



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    information that could identify the victim or a witness shall not be published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 complainants 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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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

CITATION: R. v. N.S., 2021 ONCA 605

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

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 Crowns
    motion for a stay. The Crown consents to the CLAs 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
    Crowns 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 courts 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 Courts 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 respondents 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 respondents 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 Crowns 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 interveners 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 judges
    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.)
, 2005
    CanLII 33773 (Ont. C.A.), at paras. 1, 4.

C.

Conclusion

[51]

The
    CLA and the Group Interveners are granted leave to intervene in the Crowns
    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.


