Where a condition of supervised release is not on the list of mandatory or discretionary conditions in the sentencing guidelines, notice is required before it is imposed. This remains the law even after Irizarry v. United States, 553 U.S. 708 (2008)




Leave to Intervene Denied Where the Proposed Intervenor Was Too Involved in the Underlying Factual Matrix In Bowman v. Ontario, 2021 ONCA 795, the Income Security Advocacy Centre (“ISAC”) moved for leave to intervene in the appeal regarding a class action brought on behalf of low-income individuals affected by the cancelation of the Basic Income Pilot Project (“the Project”).The ISAC sought to intervene with respect to the issue of whether there was a contract between the class members and Ontario with respect to the Project. It proposed to address the legal principles that would guide the determination of whether a contract was formed. Ontario opposed ISAC’s motion for leave to intervene on the basis that ISAC had been engaged with the Project at the government and community levels.Strathy C.J.O. disagreed that an intervener must have no connection to the underlying dispute or that a “true friend of the court” must be a “disinterested non-party”. It is frequently the intervener’s “interest” and experience in the matter that enables it to make a useful contribution to the appeal by providing a perspective on the issues that differs from the immediate parties.Having an “interest” in the Project did not automatically disqualify the ISAC from intervening. However, the Court found that the ISAC was much more than “interested” in the subject of the appeal. The ISAC had been directly involved in the underling process. The ISAC had participated in government consultations to develop the Project and developed public legal education presentations and materials on basic income for the purpose of the Project.The ISAC had made recommendations to senior government officials concerning communications with the participants in the program – now members of the proposed class. The ISAC also provided advice, directly and indirectly, to those who participated in the Project. The ISAC was involved in the factual matrix that the Court of Appeal would have to consider. The involvement of the ISAC in that factual matrix could well become a matter of evidence, should the matter proceed to trial.At a minimum, the ISAC had a reputational issue at stake on the appeal, because of its direct involvement in the Project. Additionally, the Court was satisfied that any perspective that the ISAC might have been able to provide on the appeal would be reflected in the submissions of counsel for the appellants.The ISAC’s motion for leave to intervene was dismissed without costs.

April 14, 2022
United States v. Reyes, 20-50016 (9th Cir. Nov. 26, 2021)
Federal Courts (9th Circuit)