R. v. Osolin, 1993 CanLII 87 (SCC), [1993] 2 SCR 313

Stephen William Osolin Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Osolin

File No.: 22826.

1993: May 6.

Present: Sopinka J.

application for intervention

Practice ‑‑ Supreme Court of Canada ‑‑ Intervention ‑‑ Attorney General ‑‑ Criminal appeal ‑‑ Non‑constitutional issue ‑‑ Special circumstances must be shown to permit intervention by a provincial Attorney General in respect of non‑constitutional issues in a criminal appeal ‑‑ Rules of the Supreme Court of Canada, SOR/83‑74, Rule 18.

Statutes and Regulations Cited

Rules of the Supreme Court of Canada, SOR/83‑74, Rules 18, 32(4).

APPLICATION for leave to intervene by a provincial Attorney General in respect of a non‑constitutional issue in a criminal appeal from a judgment of the British Columbia Court of Appeal (1991), 1991 CanLII 5748 (BC CA), 7 B.C.A.C. 181, 15 W.A.C. 181, 10 C.R. (4th) 159, dismissing the accused's appeal from his conviction on charges of sexual assault and unlawful confinement. Application dismissed.

Robert Houston, Q.C., for the applicant the Attorney General for Ontario.

Henry S. Brown, Q.C., for the appellant.

Consent filed by the respondent.

//Sopinka J.//

The following are the reasons for the order delivered by

Sopinka J. ‑‑ The Attorney General for Ontario applies to intervene in this criminal appeal on the issue of the propriety of the trial judge's ruling which precluded cross‑examination of the complainant on certain information contained in medical records. The application is opposed by the appellant (accused). The respondent Attorney General of British Columbia does not oppose the application. The applicant has intervened as of right with respect to the constitutional question raised in the proceedings, which is a separate and distinct issue.

The discretion to allow interventions in criminal appeals has been exercised sparingly by this Court. The situation is otherwise in respect of constitutional questions in respect of which Attorneys General have a right to intervene by virtue of Rule 32(4) of the Rules of the Supreme Court of Canada, SOR/83-74, and other parties with a special interest are frequently accorded permission to do so.

In respect of issues other than constitutional questions, the public interest in a criminal appeal is represented by the Attorney General of the province from which the appeal originates. In some cases, the issue may involve a national perspective in respect of which the Attorney General of Canada will have a special interest which will warrant an intervention by the Attorney General. Accordingly, it will be rare that the Attorney General of a province other than the Attorney General having carriage of the prosecution will be able to demonstrate that the public interest requires the intervention of a second provincial Attorney General. If a second provincial Attorney General is allowed to intervene, the same treatment would have to be accorded to other Attorneys General. This might then attract the attention of the Criminal Lawyers Association, who might very well apply to intervene on the basis that the same treatment should be accorded to both sides in order to prevent the appearance of an unequal contest. Accordingly, very special circumstances must be shown in order to permit an intervention by a provincial Attorney General in respect of non‑constitutional issues in a criminal appeal.

In my view, no special circumstances have been established in this application. The issue of the right to cross‑examine is fully canvassed by the appellant and respondent. Both courts below and the parties treat the issue as one turning primarily on the relevance of the matters sought to be put to the witness. The respondent's submissions set out in its factum accord with the position which the applicant espouses in the affidavit supporting the application. Indeed the affidavit discloses that the draft respondent's factum was submitted to the applicant and the latter sent materials relating thereto to the respondent. The applicant has not established that by reason of any special interest or expertise its submissions will provide any fresh information or a fresh perspective over and above the submissions of the parties. Quite apart from very special circumstances, therefore, the applicant has not satisfied the criteria for the application of Rule 18 of the Supreme Court Rules. The application is therefore dismissed.

Judgment accordingly.

Solicitor for the applicant the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.

Solicitors for the appellant: McAlpine & Hordo, Vancouver.

Solicitor for the respondent: The Ministry of the Attorney General, Vancouver.