Bich, Cotnam, Kalichman

Motion to intervene. Dismissed. 

In 2019, the appellants appealed a verdict convicting them of murder based primarily on the testimony of an informer. In the meantime, one of the appellants obtained the Court’s leave to file an appeal to withdraw his guilty plea. In support of that application, he had argued the false promises and misleading and abusive conduct by the police and counsel for criminal and penal prosecutions acting at the time, including the lawyer petitioner. For their part, in support of their respective appeals, the appellants contested the trial court’s refusal to order a stay of proceedings on the grounds of the State’s abusive conduct towards the informer. Accordingly, they filed a motion to adduce fresh evidence, in which they sought permission to examine the informer, among other things. The motion was granted in part and referred to the panel seized of the appeals. The petitioner sought leave to intervene in the appellants’ files to cross-examine the informer and to make submissions on the probative force of the informer’s allegations against her.

Intervention in criminal matters, although permitted, must be limited to amicus curiae intervention recognized by arts. 185 paragraph 1 in fine and 187 of the Code of Civil Procedure (CQLR, c. C-25.01) (CCP), to which s. 81 of the Rules of the Court of Appeal of Quebec in Criminal Matters (SI/2018-96 (2018) 152, C. Gaz II, 3955 (registration 2018-10-31)) allows recourse, with one determinative reservation: such intervention must not infringe trial or appeal fairness, as the accused cannot face two prosecutors.  It must also concern questions of law which (1) go beyond the personal interest of the party wishing to intervene, and (2) fall within the scope of constitutional law, including civil liberties, or raise a general and important question of law and of public interest. Last, intervention is a matter for the Court’s discretion and will only be granted sparingly, given the context of criminal proceedings.

In this case, the petitioner does not seek to intervene as amicus curiae, but rather for aggressive purposes within the meaning of art. 185 CCP. The petitioner, who fears that the respondent will not adequately represent her interests during the informer’s examination, asks for recognition of a right against the appellants which is directly disputed, that is, the admissibility and the probative force of the fresh testimonial evidence from that examination. Such an intervention is not possible in this criminal matter because it would seek to defend a strictly personal interest and point of view, thus interfering with the appellants’ grounds of appeal and potentially contradicting or directly compromising the respondent’s strategy. 

Further, even if we were to rely on conservatory intervention, the situation at bar does not meet the requirements: the petitioner cannot be permitted to substitute herself for the respondent. Moreover, the respondent has no need of the petitioner’s support or assistance. Even if the respondent chooses not to contest the informer’s allegations, the petitioner would not be allowed a right to intervene. Last, it is inconceivable for a third party, whether acting aggressively or conservatively, to intrude as a party in a criminal case, even if only to take part in the debate on fresh evidence. Criminal matters arise from the exercise of the State’s power against an individual, and it is unthinkable that this individual should have to face two prosecutors in this context.

Text of the decision: http://citoyens.soquij.qc.ca