A-620-86
International Fund for Animal Welfare, Inc., Ste-
phen Best and Brian D. Davies (Appellants)
v.
The Queen, Minister of Fisheries and Oceans,
Minister of Justice and Attorney General of
Canada (Respondents)
INDEXED AS: INTERNATIONAL FUND FOR ANIMAL WELFARE,
INC. V. CANADA (C.A.)
Court of Appeal, Heald, Urie and Mahoney JJ.—
Toronto, January 29 and February 9, 1988.
Practice — Parties — Intervention — Canadian Civil Liber
ties Association seeking to intervene in appeal from decision
holding Seal Protection Regulations infringing Charter guar
anteed right to freedom of expression, but demonstrably justi
fied — Applicant seeking to establish right to demonstrate
included in freedom of expression — Not raised at trial, nor
proposed to be raised on appeal by parties — Application
dismissed — Important, in dealing with Charter issues raised
for first time, that Courts have assistance of argument from
all segments of community — Matter sought to be dealt with
by intervenor must at least have been raised at trial, particu
larly if party objecting to intervention.
Constitutional law — Charter of Rights — Important, in
dealing with Charter issues raised for first time, that courts
have assistance of argument from all segments of community
— Canadian Civil Liberties Association seeking to intervene in
appeal in freedom of expression case to establish that freedom
including right to demonstrate — Application denied as issue
neither put in issue at trial nor intended to be raised by parties
upon appeal.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 2(b).
Seal Protection Regulations, C.R.C., c. 833, s. 11(5),(6)
(as am. by SOR/78-167, s. 3).
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Re Canadian Labour Congress and Bhindi et al. (1985),
17 D.L.R. (4th) 193 (B.C.C.A.); Re Schofield and Min
ister of Consumer and Commercial Relations (1980),
112 D.L.R. (3d) 132 (Ont. C.A.).
COUNSEL:
D. V. MacDonald for appellants.
John B. Laskin for Canadian Civil Liberties
Association.
Urszula Kaczmarczyk for respondents.
SOLICITORS:
McMillan, Binch, Toronto, for appellants.
Tory, Tory, DesLauriers & Binnington,
Toronto, for Canadian Civil Liberties Asso
ciation.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The Canadian Civil Liberties
Association, "the applicant", applies to intervene
in this appeal as a friend of the Court. The appel
lants support the application; the respondents
oppose it.
The appeal has been set down for hearing in two
months. It is an appeal from a reported decision of
the Trial Division, [1987] 1 F.C. 244, which held,
inter alia, that certain provisions of the Seal Pro
tection Regulations, C.R.C., c. 833, infringed the
appellants' right to freedom of expression guaran
teed by paragraph 2(b) of the Canadian Charter
of Rights and Freedoms [being Part I of the
Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.)] but were demonstrably
justified limits on that right. The provisions in
issue are subsections 11(5) and (6) [as am. by
SOR/78-167, s. 3].
ll. ...
(5) Except with the permission of the Minister, no person
shall
(a) land a helicopter or other aircraft less than 1 / 2 nautical
mile from any seal that is on the ice in the Gulf Area or
Front Area; or
(b) operate a helicopter or other aircraft over any seal on
the ice at an altitude of less than 2,000 feet, except for
commercial flights operating on scheduled flight plans.
(6) No person shall, unless he is the holder of a licence or a
permit, approach within half a nautical mile of any area in
which a seal hunt is being carried out.
The constitutional issue, which is the only issue
on which the applicant seeks leave to intervene,
was stated by the learned Trial Judge in the
following terms, at page 256:
The question thus raised for determination is whether the
Regulations deny to the plaintiffs their guaranteed right of
freedom of expression within the meaning of paragraph 2(b) of
the Charter. This right, it is contended, must be seen to include
"freedom to seek, receive and impart information and ideas of
all kinds", whether by the written or spoken word or photogra
phy or whatever other media of communication might be
chosen. Although IFAW is unquestionably a redoubtable pro
tester, the gist of the case is not concerned with the right to
protest per se. The plaintiffs' evidence is that they have never
deliberately interfered with the sealers. Their avowed objective
is access to information rather than altercation and
confrontation.
The finding that the appellants' freedom of expres
sion included the right to obtain information is not
in issue on appeal. It is conceded by the
respondents.
The affidavit of A. Alan Borovoy, filed in sup
port of the application to intervene, states:
18. If granted leave to intervene, the Association will submit
that the freedom of expression guaranteed by section 2(b) of
the Charter includes the right to demonstrate in order to exert
social pressure upon and attract public censure against those
engaging in activities that those who wish to demonstrate
consider objectionable. The Association will further submit that
the Regulations deny the exercise of that right in a manner that
is not capable of justification under section 1. That denial, it
will be submitted, is not mitigated in this case by the fact that
other avenues of persuasion remain open to the appellants. The
avenue closed by the Regulations is that which is likely to have
the greatest impact on the sealers. All other means of persua
sion involve distance from the sealers and thus lack the force of
direct demonstrations.
That is not an issue raised by the appellants either
at trial or in their factum on appeal. The most that
can be said is that the learned Trial Judge did, at
page 263, in dealing with the section 1 justifica
tion, hold that, "The ice pans are no place to stage
a protest", having found:
There is something of a fine line between the activity of
searching for information to mount an effective protest against
a lawful commercial activity and the act of protesting that
activity at the very scene of operations.
The appellants also propose to argue that the
Regulations are not sufficiently precise to sustain a
limitation on a Charter guaranteed right. On the
basis of their factum, I infer that the appellants
may advance that proposition. The applicant did
not, however, urge its proposed intervention for
that purpose.
It is the inclusion of the right to demonstrate in
Charter guaranteed freedom of expression that the
applicant wishes to establish. That is a matter not
raised at trial and not proposed to be raised on an
appeal by the parties. Indeed, it is something
which the appellants expressly testified that they
had not sought to do.
I rather incline to the view, expressed by Ander-
son J.A. in Re Canadian Labour Congress and
Bhindi et al. (1985), 17 D.L.R. (4th) 193
(B.C.C.A.), at page 204, that
... it is important in dealing with Charter issues raised for the
first time, that the courts have the assistance of argument from
all segments of the community. The courts should not resist but
should welcome such assistance.
In Re Schofield and Minister of Consumer and
Commercial Relations (1980), 112 D.L.R. (3d)
132 (Ont. C.A.), at page 141, Thorson J.A.,
hypothesized an application to intervene by a simi
larly situated applicant, having no legal rights or
obligations at stake:
... one can envisage an applicant with no interest in the
outcome of an appeal in any such direct sense but with an
interest, because of the particular concerns which the applicant
has or represents, such that the applicant is in an especially
advantageous and perhaps even unique position to illuminate
some aspect or facet of the appeal which ought to be considered
by the Court in reaching its decision but which, but for the
applicant's intervention, might not receive any attention or
prominence, given the quite different interests of the immediate
parties to the appeal.
Accepting that the applicant meets those cri
teria, I do think that the matter sought to be dealt
with by an intervenor on appeal must at least have
been put in issue at trial. Unless that has been
done, it is not an issue which ought to be con
sidered by an appeal court over the objection of a
party, if for no other reason than that the party
has not had a fair opportunity to direct its mind to
the issue and to lead pertinent evidence.
I would dismiss this application.
HEALD J.: I agree.
URIE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.