WARNING The judge hearing this motion directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

WARNING An order restricting publication in this proceeding was made under s. 517 of the Criminal Code and continues to be in effect. This section of the Criminal Code provides:

517(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

(2) Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

(3) [Repealed, 2005, c. 32, s. 17 ]

R.S., 1985, c. C-46, s. 517 ; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17 .

COURT OF APPEAL FOR ONTARIO

DATE: 20210907 DOCKET: M52683 & M52732 (C69437) Fairburn A.C.J.O. (Motion Judge)

BETWEEN

Her Majesty the Queen Appellant

and

N.S. Respondent

and

Criminal Lawyers’ Association (Ontario), Canadian Alliance for Sex Work Law Reform, Monica Forrester, Valerie Scott, Jane X, Alessa Mason, Lanna Moon Perrin, and Tiffany Anwar Proposed Interveners

Counsel: Deborah Krick, Michael Dunn, and Jeremy Tatum, for the appellant Jeffery Couse, for the respondent Gerald Chan and Dragana Rakic, for the proposed intervener the Criminal Lawyers’ Association (Ontario) Michael Rosenberg and Alana Robert, for the proposed interveners the Canadian Alliance for Sex Work Law Reform, Monica Forrester, Valerie Scott, Jane X, Alessa Mason, and Lanna Moon Perrin Tara Santini, for the proposed intervener the Canadian Alliance for Sex Work Law Reform James Lockyer, for the proposed intervener Tiffany Anwar Michael H. Morris and Joseph Cheng, for the Attorney General of Canada

Heard: August 19, 2021 via videoconference

REASONS FOR DECISION

A. Overview

[1] The respondent (N.S.) was charged with numerous offences under the Criminal Code , R.S.C., 1985, c. C-46, including s. 286.2(1) (receiving material benefit from sexual services), s. 286.3(1) (procuring sexual services), and s. 286.4 (advertising sexual services). At trial, N.S. asserted that all three of those provisions infringed ss. 2(b) , 2(d) , and 7 of the Canadian Charter of Rights and Freedoms and were not justifiable limits under s. 1 . The trial judge found that the provisions infringed s. 7 of the Charter , declared them of no force and effect, and declined to suspend the declaration of invalidity: R. v. N.S., 2021 ONSC 1628; R. v. N.S., 2021 ONSC 2920.

[2] On June 15, 2021, the Crown filed an application to stay the effect of the declaration pending the resolution of the appeal in this matter. The Crown has already filed its motion record on the application for a stay, including seven affidavits in support of its position. That application is scheduled to be heard by a panel of this court on October 1, 2021. I have been informed that the Crown expects to perfect the appeal prior to the date that the stay application will be heard.

[3] These reasons pertain to the relief sought by a number of proposed interveners. With the exception of the Criminal Lawyers’ Association (Ontario) (“CLA”), I will refer to all other proposed interveners collectively as the “Group Interveners”. This is appropriate because, both in written and oral submissions, they presented a united front at the motion forming the subject of these reasons.

[4] At this time, the CLA only requests leave to intervene in the Crown’s motion for a stay. The Crown consents to the CLA’s motion. I would grant the requested relief, subject to the conditions set out at the end of these reasons.

[5] The Group Interveners ask that they be permitted leave to intervene in the appeal of this matter. The Group Interveners also seek a number of other forms of cascading relief, relief that far exceeds what the CLA requests. In particular, the Group Interveners ask for the following:

(i) as their primary position, the Group Interveners ask for an order suspending the hearing of the appeal in this matter until such time that an application that the Group Interveners have lodged in the Superior Court of Justice has been adjudicated upon;

(ii) if the hearing of the appeal is not suspended, then the Group Interveners ask for an order granting them leave to intervene in the Crown’s motion for a stay pending appeal of the declaration of invalidity of ss. 286.2 , 286.3(1) , and 286.4 of the Criminal Code , including an order that the Group Interveners be permitted to introduce fresh evidence on the stay application and participate fully in cross-examinations on that application;

(iii) if the hearing of the appeal is not suspended until after the Superior Court application is adjudicated upon, the Group Interveners also request an order that they be permitted to file a fresh evidence application on the appeal proper, an application that would largely duplicate the materials they wish to file on the stay application (should the relief in (ii) above be granted), as well as the materials filed in support of their application in the Superior Court of Justice.

[6] The Crown consents to the Group Interveners being granted leave to intervene in both the motion to stay and the appeal, subject to limitations being placed upon the length of their factums and submissions. However, the Crown opposes the Group Interveners being permitted to delay the hearing of the appeal and expand the evidentiary record in both the stay application and the appeal.

[7] For the reasons that follow, the Group Interveners are granted leave to intervene in both the motion to stay and the appeal. They will be permitted to file written submissions and make oral argument in accordance with the terms set out at the end of these reasons. All other forms of relief are denied.

B. The Requests of the Group Interveners

[8] The Group Interveners consist of sex workers’ rights organizations, individual sex workers, and a third party. They include the Canadian Alliance for Sex Work Law Reform, a coalition of 25 leading sex workers’ rights organizations predominantly led by and for sex workers across Canada. This coalition is joined by current and former sex workers and a former escort agency operator.

[9] The Crown acknowledges that the Group Interveners meet the criteria for leave to intervene as set out in this court’s prior jurisprudence: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990) , 74 O.R. (2d) 164 (C.A.), at p. 167; Bedford v. Canada (Attorney General), 2009 ONCA 669 , 98 O.R. (3d) 792, at para. 2 [ Bedford (2009)]. Accordingly, the Crown consents to the Group Interveners being granted leave to intervene in both the stay motion and the appeal proper.

[10] I do not question the Crown concession on this point. The Group Interveners include well-recognized entities with a special expertise in the issues to be decided on appeal; all have a real, substantial, and identifiable interest in the subject matter of the proceedings; and each has an important perspective to bring to the appeal, which perspectives I am satisfied will differ in some respects from the immediate parties to the appeal: Bedford (2009), at para. 2 .

[11] Where the Group Interveners and the Crown part company is on the role that the Group Interveners should play in relation to this appeal. The Crown maintains that the Group Interveners should be held to the traditional intervener status of friends of the court and, therefore, not be permitted to act as if they are a party to this criminal appeal, weighing in on scheduling issues and expanding the issues to be decided and factual record upon which to decide them.

[12] The group interveners want more.

(1) Should the Appeal be Delayed Pending Adjudication of the Civil Application in the Superior Court of Justice?

[13] The Group Interveners have brought a civil application in the Superior Court of Justice, in which they challenge the constitutionality of many (if not all) of the Criminal Code provisions pertaining to commercial sex work. As their primary form of relief in the criminal appeal before this court, the one focused most heavily upon in both written and oral submissions, the Group Interveners ask that the appeal be placed on pause until their civil application has been adjudicated. They say that this relief should be granted because their application is the best means of determining the constitutionality of the provisions at issue in this criminal matter. The Group Interveners emphasize that this appeal only involves three of the Criminal Code provisions relating to sexual services and that the record is, in their view, woefully inadequate. As well, the Group Interveners argue that the constitutionality of the provisions were only considered through a ss. 2(b) , 2(d) , and 7 Charter lens at trial, when in fact they should have also been considered, at a minimum, under s. 15 of the Charter .

[14] The Group Interveners therefore argue that this appeal should be delayed so that their civil application can be adjudicated, thereby offering this court the benefit of “robust guidance” when considering the appeal in this matter. Alternatively, the Group Interveners say, if there is an appeal taken from the decision arising out of their civil application, then that appeal could be grouped with this one, a grouping that would provide this court with the benefit of a significantly expanded factual record, and with an expanded constitutional lens through which to consider the impugned Criminal Code provisions. It is said that this would promote judicial economy in this court, defend against inconsistent decisions, and ensure that this court has the best available information before it when deciding these important issues.

[15] Notwithstanding the importance of these issues, I would not grant this relief.

[16] The Group Interveners’ civil application before the Superior Court of Justice challenges the same Criminal Code provisions struck down in this case: ss. 286.2(1) , 286.3(1) , and 286.4 . In addition, that application challenges three other sections of the Criminal Code , all of which also relate to commercial sex work: s. 213(1) (stopping or impeding traffic for the purpose of offering, providing, or obtaining sexual services), s. 213(1.1) (communicating to provide sexual services for consideration next to a school, playground or daycare centre), and s. 286.1 (obtaining sexual services for consideration). In short, as I understand it from the materials filed on this application, the Group Interveners are essentially challenging all of the sexual service provisions in the Criminal Code .

[17] Not only is the constitutional approach to those provisions much broader in scope than what was before the trial judge in this appeal (including a s. 15 Charter argument that was not argued in this case), but the Group Interveners have filed a factual record on their civil application that can only be described as considerable in scope. A condensed version of that record was filed on this motion and is over 600 pages in length. As I understand it, the full extent of the record as it currently stands is over 2,000 pages deep. It was only filed in the Superior Court on July 14, 2021 and contains 16 affidavits, with five of them being expert affidavits.

[18] The Attorney General of Canada (“AGC”) is the respondent on the civil application in the Superior Court of Justice. While the AGC does not take a position on the Group Interveners’ application in this court, the AGC appeared as a courtesy to answer any questions about the outstanding civil application. The AGC says that it has not yet filed its record on the civil application. If all goes according to plan, the AGC will aim to have its materials filed by December 15, 2021. While understandably reluctant to provide exact numbers, counsel to the AGC allowed that they will likely be filing between 10 to 20 affidavits on the civil application. Then a reply record will have to be filed.

[19] While there is no timetable set as yet for cross-examinations on the civil application, I am informed that it is reasonable to expect that around eight weeks will be needed for those cross-examinations. Of course, cross-examinations will not commence until after all materials have been filed.

[20] While counsel are “optimistic” that this matter could be ready to be heard in the Superior Court by June of 2022, respectfully, I would place emphasis on the word “optimistic”. The simple reality is that, based upon the information available to this court on this application, the Group Interveners’ application in the Superior Court is at a very preliminary stage.

[21] I have come to this conclusion based in part upon the helpful April 27, 2021 civil endorsement form of Myers J. In his endorsement, Myers J. notes that the applicants (the Group Interveners in this matter) were at that time asking for a February 2022 date for the hearing of the civil matter, which he described as “not realistic.” He also described what was being proposed as a “huge ‘trial in a box’”, questioning the appropriateness of only a four-day hearing for an application that would likely involve 20 or more affidavits, in addition to all of the transcript arising from cross-examinations.

[22] Justice Myers declined the request to schedule the matter for four days in February 2022. As he put it, if the matter did not go ahead on those days, it would essentially mean “the loss of a judge-week from a schedule already beset with backlog from the pandemic.”

[23] I was informed at the hearing of this application that a case management judge has recently been assigned in the Superior Court, but that the first case management meeting will not happen until September 14, 2021. Whatever comes from that case management process, one thing seems clear today, even based upon the parties’ own schedules, this matter cannot be heard in the Superior Court until at least June of next year.

[24] Even if the parties to the civil application have completed the record by June of 2022, an ambitious schedule to be sure, it is not for this court to weigh in on whether the Superior Court will have time to hear the matter at that time. It will be for the Superior Court to determine the form that the application will take, the number of days that will be assigned to the matter, and when the Superior Court’s schedule will accommodate the matter. In other words, it is not at all clear that this matter will be heard by June of next year. And, even if it is heard then, one cannot forget that the matter has to be decided. On a record of this size, it is a simple reality that whatever judge hears the civil application, it will take some time to produce the reasons.

[25] It seems somewhat clear today that the civil application will not be concluded for a long time.

[26] At the same time, I am informed by Crown counsel that the Crown appeal in this matter will be perfected before October 1, 2021, the date scheduled for the hearing of the stay application. The Crown also says that it will be ready to argue the appeal by the early new year. I was informed by counsel for the respondent on the criminal appeal that he may not be in a position to file responding submissions and argue the appeal until a few months later, likely into April of 2022.

[27] I would add the following. While the respondent supports the Group Interveners in this case – provided it creates only what he describes as a “modest delay”, which he defines as the appeal being argued in 2022 – he is not prepared to say that he is without s. 11(b) Charter concerns. While he does not rest charged right now and, accordingly, his s. 11(b) Charter entitlement is not active, I keep the respondent’s s. 11(b) concern in mind in arriving at my conclusion in this case. The fact is that, should the Crown succeed on appeal, the respondent will again face jeopardy on these charges. In my view, his concern reflects the fact that this is a criminal matter with significant implications, not only for the respondent as an individual, but for the community at large.

[28] In any event, even if the civil application could be heard in June of 2022, and even if the reasons on this potentially 30-plus affidavit case, involving what Myers J. referred to as a “trial in a box”, could be delivered within a couple of months, respectfully, it seems unrealistic that an appeal from those reasons could get before this court and heard by the end of 2022. Therefore, stepping back and looking at this matter realistically, the respondent’s position that he will agree to a “modest delay” of up to the end of 2022 likely cannot be accommodated.

[29] I am not familiar with the hearing of a criminal appeal ever having been delayed pending the outcome of a civil application. While the Group Interveners rely on a couple of civil appeals that were delayed in the interests of justice, they are not apposite to the request being made here.

[30] In one of the cases, the delay was predicated on the need for the trial judge to determine some outstanding issues which would reduce the number of appeals brought before this court as a result. A short stay was granted for that purpose: Korea Data Systems (USA), Inc. v. Aamazing Technologies Inc., 2012 ONCA 756 , 29 C.P.C. (7th) 51, at paras. 23-24 .

[31] The other authority relied upon by the Group Interveners is one where this court delayed a civil appeal on the basis that it involved “essentially the same litigation”. Like Korea Data Systems , the same parties were embroiled in different pieces of litigation arising out of one main set of allegations: Canadian Planning and Design Consultants Inc. v. Libya (State), 2015 ONCA 661 , 340 O.A.C. 98, at para. 53 .

[32] These decisions have no application to the Group Interveners’ request in this case.

[33] In my view, the Group Interveners’ request to delay this appeal will result in a very long delay. The purpose of the request is really predicated on a desire to turn the appeal into something very different than what is being appealed. The objective of this delay is to ensure that this appeal is heard against the backdrop of: (a) a significantly expanded record, including another potentially 30-plus affidavits and cross-examinations; (b) additional impugned statutory provisions; and (c) additional constitutional arguments. Respectfully, this is a request to turn this appeal into more of a reference, akin to the case that is currently lodged in the Superior Court.

[34] It is critical to keep in mind the context surrounding this appeal. This is a criminal appeal predicated on an indictment. The respondent brought a constitutional challenge to the statutory provisions under which he was charged. He chose how to litigate those issues and the record unfolded accordingly. As with all constitutional litigation, the trial judge decided the matter based upon the factual record and arguments put before him. The Crown appeals from that decision.

[35] Appeals must proceed in an expeditious fashion. This is particularly true where there is conflicting jurisprudence on the very subject of the appeal, as is the case here. Contrary to the disposition in this case, the trial judge in R. v. MacDonald, 2021 ONSC 4423 , found that R. v. N.S., 2021 ONSC 1628 , was “plainly wrong” and upheld the constitutionality of the same impugned provisions: at para. 16. Two further trial judges agreed with the findings of the trial judge in MacDonald , similarly asserting that the decision in N.S. is “plainly wrong”: R. v. Williams (2 July 2021), Brampton (Ont. S.C.); R. v. Maldonado Vallejos, 2021 ONSC 5809 , at para. 19 . Additionally, there is one other matter pending at the Superior Court, where the accused has been found guilty and has been given time to consider whether to bring a constitutional challenge to s. 286.2(1) of the Criminal Code : R. v. Y.S., 2021 ONSC 4010 , at paras. 52 , 202-204.

[36] In addition, there are at least two appeals pending before this court in which I am informed by the Crown that each appellant appears to be raising the constitutionality of the same or similar Criminal Code provisions for the first time on appeal: R. v. J.K. (3 August 2016), Brampton (Ont. C.J.), appeal as of right to Ont. C.A., C63449; R. v. S.M. (11 October 2019), Newmarket, 18/05543 (Ont. C.J.), appeal as of right to Ont. C.A., C67806. There is also an appeal in the matter of R. v. B., 2018 ONSC 7205 (C69136 & C69138), where the constitutional challenge to the same provisions as this case was dismissed. That case involves persons under the age of 18 years. [1]

[37] Of further concern are four cases cited by the Crown that were scheduled to be heard by the Superior Court between August 2021 and September 2021. [2] Depending upon the results of those decisions, this court could be faced with even more appeals of a similar nature.

[38] Quite simply, the trial courts need some help with respect to this matter. In my view, this court would be abdicating its responsibility to provide guidance on matters of constitutional importance, especially where there is uncertainty on such matters, if it were to suspend the hearing of a criminal appeal – one that would bring those constitutional matters into focus – pending a civil matter being adjudicated in the Superior Court, which may or may not even resolve within the next calendar year. This is particularly true when there are other constitutional challenges to the legislation being litigated in trial courts across Ontario right now, as is the case here.

[39] Finally, as part of the materials filed on this application, the Crown also filed its record for the stay application. I do not intend to address that record in any detail, a matter that should be left to the panel hearing the stay application. I would simply note the fact that, as of May 21, 2021, there were hundreds of active cases in the Province of Ontario involving the impugned Criminal Code provisions.

[40] Whether the record in this case is as complete as it could be or not, and whether N.S. challenged the provisions as completely as he could have or not, this matter is one of importance to N.S., to other accused whose jeopardy hangs in the balance, to the public, and to the administration of justice. It cannot be put on hold for an indefinite period of time.

[41] Therefore, I dismiss the request to delay the hearing of the appeal.

(2) Should the Group Interveners be Permitted to Introduce New Evidence on the Stay Application?

[42] If the Group Interveners had succeeded in their application to have the appeal delayed, then they would not have taken a position on the Crown’s stay application. However, in the event that the request to delay the appeal were to be dismissed, the Group Interveners asked to be permitted to make written and oral submissions on that application and to file a factual record. It was made clear during oral submissions – for reasons that I need not get into, but which reasons I accept – that the Group Interveners are not prepared to share their factual record with the respondent to the stay application.

[43] While I would grant the Group Interveners’ request to be permitted to intervene, subject to the terms set out below, they may not augment the factual record.

[44] I start with the proposition that interveners are not typically granted the ability to supplement the record: R. v. M.C., 2018 ONCA 634 , at para. 10 ; R. v. Morris, 2019 ONCA 509 , at para. 7 ; R. v. Chapman (2005) , 203 O.A.C. 233 (C.A.), at para. 6 . Nor are they permitted to raise issues beyond those raised by the parties to the litigation. For instance, this court has denied an intervener’s request to raise a new constitutional argument for the first time on appeal: see e.g., Bedford v. Canada (Attorney General), 2011 ONCA 209 , at paras. 4-20 [ Bedford (2011)]. Notably, as pointed out by the Crown, the Supreme Court also recently commented that interveners “play a vital role in our justice system by providing unique perspectives and specialized forms of expertise that assist the court in deciding complex issues that have effects transcending the interests of the particular parties before it” but, even so, interveners should not be permitted to “widen or add to the points in issue”: R. v. Barton, 2019 SCC 33 , [2019] 2 S.C.R. 579, at paras. 52-53 .

[45] In my view, the same can be said of requests to intervene relative to a stay application. This stay application is a criminal matter between the parties, one that can be decided on the facts as marshalled by the parties. I am confident that those facts will be sufficient to give proper life to the application for a stay. I am also confident that the Group Interveners’ presence on the application, and the submissions they will offer, will provide the court with the assistance necessary to properly decide the issues before it.

[46] Therefore, while the Group Interveners may provide written and oral submissions at the stay application, they may not augment the factual record.

(3) Should the Group Interveners be Permitted to Augment the Appeal Record?

[47] This brings me to the next form of relief requested by the Group Interveners.

[48] If they are denied a stay of the appeal pending their civil application playing through in the Superior Court, then they wish to augment the appeal record with the record they have filed in the Superior Court. As mentioned before, the record from the civil application is already a record of substantial heft and will only get larger with the affidavits to be filed by the AGC and the eight weeks of cross-examinations yet to come.

[49] Permitting the Group Interveners to augment the appeal record in this fashion would turn this appeal into an entirely different case. As previously noted, and for the reasons already discussed, it would essentially turn this court into a court of first instance on this issue of constitutionality and render the trial judge’s reasons entirely nugatory to the result. I say this because the case in this court would be litigated on an entirely different basis. This would be unfair to the trial judge, it would be unfair to the Crown, it would be unfair to the respondent, and it would be unfair to the administration of justice. It is not how constitutional litigation should evolve.

[50] In essence, it would turn this criminal appeal into a reference involving a broad-ranging civil application. If there is to be additional evidence led on appeal, it is the parties who will have to follow the usual course and bring a fresh evidence application, leaving it to the panel hearing the appeal to decide whether that evidence should be admitted: R. v. M. (A.) , at paras. 1 , 4.

C. Conclusion

[51] The CLA and the Group Interveners are granted leave to intervene in the Crown’s motion to stay the effect of the declaration of invalidity pending the resolution of the appeal, subject to the following terms:

(i) The CLA and the Group Interveners may each file a factum not exceeding 15 pages in length;

(ii) The factums will be filed no later than September 16, 2021;

(iii) Oral argument of no more than 10 minutes each will be permitted;

(iv) The record will not be supplemented in any way;

(v) The interveners shall not seek costs; and

(vi) No costs will be ordered against the interveners or the parties.

[52] The Group Interveners are granted leave to intervene in the appeal subject to the following terms:

(i) They may file a factum not exceeding 15 pages in length;

(ii) The factum will be filed in accordance with a direction given by the case management judge;

(iii) Oral argument of no more than 15 minutes will be permitted;

(iv) The record will not be supplemented in any way;

(v) The interveners shall not seek costs; and

(vi) No costs will be ordered against the interveners or the parties.

“Fairburn A.C.J.O.”

[1] The Crown has suggested that it may seek to have the appeal of R. v. N.S. heard with the appeal in R. v. B.

[2] R. v. Beeransingh , in Newmarket; R. v. Bernard , R. v. Deidun , in Peel; R. v. MacMillian , in St. Catharines; and R. v. Saab , in Peel.