[2] I am not prepared to add the applicants as parties to these appeals. These appeals are criminal in nature and factually unrelated as they arise from entirely separate incidents. In both cases the appellants are appealing their convictions for serious offenses, including murder and manslaughter, based on errors alleged to have been made at trial. The only link between the two appeals is that both appellants raise an issue with respect to the manner in which the jury panel was selected for their trials.
[3] The parties to these appeals are the appellants and the Crown. In most instances there is no room and to add "strangers" as parties to a criminal appeal. If simply added as parties, the interveners would, like any other party, have the right to seek to introduce new evidence, comment on the merits of the "substantive" grounds of appeal and would have rights of appeal. In my view, such participation is inappropriate and inconsistent with the Canadian system of criminal justice. Indeed, neither proposed intervener seeks an opportunity to litigate the substantive issues under appeal but both wish to participate only in relation to the issue arising out of the jury panel selection process.
[4] The proposed interveners concede that the reason they seek to be added as parties arises from this court's common practice of requiring interveners as friends of the court to accept the record as it exists and not seek to augment the record. They hope to be excused from that condition so that they might participate more fully in the development of the record in relation to jury panel issue.
[5] Intervention, whether as an added party or as a friend of the court, may be made subject to such conditions as the court deems appropriate. Even if added as a party, an intervener may be confined to the existing record and be subject to other restrictions imposed as conditions for the granting of intervener status. In contrast, an intervener added as a friend of the court may be permitted to augment the record in appropriate cases.
[6] I am satisfied that both NAN and the ALST have the experience and resources that will enable them to provide assistance to the court in dealing with the issue of the jury selection process that arises in these two appeals. Further, I am satisfied that the participation of both sets of proposed interveners should not be limited by the usual condition that they be bound by the record as developed by the parties.
[7] While this limiting condition will rarely be dispensed with, these proposed interveners have demonstrated a basis for permitting more wide-ranging involvement in this case. Both appellants supported intervention by the applicants on the basis that, amongst other things, they do not individually have the expertise, access to information or the resources to fully develop the record. In contrast, the proposed interveners have access to information not generally available to individual litigants and have the resources to develop an appropriate record for use by the court. In my view, the participation of these interveners will be important in assisting the court to have a proper understanding of the nature and scope of the jury panel issue raised in these appeals.
[8] At this point I am prepared to allow the applications and order that applicants be granted intervener status as friends of the court and direct that their involvement will not be subject to the usual blanket limitation that they accept the record as it exists. This participation may well include being granted the opportunity to cross-examine any witnesses tendered by the Crown and developing and introducing other relevant evidence not tendered by the parties.
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