“Very often the interveners, particularly when they are progressive advocacy groups, line up on one side of the case, usually the side opposing the government,” said University of Alberta law professor Gerard Kennedy.
With a growing list of groups seeking intervener status in court cases related to Saskatchewan’s pronoun consent law, you may be wondering what exactly that means.
Gerard Kennedy, an assistant law professor at the University of Alberta, spoke with the Leader-Post on Tuesday to shed some light on what an intervener does — with the caveat that there may be some differences between provinces.
“In essence, an intervener is an entity that is not a party to the case, but nonetheless wants to make legal submissions because it thinks it will be helpful to the court,” said Kennedy.
Outside parties can file a motion or application to indicate their wish to intervene. The parties involved with the litigation would then consent, object or take no position on the potential intervention.
Ultimately, it is the court’s decision whether to let them intervene. If granted intervener status, they “may be permitted to present evidence, conduct cross-examinations and make written and oral submissions,” according to the Canadian Legal Information Institute.
Kennedy says the two “quintessential” reasons why a court might dismiss an intervener application is if they have nothing new to say beyond what the two involved parties already address, or if they want to raise altogether new issues that are not relevant to the case.
“There is no doubt that too many interveners can increase delay and costs as well as distract the court from its primary mission,” he explained. “If intervention is done well, on the other hand, it can make the court think about an issue that it otherwise wouldn’t have thought about.”
But intervention can also be a risk, he added.
In past cases with the Federal Court of Appeal and the Supreme Court, interveners have shown they can “create a bit of a spectacle,” and distract the court from resolving the legal issue at hand.
Kennedy recalled a 2021 decision from the Federal Court of Appeal that concerned whether a wine produced in the West Bank could be labelled as a product of Israel. He says about a dozen interveners emerged from the woodwork to talk about the legality of Israel’s occupation of the West Bank, taking the case off course.
They join organizations like the Canadian Civil Liberties Association (CCLA), Women’s Legal Education and Action Fund (LEAF), John Howard Society, Gender Dysphoria Alliance (GDA) and the Alberta-based Parents for Choice in Education (PCE), which have all publicly announced intentions to intervene.
“Very often the interveners, particularly when they are progressive advocacy groups, line up on one side of the case, usually the side opposing the government,” said Kennedy, adding it can pose a risk that the court might develop a warped perception on an issue.
Interveners will be determined by the Court of Appeal later this month, with the appeal scheduled to be heard on Sept. 23, 2024.
Saskatchewan’s Parents’ Bill of Rights (Bill 137) was passed last October using the notwithstanding clause, which makes it law regardless of potential violations to constitutional rights. The law requires students under 16 to obtain parental or guardian consent for school staff to “use the pupil’s new gender-related preferred name or gender identity.”
Meanwhile, the province has maintained that parents are the “ultimate authority figures in children’s lives” and that the government is “committed to supporting families and kids so they can work through their child’s unique needs together.”
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