

The unfortunate consequence could be that, in the future, voices of diversity on both sides of an issue will be shut out entirely.  

Which brings me back to the subject of same-sex marriage. It bears remembering that five organizations intervened before the Ontario Court of Appeal, both for and against recognition of marriage equality.

When the Supreme Court heard the Marriage Reference, 23 institutions and individuals were granted leave to intervene. Consequently, both courts heard a diversity of opinion on how best to balance the conflict between the Charter rights engaged. Debate was nurtured and the resulting decisions, though not hailed by all, at least addressed the key concerns raised by the various interest groups.  

Under the court’s most recent formulation of the test of intervention, this diversity of opinion will be lost. 

Our jurisprudence, as well as our society, will be the poorer for it.

  • Unconvinced

    Jane Dujiani
    There are many ways for groups to advance their causes. The discussion can take place. Views can be expressed. Like writing case comments or articles about the case. Like this article - it could have been about the issues in the case. If the issue is so important and discussion is so important, why couldn't we see the discussion in this article with respect to the case. What is so important about getting intervener status? A chance for lawyers to boost their cv or a group to fundraise maybe. When a court says no to intervention, it is not saying do not speak on the issue. If the issue is so important and the need to express a view with respect to the issue so important, then they should speak. If they do not speak then that says something about whether they were really interested in the issue as much as they say they were. Have any of these groups said anything about the case yet
  • Write better materials

    Sue Francis
    In this article, the author says: "Each of these organizations has proven expertise that would enable them to lend unique insights and perspectives to the issues engaged by the appeal."

    The FCA found that none of them on the material filed established they had insights and perspectives that would help given the issues and the evidentiary record in the case. Some of the quotes from the materials filed are hilarious. Stuff that says nothing.

    So next time, draft better material rather than complaining about it in an article.
  • Hiding the case?

    Sue Francis
    The author talks about the FCA decision saying that these groups couldn't intervene because their arguments were not supported by the record. Notice, however, that while a link to the decision being appealed from is supplied, a link to the decision she is criticizing is not being supplied?

    Compare her summary of the case to what the FCA actually said and judge for yourself. Go to canlii's FCA site and search for Ishaq. It is the only Ishaq case that comes up.
  • Conflicting reasoning

    Sue Francis
    Did anyone notice the conflict in her position?

    There's the rule she acknowledges: interveners take the record as they find it.

    But she urges the Court to let in social science evidence to supplement the record.

    Why? I guess these groups and the cause they espouse are so special. The ends justify the means.

    Anyone litigating against Ms hnatwiw, take note of her position: You can add to the record against her client on appeal if your client's cause is just.
  • Mr

    Steve Yeal
    What makes you so special? Parties cannot add issues and evidence on appeal. What makes you think a special interest group can?

    Go to trial as an amicus and file evidence. Read the Rules. It is possible.

    The judge was right. Read the reasons. And read the authorities. These groups were broadening the evidentiary record. Eating to file social science evidence without exposing the evidence to testing (cross-examination).

    These special int groups would be the first to squawk if a right wing group tried to file its untested assertions on appeal.

    An unfair article, filled with facile statements. Only fellow true believers who believe in the cause will agree with this one.