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Chapter 47

The Federal Prosecution Service DESKBOOK

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Part IX
DEPARTMENT CONSULTATION
Chapter 47

47 CONSIDERATIONS GOVERNING INTERVENTION

47 CONSIDERATIONS GOVERNING INTERVENTION

47.1 Introduction

The Attorney General of Canada intervenes in criminal cases selectively, not as a matter of routine. This chapter sets out the general policy on interventions. Part V, Chapter 23, “Appeals in the Supreme Court of Canada”, deals specifically with interventions in the Supreme Court of Canada.

47.2 Statement of Policy

The decision to intervene in a criminal case before any level of court is made by the Attorney General, on the advice of the Litigation Committee¹ and the Deputy Minister. If time does not permit the full approval process², instructions may be given, pending confirmation by the Attorney General, by the Assistant Deputy Attorney General (Criminal Law), in consultation with the Chair of the Litigation Committee.

Most decisions not to intervene may be taken (after reviewing the guidelines outlined below) by the Director of the Regional Office notified of a constitutional challenge³. In cases of doubt, the Regional Director should consult with the Charter Litigation Coordinator or the Assistant Deputy Attorney General.

47.3 Guidelines for Application of Policy

No single factor guides decisions on interventions. The relative weight given to any factor will depend on the circumstances of each case.

Circumstances which may typically support intervening in criminal cases include:

A party is seeking to challenge federal legislation and one or more of the following circumstances exist:
1. counsel for the Attorney General of the province having conduct of the case does not intend to advance arguments which, in the view of the Attorney General of Canada, are important and necessary to support the constitutional validity of the legislation;
2. evidence available to the Government of Canada, but not intended to be tendered by any party to the proceedings, is, in the view of the Attorney General of Canada, necessary to establish an appropriate evidentiary record on which to litigate the issue;
3. the legislation was enacted after the Charter of Rights and Freedoms came into force (a Charter challenge of post-Charter federal laws is a more likely candidate for intervention than a challenge of pre-Charter laws);
4. the legislation forms part of an important policy initiative of the Government of Canada (for example, Criminal Code provisions dealing with the sexual exploitation of children or proceeds of crime); or
5. the legislation has been the subject of a prior adverse decision.
An appellate court is being asked to determine the issue. The Attorney General of Canada intervenes frequently in the Supreme Court of Canada, occasionally in the other appellate courts, and very infrequently at the trial level (except, perhaps, in language and aboriginal rights cases):
language or aboriginal rights are at issue;
the case involves a challenge to a provincial law with a federal counterpart whose validity might be doubted if there is an adverse judgment on the provincial law;
counsel for the Attorney General of a province having conduct of the prosecution has asked the Government of Canada to intervene; or
the issues raised in the case are of fundamental importance to the effective enforcement of the criminal law, or to the public interest.

This list of factors is not exhaustive. Other factors might be decisive in a given case. The absence of any or all of these factors may suggest that there should be no intervention.

47.4 Procedure

As with all communications to the Litigation Committee, requests for instructions to intervene in a constitutional case must be in the prescribed Ministerial briefing note format⁴, and approved by the Prosecution Group Head and the Regional Director. The latter will refer the request to the Assistant Deputy Attorney General.

Requests for instructions should be accompanied by all material necessary to understand the case adequately (especially the reasons for judgment of the lower court).

1 See Part IX, Chapter 46, “The Role of the Litigation Committee”.

2 See s. 47.4, “Procedure”.

3 In cases involving aboriginal law issues, the Regional Director must notify the Aboriginal Litigation Coordinator and provide a copy of the Notice, related material and recommendation for action, even if the recommendation is not to intervene. For more information see Part VI, Chapter 25, “Aboriginal Law Issues”.

4 See Part IX, Chapter 48, “Ministerial Briefing Material”.