Verbatim copy of judgement


 

CITATION: Bedford v. Canada (Attorney General), 2009 ONCA 669
DATE: 20090922
DOCKET: C50823

COURT OF APPEAL FOR ONTARIO
Goudge, Cronk and Epstein JJ.A.

BETWEEN:
Terri Jean Bedford, Amy Lebovitch and Valerie Scott
Applicants (Respondents)

and

Attorney General of Canada
Respondent (Respondent)

and

Attorney General of Ontario
Intervenor (Respondent)


APPLICATION UNDER Rule 14.05(3)(g.1) of the Rules of Civil Procedure
Derek J. Bell, Ranjan K. Agarwal and Alexie S. Landry, for the appellants Christian
Legal Fellowship, REAL Women of Canada and Catholic Civil Rights League
Ron Marzel, for the respondents, Terri Jean Bedford, Amy Lebovitch and Valerie Scott
Roy Lee and Michael H. Morris, for the respondent Attorney General of Canada
Christine Bartlett Hughes, for the respondent Attorney General of Ontario

Heard: September 10, 2009
On appeal from the order of Justice P. Theodore Matlow of the Superior Court of Justice
dated July 2, 2009.
By the Court:
[1] Pursuant to Rule 13.02, the appellants unsuccessfully sought leave to intervene as
a friend of the court in the application brought by the respondents Terri Jean Bedford,
Amy Lebovitch and Valerie Scott. That application seeks a declaration that certain
sections of the Criminal Code criminalizing activities related to prostitution violate the
Charter of Rights and Freedoms.
[2] The relevant jurisprudence provides considerable guidance to a court hearing such
a motion. Where the intervention is in a Charter case, usually at least one of three
criteria is met by the intervenor: it has a real substantial and identifiable interest in the
subject matter of the proceedings; it has an important perspective distinct from the
immediate parties; or it is a well recognized group with a special expertise and a broadly
identifiable membership base. See: Ontario (Attorney General) v. Dieleman (1993), 16
O.R. (3d) 32. Most importantly, the over-arching principle is that laid down by Dubin
C.J.O. in Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada
(1990), 74 O.R. (2d) 164 at 167:
Although much has been written as to the proper matters to be
considered in determining whether an application for
intervention should be granted, in the end, in my opinion, the
matters to be considered are the nature of the case, the issues
which 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.
[3] Finally, while Rule 13.02 accords considerable deference to the court hearing the
motion, that discretion is not immune from appellate scrutiny. See: GEA Group AG v.
Ventra Group Co. (2009), ONCA 619. That discretion cannot be exercised for reasons
that clearly misapprehend the record before the court.
[4] In this case, the record leaves no doubt that the appellants meet several of the
Dieleman criteria. They have a real substantial and identifiable interest in the subject
matter of the application and, as acknowledged by the Attorney General of Canada, an
important perspective different from the parties. The respondents do not oppose the
motion on this basis.
[5] The respondents’ argument at first instance was that the appellants did not show
that they would be in a position to make a useful contribution to the resolution of any
issue that needed to be determined. In the end, the motion judge essentially agreed with
this submission. However, he did so for reasons that, in our view, are clearly erroneous.
[6] The motion judge concluded that the appellants’ proposed argument was not
described clearly, making it impossible to apply the test for intervention. We disagree.
The record below and counsel’s submissions clearly described the appellants’ position,
namely, that the constitutionality of the challenged laws can be supported by the moral

values of Canadian society. Indeed, before us, counsel for the respondents not only
understood that this was their position but argued vigorously that it was irrelevant.
[7] The motion judge also determined that, in any event, he could not reasonably
determine whether any issues of morality would properly arise in the argument of the
application. That too misunderstands the material before him. The respondents were
clear both below and in this court that in the application they will argue that morality
cannot serve to support the constitutionality of the impugned legislation. In other words,
the respondents will be putting that issue in play. The Attorney General of Canada
indicated it would not be relying on Canadian moral values as a cornerstone of its
defence of the legislation but made clear that there was considerable affidavit evidence in
the record relating to such an argument. Whether the appellants’ position ultimately
prevails or not, it will provide a counterpoint to the respondents’ argument that will not
otherwise be made and may be useful to the court.
[8] In addition, the motion judge’s view that the appellants have not shown any
special knowledge entitling them to advance their arguments overlooks that the
appellants do not seek to file any affidavit material. They seek only to make legal
argument, not to supply the court with specialized knowledge, something that also
provides a complete answer to the concern that their participation could disrupt the
hearing. Also, the time limited argument means that their participation would not unduly
lengthen the hearing.

[9] In summary, the basis for the motion judge’s decision is clearly flawed and his
conclusion therefore cannot stand. Rather, as we have indicated, given the issues at stake
and the position the appellants propose to take, we conclude that the appellants may be
able to make a useful contribution to the application without causing injustice to the
immediate parties.
[10] We would allow the appeal and grant the motion as asked, with the addition set
out in para. 19 of the factum of the Attorney General of Canada.
[11] No costs here or below.
RELEASED: September 22, 2009 (“S.T.G.”)
“S.T. Goudge J.A.”
“E.A. Cronk J.A.”
“G.J. Epstein J.A.”