2021 QCCA 1300, 2021 QCCA 1300

Attorney General of Quebec c. Center for Gender Advocacy 2021 QCCA 1300 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029391-216 (500-17-082257-141) DATE: August 24, 2021 BEFORE THE HONOURABLE FRÉDÉRIC BACHAND, J.A. ATTORNEY GENERAL OF QUEBEC APPELLANT/INCIDENTAL RESPONDENT – Defendant v.

CENTER FOR GENDER ADVOCACY RESPONDENT/INCIDENTAL APPELLANT– Plaintiff and SAMUEL SINGER SARAH BLUMEL ELIZABETH HELLER JENNA MICHELLE JACOBS RESPONDENTS – Plaintiffs and EGALE CANADA HUMAN RIGHTS TRUST GENDER CREATIVE KIDS CANADA IMPLEADED PARTIES – Interveners and COALITION DES PROFESSIONNELS EN SANTÉ TRANS/NON-BINAIRE APPLICANT JUDGMENT WARNING: Confidentiality orders regarding the identity of witnesses were issued in first instance. [ 1 ] The Coalition des professionnels en santé trans/non-binaire (“Coalition”) seeks leave to intervene in an appeal from a Superior Court judgment addressing a constitutional challenge to provisions of the Civil Code of Québec and the Regulation respecting change of name and of other particulars of civil status [1] (“ Regulation ”) that were alleged to conflict with the fundamental rights of transgender and non-binary persons. [2] [ 2 ] The Coalition wishes to intervene for conservatory purposes (articles 185-186 C.C.P. ) or, alternatively, as a friend of the court (articles 185 and 187 C.C.P. ).

Either way, its intervention would be limited to two issues: the constitutionality of the requirement that transgender and non-binary persons aged 14 to 17 years obtain a note from a healthcare professional to change their designation of sex (section 23.2 para. 2 of the Regulation ); and the constitutionality of the requirement that transgender and non-binary persons aged 14 to 17 years obtain parental consent to change their name (article 62 C.C.Q. ). [ 3 ] Specifically, the Coalition hopes to be authorized to argue that the impact of these requirements is such that they violate the fundamental rights to life, liberty and security guaranteed by

section 7 of the Canadian Charter of Rights and Freedoms to transgender and non-binary persons aged 14 to 17 years. It “intends to rely on the professional knowledge and clinical experience of its members to provide a comprehensive response” [3] to a number of points addressed in the Attorney General’s factum, namely: [4] a. The difficulties trans/non-binary youth face in accessing care and designated healthcare professionals for the purposes of obtaining the requisite professional attestation under s. 23.2 of the Regulation , in particular in remote regions; b.

The critical importance of the designated professional having sufficient clinical knowledge of and contact with the reality of trans/non- binary youths and sufficient knowledge of the youth’s particular transition situation to issue a professional attestation; and c. Whether the professional attestation requirement contained in s. 23.2 of the Regulation meets the minimal impairment test for the purposes of the Oakes analysis performed by the trial judge, despite the delays, costs and other practical hurdles it imposes on trans/non- binary youth undergoing a transition process; [References omitted]

The Coalition also intends to bring to the Court’s attention, as well as to rely on, a number of academic studies, treatises and professional guidelines which it considers to be “authoritative sources in evidencing the harmful consequences of delays to access legal transition”. [5] [ 4 ] While the respondents and the impleaded parties consent to the application, the Attorney General’s position is that the Coalition should only be allowed to intervene as a friend of the court. * * * [ 5 ] I begin with the Coalition’s primary submission, which is that it ought to be allowed to intervene for conservatory purposes. [ 6 ] Unlike a third person who intervenes as a friend of the court — whose role is limited to presenting arguments during a hearing (article 185 para. 1 C.C.P. ) —, one who does so for conservatory purposes becomes a party to the proceedings (article 185 para. 2 C.C.P. ).

That explains why, as my colleague Justice Bélanger recalled in 2013, this type of intervention is only available to third persons who have a sufficient interest within the meaning of what is now

article 85 para. 1 C.C.P. , namely “ un lien de droit personnel avec une

partie ou un lien de droit réel sur l’objet du litige ˮ. [6] [ 7 ] The Coalition argues that this threshold requirement is met here given the impact that the requirements set out in

section 23.2 para. 2 of the Regulation and

article 62 C.C.Q. have on its members’ ability to comply with their ethical obligations while providing healthcare to transgender and non-binary persons aged 14 to 17 years. [ 8 ] I cannot accept this argument. As I see it, the Coalition wishes to make submissions limited to

section 7 of the Charter , and it is clear from its application that the

section 7 rights it intends to invoke are not its members’, but rather those held by transgender and non- binary persons aged 14 to 17 years. For that reason, I find that the Coalition does not have a sufficiently direct and personal interest in the matters on which it wishes to be heard. This holding suffices to dispose of its primary submission. * * * [ 9 ] Should the Coalition nevertheless be allowed to intervene as a friend of the court? [ 10 ] As

article 187 para. 2 C.C.P. makes clear, allowing a third person to intervene in such a capacity is a matter of judicial discretion. The key question here is whether the proposed intervention would be “expedient/ opportune ”, and it must be considered in light of “the importance of the issues in dispute, particularly in relation to the public interest, and the usefulness of the third person’s contribution to the debate/ l’importance des questions en litige, au regard notamment de l’intérêt public, et l’utilité de l’apport du tiers au débat ”.

The applicant does not need to establish a direct and personal interest in the issues on which it wishes to intervene. [7] [ 11 ] A number of additional propositions that can be gleaned from the case law are worth highlighting here.

The first is that courts are generally more open to such interventions where — as in the present case — the issues in dispute concern public law, fundamental rights or constitutional matters. [8] The second is that courts remain mindful of the proposed intervention’s impact on the proceeding, which may tip the balance against granting leave if it risks outweighing the applicant’s potential contribution. [9] Thirdly, courts are generally reluctant to authorize interventions that could cause a substantial change in the nature or scope of the debate as previously framed by the parties. [10] Lastly — and relatedly —, courts are even more reluctant to allow for interventions that would require the filing of additional evidence, [11] and they generally frown upon attempts to present as authority documents asserting factual propositions that are not judicially noticeable. [12] [ 12 ] Several considerations clearly militate in favour of allowing the Coalition to intervene as a friend of the court.

The issues in dispute, which concern the Charter rights of transgender and non-binary youth, are undoubtedly of significant social and legal importance. Moreover, I am confident that the Coalition’s experience and expertise in providing healthcare to these persons would allow it to bring a distinctive and worthwhile perspective on both the professional attestation and parental consent requirements.

Also, while not determinative, the fact that the other parties consent to the Coalition’s intervention as a friend of the court carries significant weight. [ 13 ] As for considerations that could raise concerns regarding the propriety of the proposed intervention, two are noteworthy. [ 14 ] The first relates to the fact that the Coalition’s involvement would likely widen the scope of the debate on

Section 7 of the Charter . While the Attorney General does not object to an expanded debate on this issue, it wishes to be afforded an opportunity to respond in writing to any brief filed by the Coalition. Doing so would require changes to the

schedule set by my colleague Justice Schrager last April, because the Coalition has indicated that it would be unable to file its brief much sooner than the September 20, 2021 deadline set for the filing of the Attorney General’s factum in the incidental appeal.

However, the Attorney General has provided assurances that it would be able to provide a written response within approximately three weeks, which means that, if the Coalition is authorized to file a brief no later than September 30, 2021 — the deadline set for the filing of the impleaded parties’ factums —, the case would not be delayed beyond the end of October, 2021.

In these circumstances — and without ruling on whether the Attorney General ought to be allowed to respond in writing to any brief filed by the Coalition, an issue best left to Justice Schrager in his capacity as case management judge —, I conclude that the widening of the scope of the debate on

Section 7 of the Charter that would likely result from the Coalition’s involvement is not an obstacle to its intervention as a friend of the court. [ 15 ] The second issue relates to the factual basis of the Coalition’s proposed

Section 7 submissions. As I noted earlier, the Coalition intends to emphasize the allegedly harmful consequences of the requirements set out in

section 23.2 para. 2 of the Regulation and

article 62 C.C.Q. by relying, firstly, on the professional knowledge and clinical experience of its members and, secondly, on a number of academic studies, treatises and professional guidelines. The Attorney General argues that those are facts on which no evidence was adduced at trial and which are not judicially noticeable.

The Coalition would thus be attempting, among other things, to engage in a practice that has been described as “bootlegging evidence in the guise of authorities”. [13] While the Attorney General does not contend that this problem should prevent the Coalition from intervening as a friend of the court, he takes the view that the Coalition should be barred from invoking those facts when it will make its submissions. [ 16 ] In response, the Coalition states that the basis of its proposed

Section 7 submissions is limited to facts that fall within the ambit

of the doctrine of judicial notice as it applies to social facts. It adds that, to the extent that there is an issue as to whether those facts are judicially noticeable, that debate should not be resolved at this stage of the proceedings. It believes that a more appropriate course of action would be to leave any debate for the panel of the Court hearing the merits of the appeal, as its members will have the benefit of both its brief and the materials on which it intends to rely.

The Coalition also made clear that, in the event that its position on judicial notice was rejected by the Court or a judge thereof, it would not subsequently seek leave to introduce the materials as indispensable new evidence (article 380 C.C.P. ). [ 17 ] Although I have not been provided with copies of the academic studies, treatises and professional guidelines on which the Coalition intends to rely, I am left with the preliminary impression that there is a serious issue as to whether — and if so, to what extent — the Coalition will be able to rely on the doctrine of judicial notice.

At first glance, facts relating to the potentially harmful consequences of the requirements set out in

section 23.2 para. 2 of the Regulation and

article 62 C.C.Q. do not appear to be “so notorious or generally accepted as not to be the subject of debate among reasonable persons”. [14] Nor do they seem “capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy”. [15] [ 18 ] That being said, the Supreme Court made clear in Spence that the traditional criteria I just alluded to are not necessarily conclusive when the doctrine of judicial notice is applied to legislative and social facts, because “[o]utside the realm of adjudicative fact, the limits of judicial notice are inevitably somewhat elastic.” [16] The Court further explained that, when dealing with a legislative or social fact, “a court ought to ask itself whether such ‘fact’ would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used , keeping in mind that the need for reliability and trustworthiness increases directly with the centrality of the ‘fact’ to the disposition of the controversy”. [17] [ 19 ] In light of this more flexible and contextual approach to judicial notice — as well as the generally permissive approach to interventions that prevails in cases involving public law, fundamental rights or constitutional matters —, I find that the concerns regarding whether the Coalition will be able to rely on the doctrine of judicial notice are not an obstacle to its involvement as a friend of the court.

I further find, on the basis of those same considerations as well as the fact that I was not provided a copy of the relevant materials, that it would be inappropriate, at this stage of the proceeding, to make any determination as to the social facts that the Coalition may or may not be able to invoke in support of its

Section 7 submissions. In my opinion, any debate on this issue will be more appropriately resolved after the Coalition has filed its brief and materials. * * * [ 20 ] On the whole, I thus find that the Coalition ought to be authorized to intervene as a friend of the Court. Its brief must not exceed 10 pages, which is the page limit that Justice Schrager set for the impleaded parties’ factums, and it must be accompanied by all materials supporting its claim of judicial notice. Lastly, the duration of the Coalition’s oral submissions will be set later, in the normal course of the proceeding.

FOR THESE REASONS, THE UNDERSIGNED: [ 21 ] GRANTS in part the Coalition des professionnels en santé trans/non-binaire’s application for leave to intervene; [ 22 ] AUTHORIZES the Coalition des professionnels en santé trans/non-binaire to intervene, but only as a friend of the court (article 187 of the Code of Civil Procedure ); [ 23 ] AUTHORIZES the Coalition des professionnels en santé trans/non-binaire to file a brief not exceeding 10 pages, along with all materials supporting its claim of judicial notice, no later than September 30, 2021; [ 24 ] AUTHORIZES the Coalition des professionnels en santé trans/non-binaire to make oral submissions at the hearing of the appeal; [ 25 ] WITHOUT legal costs.

FRÉDÉRIC BACHAND, J.A. Mtre Alexandra Belley-McKinnon Mtre Molly Krishtalka CABINET D’AVOCATS NOVALEX INC. For the Coalition des professionnels en santé trans/non-binaire Mtre Stéphanie Lisa Roberts BERNARD ROY (JUSTICE-QUÉBEC) For the Attorney General of Quebec Mtre Vanessa Ntaganda IMK For the Center For Gender Advocacy, Samuel Singer, Sarah Blumel, Elizabeth Heller and Jenna Michelle Jacobs Mtre Michel Bélanger-Roy Mtre Jérémy Boulanger-Bonnelly

NORTON ROSE FULBRIGHT CANADA For Gender Creative Kids Canada Mtre Michael Lubetsky DAVIES WARD PHILLIPS & VINEBERG For Egale Canada Human Rights Trust Date of hearing: August 18, 2021