What’s the story with Court Interventions?



March 29, 2023
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In the “About ARPA Canada” section of our website, we say that “we regularly intervene at all levels of courts.” But what does this mean?

Basic Overview — What Interveners Do

ARPA Canada most often appears in courtrooms as an intervener or “friend of the court,” rather than as a party to a case. The parties in a case are the plaintiff and defendant (e.g. in a lawsuit for money for an injury), or the prosecutor and accused (in a criminal case), or the applicant and respondent (where someone is “applying” for other types of remedies from a court). ARPA Canada was an applicant in our case against the Ontario government, for example, where we successfully “applied” to have the court strike down a law that prevented access to government data related to abortion.

Lawyers are often called “counsellors” because, at the heart of things, their job is to give advice, whether to large corporations, schools, churches, or individuals. Lawyers are also called “advocates,” because another big part of their job is to promote their client’s cause. An intervener’s job is not to represent or advocate for either party to a case. Rather, an intervener gives counsel to the court and advocates for a specific interpretation of the law. An intervener is there to highlight and explain relevant areas of the law that the parties are not focusing on in their arguments. So, for example, in the fall of 2022, ARPA Canada intervened in a case about prostitution. In that case, a group of people made the argument that Canada’s prostitution laws violated their constitutional right to equality. Our constitution guarantees equality, but it also gives room for the government to advance equality. None of the other parties mentioned this, but ARPA Canada highlighted it to the Court.

Levels of Courts

Canada has several different types and levels of courts. There are provincial courts, superior courts, appeal courts, and federal courts. On top of that, Canada has many specialist tribunals, such as human rights tribunals. Each court or tribunal follows a set of procedural rules. These rules determine whether interveners are allowed to participate in a case.

There is an easy general rule for interventions: courts at the superior court level and up are all intervener-friendly. Superior courts have different names in many provinces, which can be confusing. But if the court has the words “King’s Bench,” “Supreme,” or “Superior” in its name, then it is a superior court. These are also known as “constitutional courts” or “courts of inherent jurisdiction”. These courts have the constitutional authority to strike down laws for being unconstitutional.

Courts and tribunals that rank lower than superior courts may or may not welcome interveners. For example, ARPA could intervene at the Ontario Human Rights Tribunal, but most likely not at the Transportation Appeal Tribunal of Canada. Another good example is provincial criminal courts. Superior courts typically deal with serious crimes, while most regular prosecutions for lesser offences happen in a special provincial criminal court. Intervention at these criminal courts is uncommon. In some provinces, intervening in a provincial court case is not permitted.

Limitations on Interveners – Some Basic Rules

Rules for Getting into Court

Courts have the discretion to let interveners in or keep them out. Generally, there are three criteria that an organization or person must meet before they are allowed to intervene.

First, before being allowed to intervene, groups like ARPA must prove that they have enough interest in the case to justify their participation in the court hearing. This criterion can be a bit broad. Typically, nongovernment organizations like ARPA point the court to the community they serve, and to their mission, expertise, and their past advocacy work. An intervener’s interest must be “genuine” or “real”.

Secondly, interveners must demonstrate that they have a relevant and helpful contribution to make to the hearing. Their submissions or arguments must be distinct from those of the parties. The more complex a case, and the more important and challenging the issues involved, the more likely there will be “room” for an intervener to make a meaningful contribution.

Finally, a judge will consider whether allowing an intervener to get involved would make it unfair for the parties or if an intervener would make the court case take too long.

Rules once you’re in

Courts impose limits on interveners’ contributions to a case. For example, interveners typically have smaller page limits for their written arguments and less time to make oral arguments than the parties. This makes sense, as they are secondary contributors a case that “belongs” primarily to the parties. Furthermore, interveners cannot introduce any new evidence unless given special permission. Evidence in court cases comes from sworn witnesses, who may be cross-examined. Rather, an intervener’s job is to provide unique legal arguments. However, an intervener may not raise completely new legal issues, either. So, for example, an intervener typically cannot try to turn a free speech case into an unlawful discrimination case if neither party has raised the issue of unlawful discrimination. But the intervener could, in such a case, provide unique arguments about free speech.

Interveners in the Canadian Context

Interveners appeared before the Supreme Court of Canada as early as 1900, but it was not until the 1970s that interveners became regular participants there. With the introduction of the Charter of Rights and Freedoms in 1982, intervener participation briefly slowed, but that trend reversed in 1987 when a special committee issued a report on the importance of court interventions, particularly in constitutional cases.

Interveners play a useful role in the development of Canadian law. If they do their job well, interveners increase the quality of legal decision-making because they make connections that ensure that courts do not miss important points. Because they introduce diverse perspectives into the courtroom, interveners can also help to safeguard the legitimacy of legal decision-making and help courts to avoid deciding cases based on reasoning that might lead to unjust results in later cases.

ARPA Canada’s intervention work, inspired by our mission to “bring a biblical perspective to our civil government”, brings ARPA’s advocacy and worldview to the judicial branch of government. The judicial branch has a surprisingly important lawmaking and law-shaping role in Canada. Its decisions form Canada’s “common law”, which fills gaps in legislation and determines how legislation is interpreted and applied. Its decision also influences how legislators legislate or refuse to legislate – depending on whether legislators think the judiciary would approve of a certain law or declare it to be unconstitutional. Consequently, holistic efforts to advocate for better, more just, more God-honouring public policy in Canada cannot neglect the judicial branch of government. That is why ARPA Canada intervenes.

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