





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



DATE: 20110316



DOCKET: M39752-C52799 and C52814



COURT OF APPEAL FOR ONTARIO



OConnor 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)



Rahool P. Agarwal and Michael Kotrly, for the proposed
          intervener, Maggies: 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 Maggies: 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, Torontos 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), 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 Appeals 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 partys 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 partys 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 OConnor
    A.C.J.O.


