In defence of interveners

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.

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