Supreme Court Of Canada Provides Guidance On The Role Of Interveners

• Published date: 28 February 2023
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Appeals Monitor, Connor Bildfell and Milica Pavlovic

In R. v. McGregor, 2023 SCC 4, the Supreme Court of Canada provided guidance on the role of interveners appearing before the Court. Interveners must not raise new issues or supplement the evidentiary record on appeal. Instead, their role is to make useful and different submissions on the issues before the Court. Prospective interveners should therefore focus on providing their own perspective on the issues raised by the parties, based on the intervener's particular experience and expertise.

What is an intervention?

An intervention is a procedural device that allows a non-party to participate in a proceeding. Under the Rules of the Supreme Court of Canada, any person interested in a proceeding before the Court may apply for intervener status. The proposed intervener must show that it: (1) has an interest in the proceeding; and (2) will make submissions that are both useful and different from the parties' submissions. The Court has wide discretion regarding interventions.

The Court's Notice to the Profession re: Interventions clarifies the scope of interventions. It clarifies that the purpose of an intervention is to advance the intervener's own view of a legal issue before the Court, and that interveners must not introduce new issues or expand the case.

For more information on interventions, see our earlier blog post.

What did the Supreme Court of Canada say about interventions?

In McGregor, Canadian military investigators and U.S. police searched and seized a Canadian corporal's electronics in the United States. The corporal argued that this search and seizure violated s. 8 of the Canadian Charter of Rights and Freedoms, which guarantees the right to be secure against unreasonable search or seizure.

The Court granted several organizations intervener status. Some were granted leave to argue that the Court should revisit R. v. Hape, 2007 SCC 26, which deals with the Charter's extraterritorial application.

A five-justice majority held that the search and seizure did not violate s. 8 of the Charter and declined the interveners' invitation to revisit Hape. The majority stated that Hape's status was not an issue before the Court because the parties had not raised it, and that the Charter's extraterritorial application had no bearing on the appeal's disposition. The majority added that...