Court File and Parties

COURT FILE NO.: CV-21-00658393-0000 DATE: 20230228 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ANIMAL JUSTICE, JESSICA SCOTT-REID and LOUISE JORGENSEN AND: THE ATTORNEY GENERAL OF ONTARIO

BEFORE: Justice Chalmers

COUNSEL: F. Schumann and K. Mitchell for the Applicants E. Guilbault, Y. Ranganathan, and P. Atkinson for the Respondent, Attorney General of Ontario I. Dimeski, for the Justice for Migrant Workers (Proposed Intervenor) V. Sharma, for the Animal Alliance of Canada (Proposed Intervenor) H. Gunter, for Regan Russell Foundation (Proposed Intervenor) L. Cadeaux-Shaw and A. Wood for Centre for Free Expression (Proposed Intervenor)

HEARD: February 6, 2023

Endorsement

OVERVIEW

[1] The Applicants challenge the constitutionality of a number of provisions of the Security from Trespass and Protecting Food Safety Act, 2020 (the Act) and Ontario Regulation 701/20. The Act limits access to farms, processing facilities and interactions with farm animals where consent was not previously obtained from the owner or occupier of the farm, or where consent was provided under false pretenses.

[2] In their Amended Notice of Application, the Applicants claim that the Act prevents animal rights activists, journalists and researchers from gathering and distributing information that document animal mistreatment. The Applicants challenge the Act on the basis that it violates the constitutional rights of the Applicants to freedom of expression and freedom of the press as guaranteed by s. 2(b) of the Charter of Rights and Freedoms. The Applicants also challenge the Act on the basis that certain sections infringe on the rights of the public to peaceful assembly guaranteed by s. 2(c) of the Charter, and that citizen arrest powers violates of ss. 7 and 9 of the Charter. Finally, the Applicants challenge the reverse onus provisions of the Act, on the basis that this is a violation s. 11(d) of the Charter.

[3] Four groups seek to intervene in the Application as a friend of the Court: (1) Animal Alliance of Canada, (2) Regan Russell Foundation, (3) Centre for Free Expression, and (4) Justice for Migrant Workers. Each brings a motion pursuant to R. 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[4] The Attorney General of Ontario (“Ontario”) does not oppose the proposed interventions by Animal Alliance of Canada or Regan Russell Foundation, provided that: (a) the interveners are not permitted to expand the record; (b) written submissions are restricted to no more than 15 pages; and (c) oral submissions for each intervener are limited to no more than 30 minutes. If any interveners are granted status, Ontario requests a written reply of 10 pages to respond to each intervener. Also, Ontario requests equal time to respond to each of the interveners (in addition to the time allotted to it to respond to the Applicants).

[5] Ontario opposes the intervention motion brought by Centre for Free Expression to the extent it seeks to expand the issues to include s. 2(a) of the Charter (freedom of religion and conscience). Ontario opposes the intervention motion by Justice for Migrant Workers on the basis that the group does not meet the test for leave to intervene.

ANALYSIS AND DISCUSSION

The Legal Principles

[6] The proposed intervenors seek leave to intervene under R. 13.02:

13.02(1) Any person may, with leave of a judge or at the invitation of the presiding judge or associate judge and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

[7] The test for leave to intervene as a friend of the Court was set out in Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada Ltd., (1990) 74 O.R. (2d) 161 (CA), 1990 CarswellOnt 393, at para. 10, and reaffirmed by the Court of Appeal in Bedford v. Canada (Attorney General) 2011 ONCA 209, at para. 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), 74 O.R. (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.

[8] A public interest group that is granted leave to intervene as a friend of the Court usually fulfils at least one of the following criteria:

(a) The intervener has a real, substantial, and identifiable interest in the subject matter of the proceedings; (b) The intervener has an important perspective distinct from the immediate parties; and, (c) The intervener is a well-recognized group with a special expertise and with a broad identifiable membership base: Bedford v. Canada (Attorney General), 2009 ONCA 669, at para. 2.

[9] Even if a public interest group satisfies one or more of these criteria, it must also demonstrate that it will make a useful and distinct contribution to the proceeding: Trinity Western University v. Law Society of Upper Canada, 2014 ONSC 5541 (Div. Ct.), at paras. 6-7.

[10] The issues on the application are defined by the existing parties, and an intervenor must take those issues as it finds them and not transform or add to them: Canada (AG) v. Canadian Doctors for Refugee Care, 2015 FCA 34, at para. 19. As noted in Tsleil-Waututh Nation v. Canada (AG), 2017 FCA 174:

[….] interveners are guests at a table already set with the food already out on the table. Interveners can comment from their perspective on what they see, smell and taste. They cannot otherwise add food to the table in any way. To allow them to do more is to alter the proceedings that those directly affected – the applicants and the respondents – have cast and litigated under for months, with every potential for procedural and substantive unfairness: at paras. 55-56.

[11] With those general principles in mind, I turn now to consider the four groups seeking to intervene in the Application.

(i) Justice for Migrant Workers

Position of the Parties

[12] The proposed intervenor, Justice for Migrant Workers (J4MW) is described in its factum as a non-profit grassroots collective whose primary purpose is “to work towards the fair and just treatment of migrant agricultural workers in Ontario and throughout Canada.” It states that it advocates for “safe, healthy and equitable working and living condition for those participating under the Federal Seasonal Worker Program (SAWP) and the Temporary Foreign Worker Program (TFWP). J4MW is not an animal advocacy organization focused on animal rights or animal protection.

[13] J4MW states that migrant agricultural workers are among the most marginalized workers in Ontario. The workers are particularly vulnerable and may risk reprisals for reporting workplace issues including the abuse of animals they may witness. J4MW states that it brings a unique perspective in bringing the vulnerability inherent in the migrant workers relationship with their employers to this Application. J4MW will be the only party on the Application making submissions that directly advocates on behalf of migrant agricultural workers and can offer a distinct and important perspective on how the Act may affect migrant agricultural workers who become aware of animal abuse through their employment.

[14] Ontario argues that J4MW does not have a real, substantial and identifiable interest in the subject matter of the Application. Ontario states that if permitted to intervene, J4MW would make submissions on the vulnerabilities and systemic issues faced by temporary migrant workers employed on farms. The Act does not involve the rights of bona fide migrant farm workers. This is because the Act only applies to persons who access farms without the consent of the owner or occupier of the farm or where consent was provided under false pretenses. Bona fide farm workers would have the consent of their employers to be on the farm.

Analysis

[15] I am satisfied that J4MW does not have a real, substantial and identifiable interest in the issues relevant to the Application. Temporary foreign workers are hired to work in Canadian agriculture through the Federal Programs, SAWP and TFWP. The workers must have a work permit and a contract with the employer. Therefore, migrant workers must be bona fide employees. If not, the workers would not be legal employees and would risk deportation. As bona fide employees they would be on the farm with the consent of the owner or occupier of the farm. The Act applies only to those persons who are on the farm without the consent of the owner or occupier or who have secured consent through false pretenses.

[16] J4MW does not meet the test for intervention as a friend of the court. There is nothing in the Act that would prevent a temporary foreign worker from documenting animal abuse that they observe in their employment as legal farm workers who are on the farm with the consent of their employer. Migrant workers are not treated differently from any other person who is on the farm with the consent of the owner or occupier, and where the consent is not under false pretenses. The J4MW has not established a sufficient interest in the Act to make a useful and distinct contribution to the Application: Trinity Western University v. Law Society of Upper Canada, at paras. 6-7, (Div. Ct.)

[17] I am also satisfied that the proposed intervention of J4MW would expand the issues in the Application. The issues on the Application involve the rights of persons to gather and distribute information that documents animal mistreatment. J4MW proposes that if it was permitted to intervene it would address the limited freedoms and rights of migrant farm workers in Canada and the ways in which migrant workers are vulnerable. In my view, the labour and employment laws for foreign workers, including any rights of migrant worker “whistleblowers” is beyond the scope of this Application.

[18] The motion brought by J4MW for leave to intervene is dismissed.

(ii) Centre for Free Expression

Position of the Parties

[19] In its factum, the Centre for Free Expression (CFE) describes itself as “a non-partisan research, public education, and advocacy centre that serves as a hub for a wide range of activities related to free expression and the public’s right to see, receive and share information. The CFE is particularly involved in issues concerning the protection and promotion of whistleblower rights in Canada and abroad.”

[20] The CFE initially sought to intervene in the Application to provide expertise on whistleblower expression, under s. 2(b) of the Charter. CFE delivered a supplementary motion record on February 2, 2023. Included in the supplemental motion record, is the affidavit of James Turk, affirmed February 2, 2023. He deposes that on January 31, 2023, he invited Professor Richard Haigh to join the CFE as a Senior Fellow. Professor Haigh is a law professor who specializes in the area of freedom of conscience and religion. The CFE takes the position that with the addition of Professor Haigh, it has expertise on freedom of conscience as it relates to whistleblowers.

[21] In addition to intervening with respect to s. 2(b) of the Charter, CFE seeks to intervene to address the issue of whether the Act infringes s. 2(a) of the Charter, freedom of conscience and religion. CFE argues that whistleblowers do what they do because of a moral compulsion. Freedom of conscience under Section 2(a) of the Charter is therefore a relevant issue when considering the constitutional validity of the Act. CFE refers to Leroux v. Her Majesty the Queen, 2020 ONSC 730, for support of its position that an intervenor may raise new arguments as long as the arguments are grounded in the issues. CFE argues that the consideration of s.2(a) is not a new issue but is simply a new argument based on the issues set out in the Application and does not require an additional evidentiary record.

[22] Ontario does not oppose CFE’s motion to intervene in the Application with respect to the issue of how the Act may impact s. 2(b) of the Charter but opposes the motion to the extent that CFE seeks to expand the issues to include freedom of conscience and religion under s. 2(a) of the Charter. Ontario states that s. 2(a) Charter rights is not the subject matter of the Application, and that the CFE seeks to expand or add to the issues on the Application. Ontario also argues that the evidentiary record for the Application does not include the s. 2(a) Charter issue and therefore it would be unfair to permit CFE to intervene on this issue.

Analysis

[23] I am satisfied that the CFE has specialized expertise with respect to the issue of whistleblower rights. The CFE has established a real, substantial and identifiable interest in the subject matter of the proceedings. I am also of the view that it has specialized expertise with respect to whistleblowing issues and will offer useful and distinct submissions in the Application. I am also satisfied that its intervention on the issues defined in the Application will not cause injustice to the parties or cause undue delay. The only remaining issue is whether CFE’s proposed intervention to address how the Act impacts s. 2(a) Charter rights, expands the scope of the Application, and which, if allowed, would cause injustice to the parties.

[24] The Applicants challenge the Act on the basis of Charter ss. 2(b) (freedom of expression), 2(c) (freedom of assembly), 7 (life, liberty and the security of the person) and 9 (right to not be arbitrarily detained or imprisoned). The Applicants do not challenge the Act on the basis that there is a breach of s. 2(a) freedom of conscience or religion rights. The evidentiary portion of the Application is concluded and did not address the Charter s. 2(a) issue. There has been no opportunity for the parties to the Application to file material or conduct cross-examinations with respect to the s. 2(a) Charter issue. I am of the view that an argument that legislation breached a Charter right, should not proceed without a properly developed record.

[25] I find that the Leroux case relied on by the CFE, is distinguishable. In that case, the respondent conceded that a different evidentiary record was not required. Here, the CFE’s proposed intervention is with respect to an entirely new substantive ground that would require additional evidence. I am satisfied that to allow the CFE to argue s. 2(a) of the Charter issue at this stage of the proceeding, would be prejudicial and would cause an injustice to the parties. As stated in Bedford v. Canada (Attorney General), 2011 ONCA 209:

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: at para. 16.

[26] I am also of the view that the CFE has not established special expertise to intervene with respect to s. 2(a) of the Charter. The CFE has expertise in supporting whistleblower rights which are focused on freedom of expression. The CFE states that it has on its staff Professor Haigh, who is considered an expert in freedom of conscience. Professor Haigh became affiliated with the CFE on January 31, 2023, less than a week before this motion was argued. Professor Haigh may have the appropriate expertise with respect to s. 2(a) Charter rights, however it is my view that CFE cannot “bootstrap” its claim that it has special expertise by adding Professor Haigh to its staff at this late stage. At the time the CFE brought this motion to intervene, it did not have the necessary expertise with respect to s. 2(a) issues.

[27] I allow the motion brought by CFE to intervene in the Application, however the intervention is limited to the issues set out in the Application. I refuse CFE’s motion to address any s. 2(a) Charter issues on the Application. The intervention is subject to conditions (set out below) to ensure that its involvement will not cause injustice to the parties.

(iii) Animal Alliance of Canada

Position of the Parties

[28] In its factum, the Animal Alliance of Canada (AAC) describes itself as “a federally incorporated non-profit organization committed to the protection of all animals and to the promotion of a harmonious relationship among humans, non-humans and the environment.” AAC states that it has expertise in participating in legal cases and providing input in legislative and regulatory processes and law making with respect to animal rights and welfare issues.

[29] The AAC states that it has a unique perspective and interest in the Act. It has participated in demonstrations and peaceful protesting including bearing witnesses to the treatment of farm animals. It collaborates with individuals engaged in undercover investigations and whistleblowing activities. The AAC made submissions to the Standing Committee when this Bill (156) was being debated. AAC was intending to bring its own Charter challenge when it learned of this Application.

[30] The AAC states that if it is permitted to intervene, it will provide submissions on the Application that are useful to the Court and different from those of the parties. The submissions will relate to how the Act disproportionately limits free speech and the political expression of animal advocates under s. 2(b) of the Charter. The AAC also proposes to address issues related to how the Act impacts on s. 7 and 11(d) of the Charter. The AAC argues that it will raise no new issues and if it is granted intervenor status, it will not delay the hearing of the Application.

[31] Ontario does not dispute that AAC meets the Bedford criteria. Ontario does not oppose the proposed intervention by AAC, provided that certain conditions are imposed to ensure that its involvement will not cause injustice to the parties.

Analysis

[32] I am satisfied that the AAC has satisfied the Bedford criteria. It has established a real, substantial and identifiable interest in the subject matter of the proceedings. It will offer useful and distinct submissions in the Application. Finally, it is a well-recognized group with specialized expertise and a broadly identifiable membership base. I am also satisfied that its intervention on the issues defined in the Application will not cause injustice to the parties or cause undue delay.

[33] I grant the relief sought by the AAC and order that it may intervene in the Application. The intervention is subject to conditions to ensure that its involvement will not cause injustice to the parties.

(iv) Regan Russell Foundation

Position of the Parties

[34] The Regan Russell Foundation (RRF) was created following Regan Russell’s death on June 19, 2020. On that day, she was struck and killed by a transport truck while she was engaging in an animal rights protest. In its factum, the RRF states that the intention in creating the RRF was to preserve Ms. Russell’s legacy, “by fostering the value of peaceful protest, freedom of speech and association, and public education, particularly regarding animal rights activism”.

[35] The RRF seeks to intervene in the Application to preserve Ms. Russell’s legacy and to protect the protest rights of animal rights activists. The RRF states that it has special knowledge and perspective informed by Ms. Russel’s life and the circumstances of her death. If it is permitted to intervene, it will directly address the circumstances and implications of Ms. Russell’s death as it relates to the Application. It intends to limit its argument to direct responses to arguments that involve the circumstances of Ms. Russell’s death, and it will oppose the Respondent’s narrative around Ms. Russell’s death to justify the Act. The RRF also intends to make submissions with respect to the work of Ms. Russell in her lifetime and in particular the balance between the safety and liberty of activists and protestors.

[36] If permitted to intervene, the RRF states that it will continue to co-operate with the parties to the Application and will not seek to expand the record. It states that as an intervenor it will not cause any prejudice or undue delay.

[37] Ontario does not dispute that the RRF meets the Bedford criteria. Ontario does not oppose the proposed intervention by the RRF, provided that certain conditions are imposed to ensure that its involvement will not cause injustice to the parties.

Analysis

[38] I am satisfied that the RRF has satisfied the Bedford criteria. It has established a real, substantial and identifiable interest in the subject matter of the proceedings. Ms. Russell died while protesting animal rights. The circumstance of her death provides the RRF with a unique perspective. The RRF will offer useful and distinct submissions in the Application. I am also satisfied that its intervention on the issues defined in the Application will not cause injustice to the parties or cause undue delay.

[39] I grant the relief sought by the RRF and order that it may intervene in the Application. The intervention is subject to conditions to ensure that its involvement will not cause injustice to the parties.

DISPOSITION

[40] For the reasons set out above, I make the following order:

i) The motion brought by J4MW is dismissed;

ii) The motion brought by CFE is allowed, in part. The CFE is permitted to intervene, but only with respect to the issues set out in the Application, and is not permitted to intervene with respect to how the Act may affect rights guaranteed by s. 2(a) of the Charter;

iii) The motions brought by AAC and RRF are allowed; and

iv) CFE, ACC and RRF are permitted to intervene in the Application with respect to the issues set out in the Application, subject to the following terms:

(a) the interveners are not permitted to expand the record; (b) written submissions are restricted to no more than 15 pages; (c) oral submissions for each intervener are limited to no more than 30 minutes; (d) Ontario is permitted a written reply of 10 pages to respond to each intervener; and (e) in oral argument, Ontario is permitted equal time to respond to the interveners, in addition to the time allotted to it to respond to the Applicants.

[41] I make no order as to costs.

Chalmers J. Date: February 28, 2023