Advocates' Quarterly Volume 16, No. 2 May, 1994
(All footnotes have been deleted from the original article)
Table of Contents
An "intervention is a procedural device which allows strangers to a judicial proceeding to participate in some fashion in that proceeding". The rules governing interventions in the Supreme Court of Canada form a separate regime different from those in other courts or jurisdictions.
This article will briefly look at the history and origin of the Supreme Court Rules which govern the process of intervention, and will provide an overview of the current rules. This will be followed by an outline of recent statistics compiled by the writer regarding the number of interventions filed under s. 32 by the various provinces and territories.
Finally, this article will address some of the more practical considerations in deciding whether to intervene and in structuring an application or factum once the decision to intervene has been made. For the reader's convenience, a bibliography of relevant articles is attached. In addition, excerpts of the Supreme Court Rules are appended.
The process of intervention in the Supreme Court of Canada is regulated by the Supreme Court of Canada Rules. While these rules are statutorily approved, they actually originate from the judges of the Supreme Court themselves. Section 97 of the Supreme Court Act empowers the judges, or any five of them, to make the rules of court. Section 97(4) requires that copies of all rules must be laid before each of the Houses of Parliament. This must be done on any of the first 15 days after the making of the rules on which that House is sitting. As long as the Supreme Court Rules are not inconsistent with the express provisions of the Supreme Court Act, they have the force of statute pursuant to s. 97(3) of the Act.
In 1983, amendments to Rule 18 provided that any person who had intervener status at the lower court was granted an automatic right to intervene at the Supreme Court of Canada. In R. v. Oggmoss, however, this rule was declared to be inapplicable to purely criminal appeals, and in 1987, the automatic right to intervene was abolished by further amendments to the Supreme Court rules. In other words, one now has to apply for status, even if one had status in the court below.
The rules regarding interventions in the Supreme Court have undergone some significant changes in the past few years. The most recent amendments to the Supreme Court Rules were made in 1987, 1991 and 1992.
(1) General Procedure: Rule 18
18(5) Unless otherwise ordered by a judge, an intervener
- shall not file a factum that exceeds 20 pages;
- shall be bound by the case on appeal and may nor add to it; and
- shall not present an oral argument.
In other words, if one wishes to file a factum in excess of 20 pages, not be bound by the case of appeal, or present an oral argument, one has to specifically apply for same.
(2) Attorneys-General as Interveners
It should also be noted that, under Rule 32(7), an Attorney-General who has been granted intervener status under Rule 18 can bring a motion to state a constitutional question within 15 days after leave to intervene has been granted.
The Supreme Court's decision in TÃ©trault-Gadoury v. Canada(Employment & Immigration Commission) provides some useful insight into the court's decisions whether or not to state a constitutional question. The court in TÃ©trault-Gadoury outlined five circumstances in which, as a matter of policy, a constitutional question would not be stated. The court refused to state such questions when:
(1) Rule 18
An application for leave to intervene is treated as a normal motion before the court, such that one files a notice of motion and affidavit [Rule 18(2)]. The notice of motion and affidavit in support, together with opposing affidavits if any, are referred to the judge handling interlocutory motions that particular week for determination, with or without counsel and with or without reasons.
(2) Rule 32
For a Rule 32 application, one also commences with a notice of motion and affidavit specifically stating the constitutional question with the particular alleged constitutional infringement being a separate question from the s. 1 justification. This is, of course, served on all parties and then filed with proof of service. Then the local agent is informed by the court of the date that the Chief Justice will hear the motion, if the Chief Justice is not prepared to sign as is.
Upon the order being granted (generally in writing on the notice of motion itself), the constitutional question(s) is translated by professional legal translators in the court and upon receipt of same, the local Ottawa agent prepares a notice of constitutional question and order, arranges for the Registrar to sign the latter, and then arranges for all Attorneys-General and Territorial Ministries of Justice to be served. As a courtesy, one should also serve the parties. As a further (and now almost uniform) courtesy, a copy of the reasons for judgment of the Court of Appeal below is also served on all Attorneys-General and Territorial Ministries of Justice. Of course, proof of service is then filed with the court.
It is possible to intervene at two stages in the appeal process. The more common route is to make a motion for leave to intervene after leave to appeal has been granted. Interventions on application for leave to appeal are rare, and have been generally dismissed.
And example of leave being granted at the leave stage occurred in Gamble v. The Queen. In this case, the Ontario Court of Appeal had refused to grant habeas corpus against Gamble's committal for a crime which occurred in Alberta. The Attorney-General of Alberta, however, was permitted to intervene at the leave stage.
In deciding whether or not to allow an intervention, the courts must weigh the desire to preserve judicial resources against their desire to allow the interests of individual Canadians or groups, greater voice in the judicial process. On the side of the intervener, a number of factors must be considered.
(1) As of Right: Rule 32
(2) Applying for Leave to Intervene: Rule 18
18(3) An application for intervention shall briefly
(a) describe the intervener and the intervener's interest in the appeal or reference [Emphasis added.]
A public interest group must consider its stake in the outcome of the appeal. Does the group have a direct stake in the result? If they do not, then it is unlikely that they will be granted intervener status. In the appeal of R v. Finta, Mr. Kenneth Narvey was denied intervener status because of his interest in the appeal was "solely of having a serious preoccupation with the subject matter".
18(3) An application for the interventions hall briefly (c) set out the submissions to be advanced by the intervener, their relevancy to the appeal or reference and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties [Emphasis added.]
In this case, R v. Finta, Madam Justice McLachlin found that the Canadian Jewish Congress, League for Human Rights of B'Nai Brith Canada and Interamicus all offered useful and novel submissions. "In particular, these applicants each have distinctive contributions to make in the area of international law theory, comparative law, the Nuremberg principles, and the criminal justice obligations and position of Canada vis-Ã -vis the victims of war crimes." Hence these applicants were granted leave to intervene.
Intervening simply to agree (whether by paraphrase or otherwise) with one side or another may not be welcomed by the court. If one does agree with one side, it is better simply to so state and go on to set out why, from the intervener's perspective â€": for example, if the Northwest Territories intervenes, to speak from the local territorial perspective of the Northwest Territories.
The Supreme Court has historically been reluctant to publish written reasons for its exercise of discretion in making decision on intervention applications. For many years, this made it difficult to know how to best structure an application for leave to intervene. The few cases where reasons were given were all that could be relied on for some guidance or insight into what considerations would be given the greatest priority by the judges of the court.
In 1997, however, amendments to the Supreme Court Rules helped to clarify what the court was looking for in an application for leave to intervene. As noted above, Rule 18(3) provides that:
18(3) An application for intervention shall briefly:
- describe the intervener and the intervener's interest in the appeal reference;
- identify the position to be taken by the intervener on the appeal reference; and
- set out the submissions to be advanced by the intervener, their relevance to the appeal or reference and the reasons for believing that submissions will be useful to the Court and different from those of other parties.
It should also be remembered that some of the written reasons both from before and after the 1983 amendment, are useful in interpreting the meaning of those statutory requirements. For example, in Norcan Ltd v. Lebrock, the Supreme Court made clear that it was not necessary for an applicant to have legal interest in the appeal of reference: "any interest is sufficient to support the application under that rule subject always to the exercise of discretion".
Another more recent decision which s useful in interpreting the requirements of Rule 18(3) is the Reference re: Worker's Compensation Act, 1983 (Nfld) where the court placed the greatest emphasis on Rule 18(3) (a) and (c) which require the applicants establish an interest and make submissions which are useful and different from those of other parties. The write has also traced several unreported Supreme Court reasons in motions for leave to intervene which elaborate further in these basic requirements. If the reasons suggest that some of the court's considerations are:
Rule 18(4) provides that interveners have the right to file a factum. If the intervener is other than an Attorney-General intervening on a constitutional issue, there will be a 20-page maximum for factum and a prohibition on oral argument under Rule 18(5) unless a judge provides otherwise. It is important in structuring the factum to keep its maximum length in mind because 20 pages leaves little room for including background materials or reports. It is also important to remember that the factum may be an intervener's only opportunity to address the court and will be with the judge before the appeal, during the appeal and when reasons are being written. What is in the factum is therefore key, and every word counts, particularly the opening paragraphs.
Rule 18(1) makes clear the degree of judicial discretion to attach conditions and terms when granting an application for leave to intervene. Such terms and conditions can affect the structure of the factum. A common example is where the judge directs than an intervener is only allowed to address one of several issues involved in an appeal or reference.
Rule 18 also applies to a reference pursuant to s. 53 of the Act. In other words, one can apply to intervene in a reference, either a "provincial" reference (where the Lieutenant-Governor in Council has referred a matter to the provincial Court of Appeal, and the same is then being heard by the Supreme Court of Canada) or a "federal" reference (where the Governor-General in Council refers a matter directly to the Supreme Court of Canada.)
The Supreme Court of Canada has very clearly put out the welcome mat for interventions, and with recent decisions from the court, one now has more insight as to why interventions are or are not granted.
It is hoped this brief article assists the reader with a useful overview of this increasingly important area.