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At a time when Canada’s “culture wars” are on the rise, and religious freedom litigation is becoming more complicated, there is a challenge to understand the role played by non-governmental organizations (NGOs) in influencing the legal development of our constitutional rules. 

Research being conducted at the law schools of the ��ݮ����Ƶ���� and the University of Victoria is examining why and how NGOs are making use of the practice of intervention in religious freedom cases. “Divine Intervention: A Study of the Operation and Impact of Non-Governmental Interveners in Canadian Religious Freedom Litigation,” is funded by a SSHRC Insight Development Grant, and looks to understand the role that these groups play in judicial proceedings that affect charter rights.  

“Intervention provides NGOs the opportunity to be ‘norm entrepreneurs’ (someone interested in changing legal norms) in constitutional cases to which they are not parties,” say professors Howard Kislowicz of ��ݮ����Ƶ���� and Kathryn Chan of UVic, who lead the project. “This allows these groups to contribute to debates about the meaning and relative importance of particular human rights.”

Two approaches to the research

The team is approaching the topic in two ways: to look at interventions at all levels in court to examine the belief held by some judges that interveners can be more effective at the trial level; and to dive deeper into one area of law (religious freedom) to add qualitative data to the quantitative data that already exists.

“We want to know more about why and how NGOs are making use of the practice of intervention in these cases,” says Kislowicz. “We are also trying to find out which organizations are intervening and how often, and to discover how much intervention can affect judicial decisions.

“All of our research will help to advance the discussion of whether and how intervention is a useful procedure,” he says.

Law student helping to analyze court decisions

Second-year law student Alexandra Heine is one of the research assistants for the project, and is working on data collection. She is analyzing every decision rendered in every court below the Supreme Court of Canada that touches on freedom of religion charter issues.

“What we’re looking for is whether or not there were interveners who participated in the litigation process and if they had an impact on the court’s decision,” she says. “We do this by looking at things like whether the court referenced the intervener’s written or oral submissions.”

Heine points out that the experience has taught her how to pick up on the nuances in charter litigation, and she has developed an understanding of the interplay between politics, religion, secularism and justice in freedom of religion issues.

“Even though the Supreme Court of Canada has been quite clear on the expectation they have for courts regarding legal tests and frameworks to apply when dealing with various charter issues, lower levels of courts do not always follow the doctrine exactly. This is what makes the law fascinating — it’s always changing,” says Heine.