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It's been fascinating to see this one make the rounds — I find myself (as usual?) stuck in the middle of two very different camps here. On one hand, I think Stratas JA is dead on when he insists that an intervener's role is to assist the Court's work and to offer a useful 1/X https://twitter.com/RobCenta/status/1276149396590202885
and distinct perspective on a question of law. I'm not sure that it's polite to name it, but it's true that there are certain interventions that seem like they're more about vanity, or firm prestige, or advancing a financial or ideological agenda, than anything else. This 2/X
habit doesn't benefit the development of the law, yield better outcomes, promote access to justice, or do anything for the credibility of these groups before the courts. And (without commenting on *this* decision, which I can't evaluate, having not read the motions for leave) 3/X
I think judges are well within their rights to case manage truly redundant or unhelpful submissions into oblivion. At the same time, the law/policy distinction here is much more artificial than someone like Stratas JA might like it to be, & while freestanding political views 4/X
are nonactionable (and therefore unhelpful to an appellate court), it doesn't follow that submissions on the kinds of policy considerations that courts routinely *do* take into account should be out of bounds in an intervener submission — many are, after all, organizations 5/X
that are incredibly well-positioned to offer helpful, evidence-based,* and distinct submissions on the historical context of a dispute, the relevant power dynamics at play, the prejudicial or disproportionate impacts that would follow from a particular assumption, or the 6/X
unintended consequences of a given legal interpretation. *The dig at the use of social science evidence is suspect for a similar reason — so much depends on whether this kind of material is introduced to sneak things into the record, as opposed to in support of a particular 7/X
legal interpretation or to assist the court in taking judicial notice of a social fact (see most recently in R v Le, paras. 82 et. seq.). There is also just real—though sometimes difficult to measure—value for the justice system in making space for groups that risk being most 8/X
impacted by their decisions, and in allowing those groups to feel genuinely heard. And for that reason I think courts are probably better off taking a more flexible and permissive stance towards those groups than not.
I should probably get a blog for this kind of thing eh. /fin
I should probably get a blog for this kind of thing eh. /fin
