File No. 36353 in the SUPREME COURT of CANADA (ON APPEAL from the FEDERAL COURT of APPEAL)

File No. 36353 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

BETWEEN: LYNNE M. QUARMBY, ERIC DOHERTY, RUTH WALMSLEY, JOHN VISSERS, SHIRLEY SAMPLES, FORESTETHICS ADVOCACY ASSOCIATION, TZEPORAH BERMAN, JOHN CLARKE, and BRADLEY SHENDE APPLICANTS (APPELLANTS) AND: ATTORNEY GENERAL OF CANADA, TRANS MOUNTAIN PIPELINE ULC, CANADIAN ASSOCIATION OF PETROLEUM PRODUCERS, and NATIONAL ENERGY BOARD RESPONDENTS (RESPONDENTS)

MOTION FOR INTERVENTION BY DR. KENNEDY STEWART

Filed pursuant to Rules 47 and 55 of the Rules ofthe Supreme Court ofCanada

Counsel for the Motion Applicant, Dr. Kennedy Stewart Gary Caroline and Joanna Gislason Caroline + Gislason Lawyers LLP 15 Gore A venue Vancouver, BC V6A2Y8

Telephone: 604.633.1880 Fax: 604.633.1883 [email protected] j [email protected] Counsel for the Applicants Lynne M. Agent for the Applicants Lynne M. Quarmby, Eric Doherty, Ruth Walmsley, Quarmby, Eric Doherty, Ruth Walmsley, John Vissers, Shirley Samples, ForestEthics John Vissers, Shirley Samples, ForestEthics Advocacy Association, Tzeporah Berman, Advocacy Association, Tzeporah Berman, John Clarke, and Bradley Shende John Clarke, and Bradley Shende David J. Martin, Tamara Duncan, Casey D. Lynne Watt L. Leggett and Sarah E. Sharp Gowling Lafleur Henderson LLP Martin + Associates 160 Elgin Street Suite 2600 863 Hamilton Street Ottawa, ON KIP IC3 Vancouver, BC V6B 2R7 Telephone: 613.786.8695 Telephone: 604.682.4200 Fax: 613.788.3509 Fax: 604.682.4209 Email: [email protected] Email: [email protected]

Counsel for the Respondent the Attorney Agent for the Respondent the Attorney General of Canada General of Canada Michael Doherty Christopher M. Rupar Department of Justice Canada Attorney General of Canada 900-840 Howe Street 50 O'Connor Street, Suite 500, Room Vancouver, BC V6Z 2S9 557 Telephone: 604.666.5978 Ottawa, ON KIA OH8 Fax: 604.666.2710 Telephone: 613.670.6290 Email: [email protected] Fax: 613.954.I920 Email: [email protected]

Counsel for the Respondent Trans Mountain Pipeline ULC Maureen Killoran, QC and Heather A. Robertson Osler, Hosken & Harcourt LLP Suite 2500, TransCanada Tower 450 - I st Street SW Calgary, Alberta T2P SHI Telephone: 403.260.7003 Fax: 403.260.7024 Email: [email protected] Counsel for the Respondent the Canadian Association of Petroleum Producers Nikol J. Schultz Canadian Association of Petroleum Producers 2100, 350-7111 Ave SW Calgary, AB T2P 3N9 Telephone: 403.267.1175 Fax: 403.261.4322 Email: [email protected]

Counsel for the Respondent the National Energy Board Asad Chaudhary and Andrew Hudson National Energy Board 444 - 7111 A venue SW Calgary, AB T2P OX8 Telephone: 403.299.2715 Fax: 403.329.2550 Email: Asad.Chaudhary@neb one.gc.ca TABLE OF CONTENTS

MOTION FOR INTERVENTION BY DR. KENNEDY STEWART

TAB

Notice of Motion 1

Affidavit #1 of Kennedy Stewart 2

Exhibit A

Exhibit B

Memorandum of Argument 3

Part I- Statement of Facts

Part II - Question in Issue

Part III - Statement of Argument

Part IV - Costs

Part V - Orders Sought

Part VI - Table of Authorities

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927 [excerpt] A TAB1 File No. 36353 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

BETWEEN: LYNNE M. QUARMBY, ERIC DOHERTY, RUTH WALMSLEY, JOHN VIS SERS, SHIRLEY SAMPLES, FORESTETHICS ADVOCACY ASSOCIATION, TZEPORAH BERMAN, JOHN CLARKE, and BRADLEY SHENDE APPLICANTS (APPELLANTS) AND: ATTORNEY GENERAL OF CANADA, TRANS MOUNTAIN PIPELINE ULC, CANADIAN ASSOCIATION OF PETROLEUM PRODUCERS, and NATIONAL ENERGY BOARD RESPONDENTS (RESPONDENTS)

NOTICE OF MOTION

MOTION FOR INTERVENTION BY DR. KENNEDY STEWART

Filed pursuant to Rules 47 and 55 of the Rules of the Supreme Court of Canada

TAKE NOTICE that Dr. Kennedy Stewart applies to a judge under Rules 55 to 57 of the Rules ofthe Supreme Court of Canada for the following orders.

1. An order granting Dr. Kennedy Stewart leave to intervene in the Application for Leave to Appeal.

2. An order that Dr. Stewart's submissions in the present motion's Memorandum of Argument be considered by this Court in the determination of the Application for Leave to Appeal.

1 3. An order specifying that Dr. Stewart is not liable for any party's costs.

4. Any further or other order that the judge may deem appropriate.

AND FURTHER TAKE NOTICE that the motion shall be made on the following grounds:

1. As set out in his Memorandum of Argument, Dr. Stewart has an interest in the Application for Leave to Appeal and makes useful submissions different from those of the Applicants.

Dated at Vancouver, British Columbia this 22nd day of April 2015.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Counsel for the Motion Applicant, Dr. Kennedy Stewart Gary Caroline and Joanna Gislason Caroline + Gislason Lawyers LLP 15 Gore A venue Vancouver, BC V6A2Y8

Telephone: 604.633.1880 Fax: 604.633.1883 [email protected] j [email protected]

ORIGINAL TO: THE REGISTRAR

2 COPIES TO:

Counsel for the Applicants Lynne M. Agent for the Applicants Lynne M. Quarmby, Eric Doherty, Ruth Walmsley, Quarmby, Eric Doherty, Ruth Walmsley, John Vissers, Shirley Samples, ForestEthics John Vissers, Shirley Samples, ForestEthics Advocacy Association, Tzeporah Berman, Advocacy Association, Tzeporah Berman, John Clarke, and Bradley Shende John Clarke, and Bradley Shende David J. Martin, Tamara Duncan, Casey D. Lynne Watt L. Leggett and Sarah E. Sharp Gowling Lafleur Henderson LLP Martin + Associates I 60 Elgin Street Suite 2600 863 Hamilton Street Ottawa, ON KIP I C3 Vancouver, BC V6B 2R7 Telephone: 613.786.8695 Telephone: 604.682.4200 Fax: 613.788.3509 Fax: 604.682.4209 Email: [email protected] Email: [email protected]

Counsel for the Respondent the Attorney Agent for the Respondent the Attorney General of Canada General of Canada Michael Doherty Christopher M. Rupar Department of Justice Canada Attorney General of Canada 900-840 Howe Street 50 O'Connor Street, Suite 500, Room Vancouver, BC V6Z 2S9 557 Telephone: 604.666.5978 Ottawa, ON KIA OH8 Fax: 604.666.27IO Telephone: 613.670.6290 Email: [email protected] Fax: 613.954.I920 Email: [email protected]

Counsel for the Respondent the Canadian Association of Petroleum Producers Nikol J. Schultz Canadian Association of Petroleum Producers 2IOO, 350-7th Ave SW Calgary, AB T2P 3N9

3 Telephone: 403.267.1175 Fax: 403.261.4322 Email: [email protected]

NOTICE TO THE RESPONDENTS TO THE MOTION: A respondent to the motion may serve and file a response to this motion within 10 days after service of the motion. If no response is filed within that time, the motion will be submitted for consideration to a judge.

4 TAB2 File No. 36353 IN THE SUPRENIE COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

BETWEEN: LYNNE M. QUARMBY, ERlC DOHERTY, RUTH WALMSLEY, JOHN VISSERS, SHIRLEY SAMPLES, FORESTETHICS ADVOCACY ASSOCIATION, TZEPORAH BERMAN, JOHN CLARKE, and BRADLEYSHENDE APPLICANTS (APPELLANTS) AND: ATTORNEY GENERAL OF CANADA, TRANS MOUNTAIN PIPELINE ULC, CANADIAN ASSOCIATION OF PETROLEUM PRODUCERS, and NATIONAL ENERGY BOARD RESPONDENT$ (RESPONDENTS)

AFFIDAVIT #1 OF KENNEDY STEWART

MOTIONFORINTERVENTIONBYKENNEDYSTEWART

~' Dr. Kennedy Stewart, with an office address of 4658 Hastings Street in the City of Burnaby in the Province of British Columbia, AFFIRM THAT:

1. I make this affidavit in support of my motion to intervene in the leave to appeal application filed by Lynne M. Quannby, Eric Doherty, Ruth Walmsley, John Vissers, Shirley Samples, File No. 36353 Affidavit# 1 ofKStewart

ForestEthics Advocacy Association, Tzeporah Berman, John Clark and Bradley Shende (the "Applicants").

2. I support the Applicants' request for leave to appeal because I believe that the scope of public pmiicipation·at National Energy Board (''NEB") hearings is a matter of national importance.

3. I have been Member of Parliament for the Burnaby-Douglas riding since May 2, 201 L

· 4. In 2012, 19nder Morgan proposed an expansion to its. Trans Mountain Edmonton to Burnaby pipeline (the "Project").

5. The Project would triple the capacity of the current Trans Mountain pipeline system which transpotts oil from Northem Alberta through British Columbia to a tanker terminal loc!!ted in my Burnaby riding.

6. The expanded pipeline route is not finalized but, if approved, the Project will inevitably run through Burnaby and through the riding I represent.

7. As a scholar of public participation and as a Member of Parliament for and resident in the community of Burnaby, British Columbia, I have direct academic, personal and professional interests in Kinder Morgan's proposal and am concemed that the NEB's decision in this case will have a negative impact on Canadians' right to participate in government processes.

My Academic Qualificatio11s

8. I am on leave from my position as a tenured Associate Professor at Simon Fraser University's School of Public Policy. I attach my academic cmriculum vitae as Exhibit A.

9. I received a Masters of PolitiCal Science from Sirilon Fraser University ("SFU") in 1995. My thesis concerned municipal governments' accountability to their citizens.

2 File No. 36353 Affidavit# I ofK Stewart

10. I obtained a PhD in Government from the London School of Economics in 2003. My dissertation considered the iinpact of electoral rules on public paiiicipation.

11. From 2003 to 2011, I taught courses at SFU on democratic governance including a course on the role that public participation plays in policy making.

12. I have written a number of academic ru.ticles and texts. Several of my publications concern public paiiicipation in government processes.

i) Stewart~ Kennedy (2009') "Write the Rules and Win: Understanding Citizen Participation Game Dynamics." Public Administration Review 67(6): 1067-1076 .

. ii) Stewart, Kelliledy (2006) "Designing Good Urban Governance Indicators: The Importance of Citizen Participation and Its Evaluation in Greater Vancouver." Cities 23(3): 196-204.

iii) Stewart, Kennedy (2003) Think Democracy: Options for Local Democratic Reform in Van.couver. Vancouver: Institute of Governance Studies Press.

13. I appeared as an expe1t witness before the Vancouver Electoral Reform (Berger) Commission in2004.

14. I was an expert advisor to the British Columbia Local Government Elections Task Force from 2009 to 2010.

My Role as a Member ofParliament

15. I am currently the Official Opposition Critic for Science and Technology.

16. When the House is not in session, I live in Burnaby. My personal residence is approximately four kilometers away from the current pipeline and its tanker terminal.

3 File No. 36353 Affidavit # 1 ofK Stewaii

· 17. From October 3, 2011 to April 18, 2012, I served as the OfficiJ=Ll Opposition Associate Critic for Natural Resources in Western Canada. Since the NEB reports to Parliament through the Minister of Natural Resources, my p01ifolio included the NEB.

18. As Associate Critic for Natural Resources, I also served on the House's Standing Committee on Natural Resources. That Committee adopted my motion to study the "Current and Future State of Oil and Gas Pipelines and Refming Capacity in Canada".

19. In addition to my interest in pipelines, I have also been involved in public participation issues in the House of Commons. Recently I successfully sponsored a motion in the House about allowing public .electronic petitions to trigger House debate on a given topic.

My Involvement with the Trans Mountain Project

20. After Kinder Morgan aimounced its Project to expand the Trans Mountain pipeline, I engaged with my constituents in a consultation process in order to determine their thoughts on the proposal. The feedback I received leads me to believe that my constituents are overwhelmingly opposed to the Project.

21. As pait of my consultation process, I connnissioned a survey of Burnaby residents regarding their support for the expanded pipeline. The survey showed that 72% of decided respondents were opposed to the Pipeline.

22. Throughout the consultation process, I heard from my constituents that they are very

concerned about the Pipeline's many social ~d economic risks. Their concerns include the following.

i) The pipeline will pass through heavily populated areas.

ii) Increased pipeline capacity will increase oil tanker traffic in Burrard Inlet.

4 File No. 36353 Affidavit# 1 ofK Stewart

iii) The pipeline may be built using temporary foreign workers.

iv) Oil transported through the pipeline will not be refined or sold locally.

v) The Project will increase greenhouse gas emissions and contribute to climate change.

23. When the National Energy Board announced it would be considering applications for participant status at its hearing about-the Project, my office offered to assist any constituent who wished to apply for status.

24. I observed that the NEB' s participant application process was difficult for the public to navigate and that the NEB was not offering appropriate assistance to those wishing to apply.

I asked the NEB to extend its extremely short 28 day time limit to apply for participat~on status but my request was denied.

25. I was also concerned that the formality of the NEB participation process favoured certain groups of residents over others: home owners over renters, those with English-as-a-first

language over those for whom English is not a first language, wealthier over less-w~althy individuals and corporations over individuals.

26. I was told by my office staff that during the 28 day application window, they helped over a thousand people apply to the NEB for intervenor status.

27. My staff reporte.d to me that hundreds of applicants for intervenor status were rejected

outri~t by the NEB or were downgraded to commenter status, meaning the applicants' right

to participate in the hearing was limited to submitting one lett~r of comment to the NEB. The NEB did not give applicant specific reasons for each decision.

5 File No. 36353 Affidavit# l ofK Stewart

. 28. My wife, Jeanette Asbe, applied for intervenor status at the hearing before the NEB and listed me as her representative. I attach her application as Exhibit B. Ms. Ashe wrote that she was directly affected by Kinder Morgan's pipeline application for the following reasons.

i) She commutes to work through an area that would be highly disrnpted by pipeline construction.

ii) She owns a home with me close to the proposed expansion route and it seems likely that our property value may decline as a result of the Project.

iii) Given Kinder Morgan's safety record, she is concerned that an eventual oil spill is inevitable and she is not confident in Kinder Morgan's ability to mitigate the · .environmental and economic consequences of a spill.

iv) She does not believe that toxic diluted bitumen should be moved through ecologically sensitive or densely populated areas.

29. The NEB rejected Ms. Ashe's application for any status at the hearing but did not directly respond to her particular application. Instead the NEB issued a letter describing its general app!oach to all 2, 118 Applications to Participate.

30. The Project's precise route was unlmown during the 28 day window for requesting pa11icipant status and remains unknown today. In fact Kinder Morgan proposed alternate

Project routes after th~ deadline to apply for participant status. The result is that residents who may be seriously and directly affected by the Project have been denied the right to so much as write a letter to the NEB. Pursuant to s. 104 of the National Energy Board Act, R.S.C. 1985, c. N-7, for example, the NEB may issue right of entry orders to pipeline companies, allowing them to enter private land without landowner permission. It is conceivable that residents affected by the finalized route may be subject to such orders without having had the oppo1tunity to exercise their participation rights.

6 File No. 36353 Affidavit# 1 ofK Stewart

31, In addition to directly affected land owners, there are many people who may not reside along the route but who will nonetheless be affected by the expanded pipeline. For example, in the case of an on land oil spill, residents living fat from the pipeline may be affected especially if the oil passes into storm drains and streams.

32. I am also troubled that the NEB considei·s my constituents' concerns about the Project's connection to climate c)lange to be irrelevant.

33. As a result of the NEB 's decision to deny intervenor status to hundreds of people, the NEB has restricted public participation in this extremely important process.

Why I Believe This Case is ofNational Importance

34. Given my experience as a scholar of public participation in democratic governance, I have identified three reasons why I believe public engagement in the NEB hearing process is vitally important but was infringed by the NEB's decision in this case ..

35. In brief, there are three important principles at issue in this case: (i) in a democratic country like Canada, public participation is a goal to be pursued on its own merits; (ii) public participation legitimizes government decisions; and (iii) public participation helps decision makers reach better decisions. I support the Applicants' request for leave to appeal to this Court because I am concerned that the NEB' s decision has offended all three of these principles by infringing the freedom of expression rights of applicants for participant status at the NEB.

36. The first reason this case is important is the core democratic value that govemment designated representatives such as the NEB must make a genuine attempt to listen to community members' views. Parliament has recognized this democratic principle by delegating pipeline approval to. the NEB on the condition that the NEB acts in the "public

. interest" (s. 52(2)(e))and holds public heariilgs (s. 24(1)) at which the NEB hears fro~ those "directly affected" and those with "relevant information or expertise" (s. 55.2). The NEB's

7 . File No. 36353 Affidavit# 1 of K Stewart

naffow approach to granting participation rights, especially in limiting commenters to one letter and excluding submissions on climate change, offends the idea that public participation is a fundamental democratic principle.

37 .. Second, a government process like an NEB hearing has the best chance of being considered legitimate and of minimizing divisions Within a conununity if participants are content that the process was fair. No democratic government should have the power to inflict hann or hardship without at least hearing from those affected. In this case, participant status at the Project hearing has been unduly restricted particularly in light of the fact that the Project's · precise route through Bumaby remains unknown. Such a nan-ow approach threatens the legitimacy of the hearing in the eyes of the community. Illegitimate decision-making processes undermine democrac)'. and can be used by those feeling disenfranchised as a reason to act outside of the law.

38. Finally, public participation also helps a decision maker such as the NEB reach a sound decision by providing useful information about how the Project will affect the community. At the end of the Project hearing, the NEB will issue an opinion to the Minister of Natural Resource on whether the Minister should approve the Project and if so, whether the Minister should impose any terms and conditions as necessary or desirable in the public interest (the National Energy Board Act, s. 52(1)). Denying people intervenor status and downgrading intervenors to commenters limits the useful information available to the NEB in its hearing process and thus negatively effects the ultimate quality of the NEB decision about the Project.

39. This case is of national importance because NEB application,s for pipeline infrastructure approval affect people across the country. For example, the TransCanada Energy East Pipeline application to the NEB proposes to run a pipeline from Alberta through Saskatchewan, Manitoba, Ontario, Quebec and New Brunswick. Since the National Energy Board Aci applies to all interprovincial pipelines, allowing the NEB's decision in this case to stand will negatively impact public participation rights across Canada.

8 File No. 36353 Affidavit# 1 ofK Stewart

40. This affidavit is sworn in'support of the present motion and for no improper purpose.

AFFIRMED BEFORE ME at the City ) of Ottawa, in the Province of Ontario on ) April ~t201s. . · ) ) ) ) )

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9 ~- ' . . ~~ ' ~ ._...... School of public Policy · .. 515 West Hastings Street Vancouver, BC :_ . '•-~Ii.ill; Canada V6B 5K3 Tel: [778) 782-5289 . Kennedy Stewart Fax: (778) 782-5288 Associate Professor http:/fwww.sfu.ca/mpp/ (778) 782-7913 [email protected] www.kennedystewart.ca February 9, 2011

Highlights

Background

.1• Tenured Associate Professor In SFU School of Public Policy {November 2009 - current) • Visiting Senior Scholar, Government Department, London School of Economics (2009-2010) .. Awarded Doctorate in Government from· London Schoo!' of Economics (November 2003) .. Taught at 7 Universities including the London School of Economlcs and University College London " Former Director, Public Policy Program, Birklleck College (top-rated polltlcs department in London) Schol ariv contributions " 20 refereed publications .. 3 public policy publications o ~grants {$20,000 as principal investigator, $2.5 million as joint investigator} o 13 conference papers Teaching .. Designed a11d taught 18 different graduate courses • Senior supervisor, 82 Master's projects/dissertations • Recognized by Maclean's magazine as a top SFU professor (2005) Universitv and community service o Over 1000 print, radio and TV intetviews in local, ·national and international media • Government advisor, expert witness and conference coordinator _ o Parliamentary Candidate (NOP}, Vancouver-Centre, Canadian 2004 Federal Election

This is Exhibit 11 A 11 referred to .!n the affidavit of ... k.g.,l'.\~.~0.~.$.~~t"±:. sworn before me at .,..¢r.tlrA.V,'J,~ ...... this ..Cl r.;l~ ..f dayof .l.qJY.1"\ ...... ,20 .....IS: . 0 ... ,. .... OA.i~s~~i~~~ ...... : '(! for Sri\lsl I eoJat"filmt . 011.+o...ri'o Education

Doctorate in Government 1997-2003 London School ofEconomlcs and Political Science, London, United Kingdom· Thesis: 'Persistent Losing' and E/ectara!.Democracy in Three World Cities Supervisor: Professor Keith Dowding

Master of Arts in Political Science 1993-1995 Simon Fraser University, Burnaby, British Columbia, Canada Thesis: Citizens and Their Municipal Governments: fncreasing Accountability Supervisor: Professor PatrickJ. Smith

Bachelor of Arts in History 1984-1988 Acadia University, Wolfville, Nova Scotia, Canada Specializing in Canadian Social and Intellectual History

Current Employment

Associate Professor {fu!ltirne, permanent, tenured) Nov 2009 - Current School of Public Policy, Simon Fraser University

Courses- Core courses avg. 28 students, Option courses avg. 10 students Research Techniques· & Qua~titative Methods I (core course taught Sx) Research Techniques & Quantitative Methods n (core course taught 2x) Politlcal Foundations of Poltcy Analysis I (core mursetaught 2x) Political Foundation of Policy Analysis (core course taught lx} • Advanced Policy Analysis I (core course lx) • Advanced Policy Analysis II (core course 1x) • Public Participation in Public Policy (option course taught 4x) Comparative Metropolitan Governance {option course taught 2x) Public Management (optio.n course taught lx)

Master's Project Supervisions (20,000 words, primary research, multiple drafts) Senior supervisor for 42 · Projects have won awards and led to publication and PhD adrnissiO)l

Other Recognized by Maclean's Magazine as a top SFU professor (2005) • Acting School Director (December 2007) Ongoing committee membership and administrative work

Kennedy Stewart--2 Past Employment Assistant Profess?r (full-time, tenure track) Sept 2.003 - Nov 2009 School of Public Policy, Simon Fraser University 0 {see above) Instructor (full-time, temporary) July 2002 - Sept 2003 Urban Studies Program, Simon Fraser Univ.ersity Urban Development, Planning and Policy (core course) " · Urban Governance (<;:ore course) " Program administration · Occasional Acting director Lecturer {full-time, temporary) Sept 2001-July 2002 School of Public Policy, University College, University of London • Democracy and Constitutional Change (co-lecturer) Public Policy Formation {core course, co-lecturer) " Public Management (core course, co-lecturer) . Qualitative and Quantitative Research Methods (core course, co-lecturer} • Senior supervisor for 15 Master's dissertations . Director, Public Policy /Management Master's Program (full-time, temporary) Sept 2000 - Aug 2001 School of Politics, Birkbeck College, University of London Public Policy (core course) · Public Management (core course) " Program administration, admissions, etc. Senior Supervisor for 25 Master's dissertations Lecturer (part-time, temporary) Jan 2000 - April 2000 Department of Government, Brunel University Local Government & the Third.Sector in Britain Lecturer' (part-time, temporary} Jan 2000. - April 2000 Department of Social Policy & Politics, Goldsmith's College, University of London The Politics of British Local Government Class Teacher (part-time, temporary) Oct 1998 - April 2000 London School of Economics and Political Science, University of London • Voters, Parties and Elections • Government, Politics and Public Policy in the USA • British Law and Government Lecturer (part-time, temporary} Jan 1996 -Aug 1997 Department of Political Science, Simon Fraser University o Public Administration and the Administration of Justice • . Introduction to Local Government and Politics Canadian Local and Urban Government and Politics

Kennedy Stewart -3 Publications Note: RJ =refereed journal article, RBC =refereed book chapter, r =reviewed publication

2009 (RBC) Smith, Patrick J. and l

2008 {RJ} Stewart, Kennedy, Patricia Maciver and Stewart Young {2008) "Testing and Improving Voters' Political Knowledge." Canadian Pubflc Policy. (RJ} Stewart, Ke1rnedy (2008) "Inaction Costs: Understanding !Vletropolltan Governmental System Reform Dynamics ill Toronto." Canadian Political Science Review 2(1): 16-34. (r) Stewart, Kennedy (2008) Local Democracy and Governance Distance Education Course Reader and Study Guide. Burnaby: Simon Fraser University Centre for Online and Distance Education.

{RBC) Stewart, Kennedy (at press) "Keith ~owding." In Encyclopedia of Power, edited by Keith Dowding. London: Sage. · (RBC) Stewart, Kennedy (at press) "Robert Dahl." In Encyclopedia of Power, edited by Keith Dowding. London: Sage. (RBC) Stewart, Kennedy (at press) "World Cities." In Encyclopedia of Power, edited by Keith Dowding. London: Sage.

2007 {RJ) Stewart, Kennedy {2007) "Write the Rules and Win: Understanding Citizen Participation Game Dynamics." Public Administration Review 67(6): ~067-1076. (RBC} Stewart, Kennedy'and Patrick J. Smith (2007) "Immature Polley Analysis: Building Capacity in Eight Major Canadian Cities." In Policy Analysis In Canada: The State of the Art, edited by Laurent Dobuzinskis, Michael Howlett and David Laycock. Toronto: University ofToronto Press, Z65-287. (r) Smith, ·Patrick J. and Kennedy Stewart (2007) Global Calgary: A Globalist Strategy for the City of Calgary Ottawa: Canadian Policy Research Networks.

2006 (RJ) Stewart, Kennedy (2006} "Designing Good Urban Governance Indicators: The Importance of Citizen Participation and Its Evaluation in Greater Va~couver." Cities 23(3): 196-204. (RBC} Stewart, Kennedy (2006) "Why Insulate New Institutions? Evaluating Pre- & Post-Change Support for. Metropolitan Reform in London and Toronto." !n Metropolitan Governing: Canadian Cases, Comparative Lessons, edited by PatrickJ. Smith, and Eran Razin. Jerusalem: Hebrew University of Jerusalem (Magnes) Press, 245-73. {RBC) Smith, Patrick and Kennedy Stewart (2006) "Local Whole of Government policy-Making Jn Vancouver" In Canada: The State of the Federation, 2004, edited by Robert Young and Christian Leuprecht. Kingston: Institute of Intergovernmental Relations, McGill-Queen's University Press, 251-72.

/(ennedy Stewart -4 2005 (RBC} Smith, PatrickJ. and Kennedy Stewart (2005) "Local Government Reform in British Columbia, 1991- 2005: One Oar in the Water."ln Municipal Reforms in Canada: Dynamics, Dimensions, Determinants, edited by Joseph Garcea and Edward C. leSageJr. Don Mills: Oxford University Press, 25-56. . (r) Stewart, Kennedy (2005) Institutional 'Best Practices' For an Ecosystem-Based Management Working Group; Ten Organizing PiJlars. A report prepared for the Interim Ecosystem-Based Management Working. Group, Great Bear Rainforest. · ·

2004 {RJ) Smith, PatrickJ. and Kennedy Stewart (2004) "Beavers and CatS Revisited." Korean Local Government Review 6(1}: 123-156.

2003 Stewart, Kennedy (2003) Think Democracy: Options for Local Democratic Reform in Vancouver. Vancouver: Institute of Governance Studies Press. ·

Pre~2003 Smith, Patrick J. and Kennedy Stewart (1998) Maklng local Accountability Work in British Columbia, Vancouver: Institute of Governance Studies, Simon Fraser University. Government Commissioned Report for British Columbia Ministry of Municipal Affairs and Housing. (r} Stewart, Kennedy (1998} The Administratfon ofJustice Distance Education· Course Reader and Study Guide, Burnaby: Simon 'Fraser University Centre for Online and Distance Education. (RJ) Stewart, Kennedy (1997)."Measuring Local Democracy: The Case of Vancouver." Canadian Journal of Urban Research 6(2): 160-83. (r) Stewart, Kennedy (1996) "The Road to Best Practices: To Istanbul via Metropolitan Toronto." In Urban Solutions to Global Problems, edited by Patrick J. Smith, H. Peter Oberlander and Tom Hutton. Vancouver: Centre for Human Settlem~nts, 19.1-200.

Conference Papers Stewart, Kennedy and PatrickJ. Smith (2008) "Who Needs Capacity-Building? Urban Aboriginal Homelessness in Vancouver." British Columbia Political Studies Association Conference, University of the Fraser Valley, Abbotsford, British Columbia. Smith, Patrick J. and l

Kennedy Stewart -5 Smith, Patrick J. and Kennedy Stewart (2005) "The COPE lnterlud_e: Lessons on Keeping Political Power - The Vancouver f:xperience." Centre for Public Sector Studies, Public Lecture Series, University of Victoria, Victoria, British Columbia. Smith, Patrick J. and Kennedy Stewart (2005) "Local Multilevel Governance: Provincial Overview-- British Columbia." Public Policy In Municipalities Forum, Social Science arid Humanities Council Major Collaborative Research Initiative, Toronto, Ontario. Stewart, Kennedy and PatrickJ. Smith (2004) "Unaided Politicians In Unaided City Councils? Explaining Policy Advice In Canadian Cities." Policy Analysis in Canada Workshop, SFU Centre for Policy Re~earch, Vancouver, British Columbia. Stewart, Kennedy and PatrickJ. Smith (2004} "Unaided Politicians in Unaided City Councils: Explaining Policy Struggles in Canadian Cities." British Columbia Political Studies Association Conference. Kwantlen · U11iversity College, Richmond, British Columbia. Smith, Patrick J. and Kennedy Stewart (2003} "Beavers and Cats Revisited Creatures & Tenants vs. Mµnlcrpal Charter{s) & Home Rule Has the Local-Intergovernmental Game Shifted?" Municipal-Feqeral~ Provincial Relations Conference Canadian Network of Federalism Studies (CNFF-RCEF) Institute of Intergovernmental Relations, School of Public Policy Queen's University, Kingston, Ontario. Smith, Patrick J. and Kennedy Stewart (2002) "Singing From the Same Hymn' Sheet: Judging the Potential of . Greater London's 'Big Church' vs. Metropolitan Toronto's 'Big Stick' approaches to local Government Reorganization." Canadian Policy Secretariat Conference, Ottawa, Ontario. Stewart, Kennedy (2002} "'Big Tents' vs. 'Big Sticks': Regional Governance Reform in Greater London and Metropolitan Toronto - Strategies and Potential Impacts". Canadian Political Science As,s~ciation Annual General Meeting, Toronto, Ontario; Stewart, Kennedy and PatrickJ. Smith (1999} "Squandered Opportunity: Mu.nicipal Reform in British· Columbia under the New Democratic Party," Canadian Political Science Association Annual General Meeting, Sherbrooke, Quebec. Stewart, Kennedy (1999) "Comparative Politics atthe 'End of History': Assessing the Democratic Performance of Electoral Systems." Canadian Political Science Association Anriual General Meeting, Sherbrooke, Quebec. Stewart, Kennedy (1999) "Assessing Democratic Effectiveness." ?olitical Studies Association Annual General Meeting, Nottingham, United Kingdom. ·

Funding Principal Investigator, $5,000 SSHRC SmaU·Grant British Columbia Representation Study, 2005 2005 Principal Investigator, $5,000, Vancouver Sun Grant Vancouver 2005 Municipal Efection Exit Poll 2005

Principal Investigator, $10,000 SSHRC President's Research Grant Women in World Cities 2004 Joint Investigator, $2.5 Million SSH RC Major Collaborative Research Initiative Multilevel Governance 2004 and Public Policy in Canadian Municipafities

Kennedy Stewart - 6 University and Community Service

Departmental Service Departmental "committee-of-the-wholeN meetings Ongoing

Acting Chair Dec2007

Member, Tenure and Promotion Committee Sept 2006-Current

Co-organizer, Inclusion in Multicultural Vancouver Action Learning Forum Feb 2006 - Oct 2006

Universitv Service Member, Steering Cpmmittee, Urban Studies Program· July f002- 2010

Member, Faculty Search Committee, Urban Studies Program Sept 2003 - April 2005

Service to the Communitv and Miscelfaneous Activities Over 1000 print, radlo and 1V intervlews in local, national and internatio11al media Ong9ing

Guest columnist - Vancouver Sun, Windsor Star, Calgary Herald, Ottawa-CiUzen Ongoing

Referee, British Columbia Studies, Canar:[ian Journal of Political Science, Canadian Journal of Ongoing Sodo/ogy, Canadian Political Science Review, Canadian Journal of Urban Research, Thomson/Nelson Press. Grant reviewer, Social Sciences and Humanities Research Council of Canada Ongoing

Expert Advisor, British Columbia Local. Government Elections Task Force 2009-2010

Session Presenter, Democracy, Human Rights and Good Governance Training Programme, 2007 United Kingdom Foreign and Commonwealth Office Advisor, 17th International Conference on the Reduction of Drug Related Harm 2006

Co-chair, Think City Society 2003-2006

Advis9r, British Columbia Citizen's Assembly on Electoral Reform 2.004

Lead Investigator, United Nations Human Settlements Programme, Urqan Governance 2004 Index, Vancouver Segment. Parliamentary Candidate {NDP), Vancouver-Centre, Canadian 2004 Federal Election 2004

Panelist, Vancouver Urban Observatory Designing Good Urban Indicators Workshop 2005

Panelist, Canadian Jewish Congress, Maintaining Civil Discourse Conference. 2005

Expert Witness, Vancouver Electoral Reform (Berger) Commission 2004

Panelist, Public Deliberation in an Adversarial World: A Forum with John Forrester 2003

Student, ECPR Methodological Summer School, Essex University 2001

Kennedy Stewart- 7

..,: .. Coordinator, Culture & Equality Roundtable, London School of Economics (w Brian Barry) 2000

Chief Researcher, ESRC funded project on Greate.r London Authority 2000

Conference Coordinator, Political Studies Association 2000 Graduate Conference 2000

Conference Coordinator, Participation & Democracy, London School of Economics 2000

Conference Coordinator, United Nations Habitat II (Vancouver Colloquium) 1996 Associated Positions Visiting Senior Scholar, Government Department, London School of Econom\cs 2009-2010

Research Associate, London School of Economics Public Policy Group 2008- current

Associate, SFU Department Political Science Sept 2004 - Current

Dialogue Associate, SFU. Centre for Dialogue Sept 2004 - Current

Senior Research Associate, SFU Institute of Governance Studies Sept 1997 - Current

Co-Chair, SFU Vancouver Urban Observatory Sept 2005 - April 2006

Book Revfows Stewart, Kennedy (2006} Revie_w of Applied Statistics for Public Policy, by Brian P. Macfle and Philip M. Nufrio. Journal of Comparative Policy Analysis 8(4): 452. Stewart, Kennedy (2005) Review of Understanding Research for Social Policy and Practice: Themes, Method and Approaches, edited by Saul Becker and Alan Bryman. Journal of Comparative Policy Anafysis7 (1): 117. Stewart, Kennedy (2003) Review of Theories of Democracy: A Critical Introduction by Frank Cunningham. Political Studies 1(3 ): 361. Stewart, Kennedy (2000) Review of Nonvoters: America's No-Shows for.Politiccd Studies 48(4): 875. . - - ;

Kennedy Stewart- 8 This is Exhibit" B "referred to in the affidavit of' .. K~~.r.R~.\J1. .SXW.l~ ..... sworn before me at ...... 0 1ttl .,..": V' ...... (A. .,, • oO'l • d t A,, ' I IS"" thus .. .r.;.l:R..~ay of .... 1 ..·;~ 20 .. r... National Energy Office national.,.. 0 ...... ~ ...... ,.. .,, .. ,,,,. Board de l'energ le ctmmissroner for ~king Affldavil$ for Bdtis!; Oolur116la Dtf\~D

Application to Participate{A58688) [Filing Date: 2914-02-12 Hearing Information

Project Name: Trans Mountain Pipeline Expansion Project Company: Trans Mountain Pipeline ULC File Number: OF-Fac-Oil-T260-20B-03 02 I am Applying as:

0 An Individual 0 Authorized Representative on Beha\f of an Individual 0 AGroup ·

Contact Information:

Salutation: Ms. Last Name: Ashe First Name: Jeanette Title: Address: f------1 Organization: #402 - 4570 Hastings Street 1------1Burnaby, British Columbia VSCOE8 ~T_e_le~p_ho_n_e_:_7_7_87_3_7_3_75_9_____ ~------~--1Canada Facsimile: Ema ii Address: [email protected]

Authorized Representative(s) Information:

444 Seventh Avenue SW Telephone/Telephone : (403) 292-4800 Calgary, Alberta T2P .oxs Facsimile/Telecopieur: (403) 292-5503 l'{

Method of Participation

I wish to participate as a: 0 Commenter 0 Intervenor

·Interest or Expert~se

0 I am directly affected by the proposed Project D I have relevant information or expertise Connection to Project Issues

444 Seventh Avenue SW Telephone/Telephone: (403) 292-4800 Calgary, Alberta T2.P OX8 Facsimile/Telecopieur: (403) 292-5503 http://www .. ne.b-one.gc.ca 444, Septieme Avenue s.-o. 1-800-899-1265 Calgary (Alberta) T2P OX& Canada 2 1. The need for the proposed Project. 2. The economic feasibility of the proposed project. 3. The potential commercial impacts of the proposed Project. 4. The potential environmental and socio-economic effects of the proposed project, including any cumulative environmental effects that are likely to result from the project, including those required to· be considered by the NEB's Filing Manual. 5. The potential environmental an.d socio-economic effects of marine shipping ;;ictivities that would result from the proposed Project, including the potential effects of accidents or malfunctions that may occur. 6. The appropriateness of the general route and land requirements for the proposed project.

7. The suitability of the design of the propo~ed project. 8. The terms and conditions to be included in any approval the Board may issue. 10. Potential impacts of the project on landowners and land use. 11. Contingency planning for spills, accidents or malfunctions, during construction and operation of the project. 12. Safety and security during construction of the proposed project and operation of the project, including emergency r.esponse planning and third~party damage prevention. lam strongly opposed to the approval ofthls project.

As a local resident, I commute daily on Hastings Street and the Lougheed Highway to and from my place of work, arid pipeline construction in the area would be highly disruptive to my everyday activlties. Additionally, my husband and I own a home that is close to the proposed expansion route, and it seems likely that if the project goes ahead that our property values wilt decline as a result.

I am concerned, given the safety records of the parties involved, that an eventual spill of oil from this project into the surrounding community is inevitable. i am not confident in the ability of Kinder Morgan to adequately mitigate either the environmentai darriage that would result, or the economic consequences for the residents affected, nor am I convinced that the NEB has the ability to impose stringent enough conditions upon Kinder Mor~an to rectify this to the satisfaction of the local population.

l do not believe that diluted bitumen should be piped through densely populated urban areas. Moving toxic materials through ecologically sensitive areas where large numbers of citizens reside and recreate poses an unacceptable risk to public health and the local environment. Given that there is already an energy corridor through this area, the demonstrable risks of expanding the capacity ofthat infrastructure seem to far outweigh the potential rewards. Access, Notification and Service

444 Seventh Avenue SW Telephone/Telephone: (403) 292-4800 Calgary, Alberta T2P OX8 facsimile/Telecopreur: {403) 292-5503 http://www .. neb-one.gc.ca 444, Septleme Avenue S.-0. 1~800-899-1265 Calgary (Alberta) T2P OX8 Canada 3 Which official language do you wish to use in correspondence with the Board and at the public hearing?

Documents submitted electronically are available on the Board's electronic document repository, (Click 'View' under 'Regulatory Documents' at www.neb-one.gc.ca}. If you have the capability to access the repository, the Board and other Partidpants in this proceeding may serve you by notifying you that a document has been filed and is available in the repository, instead of serving you with a hard copy of the document. Are you able to access th~ Board's electronic document repository'? Yes 0 No D

Notification by email advising that a document has been filed will be sent to the following email addresses:

Jeanette Ashe [[email protected]] Kennedy Stewart [[email protected]

444 Seventh Avenue SW Telephone/Telephone; (403) 292-4800 Calgary, Alberta T2P OX8 Facsimile/Tel~copleur: (403) 292-5503 http://www.. neb-one.gc.ca 444, septlerne Avenue s.-o. 1-800-899-1265 Calgary (Alberta) T2P OX8 Cariada 4 TAB3 File No. 36353 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

MEMORANDUM OF ARGUMENT

MOTION FOR INTERVENTION BY DR. KENNEDY STEWART

Filed pursuant to Rules 47 and 55 of the Rules ofthe Supreme Court of Canada TABLE OF CONTENTS

Page

Part I - Statement of Pacts 1

Part II - Question in Issue 2

Part III - Statement of Argument 2

A. Dr. Stewart's Interest in the Application for Leave to Appeal 2

B. Dr. Stewart's Submissions on the National Importance of this Case 3

Part IV - Costs 5

Part V - Orders Sought 5

Part VI - Table of Authorities 7 1

PART I- STATEMENT OF FACTS

1. Dr. Kennedy Stewart requests leave under Rules 47 and 55 of the Rules ofthe Supreme Court of Canada to intervene in the application for leave to appeal brought by Lynne M. Quarmby, Eric Doherty, Ruth Walmsley, John Vissers, Shirley Samples, ForestEthics Advocacy Association, Tzeporah Berman, John Clarke, and Bradley Shende (the "Applicants").

2. The case under appeal concerns the restricted scope of public participation in the National Energy Board ("NEB") hearing into Kinder Morgan's application to expand its Trans Mountain pipeline (the "Project"). The Project runs from Northern Alberta to Burnaby, British Columbia.

3. Dr. Stewart's position is that the Applicants' request for leave to appeal should be granted because public engagement in NEB hearings engages fundamental democratic principles and thus is a matter of national importance.

4. Dr. Stewart is a scholar of public participation in government policy making. He is currently on leave from Simon Fraser University's School of Public Policy.

Affidavit # 1 of Kennedy Stewart at para. 8

5. Dr. Stewart has been the Member of Parliament for the Burnaby - Douglas riding since May 2, 2011.

Affidavit # 1 of Kennedy Stewart at para. 3

6. Dr. Stewart's constituency office assisted over a thousand people to apply for intervenor status at the NEB's Project hearing. Hundreds of applicants were denied any standing at the hearing or were downgraded from intervenor to commentator status, meaning they could only submit one letter of comment to the NEB.

Affidavit# 1 of Kennedy Stewart at paras. 26 - 27 2

PART II- QUESTION IN ISSUE

7. The question at issue in this motion is whether Dr. Kennedy Stewa1i should be granted leave to intervene in the Applicants' Application for Leave to Appeal.

PART Ill-STATEMENT OF ARGUMENT

8. Dr. Stewart has direct experience with and interests in this case. Dr. Stewart's submissions differ from those of the Applicants and will be useful to the Court when considering the Application for Leave to Appeal.

A. Dr. Stewart's Interest in the Application for Leave to Appeal

9. Pursuant to the Rules ofthe Supreme Court of Canada, "[a]ny person interested in an application for leave to appeal" may apply for intervener status. Dr. Stewart has academic, personal and professional interests in this case.

Rule 55, Rules ofthe Supreme Court of Canada

10. Dr. Stewart has masters and doctorate degrees in democratic governance issues and he has published and taught university-level courses on public participation in policy making.

Affidavit# 1 of Kennedy Stewart at paras. 8 - 12

11. Dr. Stewart is also personally affected by the NEB' s decision. He resides in Burnaby within four kilometers of the current pipeline and its tanker terminal. In addition, his wife, Jeanette Ashe, was denied intervenor status at the NEB hearing.

Affidavit# 1 of Kennedy Stewart at paras. 16, 28 and 29 3

12. Professionally, Dr. Stewart is also interested in this case as Member of Parliament for the Burnaby - Douglas riding through which the expanded pipeline will run. Dr. Stewart has consulted with his constituents about the Project and his office has assisted with applications for NEB participation status.

Affidavit# 1 of Kennedy Stewart at paras. 20 - 27

B. Dr. Stewart's Submissions on the National Importance of this Case

13. Dr. Stewart seeks leave to intervene in order to urge this Court to hear the requested appeal because it raises significant constitutional issues of national imp01iance.

14. Dr. Stewart is concerned that the NEB's decision in this case undermines democratic discourse, one of the three fundamental purposes underlying the Charter's freedom of expression guarantee, the other two purposes being truth finding and self-fulfillment. Democratic discourse has been described by this Court as the constitutional principle that "participation in social and political decision-making is to be fostered and encouraged".

Irwin Toy Ltd v. Quebec (Attorney General), [1989] 1 SCR 927 at 976

15. Based on Dr. Stewart's scholarly expertise and his personal and professional experience with this case, he submits that the NEB' s decision infringes three principles of democratic discourse.

(i) In a democratic country like Canada, public paiiicipation is a goal to be pursued on its own merits;

(ii) public participation legitimizes government decisions; and

(iii) public participation helps decision makers reach better decisions.

Affidavit# 1 of Kennedy Stewart at para. 35

16. Dr. Stewart's affidavit further explains how the NEB's decision infringes each of these 4

principles.

The first reason this case is important is the core democratic value that government designated representatives such as the NEB must make a genuine attempt to listen to community members' views. Parliament has recognized this democratic principle by delegating pipeline approval to the NEB on the condition that the NEB acts in the "public interest" (s. 52(2)(e)) and holds public hearings (s. 24(1)) at which the NEB hears from those "directly affected" and those with "relevant information or expertise" (s. 55.2). The NEB's narrow approach to granting participation rights, especially in limiting commenters to one letter and excluding submissions on climate change, offends the idea that public participation is a fundamental democratic principle.

Second, a government process like an NEB hearing has the best chance of being considered legitimate and of minimizing divisions within a community if paiiicipants are content that the process was fair. No democratic government should have the power to inflict harm or hardship without at least hearing from those affected. In this case, participant status at the Project hearing has been unduly restricted particularly in light of the fact that the Project's precise route through Burnaby remains unknown. Such a narrow approach threatens the legitimacy of the hearing in the eyes of the community. Illegitimate decision making processes undermine democracy and can be used by those feeling disenfranchised as a reason to act outside of the law.

Finally, public participation also helps a decision maker such as the NEB reach a sound decision by providing useful information about how the Project will affect the community. At the end of the Project hearing, the NEB will issue an opinion to the Minister of Natural Resource on whether the Minister should approve the Project and if so, whether the Minister should impose any terms and conditions as necessary or desirable in the public interest (the National Energy Board Act, s. 52(1)). Denying people intervenor status and downgrading intervenors to commenters limits the useful information available to the NEB in its hearing process and thus negatively effects the ultimate quality of the NEB decision about the Project.

Affidavit# 1 of Kennedy Stewaii at paras. 36 - 38

17. The issues in this case transcend the particular circumstances of the Trans Mountain Project because NEB applications for pipeline infrastructure approval affect people all across the country.

Affidavit# 1 of Kennedy Stewaii at para. 39 5

18. In summary, this Court should grant the Applicants leave to appeal in order to ensure that NEB hearings respect democratic participation rights. It is vitally important that the public fully and meaningfully participate in government policy processes like pipeline approval hearings.

19. Canada is a constitutional democracy founded on the general principle that our government should be of, by and for the people. If government was just to be "for" the people, then public participation in decision-making would not be required. However, government is "by" and "of' the people and so democracy demands meaningful public participation through freedom of expression.

PART IV - COSTS

20. Dr. Stewart does not seek costs and asks that no costs be awarded against him.

PART V - ORDERS SOUGHT

21. Dr. Stewart requests the following relief.

A. An order granting Dr. Kennedy Stewart leave to intervene in the Application for Leave to Appeal;

B. An order that Dr. Stewart's submissions in the present motion's Memorandum of Argument be considered by this Court in the determination of the Application for Leave to Appeal;

C. An order specifying that Dr. Stewart is not liable for any party's costs; and 6

D. Any further or other order that the Court may deem appropriate.

Dated at Vancouver, British Columbia this 22nd day of April, 2015.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Counsel for the Motion Applicant, Dr. Kennedy Stewart Gary Caroline and Joanna Gislason Caroline + Gislason Lawyers LLP 15 Gore A venue Vancouver, BC V6A2Y8

Telephone: 604.633.1880 Fax: 604.633.1883 [email protected] j [email protected] 7

PART VI-TABLE OF AUTHORITIES

TAB Authority Para.

A Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927 14 TABA [1989] 1 R.C.S. IRWIN TOY LTD. c. QUEBEC (P. G.) 927

The Attorney General of Quebec Appellant Le procureur general du Quebec Appelant v. c. Irwin Toy Limited Respondent Irwin Toy Limited Intimee a and et Gilles Moreau in his capacity as President of Gilles Moreau en sa qualite de president de the Office de la protection du consommateur l'Office de la protection du consommateur Intervener Intervenant b and et The Attorney General for Ontario, the Le procureur general de l'Ontario, le Attorney General for New Brunswick, the procureur general du Nouveau-Brunswick, le Attorney General of British Columbia, the c procureur general de la Colombie Attorney General for Saskatchewan, Britannique, le procureur general de la Pathonic Communications Inc., Reseau · Saskatchewan, Pathonic Communications Pathonic Inc., and the Coalition contre le Inc., Reseau Pathonic Inc., et la Coalition r.etour de la publicite destinee aux enfants centre le retour de la publicite destinee aux lnterveners d enfants Intervenants

INDEXED AS: IRWIN TOY LTD. V. QUEBEC (ATTORNEY REPERTORIE: IRWIN TOY LTD. C. QUEBEC (PROCUREUR GENERAL) GENERAL) File No.: 20074. N° du greffe: 20074. e 1987: November 19, 20; 1989: April 27. 1987: 19, 20 novembre; 1989: 27 avril. Present: Dickson C.J. and Beetz, Estey*, Mcintyre, Presents: Le juge en chef Dickson et !es juges Beetz, Lamer, Wilson and Le Dain* JJ. Estey*, Mcintyre, Lamer, Wilson et Le Dain*.

ON APPEAL FROM THE COURT OF APPEAL FOR f EN APPEL DE LA COUR D' APPEL DU QUEBEC QUEBEC Constitutional law - Distribution of legislative Droit constitutionnel - Partage des pouvoirs /egisla powers - Commercial advertising - Provincial legis tifs - Publicite commerciale - Loi provinciale inter lation prohibiting commercial advertising directed at disant la publicite commerciale destinee a des person- · -persons under thirteen years of age - Whether provin g nes de mains de treize ans - La loi provinciale est-elle cial legislation ultra vires the provincial legis.lature - ultra vires de la legislature provinciale? - Legislation Colourable legislation - Impairment offederal under de~isee - Entrave aune entreprise federate-'--- Conflit takings - Conflict with federal legislation - Criminal avec la legislation federate - Droit criminel - Loi law - Constitution Act, 1867, ss. 91, 92 - Consumer constitutionnelle de 1867, art. 9 I, 92 - Loi sur la Protection Act, R.S.Q., c. P-40.I, ss. 248, 249 - h protection du consommateur, L.R.Q., chap. P-40.i, art. Broadcasting Act, R.S.C. I 970, c. B-11, s. J(c). 248, 249 - Loi sur la radiodiffusion, S.R.C. 1970, chap. B-11, art. Jc). Constitutional law - Charter of Rights - Applica Droit constitutionnel - Charte des droits - App/i tion - Exception-where express declaration - Provin catioiz - Derogation par declaration expresse - Loi cial legislation prohibiting commercial advertising provinciale interdisant la publicite commerciale desti directed at persons under thirteen years of age - nee ii des personnes de moins de treize ans - La loi Whether provincial legislation protected from the provinciale est-elle soustraite a /'application de /'art. application of s. 2(b) ofthe Canadian Charter of Rights 2b) de la Charte canadienne des droits et libertes par and Freedoms by a valid and subsisting override provi une disposition derogatoire va/ide et en vigueur? -: sion - Canadian Charter of Rights and Freedoms, i Charte canadienne des droits et libertes, art. 33 - Loi * Estey and Le Dain JJ. took no part in the judgment.. *Les juges Estey et Le Dain n'ont pas pris part au jugement. 976 IRWIN TOY LTD. v. QUEBEC (A.G.) The Chief Justice et al. [1989} 1 S.C.R. guarantee in issue. With regard to freedom of en cause. Pour ce qui concerne la liberte d'expres expression, if the government has aimed to control sion, si le gouvernement a voulu contr6ler la trans attempts to convey a meaning either by directly mission d'un message soit en restreignant directe restricting the content of expression or by restrict ment le contenu de !'expression soit en restreignant ing a form of expression tied to content, its pur a une forme d'expression liee au contenu, son objet pose trenches upon the guarantee. Where, on the porte atteinte a la garantie. D'autre part, s'il vise other hand, it aims only to control the physical seulement a prevenir Jes consequences materielles consequences of particular conduct, its purpose d'une conduite particuliere, son objet ne porte pas does not trench upon the guarantee. In determin atteinte a la garantie. Pour decider si l'objet du~ ing whether the government's purpose aims simply h gouvernement est simplement de prevenir des con"8 at harmful physical consequences, the question sequences materielles prejudiciables, ii faut se~ becomes: does the mischief consist in the meaning demander si le mefait est dans le message de[;) of the activity or the purported influence that l'activite ou dans !'influence qu'il est susceptible~ meaning has on the behaviour of others, or does it c d'avoir sur le comportement des autres, ou encorei consist, rather, only in the direct physical result of si le mefait est uniquement clans le resultat mate-c'..3 the activity. riel direct de l'activite. ~ CJ) b. Effects b. Les effets

Even if the government's purpose .was not to d Meme si le but poursuivi par le gouvernement control or restrict attempts to convey a meaning, n'etait pas de controler ou restreindre la transmis the Court must still decide whether the effect of sion d'une signification, la Cour doit encore deci the government action was to restrict the plain der si !'action du gouvernement a eu pour effet de tiffs free expression. Here, the burden is on the restreindre la liberte d~expression de la demande- plaintiff to demonstrate that such an effect e resse. A cette etape-ci, i1 appartient a la demande occurred. In order so to demonstrate, a plaintiff resse d'etablir que cet effet s'est produit. Pour ce must state her claim with reference to the princi faire, elle doit formuler sa these en tenant compte ples and values underlying the freedom. des principes et des valeurs qui sous-tendent la f liberte garantie. We have already discussed the nature of the Nous avons deja parle de la nature des principes principles and values underlying the vigilant pro et des valeurs qui sous-tendent la protection vigi tection of free expression in a society such as ours. lante de la liberte d'expression dans une societe They were also discussed by the Court in Ford (at g comme la notre. Cette Cour les a egalement exa pp. 765-67), and can be summarized as follows: mines dans l'arret Ford (aux pp. 765 a 767) et ils ( 1) seeking and attaining the truth is an inherently peuvent se resumer ainsi: (1) la recherche de la good activity; (2) participation in social and politi verite est une activite qui est bonne en soi; (2) la cal decision-making is to be fostered and participation a la prise de decisions d'interet social encouraged; and {3) the diversity in forms of h et politique doit etre encouragee et favorisee; et (3) · individual self-fulfillment and human flourishing Ia diversite des formes d'enrichissement et d'epa ought to be cultivated in an essentially tolerant, nouissement personnels doit etre encouragee dans indeed welcoming, environment not only for the une societe qui est essentiellement tolerante, meme sake of those who convey a meaning, but also for accueillante, non seulement a l'egard de ceux qui the sake of those to· whom it is conveyed. In transmettent un message, mais aussi a regard de showing that the effect of the government's action ceux a qui ii est destine. Pour demontrer que was to restrict her free expression, a plaintiff must !'action du gouvernement a eu pour effet de res demonstrate that her activity promotes at least one treindre sa liberte d'expression, la demanderesse of these principles. It is not enough that shouting, j doit etablir que son activite favorise .au moins un for example, has an expressive element. If the de ces principes. Par exemple, il ne suffirait pas de plaintiff challenges the effect of government action dire que des eris comportent un element d'expres- [ 1989] 1 R.C.S. IRWIN TOY LTD. c. QUEBEC (P. G.) Le Juge en chef et autres 977 to control noise, presuming that action to have a sion. Si la demanderesse conteste l'effet d'une purpose neutral as to expression, she must show action gouver11ementale qui vise a reglementer le that her aim was to convey a meaning reflective of bruit, dans l'hypothese que le but de cette action the principles underlying freedom of expression. est neutre quant a !'expression, elle doit demontrer The precise and complete articulation of what a que son but est de transmettre un message qui kinds of activity promote these principles is, of reflete les principes qui sous-tendent la· liberte course, a matter for judicial appreciation to be d'expression. La delimitation complete et precise developed on a case by case basis. But the plaintiff des types d'activites qui favorisent ces principes must at least identify the meaning being conveyed releve evidemment d'un examen judiciaire qui doit 0 and. how it relates to the pursuit of truth, partici b etre fait dans chaque cas. Mais la demanderesse o pation in the community, or individual self-fulfill doit au moins decrire le message transmis et son ~ ment and human flourishing. rapport avec la recherche de Ia verite, la participa- ~ tion au sein de la societe ou l'enrichissement et S c c l'epanouissement personnels. (\j 0 CJ) c. Sections 248 and 249 c. Les articles 248 et 249 co CJ) There is no question but that the purpose of ss. 11 ne fait pas de doute que l'objet des art. 248 et 248 and 249 of the Consumer Protection Act was d 249 de la Loi sur la protection du consommateur to restrict both a particular range of content and etait de restreindre a Ia fois un type particulier de certain forms of expression in the name of protect signification et certaines formes d'expression au ing children. Section 248 prohibits, subject to nom de la protection des enfants. Sous reserve de regulation, attempts to communicate a commercial ce qui est prevu par reglement, l'art. 248 interdit la message to persons under thirteen years of age. e transmission d'un message commercial a des Section 249 identifies factors to be considered in enfants de moins de treize ans. L'article 249 deciding whether the commercial message in fact enonce Jes facteurs dont il faut tenir compte pour has that prohibited content. At first blush, the decider si le message commercial a reellement le regulations exempting certain advertisements f conteriu que la Joi interdit. A premiere vue, le transform the prohibition into a "time, place or reglement qui exempte certains messages publici manner" restriction aiming only at the form of taires transforme !'interdiction en une restriction expression. According to ss. 88 to 90 of the Regu quant 11aU moment, a l'endroit OU a la maniere» qui lation respecting the application of the Consumer viserait seulement la forme de !'expression. Selan Protection Act, an advertisement can be aimed at g les art. 88 a 90 du Reglement d'application de la children if: (1) it appears in certain magazines or Loi sur la protection du consommateur, un mes inserts directed at children; (2) it announces a sage publicitaire peut etre destine aux enfants: (1) programme or show directed at children; or (3) it s'il parait dans certaines revues ou certains encarts appears in or on a store window, display, contain destines aux enfants; (2) s'il annonce une emission er, wrapping, or label. Yet, even if all advertising h ou un spectacle destines aux enfants; ou (3) s'il est aimed at children were permitted to appear in the constitue par une vitrine, un etalage, un contenant, manner specified, the restriction. would be tied to un emballage OU une etiquette. Pourtant, meme si content because it aims to restrict access to the toute publicite destinee aux enfants etait autorisee particular message being conveyed. However, the a condition d'etre faite de la maniere prescrite, la regulations in question do more than just restrict restriction serait liee au contenu parce qu'elle vise the manner in which a particular content' must be a limiter l'acces au message particulier qui est expressed. They also restrict content directly. Sec- · transmis. Cependant, le reglement en question fait tion 91 provides that even where advertisements plus que restreindre la maniere dont un contenu directed at children are permitted, such advertise- j particulier doit etre exprime. Il restreint le contenu ments must not, for example "use a superlative to directement. L'article 91 prevoit que, meme Iors describe the characteristics of goods or services" or que Jes messages publicitaires destines aux enfants