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

June 5, 2024

Table of Contents

1. Introduction

This guideline outlines the procedure applicable to litigation in the Supreme Court of Canada (the Court) that falls within the purview of the Director of Public Prosecutions (the 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 Court, i.e., applications for leave to appeal, appeals, interventions, and other motions as well as general correspondence.

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 (the 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 offences prosecuted by indictment.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 comprised of two Supreme Court of Canada coordinators assisted by a paralegal. The Section reports directly to the DPP. Its offices are located at PPSC headquarters in Ottawa.

2.2 Role of the Section

As its name implies, the Section is responsible for coordinating all Supreme Court of Canada litigation conducted on the DPP’s behalf, starting with the service of originating documents to all follow-ups necessitated by a judgment of the Court in any case involving the PPSC.

For the Section to properly exercise its functions, prosecutors must promptly report to it reception or service of documents related to litigation before the Court – especially originating documents – so that a proper follow-up can take place within the prescribed periods.

2.3 Role of the Supreme Court of Canada Agent

Parties to appeals or interventions before the Supreme Court of Canada may communicate with the Court through an agent who must be a lawyer practicing in the National Capital Region.Footnote 3 One of the coordinators acts as agent for the DPP.

In practice, communications with the Court take place between the Section and the Court Registry personnel, although the latter may occasionally liaise directly with assigned prosecutors. In all cases, prosecutors must consult with the Section before communicating directly with the Court personnel.

2.4 Managing the National Litigation Committee

The National Litigation Committee (NLC) advises the DPP on all Supreme Court of Canada litigation and, occasionally for any other court. Consultation with the NLC is ordinarily required for recommendations to the DPP regarding applications for leave to appeal, approval of appeal and intervention factums before the Court, as well as motions for intervention made on the DPP’s behalf before all levels of court.

In view of the central role played by the NLC regarding Supreme Court of Canada litigation, the coordinators preside and manage it with the assistance of the paralegal who acts as secretary.

2.5 Service and Filing of Documents in the Supreme Court of Canada

The Section is responsible for the finalization, service, and filing of all documents with the Court. This implies that once the content has been approved, the Section sees to the making and formatting of the electronic documents in accordance with the Rules, prepares the hard copies, serves and files documents within the prescribed deadlines.

3. Applications for Leave to Appeal

A significant proportion of criminal appeals before the Court are heard by leave. The federal Crown, like any other litigant, can be the applicant or respondent, although in practice it is often 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, taking into consideration the non-binding recommendation made by the NLC.

3.1.2 Applicable Test: “Public Importance”

As the highest court of law in the land, the Court is a “court of direction,” the role of which 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 provincial and territorial appellate courts. This explains why leave to appeal is granted, pursuant to 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 “public importance” test (formerly coined as the “national 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 prosecutors recommending an appeal to show that the lower court’s judgment is ill-founded in law since this does not meet the “public 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:

In assessing the public interest test for seeking leave to appeal, the policy considerations relevant to the decision to prosecute must be taken into account,Footnote 5 as is required for all the stages of a prosecution, including appeals.

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 for leave to appeal. It is not necessary to refer the case to the DPP when the case does not pass the public interest test.

The regional office concerned, however, 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 prosecutors are of the opinion that the court of appeal’s decision, although erroneous, falls just short of the public importance threshold. In such circumstances, the coordinator must be consulted as to what direction to take. When the decision is made at the regional level to submit the case to the DPP, the procedure set out below applies.

The decision-making process begins with the preparation in the regional office of a memo for the NLCFootnote 6 explaining why the case should (or should not) be submitted to the Court for leave to appeal. Once approved at the regional level, the memoFootnote 7 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 memo or may make alternate recommendations for correction before being provided to the DPP. The memo 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.

Following the NLC consultation, the coordinator reports to the DPP.

If the DPP chooses to apply for leave to appeal, the prosecutors assigned to the case prepare the supporting documentation and submit it to the coordinator for review and approval.

3.1.4 Timelines

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 later. Obviously, it may prove challenging to draft an application for leave without the written reasons from the court below. When delay in the release of reasons by the lower court makes it impossible to draft, serve and file more than a bare-bones application, it is appropriate to request from the Court an extension of time. Such extension may be submitted by motion at the same time the application for leave to appeal is filed; in such circumstances, we must inform in writing the respondent or our intent to seek leave to appeal in order to comply with the first factor of the Roberge test.Footnote 10 Alternatively, a motion can be filed within the 60-day period to obtain in advance leave to file late.

Unless otherwise agreed, a draft leave application must be received by the Section a week 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 11

A certificate of counsel (Form 23A) must be served and filed with the application, which alerts the Court to any information that should not be publicly disclosed, along with a copy of supporting authority, such as a court order or applicable legislation.

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.

3.1.6 Memorandum of Argument

The memorandum of argument contains seven parts, in the following order:Footnote 12

Part I
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 the judicial history of the case, if required.
Part II
A concise statement of the questions in issue; if the proposed appeal raises an issue in respect of the constitutional validity or applicability of a statute, regulation or common law rule or the inoperability of a statute or regulation, a concise statement of the issue.
Part III
A concise statement of argument.
Part IV
Submissions as to costs which generally consist in making no submission.Footnote 13
Part V
The order sought, which is usually that the application for leave to appeal be granted, without costs.
Part VI
A table of authorities — including the relevant provisions of any statute, regulation, rule, ordinance, or by-law being relied on, and, if available, hyperlinks to the provisions — arranged alphabetically and setting out the paragraph numbers where the authorities are cited.
(It should be noted that when doing the last revision, the Section adds hyperlinks in both the argument found in Part III as well as in the table of authorities)
Part VII
Any statute, regulation, rule, ordinance, or by-law being relied on for which hyperlinks are not provided in Part VI, in both official languages if they are required by law to be published in both official languages.

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 their 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: “Public Importance”

Public importance, as described above when the prosecution seeks leave to appeal, remains the applicable test.

Applicants often, incorrectly, base their applications on a demonstration of errors allegedly committed by the lower courts, rather than on showing the public importance of the issues they raise. A mere showing of legal error does not suffice. 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 14 Even if the lower court erred in its conclusion, an issue of public importance is not necessarily raised thereby, insofar as the lower court applied the appropriate legal rule; the standard applicable to the arrest power constitutes a common example of a well-settled legal principle.Footnote 15

In its response to a leave application, a respondent is not bound by the questions as framed by the applicant, or by the argumentative 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

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 assigned prosecutors with a timeframe. At this early stage, it is not necessary to prepare a briefing note (which is required for leave applications, as prescribed above).

When opposing leave, which is the position in the vast majority of cases, a final draft of the response, approved by the appropriate authorities within the concerned regional office, must be sent to the Section within the delay, as described in the next subsection.

When any type of response other than opposing leave is considered, the coordinator must be advised promptly to allow sufficient time for a NLC meeting, if required, and for the approval of the DPP. Insofar as the coordinator chooses to refer the matter to the DPP for approval, the procedure to follow is essentially the same as that governs applications for leave to appeal. Once the DPP has agreed with the proposed position, the final approval of the response rests with the coordinator.

3.2.4 Timelines

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. In other cases, a timeline should be established with the Section as soon as possible.

3.2.5 Required Documentation

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 The following documents are submitted, bound in a single booklet in the following order:

Responses in letter format – Rule 27(3) provides that a response may take the form of a letter of no longer than two pages instead of a memorandum of argument. Letter-format responses are the norm within PPSC. A memorandum of argument will only be justified in the rare cases where more than a two-page letter is necessary to properly address the public importance criterion. If the filing of a memorandum of argument is considered, consultation with the coordinator must take place prior to pursuing that approach.

Considering the practice of using letter-format responses, affidavits and other supporting documents are rarely necessary, as is the case for books of authorities, especially since the Section adds hyperlinks, when available, to all sources cited in the letter-format response.

A certificate of counsel (Form 23A) must be served and filed with the response, which alerts 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.

4. Appeals

4.1 Appeals as of Right

Pursuant to s. 693(1)(a) of the Criminal Code, the Crown may appeal as of right 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.

Pursuant to s. 37 (10) of the Youth Criminal Justice Act, no appeal lies from a judgment of the court of appeal in respect of a finding of guilt or an order dismissing an information or indictment except with leave of the Court.Footnote 18 For summary offences, leave must be sought pursuant to s. 40 of the Supreme Court Act. There are no appeals as of right to the Court for youth criminal justice matters.

4.1.1 Decision-Making Authority: The DPP

Although it can be argued that the public importance of appeals as of right is implicitly recognized by the Criminal Code, it is up to the DPP to decide whether an appeal will be pursued by taking into consideration the recommendation of the NLC.

4.1.2 Applicable Test: "Modified Public Interest"

The DPP’s decision to launch an as of right appeal on the public interest criterion is applied with a flexible perspective, hence the adjective “modified”. It is not necessary to satisfy the public interest criterion proper, but rather to show the usefulness of submitting the appeal to the Court.

Recourse to the modified public interest criterion for as of right appeals flows from the fact that not all such appeals deserve the attention of the Court. For instance, the application of a legal standard to a set of facts, such as whether a particular scenario amounts to reasonable grounds for an arrest or search, is a question of law for appellate purposes which may not require clarification. Nevertheless, it may be in the public interest to take the matter to the Supreme Court; for example, where there is a need to re-establish a guilty verdict for particularly serious offences, or to avoid retrying a mega-case, or to consider a crime that has a substantial impact on the community in which it was committed.

In applying the modified public interest test for appealing as of right, the policy considerations relevant to the decision to prosecute must be assessed,Footnote 19 as is required for all the stages of a prosecution, including appeals.

4.1.3 Internal Procedure

The procedure for applications for leave to appeal applies to appeals as of right.Footnote 20

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.Footnote 21 No internal procedure is required. Consultation takes place with the Section which will serve and file the notice of appeal.

4.3 Notice of Appeal

4.3.1 Time Limits

The time limit to file a notice of appeal is 30 days from the Court’s decision to grant leave.

For appeals as of right, the 30-day time limit begins on the date of the appellate court’s judgment.Footnote 22 As noted under section 3.1.4, 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 later.

4.3.2 Required DocumentsFootnote 23

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 24 The grounds of appeal are limited to those questions of law on which there was a dissent in the court of appeal.Footnote 25 A party wishing to raise any additional issue must apply for leave.

4.4 Constitutional Questions

It used to be the prerogative of the Chief Justice of Canada, or of a designated puisne judge, to formulate constitutional questions. Since 2016, with the repeal of Rules 60 and 61, this is no longer the case.Footnote 26 The responsibility to formulate constitutional questions now lies with the parties, without any intervention from the Court.

Such questions are reserved for appeals that involve a challenge to the constitutional validity, applicability or inoperability of federal or provincial laws or regulations, or a challenge to the constitutional validity or applicability of common law rules.Footnote 27 Generally speaking, in addition to division of powers cases, constitutional questions are appropriate when the remedy sought falls under s. 52 of the Constitution Act, 1982, as opposed to s. 24 of the Charter. Proposed constitutional questions must clearly identify the impugned provisions or common law rule as well as the general nature of the alleged constitutional deficiency. It is preferable, but not mandatory, to agree with the other parties on the formulation of the constitutional question.

Pursuant to Rule 33(2), a notice of constitutional question in Form 33B shall be filed by the appellant, as a schedule to the notice of appeal, or by the respondent, if the issue has been raised by the respondent, within 30 days after leave to appeal has been granted or after the filing of the notice of appeal in respect of an appeal for which leave is not required.

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, so 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 28 Under Rule 33(3), a copy of the notice of constitutional question must be served by email on all other parties to the appeal, as well as on all attorneys general and ministers of Justice who are not already part of the procedure. The email shall contain hyperlinks, if applicable, to the decision granting leave, the judgment below, the provisions attacked and relied upon to mount the challenge. An attorney general who wishes to intervene as of right must serve and file a notice of intervention within four weeks after the service of the notice of constitutional question.

Since no specific rule provides a procedure to oppose an ill-founded or ill-formulated constitutional question, an objection to the filing of a notice of constitutional question should take the form of a sui generis motion pursuant to Rule 3 made to a judge of the Court.

The responsibility to formulate a constitutional question, or to take a position on the questions proposed by other parties, rests with the coordinator who shall consult with prosecutors assigned to the appeal.

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 be approved by the DPP following a recommendation by the NLC before being served and filed.

4.5.2 Internal Procedure

Prosecutors assigned to the appeal prepare 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, even required, to consult stakeholders outside the PPSC during the preparation and drafting of the factum; for example, consultations may 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 29

It should be noted that a respondent can advance new arguments to defend the judgment appealed from since the respondent is not restricted to the points raised by the appellant. It is not necessary for the respondent to seek leave to cross-appeal to raise new arguments.Footnote 30 This rule is subject to the availability of a sufficient record to address the new argument, which may require a fresh evidence motion to supplement the record.Footnote 31

The draft factum, along with supporting documentation,Footnote 32 is sent to the coordinator within agreed-upon deadlines. The coordinator then submits the draft to the NLC members. Meetings are called by the Section. They are usually held by videoconference. 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.

Following the NLC consultation, the coordinator reports to the DPP.

Once approved by the DPP, the Section and assigned prosecutors finalize the factum, as well as the record and the book of authorities. No major substantive change can be made to the arguments after the DPP approval without prior consultation with the coordinator.

4.5.3 Time Limits

Unless otherwise ordered by the Court, appellants have 8 weeks from the filing of the notice of appeal to serve and file their factum, record and book of authorities;Footnote 33 the respondent has 8 weeks from the service of the appellant’s factum, record and book of authorities.Footnote 34 The month of July is included in the computation of the time limit,Footnote 35 but the period from December 23 to January 3 is not.Footnote 36

Prosecutors are expected to abide by 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 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:Footnote 37

Part I
The facts, divided into two parts: first, an overview that, in a few paragraphs, summarizes the position adopted in the factum; second, a summary of the relevant facts, including the case’s judicial history, if necessary.
Part II
A statement of the questions in issue; for the respondent, their position in response to the questions raised by the appellant.
Part III
A statement of argument.
Part IV
Submissions as to costs which generally consist in making no submission.Footnote 38
Part V
The order sought, without costs.
Part VI
Submissions on the impact that any sealing or confidentiality order, publication ban, classification of information in the file as confidential under legislation or restriction on public access to information in the file could have on the Court’s reasons, if any, in the appeal.
Part VII
A table of authorities — including the relevant provisions of any statute, regulation, rule, ordinance, or by-law being relied on, and, if available, hyperlinks to the provisions — arranged alphabetically and setting out the paragraph numbers where the authorities are cited.
(It should be noted that when doing the last revision, the Section adds hyperlinks in both the argument and the table of authorities.)

Parts I to V of the factum must not exceed 40 pages.Footnote 39 Note this is the maximum and not the targeted length.

5. Interventions

5.1 General Principles

5.1.1 Power of the DPP to Intervene

The DPP may intervene before any court regarding any matter that raises issues of public interest that may affect the conduct of prosecutions or criminal investigations.Footnote 40 This power extends to interventions before the Supreme Court of Canada, which have become much more common in criminal appeals since the Charter came into force in 1982.

5.1.2 Sharing Interventions with the Attorney General

The DPP shares intervention powers with the Attorney General of Canada who also has the authority to intervene in criminal cases.Footnote 41 Where the Attorney General has exercised their authority to intervene, the DPP is precluded from doing so.Footnote 42

Under an informal agreement between the PPSC and Justice Canada, interventions relating to extraditions, or the constitutional validity of legislative enactments are undertaken by the Attorney General. Appeals pertaining to investigative powers, criminal procedure, evidence, and offences are undertaken by the DPP. This division is not rigid and may vary according to the specific circumstances of an appeal.

5.1.3 Two Types of Interventions: As of Right and with Leave

5.1.3.1 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 notice of constitutional question is filed in an appeal before the Court.

A party filing a notice of constitutional question must serve it on all attorneys general and ministers of Justice of the territories.Footnote 43 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 44

5.1.3.2 Intervention with Leave

All other interventions require leave of a judge of the Court on application made by filing a motion to intervene. Interventions are possible not only in appeals and references, but also at the application for leave to appeal stage.Footnote 45 Motions at the leave stage, however, are rare and the granting of leave rarer still.

5.2 Decision-Making Authority: The DPP

The DPP authorizes all interventions to the Supreme Court of Canada as well as before any other court on the recommendation of the NLC.

5.3 Criteria Applicable: "Interest and Usefulness"

The Court’s justices assess motions for intervention according to two criteria:

The DPP’s interest in criminal investigations and prosecutions is usually easily demonstrated and poses little difficulty.

Satisfying the usefulness criterion requires the applicants to set out in general terms their proposed submissions, their relevance, and the fact that they differ from those of the parties to the appeal, to avoid redundancy. The following examples are circumstances in which an intervention may be warranted:

Normally, interveners cannot raise new questions, adduce further evidence, or otherwise supplement the record of the parties; basically, the intervener’s submissions must fall within 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 directly or indirectly related to criminal law or that may be of interest to the DPP. The Section identifies and tracks cases for possible intervention. Cases are monitored by the Section to abide by the deadlines prescribed for intervention motions. The Section liaises with other prosecution services 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 act on the file.

The coordinator considers suggestions made by prosecutors with respect to a potential intervention.

5.4.2 Procedure for DPP Authorization

When the coordinator considers that an application for intervention should be made, the coordinator prepares, or asks prosecutors to prepare, a memo for the NLC justifying a DPP intervention.Footnote 47

The Section calls a meeting of the NLC to consider the memo and to formulate a recommendation to the DPP. The memo and accompanying documentsFootnote 48 must be sent to the Section for distribution to NLC members enough in advance to allow sufficient time to consider the recommendation and for the DPP to review the case and decide. Generally, the NLC requires a week’s notice prior to the meeting.

In exceptional circumstances, for instance, where timelines do not permit the holding of a NLC meeting, the coordinator may instead select another mode of consultation.

Following the NLC consultation, the coordinator reports to the DPP.

After the DPP approves the filing of a motion for intervention, the Section prepare the relevant documentation for service and filing, with the assistance of assigned prosecutors.

5.5 Time Limits

5.5.1 Intervention as of Right

The Attorney General or the DPP has four weeks from the date of 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 49 but the period from December 23 to January 3 is not.Footnote 50

5.5.2 Intervention by Leave

The DPP has four weeks from the filing of the appellant’s factum to serve and file an intervention motion.Footnote 51 The month of July is included in the computation of time,Footnote 52 but the period from December 23 to January 3 is not.Footnote 53

Owing to the short period, the process for NLC consultation and DPP approval must be expeditious. A schedule must be agreed upon with the Section to meet the prescribed time limits.

5.6 Documentation Required

A motion for intervention is comprised of a notice of motion and an affidavit.Footnote 54

The notice of motion can simply refer to the affidavit which contains all the facts and information required to satisfy the two criteria: the interest of the DPP in the appeal and the usefulness of the proposed intervention. The Section in collaboration with the assigned prosecutors prepares the required documentation.

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 with the needed information 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 with the Court.

5.7.2 Internal Procedure

Prosecutors assigned to the appeal are responsible for preparing a draft factum for review by the NLC and approval by the DPP. Assigned prosecutors must provide the Section with a draft factum, together with the relevant documentation,Footnote 55 by an agreed-upon deadline. The Section distributes the draft factum and documentation to the NLC for review which usually takes place during a meeting called by the Section. In exceptional cases, the coordinator may use other methods of consultation if the circumstances warrant, such as where the time limits prevent a full meeting from being held.

Following the NLC consultation, the coordinator reports to the DPP.

If the DPP approves the draft factum, the Section and prosecutors assigned to the case finalize the factum and the book of authorities, if any. 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 six weeks from the order granting leave to intervene to serve and file their factum and book of authorities, if any; in the case of an intervention for which leave is not required, the time limit is 16 weeks from the filing of the notice of intervention.Footnote 56 The month of July is included in the computation of time,Footnote 57 but the period from December 23 to January 3 is not.Footnote 58

Assigned prosecutors must submit a draft factum within the time limit agreed upon with the Section. It usually takes two weeks before the filing deadline to complete the internal procedure described above, that is, one week for NLC members to prepare for the meeting and one week for the NLC’s suggestions to be incorporated and for the DPP to review the file and approve the factum.

5.7.4 Form and Content of the Intervener’s Factum

The factum for intervention resembles that 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 is not allowed to 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 to the issues.

Part V of the factum is replaced by a request to make oral argument if permission is not already granted in the intervention order.

6. Briefing Note Pursuant to s. 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.

A s. 13 briefing note is required for all appeals, whether on leave or as of right, involving the federal Crown or the DPP as a party or as an intervener to an appeal before the Supreme Court of Canada.Footnote 59 That excludes applications for leave to appeal.

A note must be transmitted sufficiently in advance to allow the Attorney General to consider exercising his or her power to give direction or take over a prosecution.Footnote 60

A draft briefing note is prepared by the Section in collaboration with assigned prosecutors. The Section assumes the responsibility of finalizing the note internally for approval by the DPP.

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