By Linda McKay-Panos
Reposted with permission from LawNow (September/October 2017) 42(1)
Canadian courts, even though they are not litigants, third parties may have an interest in intervening in court proceedings because the court’s judgment may affect them or others whom they represent. They often have information that they believe may be relevant to the courts in making their decisions. In Canada, interveners usually appear in appellate proceedings, but they can also appear in trial proceedings. Interveners commonly intervene on either side of a human rights or Charter dispute because these cases often deal with broad public policy issues. Interveners may include human rights statutory bodies (e.g., the Alberta Human Rights Commission), governments, unions, employer groups and interest groups (e.g., the Council of Canadians with Disabilities). While governments (e.g., Attorneys General) have the right to intervene in Charter cases and must be given notice in advance of a Charter claim, private interveners must seek leave (permission) from the court to intervene. It is quite usual for several interveners to seek leave to intervene in major human rights and Charter cases.
Interveners may be given leave to intervene when they are seeking to provide a different perspective on issue(s) that are before the court, but not when they are seeking to change or otherwise expand upon those issues. When an individual, group or body is given leave to intervene in a case, they usually submit a written argument (called a factum) and are also given permission to make a brief oral submission to members of the court. There are strict rules about the maximum length of the factum and the amount of time interveners are allotted to make their arguments. In the interest of time management, sometimes groups of interveners combine their efforts and make joint submissions.
Recently the Supreme Court of Canada made the news when, on July 27, 2017, Supreme Court Justice Richard Wagner rejected four Lesbian, Gay, Bisexual, Transgender, Queer or Questioning (LGBTQ) groups that had applied to intervene in a case about a law school at Trinity Western University (TWU). TWU requires students to sign a code of conduct limiting their sexual intimacy to heterosexual marriage. The case involves equality and freedom of religion—both important human rights issues.
Justice Wagner told the Globe and Mail on August 2, 2017, that he did not purposely exclude the LGBTQ groups. Because there was only one day allotted for the case hearing (and there were two cases to be heard together), he had granted leave to intervene to 9 out of 26 applicants for intervention, believing that this would adequately represent the interests of the LGBTQ community. (See: here)
After learning there were concerns expressed on social media, Justice Wagner reached out to Chief Justice McLachlin. In a rare move, Chief Justice McLachlin on August 2, 2017 revised Justice Wagner’s decision (see: News Release August 2, 2017 (“News Release”)). While the SCC and other levels of court do not usually give reasons for rejecting interveners or undoing the decision to reject interveners, the News Release provided some insight into the procedural challenges faced by the SCC when planning hearings involving multiple applications from potential interveners.
The News Release explains that at the time the decision was made, there was one day set for the SCC hearing. Since March 2017, the SCC has given interveners five minutes of oral argument time. Each of the litigants (legal parties) is given one hour for argument, which can be made longer when there are two appeals heard together. The goal is to hear a variety of views, while at the same time, efficiently managing the court’s time. The News Release also explains that it is the responsibility of the litigating parties to ensure the issues are fully canvassed. Since the Chief Justice schedules hearings, she added a second day, which allowed all 26 interveners to be heard. This resolved the matter. Legal scholars are debating the constitutionality of the process followed in this case and whether there should be more transparency in SCC decisions involving intervention (See: here )
It is clear that interveners are seeking to intervene in most major human rights and Charter cases heard by the SCC (and often cases heard by Courts of Appeal). For example, in the Reference re Same-Sex Marriage,  3 SCR 698, 2004 SCC 79, the SCC granted 23 institutions and individuals leave to intervene. It is also clear that interveners or potential interveners believe that they have an important role to play. See, for example: Anna Pellatt, “Equality Rights Litigation and Social Transformation: A Consideration of the Women’s Legal Education Fund’s Intervention in Vriend v. R” (2000) 12(1) Canadian Journal of Women and the Law at 117-146. This article discusses the role of the intervention of the Women’s Legal Education and Action Fund (LEAF) in the case of Vriend v Alberta,  1 SCR 493, a case which resulted in the SCC ordering the ground of “sexual orientation” to be read into Alberta’s human rights legislation (then the Individual’s Rights Protection Act). There are a number of similar cases where it could be argued that the submissions made by interveners were quite influential and assisted the SCC in arriving at its decision.
Likewise, it has been argued on occasion that the refusal to allow interveners in some cases has been detrimental. For example in Ishaq v Canada (Citizenship and Immigration), 2015 FC 156, (a case about whether a woman could wear her niqab during a citizenship ceremony), six public interest groups —including the Ontario Human Rights Commission, the Canadian Civil Liberties Association and the National Council of Canadian Muslims—were refused permission to intervene, as the court determined that they could not advance their proposed arguments without social science evidence to back them up; nor could the court take judicial notice (facts and materials are accepted on a common sense basis without being formally admitted in evidence) of any of the facts necessary to support the arguments. Another example may be found in the recent case of Brent Bish on behalf of Ian Stewart v Elk Valley Coal Corporation, Cardinal River Operations, SCC Case No 36636, leave to appeal granted from the judgment in Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 (CanLII), where Jennifer Koshan points to the missing voices of five human rights commissions (who had applied to intervene jointly), which, had they been allowed to intervene, could have contributed meaningfully by assisting the court in a case where the test for discrimination was a live issue. (See: “The Fall’s Supreme Court Hearings—A Missing Voice for Human Rights” here )
It may be difficult to be certain that interveners contribute to our courts’ understanding of human rights and Charter issues. One way of determining this is to analyze interventions and draw conclusions on their effects. Benjamin R.D. Alarie and Andrew J. Green examined empirically the role of interveners in all of the cases heard by the SCC between January 2000 and July 2009. They concluded that all judges are susceptible to being influenced by interveners in a statistically significant way. They note that hearing from interveners provides objectively useful information to the Court and thus promotes the “accuracy” of the SCC’s decision making. The authors conclude that the SCC appears to be using interventions to better understand the impacts of its decisions and is particularly willing to hear from interveners if the SCC might gain some information that is valuable. Alarie and Green also conclude that their empirical analysis indicates that the increase in the number of interveners at the SCC is a positive development in the practice of the SCC. (See: “Interventions at the Supreme Court of Canada: Accuracy, Affiliation and Acceptance” (2010) 48(3/4) Osgoode Hall Law Journal at 381-410 here)
Hopefully, the SCC will also benefit in the Trinity Western University case by increasing the number of interveners it will hear from 9 to 26.