Supreme Court of Canada Provides Guidance on the Role of Interveners
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 interveners must not supplement the evidentiary record on appeal.
Two concurring justices stated that, while interveners are not permitted to raise new issues, their role is to provide their own view of the issues raised by the parties, thereby bringing broader perspectives before the Court to help the Court fulfill its institutional role. These concurring justices stated that the interveners that participated in the appeal did not exceed their proper role — in fact, they were granted leave to make the very arguments they made.
A third concurring justice cautioned that the parties control the case and decide which issues to raise, and that interveners must not take a position on the outcome of the appeal, raise new issues, or supplement the evidentiary record.
What does this mean for interveners?
The three sets of reasons in McGregor share a common thread: the role of interveners is to make useful and different submissions on the issues before the Court, not to raise new issues or supplement the evidentiary record. Interveners should therefore focus on providing their own perspective on the issues raised based on their particular experience and expertise. The goal is to help the Court decide the issues before it in a way that is sensitive to the potential impacts beyond the parties before the Court.
Six of the eight judges who participated in the judgment also concluded that interveners may not properly ask the Court to overturn or otherwise to revisit one of its prior decisions if none of the parties has made this request. Though two of the judges disagreed, this represents the majority view of the Court and should guide future requests to intervene.
We can help
Our National Appellate Litigation Group regularly represents interveners before the Court. If you have questions about our appellate practice, our experience in Court matters, or a potential intervention, please contact Brandon Kain or Adam Goldenberg.
R. v. McGregor, 2023 SCC 4
Date of Decision: February 17, 2023