Bedford v. Canada (Attorney General), 2011 ONCA 209

CITATION: Bedford v. Canada (Attorney General), 2011 ONCA 209

DATE: 20110316

DOCKET: M39752-C52799 and C52814

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O. (In Chambers)

BETWEEN:

Terri Jean Bedford, Amy Lebovitch and Valerie Scott

Applicants (Respondents in Appeal)

and

Attorney General of Canada

Respondent (Appellant in Appeal)

and

Attorney General of Ontario

Intervener (Appellant in Appeal)

COUNSEL:

Rahool P. Agarwal and Michael Kotrly, for the proposed intervener, Maggie’s: The Toronto Sex Workers’ Action Project

Alan Young and Daniel Sheppard, for the respondents

Megan Stephens and Christine Bartlett-Hughes, for the intervener, Attorney General of Ontario

Sandra Nishikawa and Michael H. Morris, for the Attorney General of Canada

Heard: March 11, 2011

ENDORSEMENT

[1] This is a motion brought by Maggie’s: The Toronto Sex Workers’ Action Project (“the moving party”) seeking to intervene in this appeal. Counsel for the respondents do not oppose the motion provided that the intervention does not delay the hearing of the appeal. Counsel for both appellants opposed the intervention.

[2] The respondents on this appeal brought a challenge to certain provisions of the Criminal Code, R.S.C. 1985, c. C-46 that creates prostitution related offences, arguing that they violated ss. 7 and 2(b) of the Canadian Charter of Rights and Freedoms and could not be saved under s. 1 of the Charter. The matter was fully argued on an application before the Superior Court of Justice. The parties to the application filed a substantial record, extending to some 25,000 pages, to deal with the constitutional validity of the impugned legislative provisions as measured against the requirements of ss. 7 and 2(b) of the Charter.

[3] In a lengthy and comprehensive decision, the applications judge ruled in favour of the respondents and struck down the impugned provisions. The matter is now before this court and is to be heard in June, 2011. To ensure that a range of voices and perspectives are available to assist the court in dealing with this difficult issue, the parties have agreed, and the court has authorized, the intervention of seven interveners, most of whom are coalitions or organizations with expertise in relation to the issues that are to be determined on the appeal.

[4] The moving party, which was founded in 1986, is an independent, not-for-profit agency dedicated to providing support to, and advocating on behalf of, Toronto’s sex- worker community. It is the first sex-worker agency in the world to be government-funded. It has been a valuable resource to the community and has developed considerable expertise in respect of issues affecting sex workers.

[5] The moving party wishes to participate in two areas. First, it seeks to challenge the impugned legislative provisions on the basis that they do not comply with s. 15 of the Charter. Second, it wishes to argue that the objectives of the impugned provisions are driven by moral views on the sale of sex, which it will argue is a constitutionally impermissible justification for the legislation.

[6] The first issue is new to this litigation. The original application challenging the validity of the impugned provisions was premised only on their alleged violation of ss. 7 and 2(b) of the Charter. Further, it was successfully argued that those violations could not be justified under s. 1 of the Charter. The proposed intervention does not merely raise an alternative legal argument in relation to the ss. 7 and 2(b) issues but rather raises an entirely new ground on which to challenge the legislation. The second issue was raised by the parties in the lower court and forms part of the reasons of the application judge.

[7] The moving party suggests that it would be beneficial to have all of the dimensions of the constitutional argument as to the validity of this legislation considered before this court. While that may be so in a perfect world, the fact remains that the parties chose not to raise this issue and the application judge did not address s. 15 in her reasons.

[8] The test for intervention as a friend of the court has been succinctly expressed by Dubin C.J.O. in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 OR (2d) 164 at p. 167. In considering such an application, the court must consider the nature of the case, the issues that 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. In addition, the intervention must not prejudice the existing parties.

[9] With regard to new arguments being presented on appeal, in 767269 Ontario Ltd. v. Ontario Energy Savings L.P., 2008 ONCA 350, at para. 3, this court commented as follows, borrowing from the Nova Scotia Court of Appeal’s decision in Ross v. Ross (1999), 131 N.S.R. (2d) 22:

[S]uch an argument could only be entertained if the court of appeal is persuaded that all of the facts necessary to address the point are before the court as fully as if the issue had been raised at trial. The rationale for the principle is that it is unfair to permit a new argument on appeal in relation to which evidence might have been led at trial had it been known the issue would be raised.

[10] I am not prepared to allow the moving party to intervene to raise the s. 15 challenge for two reasons: (1) the existing record was not developed with a view to establishing or responding to a s. 15 challenge; and (2) allowing the moving party to intervene to raise the s. 15 ground at this stage of the litigation process would be unfair to the parties.

[11] I start with the record. On the application, the parties were represented by experienced counsel. They developed a record focused on the issues as they had framed them. The record is over 25,000 pages and includes numerous reports, studies, affidavits and cross-examinations.

[12] The moving party accepts that it should not be entitled to introduce new evidence at this stage. It is prepared to take the record as it is. The moving party has reviewed the record. It points to a number of extracts from the record from which it could draw support for its s. 15 argument. Indeed, it urges that the record is complete and sufficient to permit this court to deal fairly with the s. 15 issue.

[13] Counsel for the appellants – the two governments – strongly disagree that the record is satisfactory from their standpoint to address a s. 15 challenge. They say that had they been confronted with a s. 15 challenge, in addition to the ss. 7 and 2(b) challenges, before the application was heard, they would have introduced additional evidence and developed a different more fulsome record directed specifically at ss. 15 and 1. They accept that some of the record is relevant to a s. 15 challenge. However, they did not put their minds to s. 15 when they were developing the record. On the motion before me, counsel for the appellants were able to articulate a number of specific issues and types of evidence that they may well have canvassed and included in the record had s. 15 been a live issue on the application. The matters that they pointed to seem perfectly sensible to me.

[14] I accept the appellants’ positions as to the state of the record for s. 15 purposes. There is some material in the record, and indeed some of the findings of the application judge, that could be used in making or responding to a s. 15 challenge. There is obviously overlap among some of the factual and legal issues arising from an application of the two sections. But there are also differences.

[15] The fact that the moving party is able to find portions of the record that would address s. 15 issues does not mean the record is complete and sufficient for a s. 15 challenge. Nor does the moving party’s acceptance of the record as is cast an onus on the appellants to establish that the record is incomplete.

[16] To state the obvious, the moving party is not a party to the litigation. The parties have framed the issues and developed the record as they thought best. The respondents did not include a challenge to the legislation on the basis of s. 15. I am satisfied that it would do a disservice to the parties, to the court and, indeed, the public interest to litigate a s. 15 challenge on the basis of this record.

[17] I would also dismiss the motion to intervene with respect to s. 15 on the basis of fairness to the parties to the appeal. This is a complicated appeal. All of the parties are anxious that it be heard as soon as possible. It is scheduled to be argued in mid-June. The court has imposed tight timelines for the filing of material. Seven interveners are going to participate. The respondents do not oppose the moving party’s motion to intervene provided there is no delay in the hearing of the appeal.

[18] I am satisfied that if the moving party were allowed to intervene on s. 15, it would result in the argument of the appeal having to be delayed. Introducing such a significant new ground on which to challenge the legislation, even on the existing record, would necessitate a thorough analysis of the record and the preparation of new material to address the issues.

[19] Finally, counsel for the moving party suggests that if I am not inclined to grant the intervention on the s. 15 issue, I should defer the issue to the panel hearing the appeal. I am not prepared to do that. It would be of little comfort to the parties who take the position that the record is incomplete and insufficient for the purposes of fully examining a s. 15 argument to adopt this approach. Such a process would place the parties, particularly the appellants, in the position of having to fully prepare the s. 15 argument.

[20] For the reasons I have set out above, I am of the view that this court ought not to allow an intervention on the basis of s. 15. I would not defer the issue to the panel.

[21] The moving party also seeks to intervene to make the argument that the objectives of the impugned legislative provisions are driven by moral views on the sale of sex. This, it argues, is a constitutionally impermissible justification for the legislation. This issue was raised below and forms part of the reasons of the application judge. Clearly, this argument will be made by the respondents and/or other groups that have already been granted intervener status.

[22] I see no reason to make a separate grant of intervener standing to the moving party on this basis. That said, I accept that the moving party has a longstanding interest and expertise in the issues raised on the appeal. As such, I think it would be appropriate for the moving party to join one of the existing intervener groups. If there is any problem in this respect, I may be spoken to.

[23] In the result, the motion for leave to intervene in order to raise the s. 15 issue is dismissed. The balance of the motion shall be addressed as I indicate in the preceding paragraph. There is no order as to costs of this motion.

“Dennis O’Connor A.C.J.O.”