3.16 Supreme Court of Canada Litigation
Public Prosecution Service of Canada Deskbook
Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act
March 1, 2014
Table of Contents
- 1. Introduction
- 2. Supreme Court of Canada Litigation Coordination Section
- 3. Applications for Leave to Appeal
- 3.1. Crown as applicant
- 3.2. Crown as respondent
- 4. Appeals
- 4.1. Appeals as of right
- 4.2. Appeals with leave
- 4.3. Notice of appeal
- 4.4. Constitutional questions
- 4.5. Factum on appeal
- 5. Interventions
- 5.1. General principles
- 5.2. Decision-making authority: DPP
- 5.3. Criteria applicable: interest and usefulness
- 5.4. Internal procedure
- 5.5. Time limits
- 5.6. Required documents
- 5.7. Intervener factums
- 6. Briefing Note Pursuant to Section 13 of the DPP Act
This guideline outlines the procedure applicable to litigation in the Supreme Court of Canada (the Court or SCC) involving the Director of Public Prosecutions (DPP) and addresses the role of the Supreme Court of Canada Litigation Coordination Section (the Section). It also covers the internal procedure for preparing documents to be filed with the Supreme Court of Canada, i.e. applications for leave to appeal, appeals, interventions and other motions.
Criminal appeals to the Court are primarily governed by the Criminal Code, the Supreme Court Act, the Rules of the Supreme Court of Canada, the Guidelines for Preparing Documents to be Filed with the Supreme Court of Canada,Footnote 1 the conventions and practices of the Court, as well as the Public Prosecution Service of Canada (PPSC) internal practices.
Pursuant to s. 34 of the Interpretation Act, the provisions of the Criminal Code apply to offences under other federal statutes, including appeals to the Supreme Court related to criminal prosecutions.Footnote 2 Other criminal appeals are subject to the Supreme Court Act.
2. Supreme Court of Canada Litigation Coordination Section
2.1. Composition of the Section
The Section is composed of the Supreme Court of Canada Litigation Coordinator and a paralegal. The Section is part of the Regulatory and Economic Prosecutions and Management Branch. Its offices are located at PPSC headquarters in Ottawa.
2.2. Role of the Section and the Coordinator
As its name implies, the Section is responsible for coordinating all Supreme Court of Canada litigation conducted on the DPP’s behalf – from the service of an originating document to any follow-up necessitated by a judgment of the Court in a case involving the PPSC.
The Coordinator chairs the National Litigation Committee (NLC) whose primary role is to advise the DPP on Supreme Court of Canada litigation. The Committee makes recommendations to the DPP regarding applications for leave to appeal, positions to be advanced on appeal, approval of appeal and intervention factums in the Supreme Court of Canada, as well as motions for intervention made on the DPP’s behalf before all levels of court.
Parties to appeals in the SCC are required to have an agent, defined as a lawyer practicing in the National Capital Region.Footnote 3 The Coordinator is the DPP’s agent in the Court. In practice, communications about files or other matters generally take place between the Coordinator (or the paralegal) and the Court Registry personnel, although Registry personnel occasionally conduct business directly with regional Crown counsel.
Counsel are required to consult with the Section before communicating with the Court and to promptly report receipt or service of documents related to litigation in the Court – especially originating documents – so that follow-up can take place within prescribed time periods.
3. Applications for Leave to Appeal
The majority of criminal appeals before the Supreme Court are heard by leave. The federal Crown, like with any other litigant, can be an applicant or a respondent, although in practice it is more often than not the respondent.
3.1. Crown as applicant
3.1.1. Decision-making authority: the DPP
It is the decision of the DPP whether an application for leave to appeal will be filed, in light of the recommendation of counsel and the advice of the NLC.
3.1.2. Applicable test:
As the highest court of law in the country, the Court is a
“court of direction,” whose role is to rule on legal matters. It is not a
“court of revision” the primary role of which is to rectify errors made by lower courts. That role is performed by intermediate appellate courts. This explains why leave to appeal is granted, under s. 40(1) of the Supreme Court Act, only when
“the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it.” This is the so-called
“national importance” or
“public importance” test, which also applies to leave applications made pursuant to s. 693(1)(b) of the Criminal Code, governing leave applications on indictable offence verdicts. The DPP applies a similar test in deciding whether to seek leave to appeal.
It is not sufficient for counsel recommending an appeal to show that the lower court’s judgment is ill-founded in law since this does not meet the
“national importance” threshold. As the Court does not issue reasons in deciding leave applications, there are no judgments to look to for guidance in assessing whether a case meets the threshold. However, without being exhaustive, the following circumstances are generally recognized as justifying the granting of leave: where there are conflicting decisions in provincial or territorial appellate courts; where a case raises significant constitutional issues (particularly Canadian Charter of Rights and Freedoms (Charter) or division of powers questions), where the scope of police or Crown powers is at issue, or where the interpretation of new legislation raises an issue of significant importance.
In a 1997 speech, Justice Sopinka further explained some of the criteria used by the Court in deciding leave applications:
We are not a court of error and the fact that a court of appeal reached the wrong result is in itself insufficient. This is still the case if the court of appeal has misapplied or not followed a judgment of this Court. On the other hand, if a misinterpretation of one of our judgments becomes an epidemic in the courts below, then we may want to set the record straight. See, for example, Askov and Morin.
… if we have dealt with the issue recently and further issues arise out of our judgment in the application of the matter that we have decided, we don’t immediately rush in to decide all subsidiary issues. We like to see what the courts below are doing with our decision, how they are applying it. Two good examples are Stinchcombe dealing with the issue of the obligation of the Crown to produce and Martin v Gray, conflict of interest. There are many subsidiary issues that arise out of those cases and we would like to see how the lower courts are applying our decisions before we get into the matter again.
… if the issue has been dealt with or is about to be dealt with by legislation, even if it doesn’t apply to the case, we usually don’t grant leave because that deprives the issue of its public importance.
In criminal cases, although we apply the public importance test, it is not applied as strictly. If an applicant has not had a fair trial or was possibly wrongly convicted, we may grant leave even in the absence of an“earth-shaking”issue of law.Footnote 4
3.1.3. Internal procedure
It is the responsibility of the regional office to decide in the first place whether it is desirable to seek the approval of the DPP to apply to the Supreme Court of Canada for leave to appeal. It is not necessary to refer the case to the DPP to make such a decision when it is clear that the case does not pass the national interest test. However, the regional office concerned can deem it necessary to obtain a decision from the DPP, even when the recommendation is not to apply for leave to appeal. This may arise, for example, when a case has attracted significant media interest or when counsel is of the opinion that the court of appeal’s decision, although erroneous, falls just short of the national importance threshold. The Coordinator can be consulted in case of doubt as to what direction to take. When the decision is made at the regional level to submit the case to the DPP, the following process applies.
The decision-making process begins with the preparation by counsel in the regional office of a note for the approval of the DPPFootnote 5 explaining why the case should (or should not) be submitted to the Supreme Court for leave to appeal. Once approved at the regional level, the noteFootnote 6 is sent to the Coordinator who submits it to the NLC for consideration. The NLC may endorse or reject the position set forth in the note or may make alternate recommendations to the DPP. The note must be submitted early enough within the time limit for an application for leave to permit a meeting of the NLC to take place on a week’s notice and to allow time for the finalization of the documentation.
The Coordinator reports to the DPP on the deliberations and recommendations of the NLC, forwarding the note, as amended at the Committee’s direction or suggestion, as well as any relevant supporting documentation, such as the judgment below.
If the DPP accepts a recommendation that an application for leave to appeal be filed, Crown counsel assigned to the case prepares the supporting documentation and submits it to the Coordinator for review and final approval no later than ten days before the date of service and filing set out in the Rules.
In the rare event that the Court orders a hearing upon an application for leave to appeal, it is usually counsel who prepared the application who appears before the Court, either in person or by videoconference.Footnote 7
3.1.4. Time limits
Applicants have 60 days from the date of the lower court’s judgment to serve and file an application for leave to appeal.Footnote 8 The month of July is excluded in the computation of time.Footnote 9
It is important to bear in mind the distinction between the judgment and the reasons for judgment as the time limits begin to run as soon as the lower court renders judgment, even if the reasons are released at a later date. Obviously, it may prove challenging to draft an application for leave without the written reasons for judgment. When delay in the release of reasons by the lower court makes it impossible to draft, serve and file more than simply a bare-bones application, it is appropriate to request from the Supreme Court an extension of time. The motion may be submitted at the same time as the application or, preferably, in advance and within the 60-day period in order to demonstrate the intention to file an application within the time limit.
A draft application must be sent to the Coordinator for approval prior to service and filing. Unless otherwise agreed, it must be received by the Coordinator no later than ten days before the filing date.
3.1.5. Required documents
Rule 25 of the Rules of the Supreme Court of Canada and the Guidelines issued by the Registrar set forth the nature and format of the documentation required in an application for leave to appeal. In a typical case, the following documents are submitted, bound in a single booklet and in the following order:Footnote 10
- a notice of application for leave to appeal;
- a certificate in Form 23A alerting the Court to any information that should not be publicly disclosed, along with a copy of supporting documentation, such as a court order or applicable legislation;
- a copy of any judgments, orders and relevant reasons issued by the lower courts;
- a memorandum of argument;
- documents to which the application refers, if any, including transcript excerpts, but only if those excerpts are necessary for the purposes of the application.
Although affidavits in support of the application may be submitted under Rule 25(1)(d), they are not usually required. The evidentiary basis for the application usually will have been established in the courts below; the public importance of the case does not generally require the filing of additional evidence.
Finally, the Court does not encourage the filing of authorities at the leave stage. Our practice has been not to include them unless they are not readily available in law reports or easily accessible websites. Where they are to be submitted, the authorities are placed at the end of the application booklet or are filed in a separate book.
3.1.6. Memorandum of argument
A memorandum of argument contains seven parts, in the following order:Footnote 11
- a concise overview of the party’s position regarding the issues of public importance raised in the application and a concise statement of facts including judicial history, if required;
- a statement of the questions in issue;
- a statement of argument;
- submissions as to costs which generally consist in making no submission;Footnote 12
- the order sought, which is usually that the application for leave to appeal be granted, without costs;
- a table of authorities, arranged alphabetically and setting out the paragraph numbers in Part III of the memorandum where the authorities are cited;
- copies of the statutory or regulatory provisions referred to in the factum, in both official languages where available.
Parts I to V of the memorandum must not exceed 20 pages. Note that this is the maximum, not the targeted, length.
3.2. Crown as respondent
A regional office that is served with an application for leave to appeal (or any other originating document) must promptly inform the Section so that the appropriate response can be planned and coordinated.
3.2.1. Decision-making authority: the Coordinator
The Coordinator, or his delegate, approves responses to leave applications. The Coordinator may choose to refer the draft response to the NLC for consideration and formulation of advice to the DPP who then exercises final decision-making authority. Such a referral is more likely to occur when it is envisaged to concede that leave be granted.
3.2.2. Applicable test:
National importance, as explained above when the prosecution seeks leave to appeal, remains the applicable test.
Applicants often, incorrectly, base their applications on a demonstration of the errors allegedly made by the lower courts, rather than on showing the national importance of the issues they raise. A mere showing of error does not amount to national importance. A common example is the application of a legal standard to the facts of the case, which is a question of law for appeal purposes.Footnote 13 Even if the lower court erred in its conclusion, an issue of national importance is not necessarily raised thereby, insofar as the lower court applied the appropriate legal standard (as approved by the Supreme Court); the standard applicable to arrestsFootnote 14 or detentionFootnote 15 constitute common examples of such legal standards that are well settled.
In its response to a leave application, a respondent is not bound by the questions in issue as framed by the applicant, or by the structure adopted by the applicant. It may be useful, perhaps even necessary, to reformulate the issues and to adopt a structure that is different to that of the applicant. However, it is important to identify clearly the points raised in the application, while setting out how the application fails to raise an issue of public importance.
3.2.3. Internal procedure
The internal process that applies to a response to an application for leave to appeal is generally simpler than the process for an application.
As noted above, it is important to advise the Section as soon as an application for leave is received or served and to provide a copy. The Section maintains a log of all applications for leave involving the PPSC and ensures that the prescribed time limits are respected, including by providing the assigned counsel with a schedule. At this early stage, it is not necessary to prepare a briefing note (which is necessary for a leave application, as prescribed above).
When opposing a leave application, a final draft of the response, approved by the appropriate authorities of the regional office concerned, must be sent to the Section within the time limit set forth below.
When any type of response other than opposing leave is considered, the Coordinator must be advised promptly in order to allow sufficient time for a NLC meeting, if required, and for the approval of the DPP within the time limit. Insofar as the Coordinator chooses to refer the matter to the DPP for his approval, the procedure to follow is the same as that that governs applications for leave to appeal, with necessary modification. Once the DPP has agreed with the proposed position, the final approval of the response rests with the Coordinator.
3.2.4. Time limits
The respondent has 30 days from the opening of a file by the Supreme Court to serve and file a response to an application for leave to appeal.Footnote 16 The operative date is that of the letter sent by the Court to the applicant, with a copy to the respondent, advising that a file has been opened and that a file number has been assigned. A copy of that letter must be provided to the Section.
Where the response opposes the leave application, unless otherwise agreed, a draft of the response must be sent to the Section one week before the filing date to allow for review and approval by the Coordinator prior to service and filing.
In other cases, a schedule should be established with the Section as soon as possible.
3.2.5. Required documents
Rule 27 of the Rules of the Supreme Court of Canada and the Guidelines issued by the Registrar set forth the nature and format of the documentation required in a response to a leave application.Footnote 17 Usually, only the following documents are submitted, bound in a single booklet in the following order:
- a certificate in Form 23A alerting the Court to information that should not be publicly disclosed, along with a copy of supporting documentation, such as a court order or applicable legislation;
- a memorandum of argument similar in form to an applicant’s memorandum with necessary modifications;;
- documents to which the response refers, if any.
As in the case of applications, affidavits are generally not required nor are authorities unless they are not readily available, i.e. in law reports or easily accessible websites.
4.1. Appeals as of right
Pursuant to s. 693(1)(a) of the Criminal Code, the Crown may appeal as of right to the Supreme Court in an indictable case on any question of law on which a judge of the court of appeal dissents. Sentence and summary case appeals require leave of the Court under s. 40 of the Supreme Court Act, even where a judge dissents in the provincial or territorial court of appeal.
4.1.1. Decision-making authority: the DPP
Although the national importance of appeals as of right is implicitly recognized by the Criminal Code, it is up to the DPP to decide whether, in a given case, an appeal will be pursued taking into consideration the recommendation of the NLC.
4.1.2. Applicable test:
The underlying assumption in the statutory provisions enabling an as-of-right Crown appeal is that there is a matter of national importance raised by the case. However, the DPP will authorize an as-of-right appeal only where it is in the public interest to proceed. Not every issue raised by the dissent in a court of appeal requires clarification by the Court. For instance, the application of a legal standard to a set of facts, such as whether particular circumstances constitute reasonable grounds for an arrest or search, is a question of law for the purposes of appeal and, although such issue may not require clarification, it may be in the public interest to take the matter to the Court; for example, where there is a need to re-establish a guilty verdict for particularly serious offences, or to avoid re-trying a mega-case, or to take into account a crime that has a substantial impact on the community in which it was committed.
4.1.3. Internal procedure
The procedure for applications for leave to appeal applies with necessary modifications to appeals as-of-right. A 30-day time limit applies to the filing of a notice of appeal as-of-right, rather than the 60-day period applicable to applications for leave.
4.2. Appeals with leave
When the Court grants the Crown’s application for leave to appeal, a notice of appeal must be filed within 30 days from the judgment granting the application. The notice of appeal is drafted by counsel assigned to the appeal and is served and filed after consultation with the Coordinator.
4.3. Notice of appeal
4.3.1. Time limits
The time limit to file the notice to appeal is within 30 days from the Court’s decision to grant leave to appeal.
For appeals as of right, the 30-day time limit begins on the date of the appellate court’s judgment.Footnote 18
As noted under section 3.1.4 of this guideline, the distinction between the judgment and the reasons for judgment must be borne in mind as deadlines begin to run from the time the lower court renders judgment, even if the reasons are released at a later date.
When delay in the release of reasons by the lower court makes it impossible to draft, serve and file more than simply a bare-bones Notice of Appeal, it is appropriate to request an extension of the deadline from the Court. The motion may be submitted at the same time as the application or, preferably, in advance and within the 30-day period in order to demonstrate within the time limit the intention to appeal.
4.3.2. Required documentsFootnote 19
For appeals by leave, it is sufficient for the notice of appeal to indicate that the appellant is appealing the lower court’s judgment, without having to state the issues on appeal.
In the case of appeals as-of-right, the notice of appeal must specify the grounds of appeal and must be accompanied by a copy of the judgment and reasons being appealed from.Footnote 20 The grounds of appeal are limited to those questions of law on which there was a dissent in the court of appeal.Footnote 21 A party wishing to raise another issue must apply for leave of the Court to do so.
4.4. Constitutional questions
It is the prerogative of the Chief Justice of Canada, or of a designated puisne judge, to formulate constitutional questions. Such questions are required for all appeals that involve a challenge to the constitutional validity, applicability or inoperability of federal or provincial laws or regulations, or the challenge to the constitutional validity or applicability of common law rules.Footnote 22 Generally speaking, in addition to separation of powers cases, constitutional questions are appropriate when the remedy sought falls under s. 52 of the Constitutional Act, 1982, as opposed to s. 24 of the Charter.
The purpose of formulating constitutional questions is to ensure that the Attorney General of Canada, the Attorneys General of the provinces, and the Ministers of Justice of the territories are alerted to constitutional challenges, in order that they may decide whether or not to intervene as of right; it also serves to advise the parties and other potential interveners of the constitutional issues before the Court.Footnote 23
Proposals for constitutional questions are made by way of motion that must be filed within 30 days following the granting of a leave application (or the filing of an as of right notice of appeal). The parties, appellant or respondent, or any Attorney General or Minister of Justice, even if not a party to the appeal, can file a motion to state constitutional questions. Proposed constitutional questions must clearly identify the impugned legislative or regulatory provisions and the general nature of the alleged constitutional deficiencies. It is preferable, but not mandatory, to agree with the other parties on the formulation of the constitutional question. Depending on the circumstance, it may be necessary to object to the stating, or to wording proposed by another party, of a constitutional question.
The responsibility to prepare the motion to state a constitutional question, or to take a position on the questions proposed by other parties, rests with Crown counsel assigned to the case in consultation with the Coordinator.
4.5. Factum on appeal
4.5.1. Decision-making authority: the DPP
All factums on appeal filed with the Supreme Court of Canada must have the prior approval of the DPP following a recommendation by the NLC.
4.5.2. Internal procedure
Crown counsel assigned to the appeal are responsible for preparing a draft factum for the NLC’s review and the DPP’s approval.
Depending on the nature of the issues raised, it may be useful and in some cases required, to consult stakeholders outside the PPSC during the preparation and drafting of the factum. Typically, consultations take place with Justice Canada’s Human Rights Law Section for Charter issues or the Criminal Law Policy Section with respect to provisions of federal criminal legislation, including the Criminal Code.Footnote 24
The draft factum, along with supporting documentation,Footnote 25 is sent to the Coordinator within agreed-upon deadlines. The Coordinator then submits the draft to the NLC and convenes a meeting, usually by teleconference, to review it. In exceptional circumstances, for instance where there is insufficient time to hold a meeting, the Coordinator may obtain the views of NLC members by other means.
The Chair reports the NLC’s recommendation to the DPP, forwarding the factum, as amended at the NLC’s direction or suggestion, along with the supporting documentation.
Once approved by the DPP, counsel finalize the factum, as well as the record and the book of authorities. No major changes to the substantive arguments can be made after DPP approval without prior consultation with the Coordinator.
4.5.3. Time limits
Unless otherwise ordered by the Court, the appellant has 12 weeks from the filing of the notice of appeal to serve and file their factum, record and book of authorities;Footnote 26 the respondent has 8 weeks from the service of the appellant’s factum, record and book of authorities.Footnote 27 The month of July is included in the computation of the time limit,Footnote 28 but the period from December 21 to January 7 is not.Footnote 29
Counsel are expected to respect the deadline for submission of the draft factum agreed upon with the Coordinator. It usually takes two weeks before the filing deadline to complete the internal procedure described above; that is, one week for the NLC members to prepare for the meeting, and one week for the NLC’s suggested changes to be incorporated and for the DPP to review the record and approve the factum.
4.5.4. Form and content of factum
The appeal factum, like the memorandum of argument on leave, is divided into seven parts:
- the facts, divided into two parts: first, an overview that, in a few paragraphs, identifies and explains the issue(s) and summarizes the position adopted; second, a summary of the relevant facts, including judicial history, if required;
- a statement of the questions in issue; for the respondent, their position in response to the questions raised by the appellant;
- a statement of argument;
- submissions as to costs which generally consist in making no submission;Footnote 30
- the order sought;
- a table of authorities, arranged alphabetically and setting out the paragraph numbers in Part III where the authorities are cited;
- copies of the statutory or regulatory provisions referred to in the factum, in both official languages, where available.Footnote 31
Parts I to V of the factum must not exceed 40 pages.Footnote 32 Note this is the maximum not the targeted length.
5.1. General principles
5.1.1. Power of the DPP to intervene
The DPP may intervene before any court in connection with any matter that raises issues of public interest that may affect the conduct of prosecutions or criminal investigations.Footnote 33 This power extends to interventions before the Supreme Court of Canada, which have become much more common in criminal appeals since the Charter was introduced in 1982.
5.1.2. Authority of the Attorney General to intervene
The Attorney General of Canada also has the authority to intervene in criminal cases.Footnote 34 Where the Attorney General has exercised the authority to intervene, the DPP is precluded from doing so.Footnote 35
Under an informal agreement between the two organisations, interventions relating to extradition or the constitutional validity of a federal provision are undertaken by the Attorney General. Appeals pertaining to investigative powers, criminal procedure and evidence and offences are undertaken by the DPP. This division is not set in stone and may vary according to the specific circumstances of an appeal.
5.1.3. Two types of intervention: as of right and with leave
126.96.36.199. Intervention as of right for constitutional questions
Federal and provincial attorneys general and territorial justice ministers have the power to intervene as of right when a constitutional question is stated by the Court.
Once the Chief Justice states the question, the applicant must serve on the Attorney General of Canada, the Attorneys General of each province and the Minister of Justice of each territory, the order stating the question, the notice of constitutional question and a copy of the judgment appealed from.Footnote 36 Attorneys General then have four weeks to serve on all other parties and file with the Registrar a notice of intervention without having to obtain leave to intervene from the Court.Footnote 37
188.8.131.52. Intervention with leave
All other interventions require leave of a judge of the Court the filing of a motion by the interested party. Interventions are possible not only in appeals and references, but also at the application for leave to appeal stage.Footnote 38 Motions at the leave stage are rare and the granting of leave rarer still.
5.2. Decision-making authority: DPP
The DPP authorizes motions for intervention made to the Supreme Court of Canada, on the recommendation of the NLC.
5.3. Criteria applicable: interest and usefulness
The Court assesses motions for intervention according to two criteria:
- the interest of the applicant in the questions raised;
- the usefulness to the Court of the proposed intervention.Footnote 39
The DPP’s interest in criminal investigations and prosecutions is usually easily demonstrated and poses little difficulty.
Satisfying the second criterion may, occasionally, prove more challenging as the Court strictly applies the usefulness criterion. In this regard, the applicant must set out the submissions to be advanced, their relevance and show that they differ from those of the other parties to the appeal, to avoid redundancy. This last requirement is normally the most difficult to satisfy. The following examples are circumstances in which an intervention may be warranted:
- when one of the parties fails to raise a question of law relevant to the issue or to deal with it adequately;
- when the intervener proposes a new interpretative approach to constitutional, statutory or regulatory provisions or common law rules;
- when the intervener introduces social science data that can shed light on the debate of the questions in issue;
- when the intervener proposes a comparative law approach that is useful to a consideration of the questions in issue.
Generally, however, the intervener cannot raise new questions, adduce further evidence or otherwise supplement the record of the parties; in other words, the intervener’s submissions must respect the scope of the appeal as defined by the parties.
5.4. Internal procedure
5.4.1. Identification of potential cases for intervention
The Section maintains a log of all Supreme Court of Canada appeals that are directly or indirectly related to criminal law or that may be of interest to the DPP in order to identify and track cases for possible intervention. Cases are monitored by the Section in order to ensure deadlines for intervention motions are respected. The Coordinator liaises with other attorneys general and directors of public prosecution when considering a possible intervention.
The Coordinator and the Justice Canada liaison officer identify potential cases for intervention and determine whether it is more appropriate for the DPP or the Attorney General of Canada to apply for leave to intervene.
The Coordinator considers suggestions made by Crown counsel with respect to a potential intervention.
5.4.2. Procedure for DPP authorization
If the Coordinator considers an application for intervention should be made, the Coordinator, prepares a note seeking the approval of the DPP for the filing of a notice of intervention in an as of right constitutional question case or for the making of an application for leave in all other cases.Footnote 40
The Coordinator or Committee Secretary calls a meeting of the NLC to consider the note and to formulate a recommendation to the DPP. The note and accompanying documentsFootnote 41 must be sent to the Coordinator for distribution to NCL members enough in advance to allow NLC members sufficient time to consider the recommendation and for the DPP to review the case and make a decision. Generally, the NCL requires a week’s notice prior to the meeting. In exceptional circumstances, for instance where time pressures do not permit the holding of a NCL meeting, the Coordinator may instead select another mode of consultation.
Once the NCL consultation is complete, the Coordinator reports the NCL’s recommendation to the DPP, and forwards the note, as amended at the NCL’s direction or suggestion, as well as the accompanying documentation.
If the DPP approves the filing of a motion for intervention, Crown counsel assigned to the case prepares the relevant documentationFootnote 42 and submits it to the Coordinator for review and approval before service and filing, within the prescribed delays.
5.5. Time limits
5.5.1. Interventions as of right
The Attorney General or the DPP has four weeks from the service of a notice of constitutional question to serve and file a notice of intervention. The month of July is included in the computation of time,Footnote 43 but the period from December 21 to January 7 is not.Footnote 44
5.5.2. Intervention by leave
The DPP has four weeks from the filing of the appellant’s factum to serve and file a motion for intervention.Footnote 45 The month of July is included in the computation of time,Footnote 46 but the period from December 21 to January 7 is not.Footnote 47
Owing to the short time limit, the process for NCL consultation and DPP approval must be expeditious. A schedule must be agreed upon with the Coordinator in order to meet the prescribed time limits.
5.6. Required documents
A motion for intervention is comprised of a notice of motion and an affidavit.Footnote 48
The notice of motion can simply refer to the affidavit which must contain all the information required to satisfy the two required criteria: the interest of the DPP in the case and the usefulness of the proposed intervention.
Although a factum in support of the motion may be filed, it is not necessary. Setting out the reasons for the intervention in an affidavit is permitted and is usually sufficient to provide the Court the information it needs to properly rule on the motion.
5.7. Intervener factums
5.7.1. Decision-making authority: the DPP
The intervener factum must be approved by the DPP, on the recommendation of the NLC, before filing at the Supreme Court.
5.7.2. Internal procedure
Crown counsel assigned to the appeal are responsible for preparing a draft factum for review by the NCL and approval by the DPP. Counsel must provide the Coordinator with a draft factum, together with the relevant documentation,Footnote 49 by an agreed-upon deadline. The Coordinator distributes the factum and documentation to the NCL. The NCL usually conducts its review of the draft during a teleconference (or videoconference) meeting called by the Coordinator or the NCL Secretary. In exceptional cases, the Coordinator may use other methods of consultation if the circumstances warrant, including those where the time limits prevent a meeting from being held.
Once the NCL consultation is complete, the Chair reports the NCL’s recommendation to the DPP, forwarding the factum, as amended at the NCL’s direction or suggestion, as well as the accompanying documentation.
If the DPP approves the draft factum, Crown counsel assigned to the case finalizes the factum and the book of authorities. Once DPP approval has been obtained, no substantial changes can be made to the factum without prior consultation with the Coordinator.
5.7.3. Time limits
Unless otherwise ordered by the Court, the intervener has eight weeks from the order granting leave to intervene to serve and file a factum and book of authorities; in the case of an intervention for which leave is not required, the time limit is twenty weeks from the filing of the notice of intervention.Footnote 50 The month of July is included in the computation of time,Footnote 51 but the period from December 21 to January 7 is not.Footnote 52
Counsel must submit a draft factum within the time limit agreed upon with the Coordinator. It usually takes two weeks before the filing deadline to complete the internal procedure described above, that is, one week for NCL members to prepare for the meeting and one week for the NCL’s suggestions to be incorporated and for the DPP to review the record and approve the factum.
5.7.4. Form and content of the intervener’s factum
The factum for intervention resembles the factum on appeal, with a few exceptions described below.
The factum cannot exceed 20 pages for interventions as-of-right and generally 10 pages for interventions by leave.
Given that the intervention should first and foremost address questions of law, it is generally not necessary to discuss the facts.
The intervener does not take a position on the outcome of the appeal. Instead, the intervener’s contribution to the case is to enlighten the Court on the points of law relevant by the issues.
Part V of the factum is replaced by a request to make oral arguments.
6. Briefing Note Pursuant to Section 13 of the DPP Act
Under s. 13 of the Director of Public Prosecutions Act, the DPP must inform the Attorney General of Canada in a timely manner of any prosecution, or intervention that the DPP intends to make, that raises important questions of general interest.
All appeals and interventions involving PPSC, as well as leave applications filed by the PPSC in the Supreme Court of Canada are considered to be important and raise questions of general interest. Therefore, a s. 13 briefing note must be prepared by counsel sufficiently in advance to allow the Attorney General to consider exercising his or her power to give direction or take over a prosecution.Footnote 53
Counsel must submit the draft briefing note to the Coordinator for review and approval, within the timeframe agreed upon with the Section.
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