In a recent post I explored the concept of “judicial minimalism” coming out of a recent Supreme Court decision not to revisit a precedent on whether the Charter of Rights applied to activities of Canadian authorities outside of Canada. One of the issues that came out of that case was the proper role of third party interveners before the Court, with the majority suggesting interveners went beyond their proper role (by introducing a new legal issue (whether the precedent should be overturned).
Justice Rowe issued a separate concurrence that criticized the interveners in much more depth. Critiquing the dissenting opinion of Justices Karakatsanis and Martin, Rowe argued that their approach would mean “interveners could insert themselves before this Court to call for [a precedent] to be overturned, thereby ‘piggy-backing’ onto the parties’ dispute what amounts to a reference on a judicial decision which the interveners wish to overturn.” Rowe argues that the “purpose of intervention is to ‘present the court with submissions which are useful and different from the perspective of a non-party who has a special interest of particular expertise in the subject matter of the appeal’.” While they might “highlight relevant jurisprudence, present insightful arguments, or clarify the potential analytical paths to resolving the issues placed before the courts,” the Court “remains an adjudicative body. The polycentric nature of a legal issue does not turn the Court into a legislative committee or a Royal Commission.”
Rowe outlined that 1) interveners are not parties to the dispute, and should not take a position on the outcome of the appeal, 2) they must not raise new issues or ‘widen or add to the points in issue’, 3) they “must distinguish between developing a permissible legal argument and adding prohibited new issues,” and 4) they “must not adduce further evidence or otherwise supplement the record without leave.” Improper intervention risks unfairness to the parties, and increases the chances that the Court will be making rulings on increasingly abstract questions, raising the “potential for inaccuracy.”
The comments sparked some concern from lawyers and legal academics on Twitter given the value they see in having third parties involved in the adjudicative process, especially with respect to providing much needed social context for the resolution of complex issues before the Court.
Interveners (amicus curiae or “friends of the court” in the US context) are third parties allowed to make submissions to the Court in relation to a case. They are not direct litigants or parties to a case, but provide a (novel) perspective to the law surrounding the central dispute.
Historically, the role of interveners has been controversial. As I write in my first book, Governing from the Bench, the Court liberalized the granting of intervener status in the early Charter period after intense lobbying by interest groups like the Canadian Civil Liberties Association. Resistance by some justices of the period stemmed from a particular conception of their role. Rather than deciding a case on the merits of legal principles, interveners risked broadening the scope of judicial inquiry into morally-laden issues of social context. More worryingly, the idea that interveners would effectively act as “lobbyists” threatened to turn the Supreme Court into a sort of “mini-legislature” (in the words of Justice Estey) rather than dispute-resolution body.
By contrast, justices who favoured liberalizing intervention felt the potential benefits outweighed those risks of politicization. Justice Wilson felt interveners could diversify the points of view offered about cases and make the decision-making process more open and accessible.
The Court issued new rules for interveners in 1987, after which 90 percent of applications for leave to intervene would be granted. Over time there were concerns about redundant or overlapping interventions, as well as concerns that interveners were aggressively “taking sides” in cases, something the Court would eventually issue further rules about. In 2000, multiple justices, including McLachlin, Major, and Bastarache, were quoted as saying the Court had opened the door too widely to interveners, but as I note in Governing from the Bench there is no evidence the Court subsequently tightened intervention.
One of the judges I interviewed for Governing from the Bench had this to say about interveners:
[Intervention] alleviates, somewhat, a certain distance that exists between the basics of the trial and the role of the Court in pronouncing upon values, which may be very much at stake and at the heart of the case you’re hearing, but in their application are of much broader effect. The reason to have interveners and for the Court to be fairly open in allowing interventions is to provide means of bringing into focus in the case aspects of which the parties perhaps were less aware or less interested in, but which were very pertinent to determining the values at stake and the achievement of a proper conciliation of these values. It’s a way of allaying this discrepancy between the judicial function of a court of law, which is to decide a conflict between two parties, and what the Court is called upon to do, particularly under the Charter, and that is pronounce upon a better definition, both in concept and the application, of values.
In my view, interveners will remain an inescapable element of the Court’s role, particularly under the Charter. The Court’s reliance on interveners reflects the simple fact that the disputes the Court is called upon to adjudicate are fundamentally about values and often implicate highly complex issues of public policy and moral concern. The Supreme Court is no mere dispute-resolution body. It is not an appeals court concerned primarily with error correction. Its role is to settle ‘hard cases’ and establish guidance for lower courts. Couple this with the fact that the ‘elected’ branches only too happy to let the Court take controversial issues out of their hands, and you have one of the most important policy-making institutions in the country. It cannot make these decisions in a vacuum.
This does not mean that Rowe does not have a point (although I take no position on whether he was correct that the interveners in this particular case exceeded their limits). It is possible to allow interveners to go “too far” beyond the scope of a particular case. If the Court placed no limits on what interveners can argue, then it could indeed become a ‘mini-legislature’, no longer restricted by the issues that emerge to come before it but empowered to make declarations about all manner of issues at any time it wishes.
There is a careful balance at stake. Overly restrictive rules would mean that interveners could not point to deficiencies and problems with established jurisprudence. I’m thus a bit hesitant to endorse Rowe’s implicit conclusion that arguments about whether a particular precedent should stand ought to be out of bounds. But it is certainly noteworthy that these limits are once again being discussed, and something to which court watchers should continue to pay attention.
Thanks for breaking down the subject, a great summary of the role of interveners.
"Rowe’s implicit conclusion that arguments about whether a particular precedent should stand ought to be out of bounds."
Does Justice Rowe have an opinion about how precedents can be challenged?