Bedford et al. v. Attorney General of Canada; Attorney General of Ontario, Intervenor

[Indexed as: Bedford v. Canada (Attorney General)]

98 O.R. (3d) 792

Court of Appeal for Ontario,

Goudge, Cronk and Epstein JJ.A.

September 22, 2009

Civil procedure -- Parties -- Intervenors -- Moving parties seeking leave to intervene in application attacking constitutionality of certain prostitution provisions of Criminal Code -- Moving parties intending to argue that constitutionality of challenged laws can be supported by moral values of Canadian society -- Motion judge erring in dismissing motion -- Moving parties having interest in subject matter of application and important perspective different from that of parties -- Moving parties seeking only to make legal argument so their participation would not unduly lengthen proceedings.

The appellants were organizations active in promoting traditional conceptions of family, society and morality. They sought leave to intervene as a friend of the [page793] court in an application for a declaration that some of the prostitution provisions of the Criminal Code, R.S.C. 1985, c. C-46 are unconstitutional. Their motion was dismissed. They appealed.

Held, the appeal should be allowed.

The appellants had a real substantial and identifiable interest in the subject matter of the application and an important perspective different from that of the parties. The motion judge erred in concluding that their proposed argument was not clearly described. Their position was that the constitutionality of the challenged laws can be supported by the moral values of Canadian society. The issue of morality would be put in play by the applicants. As the appellants did not seek to file any affidavit material, and sought only to make legal argument, their participation would not unduly lengthen the hearing. They might be able to make a useful contribution to the application without causing injustice to the immediate parties.

APPEAL from the order of Matlow J., 2009 CanLII 33518 (ON SC), [2009] O.J. No. 2739 (S.C.J.) dismissing a motion for leave to intervene as a friend of court in an application attacking the constitutionality of certain provisions of the Criminal Code.

Cases referred to

GEA Group AG v. Ventra Group Co. (2009), 96 O.R. (3d) 481, [2009] O.J. No. 3457, 2009 ONCA 619; Ontario (Attorney General) v. Dieleman (1993), 1993 CanLII 5478 (ON SC), 16 O.R. (3d) 32, [1993] O.J. No. 2587, 108 D.L.R. (4th) 458, 43 A.C.W.S. (3d) 527 (Gen. Div.); Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164, [1990] O.J. No. 1378, 46 Admin. L.R. 1, 45 C.P.C. (2d) 1, 2 C.R.R. (2d) 327, 22 A.C.W.S. (3d) 292 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms Criminal Code, R.S.C. 1985, c. C-46

Rules and regulation referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 13.02

Counsel

Derek J. Bell, Ranjan K. Agarwal and Alexie S. Landry, for appellants Christian Legal Fellowship, REAL Women of Canada and Catholic Civil Rights League.

Ron Marzel, for respondents Terri Jean Bedford, Amy Lebovitch and Valerie Scott.

Roy Lee and Michael H. Morris, for respondent Attorney General of Canada.

Christine Bartlett-Hughes, for respondent Attorney General of Ontario.

Reasons for Decision

1BY THE COURT: -- Pursuant to rule 13.02 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194], the appellants unsuccessfully sought leave to intervene as a friend of the court in the application brought by the respondents Terri Jean Bedford, [page794] Amy Lebovitch and Valerie Scott. That application seeks a declaration that certain sections of the Criminal Code, R.S.C. 1985, c. C-46 criminalizing activities related to prostitution violate the Canadian Charter of Rights and Freedoms.

2The relevant jurisprudence provides considerable guidance to a court hearing such a motion. Where the intervention is in a Charter case, usually at least one of three criteria is met by the intervenor: it has a real substantial and identifiable interest in the subject matter of the proceedings; it has an important perspective distinct from the immediate parties; or it is a well-recognized group with a special expertise and a broadly identifiable membership base: see Ontario (Attorney General) v. Dieleman (1993), 1993 CanLII 5478 (ON SC), 16 O.R. (3d) 32, [1993] O.J. No. 2587 (Gen. Div.). Most importantly, the overarching principle is that laid down by Dubin C.J.O. in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164, [1990] O.J. No. 1378 (C.A.), at p. 167 O.R.:

Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

3Finally, while rule 13.02 accords considerable deference to the court hearing the motion, that discretion is not immune from appellate scrutiny: see GEA Group AG v. Ventra Group Co. (2009), 96 O.R. (3d) 481, [2009] O.J. No. 3457, 2009 ONCA 619. That discretion cannot be exercised for reasons that clearly misapprehend the record before the court.

4In this case, the record leaves no doubt that the appellants meet several of the Dieleman criteria. They have a real substantial and identifiable interest in the subject matter of the application and, as acknowledged by the Attorney General of Canada, an important perspective different from the parties. The respondents do not oppose the motion on this basis.

5The respondents' argument at first instance was that the appellants did not show that they would be in a position to make a useful contribution to the resolution of any issue that needed to be determined. In the end, the motion judge essentially agreed with this submission. However, he did so for reasons that, in our view, are clearly erroneous.

6The motion judge concluded that the appellants' proposed argument was not described clearly, making it impossible to apply the test for intervention. We disagree. The record below and counsel's submissions clearly described the appellants' [page795] position, namely, that the constitutionality of the challenged laws can be supported by the moral values of Canadian society. Indeed, before us, counsel for the respondents not only understood that this was their position, but argued vigorously that it was irrelevant.

7The motion judge also determined that, in any event, he could not reasonably determine whether any issues of morality would properly arise in the argument of the application. That too misunderstands the material before him. The respondents were clear both below and in this court that in the application they will argue that morality cannot serve to support the constitutionality of the impugned legislation. In other words, the respondents will be putting that issue in play. The Attorney General of Canada indicated it would not be relying on Canadian moral values as a cornerstone of its defence of the legislation but made clear that there was considerable affidavit evidence in the record relating to such an argument. Whether the appellants' position ultimately prevails or not, it will provide a counterpoint to the respondents' argument that will not otherwise be made and may be useful to the court.

8In addition, the motion judge's view that the appellants have not shown any special knowledge entitling them to advance their arguments overlooks that the appellants do not seek to file any affidavit material. They seek only to make legal argument, not to supply the court with specialized knowledge, something that also provides a complete answer to the concern that their participation could disrupt the hearing. Also, the time limited argument means that their participation would not unduly lengthen the hearing.

9In summary, the basis for the motion judge's decision is clearly flawed and his conclusion therefore cannot stand. Rather, as we have indicated, given the issues at stake and the position the appellants propose to take, we conclude that the appellants may be able to make a useful contribution to the application without causing injustice to the immediate parties.

10We would allow the appeal and grant the motion as asked, with the addition set out in para. 19 of the factum of the Attorney General of Canada.

11No costs here or below.