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Intervention - Criminal. Mousaly (Re)
In Mousaly (Re) (Ont CA, 2026) the Ontario Court of Appeal dismisses an unusual intervention motion, here in an ORB NCR appeal. The entire case is illustrative of principles that govern intervenor submissions both generally, and here in this rare criminal-national security context:[1] The Attorney General of Ontario is appealing the decision of the Ontario Review Board (the “Board”) granting an absolute discharge to the respondent James Mousaly, who was previously found not criminally responsible on account of mental disorder: Mousaly (Re), 2026 CanLII 2108 (Ont. R.B.). The federal Director of Public Prosecutions (“DPP”) seeks leave to intervene in the appeal, which is scheduled to be heard on October 22, 2026. I have been assigned to decide the intervention application.
[2] By way of background, Mr. Mousaly was previously employed as a Nuclear Operator at one of Ontario Power Generation’s nuclear power plants. In January 2025, he live-streamed a video on YouTube in which he disclosed sensitive information about potential nuclear power plant vulnerabilities, and offered to provide more information to foreign entities or terrorist groups. The video was only posted online very briefly, and only a portion of it was preserved. It was an agreed fact that it was unknown how many people watched the video before it was taken down.
[3] Mr. Mousaly was charged with committing an offence under s. 16(1) of what is now the Foreign Interference and Security of Information Act, R.S.C. 1985, c. O-5.[1] The DPP was the prosecuting Crown agency. On October 9, 2025, Mr. Mousaly was found not criminally responsible, on a joint submission by the parties. He was detained at the Ontario Shores Centre for Mental Health Sciences (the “Hospital”), and referred to the Board for a disposition hearing.
[4] By agreement, the Crown was represented at the Board hearing by the Attorney General of Ontario rather than by the DPP: see Criminal Code, R.S.C. 1985, c. C-46, ss. 672.1(2) and 672.5(3). Crown counsel took the position that Mr. Mousaly remained a significant threat to the safety of the public. Mr. Mousaly and the Hospital both took the position that he was not a significant threat to the safety of the public, and thus should be granted an absolute discharge: Criminal Code, s. 672.54(a). A majority of the Board was not satisfied that the significant risk threshold was met, and granted Mr. Mousaly an absolute discharge. The lay member of the panel dissented. He would have found that the threshold was met, and would have granted Mr. Mousaly a conditional discharge.
[5] The provincial Crown is appealing the Board’s decision to this court, and the DPP seeks to intervene in the appeal. The provincial Crown supports the DPP’s intervention application. Mr. Mousaly and the Hospital both oppose it.
[6] The DPP has submitted a draft of the factum it proposes to file in the appeal if it is granted leave to intervene. Somewhat unusually, because of the expedited timetable for hearing Part XX.1 Criminal Code appeals under Part VI of the Criminal Appeal Rules,[2] the parties to the appeal have not yet filed their own factums on the appeal, although Mr. Mousaly and the Hospital both filed factums on this motion.
[7] As Fairburn A.C.J.O. explained in R. v. Doering, 2021 ONCA 924, at paras. 9-10:Multiple criteria inform whether to grant leave to intervene in an appeal as a friend of the court, including the general nature of the case to be heard, the issues that arise in the case, and the contribution that the intervener can make to those issues without doing an injustice to the parties.
While it is rare to permit an intervention in a criminal case unless a constitutional issue is raised, there is no rule against such interventions. It remains a question of whether the proposed intervener will make a useful contribution beyond that offered by the parties without causing an injustice to the parties. [Citations omitted.] [8] There is no dispute that the DPP, as the Crown entity that prosecuted Mr. Mousaly, has a genuine interest in the subject matter of the appeal. There is also no dispute that the DPP has particular expertise in the two areas of law it identifies in its supporting motion record: (i) the prosecution of national security offences; and (ii) the protection of “sensitive information” as defined in s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the “CEA”).
[9] The DPP argues that this legal expertise will enable it to make useful submissions about the application of the “significant threat to public safety” test in s. 672.54(a) of the Criminal Code, as interpreted by the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, in the particular context of national security offences.
[10] In my view, there are two main problems with the DPP’s argument. The first, and most serious, is that the draft factum it proposes to file on the appeal does not limit itself to making submissions about the underlying legal context. Indeed, its proposed submissions about national security offences and the s. 38 CEA regime are brief – just over two pages – and consist of little more than a summary of well-established legal principles. Nearly all of the DPP’s proposed factum is devoted instead to making arguments about why the Board majority was wrong to find, on the particular facts of this case, that Mr. Mousaly did not present a significant threat to public safety.
[11] Significantly, the DPP does not support these arguments by making any submissions about the proper legal interpretation of the “significant threat to public safety” test. Instead, its arguments focus on the specific facts of this case, and on errors it says were made by Dr. Wang, the forensic psychiatrist who wrote the Hospital Report and who testified at the Board hearing. As Mr. Mousaly points out, these latter arguments appear to largely track the submissions that were made by the provincial Crown at the Board hearing.
[12] Put simply, the DPP’s draft factum reads more like an appellant’s factum than a factum submitted by an intervener as a friend of the court. Indeed, the DPP’s draft factum takes an express position on how the appeal should be decided, urging the court to “endorse” the dissenting reasons of the lay Board member, who would have found that Mr. Mousaly presents a significant threat to public safety, and who would have imposed a conditional discharge. In other words, the DPP appears to be urging the court to set aside the Board’s factual finding, make its own contrary factual finding, and ultimately impose a different disposition. In contrast, in its notice of appeal the provincial Crown merely requests an order remitting the case for a new hearing before the Board.
[13] The second problem is that it is not apparent that the DPP’s expertise in national security law and s. 38 CEA national security privilege issues would assist the panel, having regard to what appear to be the live issues in the appeal.
[14] The underlying premise of the DPP’s arguments seems to be that Dr. Wang, and by extension the Board majority, failed to properly appreciate Mr. Mousaly’s future dangerousness because they did not grasp the seriousness of his index offence. According to the DPP:Dr Wang found—due to the redactions to the trial record—that it was “not clear…that there was identifiable harm to anyone as a result of that video”: Re Mousaly, para 12. The ORB relied on Dr Wang’s opinion to find that Mr. Mousaly did not pose a serious risk to public safety. [Emphasis in original; footnotes omitted.] [15] I note that the DPP’s submissions about Dr. Wang’s evidence are very similar to those made by Crown counsel at the Board hearing, as summarized at para. 104 of the majority’s reasons.
[16] In my view, the DPP’s characterization both of Dr. Wang’s evidence, and of the ratio of the Board majority’s decision, are not supported by the record. As summarized by the Board majority in their reasons, at para. 12:In response to a question about the index offence, Dr. Wang testified that a lot of information about the index offence had been redacted so he didn’t know what was specifically disclosed by Mr. Mousaly. Dr. Wang testified that Mr. Mousaly understands that he is not supposed to talk about what he disclosed. Dr. Wang gave evidence that it was unclear to him, based on the information he has read as to what harm came as result of that disclosure by Mr. Mousaly. Dr. Wang testified that much of what Mr. Mousaly said during the video was concerning and sounded concerning to Dr. Wang and many other people when he mentioned terrorists and terrorist groups but it was not clear to Dr. Wang that there was identifiable harm to anyone as a result of that video. [17] In essence, Dr. Wang appears to have explained, in response to a question, that he could not be sure that the index offence had caused “identifiable harm to anyone” because he did not know the specifics of the information that Mr. Mousaly had disclosed in his YouTube video, much of which had been redacted from the record that Dr. Wang had reviewed. (Indeed, since it was an agreed fact that the number of people who saw the video before it was taken offline was unknown, it is questionable whether Dr. Wang could have offered an opinion about whether the index offence had caused “identifiable harm to anyone” even if he had seen the unredacted video.)
[18] Importantly, Dr. Wang does not appear to have suggested that the index offence was not serious. Indeed, nobody at the Board hearing seems to have disputed the proposition that extremely serious harm could result if Mr. Mousaly were to commit a similar offence in the future.
[19] Even more importantly, this is an appeal from the Board majority’s disposition order, not a review of Dr. Wang’s opinion. The Board majority did not base its decision on this aspect of Dr. Wang’s evidence, nor did the Board majority suggest or imply that disclosing secret information about nuclear power plant vulnerabilities would not present a “significant threat to public safety”. Rather, the Board majority explained, at para. 127, that they had:... considered the reasoning of the Ontario Court of Appeal in Ferguson (Re) 2010 ONCA 810 which followed Winko and which held that a very small risk of even a grave harm will not suffice and a very high risk of relatively trivial harm will also not meet the substantial harm threshold. The Board finds that the said reasoning in Winko and Ferguson applies to the herein matter. [Emphasis added.] [20] The majority continued by stating, at para. 130:The majority of the Board also considered the analysis of counsel for the hospital which posited that a series of seven factors … would all have to occur before any harm would result to any person, and concluded that the likelihood of all seven steps occurring was remote at best. As the case law so abundantly set out, even a small risk of a grave harm does not meet the significant threat threshold. The majority of the Board finds that this is such a case. [Emphasis added.] [21] In my view, these passages make clear that the Board majority found that the “significant threat to public safety” test was not met because they found the likelihood of Mr. Mousaly committing a similar offence in the future to be small, not because they did not appreciate that such an offence, if committed, could cause grave harm to the public.
[22] I appreciate that it is not my task on this motion to decide the appeal. However, I am obliged to consider “the issues that arise in the case, and the contribution that the intervener can make to those issues without doing an injustice to the parties”: Doering, at para. 9 (emphasis added). In my view, the DPP’s proposed submissions are unlikely to significantly assist the panel that hears the appeal, because they are directed at matters that appear to be undisputed, and that are orthogonal to what I see as the live issues presented by this appeal.
[23] On the other side of the ledger, I agree with Mr. Mousaly that he will be prejudiced if he has to respond to what would effectively amount to submissions from two Crown appellants: see Doering, at para. 21.
[24] In Doering, Fairburn A.C.J.O. found that it was “problematic” that the proposed interveners’ factum “[did] not properly confine itself to the legal issues it purports to advance”: at para. 20. However, she went on to explain that this was “a problem that can be easily overcome” by circumscribing the scope of the proposed interveners’ argument in the order granting them leave to intervene: Doering, at para. 22.
[25] Counsel for the DPP submits that I should take a similar approach here.
[26] While I have no doubt that counsel for the DPP would abide by any order I make, I am not satisfied that the approach taken in Doering can be adopted here without causing prejudice to Mr. Mousaly. I reach this conclusion for five main reasons.
[27] First, the interveners’ proposed submissions in Doering appear to have been mainly directed at “advancing legal issues that are properly the subject of intervention”, despite their written argument occasionally “crossing the line into the actual merits of the appeal”: Doering, at para. 22. In contrast, the DPP’s draft factum spends nearly all of its time on the wrong side of the foul line. If I were to disallow the portions of the draft factum that cross into impermissible territory, very little of the current draft would be left.
[28] Second, as I have already explained, even if the DPP were to file a revised factum that limited itself to addressing the legal issues on which it has acknowledged expertise, I am not persuaded that these submissions would assist the panel. To reiterate, none of the parties to this appeal seem to dispute the basic propositions that secrets about nuclear power plant vulnerabilities need to be closely guarded, and that disclosing these secrets is a very serious offence that could cause extremely grave harm to the public. The Board majority did not suggest otherwise. Rather, it found that Mr. Mousaly did not present a significant threat to public safety because the risk of his reoffending in a similar manner in the future was low, even though his reoffending could cause “grave harm”. The DPP has no particular expertise with respect to issues of risk assessment in the context of Part XX.1 Criminal Code proceedings.
[29] Third, this case is different from Doering in that it involves an intervention application by a Crown agency that seeks to support a Crown appellant, in an appeal where the respondent’s liberty interests are directly at stake. In my view, the fairness concerns are significantly elevated in this context.
[30] Fourth, considering the different procedural context in this case, I am not satisfied that a Doering-style order would not cause prejudice to Mr. Mousaly and the Hospital. In Doering, where several police groups sought to intervene in support of an appellant police officer, the respondent Crown already had the appellant’s factum and thus already knew how the issues on appeal were being framed. In contrast, because this appeal is being conducted under the compressed filing schedule that governs Part XX.1 Criminal Code appeals, the appellant provincial Crown’s factum does not have to be served and filed until mid-September. If I were to grant the DPP intervener status but make a direction that it must substantially revise its factum, Mr. Mousaly and the Hospital would find themselves having to respond to two new Crown factums in early or mid-September, and would have only a few weeks to prepare their responses.
[31] Fifth, I am not persuaded that denying the DPP intervener status will cause any substantial unfairness to the DPP, which I agree has an entirely legitimate interest in this appeal. Unlike the situation in Doering, the appellant provincial Crown has not yet filed its factum. If the DPP has submissions about the intersection between national security law and the Part XX.1 review process that it wishes to have put before the panel, it can communicate them to its provincial Crown colleagues, and they can include these submissions in their written argument. Having regard to what seem to be the live issues in the appeal, I am not persuaded that it is essential for the DPP to be separately represented by its own counsel for its position to be fairly presented to the panel.
[32] In the result, the DPP’s application for intervener status is dismissed. I would like to thank all counsel for their very helpful submissions. . United States v. Paradkar
In United States v. Paradkar (Ont CA, 2026) the Ontario Court of Appeal denies an intervention motion, here by the Criminal Lawyers’ Association and in a criminal context:[5] Interventions in criminal law cases are granted sparingly. The court will consider, among other things, the nature of the case, the issues that arise and the likelihood that the proposed intervener can make a useful contribution to the resolution of the matter before the court without causing injustice to the immediate parties: Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at 167. The proposed intervener must demonstrate it has a “useful contribution”, a “fresh” perspective and an expertise to offer beyond those of the original parties: R. v. Doering, 2021 ONCA 924, at paras. 12, 24. . R. v. Swaine
In R. v. Swaine (Ont CA, 2025) the Ontario Court of Appeal considered unusual criminal intervention applications from judicial bodies:[1] There are three applications before the court. They relate to a previous application, in which the respondent on this Crown appeal, David Swaine, sought the following orders pursuant to s. 683(1)(a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46: (1) to cross-examine the two prosecuting Crowns; (2) to produce a will-say and documents from the Executive Legal Officer of the Superior Court of Justice (“ELO”) and to cross-examine her; (3) to obtain the retired trial judge’s work product; and (4) to obtain a trial judge’s report pursuant to s. 682 of the Criminal Code.
[2] In an earlier decision, after setting out the factual foundation for the application, we ordered the relief requested under the first heading – to cross-examine the prosecuting Crowns: see R. v. Swaine, 2025 ONCA 117. However, we declined to order the balance of relief sought at that time, noting, at paras. 17 and 19:With respect to the balance of the requested relief, we are not prepared to make an order at this time. During the hearing of this application, we raised what can only be described as serious concerns regarding potential privilege claims that might arise in connection with the information sought under the other three heads of relief. These are significant matters to the administration of justice. As such, they require proper submissions. We are not prepared to proceed with the balance of this application until we have those submissions.
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In light of our concerns over privilege, we direct that the matter return before us in four weeks from now. The date will be determined in consultation with counsel. If there is any other interested third party who wishes to seek status at the hearing when it returns, that request will be made through this court’s Executive Legal Officer and determined by the panel. [Emphasis added.] [3] The court has received two applications to intervene on Mr. Swaine’s application (but not the appeal proper) from: (1) the Office of the Chief Justice of the Superior Court of Justice; and (2) the Ontario Superior Court Judges’ Association. The Crown applies for a sealing order, pursuant to r. 27(10) of the Court of Appeal for Ontario’s Criminal Appeal Rules, in relation to materials to be filed in relation to Mr. Swaine’s application. In the meantime, the cross-examinations of the Crowns that we previously ordered are on hold, awaiting the determination of the new applications.
(1) The Intervention Applications
[4] The intervention applications may be addressed together. Both applicants apply pursuant to r. 30 of the Criminal Appeal Rules.
[5] The Office of the Chief Justice of the Superior Court of Justice submits that the applications under ss. 682 and 683 of the Criminal Code raise serious issues for the administration of justice. If granted leave to intervene, it would make submissions on the impact of Mr. Swaine’s applications on the administration of justice and judicial independence, all from the unique perspective of the Office of the Chief Justice of the Superior Court. This proposed intervener also submits that the relief sought by Mr. Swaine gives rise to serious issues of solicitor-client privilege, as well as administrative privilege. It says that it could provide specialized assistance on these issues, input that might not otherwise be available to the court.
[6] The Office of the Chief Justice of the Superior Court of Justice therefore seeks to be added as a party or a third party to participate and provide submissions on the resolution of any asserted claims of privilege that might arise. Although there is jurisdiction to grant an order to be added as a party or a third party in the civil context, r. 30 of the Criminal Appeal Rules is restricted to granting intervener status alone. Nevertheless, r. 30(1) provides flexibility in terms of the extent to which an intervener may participate in a criminal proceeding before this court:Leave to intervene in an appeal may be granted by the Chief Justice of Ontario, the Associate Chief Justice of Ontario, or a judge designated by either of them, upon such terms and conditions and with such rights and privileges as the judge determines. [Emphasis added.] [7] The Ontario Superior Court Judges’ Association joins in the submission that Mr. Swaine’s applications raise serious issues for the administration of justice. If granted leave to intervene, it proposes to make submissions on how the relief sought may impact on judicial independence and judicial immunity. This proposed intervener could offer the unique perspective of the judges of Superior Court of Justice as a whole, not just the trial judge in this case. It could also offer submissions on how the orders sought might impact the professional and ethical obligations of retired judges.
[8] Both proposed interveners wish to make submissions on whether the relief sought by Mr. Swaine is in the “interests of justice”, the overarching consideration in s. 683 of the Criminal Code. If granted leave to intervene, they seek permission to rely on the materials filed on these applications when the ss. 682 and 683 applications are addressed on their merits.
[9] The Crown does not oppose either application to intervene.
[10] Counsel for Mr. Swaine does not oppose the intervention applications, but submits that they may be premature. Mr. Gold submits that, in relation to the ELO of the Superior Court of Justice, all he presently seeks is a statement and documents relating to her communications with the trial Crowns. As he submitted, he cannot meaningfully cross-examine the Crowns without knowing the ELO’s side of the story. At this time, he does not seek access to any “advice” that she may have provided to the judges of the Superior Court of Justice. Mr. Gold submits that, depending upon what the ELO produces and says during her cross-examination, he may not pursue items (3) and (4) of his requested relief.
[11] We are of the view that it is preferrable to deal with the intervention applications now. If an order is made in respect of the ELO of the Superior Court of Justice, it will engage the interests of the Office of the Chief Justice.
[12] In R. v. McCullough (1995), 1995 CanLII 585 (ON CA), 24 O.R. (3d) 239 (C.A.), Dubin C.J.O. addressed the propriety of granting leave to intervene in criminal appeals. Noting that leave to intervene is seldom granted in such cases, he said at p. 243: “What is normally required is material which discloses that the proposed intervenor would be able to make a useful contribution beyond that which would be offered by the parties and without causing an injustice to the immediate parties.” See also R. v. Doering, 2021 ONCA 924, at para. 10.
[13] Both proposed interveners have established that it is appropriate that they be granted leave to intervene. Accordingly, we grant leave to intervene to the Office of the Chief Justice of the Superior Court of Justice and to the Ontario Superior Court Judges’ Association on Mr. Swaine’s ss. 682 and 683 applications, on the following terms: (1) both may file a factum of up to 30 pages; (2) both may file the materials filed in support of their applications for leave to intervene; (3) each may make oral submissions for a length of time to be determined by the court; (4) should the need arise, the Office of the Chief Justice of the Superior Court of Justice may make submissions on any asserted claims of privilege, on terms to be determined by the court; and (5) neither intervener will be entitled to costs, nor will they be liable to pay costs.
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