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From Telecoms to Pipelines: Good News from the Supreme Court of Canada for Pipeline Builders

Fri, 06/24/2016 - 10:00am

By: Nigel Bankes

PDF Version: From Telecoms to Pipelines: Good News from the Supreme Court of Canada for Pipeline Builders

Case commented on: Rogers Communications Inc v Châteauguay (City), 2016 SCC 23 (CanLII)

In this decision the Supreme Court of Canada (unanimous in the result) concluded that the actions of the City of Châteauguay in creating a reserve as to certain real property were directed at frustrating Rogers’ efforts to install an antenna system on property located within the City and were therefore unconstitutional as a measure dealing with the siting of telecommunications infrastructure. The majority found that Châteauguay’s notice of reserve was ultra vires (but also went on to offer an analysis that would have rendered the reserve inapplicable on the basis of the doctrine of interjurisdictional immunity (IJI)). The minority (Justice Gascon) preferred to find for Rogers solely on the basis of IJI.

While this is no doubt an important decision for the telecommunications industry it will almost certainly prove to be more important for the more tightly networked elements of the energy sector and in particular oil and gas pipelines given the highly contentious nature of current proposals to construct new pipelines or expand existing pipelines. For earlier posts on this issue see here (Northern Gateway) and here (Kinder Morgan’s expansion project).

The Facts

Rogers is a federally regulated telecoms provider. It holds a spectrum licence from the federal government which authorizes it to provide services in specified frequency ranges. The licence also obliges Rogers to provide adequate network coverage and to do that it must install and maintain radio stations and antenna systems. Under the federal scheme (Radiocommunication Act, RSC 1985, c R-2) Rogers must enter into an agreement with the relevant property owner for the use of a particular site and secure the federal Minister’s approval for the use of that site. In order to get that approval, a licensee such as Rogers must engage in a consultation process prescribed by Industry Canada which requires the licensee to consult both the public and the relevant land use authority (LUA), in this case Châteauguay. While the goal of the consultation with the LUA is to reach an understanding or agreement, the Minister retains the right to make a final decision in the event of an impasse. A licensee has no right of expropriation. The evidence showed (at para 66) that while telecoms technology did not require the use of any particular site for an antenna “a deviation of 100 or 200 metres from a clearly specified location can prevent the antenna system from effectively meeting the network’s identified needs.”

Rogers secured the right to use what it believed to be a suitable site (the 411 site) but Châteauguay objected on a number of grounds, including a contravention of a by-law and aesthetic and health and safety reasons, and suggested that Rogers consider another site, the 50 site. Further discussions ensued and proposals were exchanged over a two-year period culminating in Châteauguay establishing a reserve over the 410 property and justifying it by reference (at para 22) to concerns related to the interests and well-being of its residents and the development of its territory (at para 22). The reserve served to prohibit all construction for a two-year period and was subsequently renewed for a further two-year period. (at para 2)

Rogers contested the validity of the reserve on both constitutional and municipal/administrative law grounds.

The Majority Decision

The majority (per Wagner and Côté, McLachlin, Abella, Cromwell, Karakatsanis and Brown concurring) concluded (at para 46) that the pith and substance of the impugned measure (the notice of reserve and not the provincial legislation underpinning the reserve) was not the protection of the health and well-being of the residents or the development of the territory but rather the choice of location of radiocommunication infrastructure. The majority felt able to reach this conclusion on the basis of its assessment of the evidence which demonstrated the close connection between the municipality’s actions and Rogers’ proposals. In effect, the majority concluded (but without using the term, see Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 SCR 297) that the notice of reserve and the reasons given in support of the notice were colourable. The majority expressly rejected the suggestion that the notice of reserve had a double aspect. There was no double aspect here, only a notice of reserve dealing with the location of telecommunications infrastructure (at para 51) and any “finding that the siting of radiocommunication infrastructure has a double aspect would imply that both the federal and provincial governments can legislate in this regard, which would contradict the precedent established by the Privy Council in In re Regulation and Control of Radio Communication in Canada [1932] AC 304 to the effect that the federal jurisdiction over the siting of such infrastructure is exclusive.” (at para 52)

That was enough to dispose of the case since the notice of reserve was simply (at para 53) ultra vires. But, unusually, the majority still provided its analysis of the application of Rogers’ alternative argument based on interjurisdictional immunity (IJI). The premise of such an argument is of course that the provincial measure in question is valid (intra vires).

The majority acknowledged, following Canadian Western Bank v. Alberta, 2007 SCC 22 (CanLII), [2007] 2 SCR 3, that IJI should be applied with restraint and in situations already covered by precedent. The majority was of the view that Toronto Corporation v. Bell Telephone Co. of Canada, [1905] AC 52 was authority for the application of IJI since that case suggests (at para 63) that “the siting of telecommunications infrastructure is at the core of the federal power” and (at para 65) that the Court of Appeal erred in this case “in interpreting Bell as meaning that municipalities have a certain degree of control over the determination of the exact location of telecommunications poles.” The majority continued as follows (at paras 66 and 69):

[66] Moreover, the evidence in the record favours a finding that the siting of radiocommunication antenna systems is at the core of the federal power over radiocommunication. It is the appropriate and specific siting of radiocommunication antenna systems that ensures the orderly development and efficient operation of radiocommunication in Canada…

[69] We conclude that the siting of antenna systems is part of the core of the federal power over radiocommunication and that any other conclusion would make it impossible for Parliament to achieve the purpose for which this power was conferred on it. The question therefore becomes whether, in the instant case, the effect of the notice of a reserve served by Châteauguay on the core of this federal power is sufficiently significant for the doctrine of interjurisdictional immunity to apply.

The majority concluded that the notice of reserve “seriously and significantly impaired the core of the federal power over radiocommunication and that this notice served on Rogers was therefore inapplicable by reason of the doctrine of interjurisdictional immunity.” (at para 72) The evidence in support of this was as follows:

[71] In the case at bar, the service of the notice of a reserve prevented Rogers from constructing its antenna system on the property at 411 Boulevard Saint?Francis for two successive two?year periods, and there was no alternative solution to which it could have turned on short notice. Once the resolution authorizing the service of the notice of a reserve had been adopted, Châteauguay’s offer meant that Rogers would have to wait either until the end of the expropriation proceedings with regard to the property at 50 Boulevard Industriel or for a period of approximately seven months before it would be able to construct its installation on the property at 411 Boulevard Saint?Francis. In these circumstances, Rogers was unable to meet its obligation to serve the geographic area in question as required by its spectrum licence. In this sense, the notice of a reserve compromised the orderly development and efficient operation of radiocommunication and impaired the core of the federal power over radiocommunication in Canada.

The passage is worth quoting in its entirety, since it confirms that the IJI test is not “sterilizing” or “paralyzing” and that the more qualified test of impairment may be met by measures which serve to delay, as well as measures that completely frustrate, the attainment of the goal or objective sanctioned by the federal power.

Justice Gascon (Concurring in the Result)

Justice Gascon considered that the appeal should have been resolved on the basis of the doctrine of interjurisdictional immunity rather than on the basis of the pith and substance doctrine. In effect, it seems that Justice Gascon was prepared to take at face value Châteauguay’s representations that it was enacting the reserve (at para 109) “to ensure the harmonious development of the territory of Châteauguay, to allay its residents’ concerns and to protect their health and well?being …”.

In the name of “a flexible approach tailored to the modern conception of federalism, which allows for some overlapping and favours a spirit of co?operation” (at para 93) and an approach that is consistent with the presumption of validity, Justice Gascon clearly favoured a more deferential and “delicate” approach to the assessment of pith and substance than did the majority. Justice Gascon put the point this way at para 106:

[106] In my view, this more nuanced understanding of the effects of the notice of a reserve is in line with a more flexible conception of the pith and substance doctrine that is more consistent with the guiding principles discussed above. I think it would be prudent to approach the application of this doctrine in this way. An overly narrow understanding of the consequences of the measure that is limited to an examination of just one of its effects could lead to the premature conclusion that the measure applies only to the matter so affected, that is, to the siting of radiocommunication towers. By contrast, undertaking the analysis by way of an approach that takes into account the various effects of the notice on Châteauguay’s ability to manage its territory in accordance with its citizens’ expectations favours a more accurate understanding of the matter to which this notice actually applies.

Once again the entire text merits quotation, because implicitly, if not explicitly (see the comments of the majority above on double aspect), the majority must be taken to have rejected this approach. For the majority it is clearly not enough that a provincially authorized entity might have relied on a legitimate provincial objective if it was in fact motivated to frustrate a legitimate federal purpose.

Justice Gascon largely agreed with the majority on the formulation and application of the IJI doctrine but his concluding comments with respect to the question of when the impairment occurred are worth noting (at para 121):

The measure’s intrusion on the core of the power is significant and amounts to an impairment. My colleagues base the impairment on the time during which the notice of a reserve was to be in effect, that is, two consecutive two?year periods. In my opinion, the impairment existed as of the time when the effect of the notice is found to have prevented Rogers from installing its radiocommunication tower on the available site that had been formally approved by the Minister of Industry, given that the federal legislation and the Circular both give the Minister the last word as regards the siting of radiocommunication systems in Canada. Such an obstacle has undesirable and extremely harmful consequences on the orderly development and efficient operation of radiocommunication insofar as Rogers’ activities are concerned.

The Principle of Co-operative Federalism

The decision features an interesting discussion of the idea or principle of co-operative federalism. This was a central plank of Justice Gascon’s judgement. He noted (at para 85) that:

… any application of the constitutional doctrines must take into account the principle of co?operative federalism to which the Court has referred in a number of cases (CWB, at para. 24; Husky Oil Operations Ltd. v. Minister of National Revenue, 1995 CanLII 69 (SCC), [1995] 3 S.C.R. 453, at para. 162; Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56 (CanLII), [2005] 2 S.C.R. 669, at para. 10). This principle favours, where possible, the operation of statutes enacted by governments at both levels (Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44 (CanLII), [2013] 3 S.C.R. 53, at para. 50, citing General Motors of Canada Ltd. v. City National Leasing, 1989 CanLII 133 (SCC), [1989] 1 S.C.R. 641; CWB, at para. 37). The Court’s adoption of an approach involving concurrent federal and provincial powers, as opposed to applying the outdated concept of “watertight compartments” to establish exclusive jurisdictions, is consistent with this (CWB; Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161; Law Society of British Columbia v. Mangat, 2001 SCC 67 (CanLII), [2001] 3 S.C.R. 113; OPSEU v. Ontario (Attorney General), 1987 CanLII 71 (SCC), [1987] 2 S.C.R. 2).

The majority acknowledged the importance of the principle, recognizing (at para 38) “that when the courts apply the various constitutional doctrines, they must take into account the principle of co?operative federalism, which favours, where possible, the concurrent operation of statutes enacted by governments at both levels …”. But there are limits to the principle which the majority acknowledged at paras 39 and 47:

[39] …. although co?operative federalism has become a principle that the courts have invoked to provide flexibility for the interpretation and application of the constitutional doctrines relating to the division of powers, such as federal paramountcy and interjurisdictional immunity, it can neither override nor modify the division of powers itself. It cannot be seen as imposing limits on the valid exercise of legislative authority…. Nor can it support a finding that an otherwise unconstitutional law is valid.

[47] We agree completely with the flexible and generous approach our colleague advocates … However, flexibility has its limits, and this approach cannot be used to distort a measure’s pith and substance at the risk of restricting significantly an exclusive power granted to Parliament. A finding that a measure such as the one adopted in this case relates in pith and substance to a provincial head of power could encourage municipalities to systematically exercise the federal power to choose where to locate radiocommunication infrastructure while alleging local interests in support of their doing so.

I think that we might anticipate that paragraph 47 will feature prominently in facta filed by counsel acting for federally regulated pipelines. While the Government of Alberta did not intervene in this litigation in support of the federal position, and neither did any pipeline interests, both Edmonton and the likes of TransCanada, Enbridge, and Kinder Morgan should be celebrating this decision. The City of Burnaby may not be so enthusiastic.

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Of Busted Butterflies and the Duty of Good Faith – A Saskatchewan Right of First Refusal Case

Wed, 06/22/2016 - 10:00am

By: Nigel Bankes

PDF Version: Of Busted Butterflies and the Duty of Good Faith – A Saskatchewan Right of First Refusal Case

Case commented on: Northrock Resources v ExxonMobil Canada Energy, 2016 SKQB 188

What is the legal position if N has a right of first refusal (ROFR) in the event that E agrees to sell its interest, unless E’s sale is to an affiliate; E transfers the interest to its wholly owned affiliate, NSCo and C then buys the shares of NSCo. Does the second transaction or the two transactions taken together (known in tax parlance – for reasons that, as with much of tax law, entirely escape me – as a “busted butterfly” trigger N’s ROFR entitlement (perhaps on the basis that E should not be able to do indirectly what it cannot do directly)? Justice Currie of the Saskatchewan Court of Queen’s Bench answered in the negative and as a result dismissed Northrock’s (N’s) claims which sounded in both contract and in tort (inducing breach of contract and conspiracy).

The Facts

ExxonMobil (E) was interested in disposing of certain oil and gas producing assets in Saskatchewan. Some of those assets (the assets at issue here) were subject to a unit agreement and a unit operating agreement as well as another relevant agreement which provided Northrock (N) with a ROFR. In offering the properties for sale through an electronic data room, E indicated that it was interested in entertaining tax effective offers for the assets involving either a sale of the assets or a busted butterfly structured as above, under which E would transfer the assets to a Nova Scotia corporation (NSCo) (E’s affiliate) following which the purchaser would buy the shares in NSCo. Most interested purchasers submitted alternative offers using both structures. E disclosed that the relevant properties were subject to ROFRs. E eventually selected the offer of Crescent Point (C) with the deal to be structured as a busted butterfly. E procured N’s consent to the transfer to NSCo but in giving its consent N indicated that it objected to any transfer of the shares of NSCo to a third party without new ROFR notices. Neither E nor NSCo provided additional ROFR notices to N and the transaction closed with C acquiring the shares of NSCo.

N commenced this action suing E, C, and NSCo, alleging breach of contract, breach of a duty of a good faith, and the torts of inducing breach of contract and conspiracy. N sought a series of remedies including a declaration of trust, specific performance, damages, and punitive damages.

The Judgment

Breach of Contract

Justice Currie concluded that there was no ambiguity in the documents before him. The relevant agreements expressly exempted transfers to an affiliate from the ROFR obligations and did not address any subsequent sale of the shares of that affiliate. The parties could have bargained for such a provision but had not done so, and the Court was not prepared to read any such obligation into the agreements. The same reasoning applied even where N was a successor in interest to the original agreement.

[54] …. an examination of the ROFR provisions reveals that the parties to the agreements did not intend that every circumstance of a party divesting itself of an interest would trigger a ROFR. In negotiating the ROFR provisions they chose which divestitures would be singled out for a restriction on the right of a party to deal with its own property.

[55] The parties have used clear language in the agreements. They said what they intended to say in the agreements, having chosen and identified what they were prepared to agree to. Since the meaning of the parties’ words is clear, this is not a case of that meaning constituting an interpretation that defeats the intentions of the parties. Rather, those clear words communicate the intentions of the parties.

[56] The transaction, structured as it was to involve the transfer of interests to the NSULCs [Nova Scotia unlimited liability corporations] and the sale of the shares of the NSULCs, did not trigger the ROFR provisions of either agreement. ExxonMobil did not breach its agreements with Northrock by failing to provide ROFR notices.

Breach of the Duty of Good Faith

Neither was there a breach of the duty of good faith (and the Court considered this as a separate head rather than as part of the contractual analysis). The case law cited by the court (GATX Corp. v Hawker Siddeley Canada Inc. (1996), 27 BLR (2d) 251 (Ont Ct J), Glimmer Resources Inc. v Exall Resources Ltd. (1997), 35 BLR (2d) 297 (Ont Ct J) and Chase Manhattan Bank of Canada v Sunoma Energy Corp, 2002 ABCA 286, 317 AR 308) established that there might be breach of a duty of good faith in a ROFR context if a transaction were structured for the sole purposes of avoiding triggering a ROFR or (at para 66) “where a party is shown to have lied or misled, thereby breaching the duty of honest performance”, but not when it is structured in such a way for other legitimate reasons such as tax reasons or, in the case of a sale by a receiver, to maximize values. The evidence in the case supported the conclusion that E adopted the busted butterfly structure for tax reasons and was not motivated to elect this structure so as to avoid its ROFR obligations. E’s good faith in making this determination was not compromised by the fact that E’s employee handling the matter sought a series of legal opinions on the general question of whether a butterfly transaction might trigger a ROFR, even though those opinions expressed some uncertainty as to the precise legal position. Justice Currie reasoned as follows (at paras 80 81 & 83):

A decision can be a bona fide business decision, even in the face of some risk or uncertainty. Many business decisions involve risk and uncertainty. They involve weighing the risk and uncertainties. That is the nature of business. The element of uncertainty about the legal opinions does not affect my acceptance of Mr. Graham’s testimony that ROFRs were a detail that did not affect the decision, because the decision was driven by the concern for the tax pools.

In this case, the essence of the decision was that the busted butterfly structure could result in a benefit to ExxonMobil of $29 million, with a negligible related cost.
….

Further, I am not persuaded of the validity of the proposition that a client may bona fide follow legal advice only if that advice ultimately proves correct. Such a proposition is entirely impractical, given the complexities of the law and of the wide range of circumstances to which it applies. Similarly, it strikes me that following legal advice is an indication of, if anything, bona fide conduct rather than the opposite.

Neither was this conclusion affected by evidence in which E’s tax expert acknowledged that the tax advantages that might accrue to E were also not certain.

Finally, the evidence showed that C itself was neutral as to how to structure the deal (although one employee, not the relevant decision-maker, did advert to structuring so as to “circumvent the ROFR” (at para 71)) given that it was organized as a trust but that it was happy to accommodate E’s preference in terms of structure. C was focused on the value of the assets and winning the bidding competition rather than avoiding the ROFR.

Given that there was no breach of the duty of good faith it was unnecessary for the Court to decide (at para 105) whether all the defendants had such a duty or whether such a duty might only be owed by those (E in this case) in a privity relationship.

Tort

Finally, since there was no breach of contract there could be no tort of inducing breach of contract; neither could N establish a conspiracy to deny Northrock its ROFR since, as already held, that was not the predominant purpose of the conduct of the relevant parties and neither was the defendants’ conduct unlawful (since it was not in breach of contract).

Conclusion

The relationship between ROFRs and busted butterflies (or more prosaically inter-affiliate transactions) has long been a source of considerable uncertainty for transactional lawyers in the oil and gas industry. This decision offers some guidance to parties but we need further endorsement from an appellate court in order to deliver any real certainty. Furthermore, the decision does not answer all of the potential questions surrounding the relative weighting of the structuring drivers i.e. the relative importance of ROFR avoidance as a motivating driver versus the importance of other factors which might drive the structuring of the transaction.

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Prime Minister Trudeau You’ve Got the Power (the Criminal Law Power): Syncrude Canada Ltd v Canada and Greenhouse Gas Regulation

Tue, 06/21/2016 - 10:00am

By: Sharon Mascher

PDF Version: Prime Minister Trudeau You’ve Got the Power (the Criminal Law Power): Syncrude Canada Ltd v Canada and Greenhouse Gas Regulation

Case Commented on: Syncrude Canada Ltd. v. Canada (Attorney General), 2016 FCA 160 (CanLII)

On May 30th Justice Rennie delivered the Federal Court of Appeal’s unanimous judgment in Syncrude Canada Ltd v Canada (Attorney General). At issue in this case was the validity of s 5(2) of the federal Renewable Fuels Regulations, SOR/2010-189 (RFRs) which requires that all diesel fuel produced, imported, or sold in Canada contains at least 2% renewable fuel. While the FCA held that the RFRs are valid, from a climate change perspective this conclusion is not the reason this decision is important. As my colleague Nigel Bankes has noted here, the RFRs represent only “a tiny, tiny step” towards reducing Canada’s greenhouse gas (GHG) emissions. Rather, coming as it does on the heels of Canada signing the Paris Agreement and in the midst of talks aimed at developing a pan-Canadian climate change framework, the Syncrude decision is important because the FCA confirms that the federal government can use the criminal law power to regulate GHG emissions. More specifically, given that the RFRs at issue in this case create a flexible scheme that allows for the buying and selling of compliance units to achieve the 2% renewable fuel requirement, the Syncrude decision endorses the use of the criminal law power to support market-based emissions trading schemes or other pricing mechanisms. In short, provided federal regulations are directed at the purpose of reducing GHG emissions, this FCA decision tells the federal government that it has the constitutional power to take action on climate change.

Background to the Case

Since 2005, six of the most significant GHGs – including carbon dioxide – have been listed as toxic substances in Schedule I of the Canadian Environmental Protection Act 1999, SC 1999, c 33 (CEPA). For the purposes of CEPA, a substance is toxic if it has (or may have) an immediate or long-term harmful effect on the environment or its biological diversity or constitutes (or may constitute) a danger in Canada to human life or health (s 64). Section 139 of CEPA prohibits the production, importation and sale in Canada of fuel that does not meet prescribed standards. To carry out this provision, the Governor in Council has the authority to make regulations prescribing the properties and characteristics of fuel provided the Governor in Council is of the opinion that the regulation could make a significant contribution to the prevention of, or reduction in, air pollution resulting from, directly or indirectly, the combustion of fuel (s 140). It is pursuant to this provision that the RFRs were promulgated.

Section 5(2) of the RFRs requires all diesel fuel produced, imported or sold in Canada to contain at least 2% renewable fuel. To achieve this renewable fuel requirement, every litre of renewable fuel mixed into other fuel – including mixing that occurs outside Canada before the fuel is imported – creates one compliance unit (ss 13(2)). Each compliance unit, therefore, represents one litre of renewable fuel in the total Canadian fuel supply. To meet the 2% renewable fuel requirement, regulated entities are required to expend two compliance units for every 100 litres of fuel they produce, import or sell. Regulated entities can do this by mixing fuel themselves to create compliance units or by purchasing compliance units from others (RFRs, s 20(1). As Justice Rennie notes (at para 79), the RFRs are “agnostic” as to where or how the 2% renewable fuel requirement is met, as long as it is met. Failure to comply with the RFRs is an offence under the CEPA with penalties payable on conviction (CEPA s 272(1)).

As Syncrude Canada Ltd. produces diesel fuel to operate vehicles and equipment at its Alberta oil sands operations, it is captured by the RFRs. Syncrude commenced an application in the Federal Court challenging the validity of the RFRs on constitutional and administrative grounds. The Federal Court dismissed its application (see Syncrude Canada Ltd. v Canada (Attorney General), 2014 FC 776 (CanLII) and ABlawg posts on the administrative and constitutional law issues at play here, here, and here). Syncrude appealed.

The Criminal Law Power and the Constitutional Validity of the RFRs

In the FCA, Syncrude argued that s 5(2) of the RFRs did not have a valid criminal law purpose because it was not aimed at the reduction of air pollution. Rather, in Syncrude’s submission, the RFRs are in fact an economic measure aimed at the creation of a local market (a matter within s 92(13) of the Constitution Act, 1867) or directed to non-renewable natural resources (a matter of provincial legislative competence under s 92A of the Constitution Act, 1867). Syncrude’s argument is predicated on the assertion that the renewable fuel requirement that s 5(2) establishes is ineffective (at para 40). Given the direction this analysis provides to understanding the scope of the criminal law power in the context of GHG regulation going forward, it is relevant to consider Justice Rennie’s reasoning in some detail.

Characterization of Section 5(2)

After affirming the methodological approach adopted by the Federal Court in its constitutional analysis, Justice Rennie turns to the two step division of powers analysis: characterization of the law; and classification of the essential character by reference to the relevant heads of power (at para 38, citing Reference re Firearms Act (Can) 2000 SCC 31 (CanLII) at para 15).

The characterization analysis is informed by both the law’s purpose and its effect. Given that Syncrude’s argument is founded on the assertion that the renewable fuel requirement is ineffective, Justice Rennie highlights the language of the Supreme Court in the Firearms Reference. Responding in that case to the AG of Alberta’s argument that the law at issue would not actually achieve its purpose, the Court stated that within the constitutional sphere it is for Parliament to “judge whether the measure is likely to achieve its intended purposes; efficaciousness is not relevant to the Court’s division of power analysis … [r]ather the inquiry is directed to how the law sets out to achieve its intended purposes in order to better understand its ‘total meaning’ ” (Firearms Reference at para 18).

Analyzing the purpose and effect of s 5(2) of the RFRs, Justice Rennie concludes that it is directed to maintaining the health and safety of Canadians, as well as the natural environment upon which life depends (at para 41). Within the statutory scheme established by the CEPA, the 2% renewable fuel requirement is directed at the reduction of toxic substances in the atmosphere (at para 41). By displacing the combustion of fossil fuels, s 5(2) reduces the amount of GHG-related air pollution that would otherwise enter the atmosphere. Taken together, the purpose and effect of s 5(2) is “unambiguous on the face of the legislative and regulatory scheme in which it is situated. It is directed to the protection of the health of Canadians and the protection of the natural environment.” (at para 42) Justice Rennie notes that “[r]esort to the relevant Regulatory Impact Analysis Statement (RIAS) confirms this position” (at para 43).

Valid Criminal Law Purpose

The valid exercise of the criminal law power requires (1) a prohibition, (2) backed by a penalty, (3) for a valid criminal purpose (at para 47, citing Reference re Assisted Human Reproduction Act, 2010 SCC 61 (CanLII)). There is no question that the RFRs contain a prohibition backed by a penalty. At issue here is whether these regulations have a criminal law purpose. The Supreme Court has confirmed that a law aimed at supressing or reducing an “evil” (Reference re Validity of Section 5(a) Dairy Industry Act, [1949] SCR 1) or addressing a public concern relating to peace, order, security, morality, health or some similar purpose has a criminal law purpose, although it “must stop short of pure economic regulation” (at para 48). Following the Supreme Court in R v Hydro-Quebec, [1997] 3 SCR 213, Justice Rennie easily concludes that “[p]rotection of the environment is, unequivocally, a legitimate use of the criminal law power.” (at para 49) Further, “it is uncontroverted that GHGs are harmful to both health and the environment and as such, constitute an evil that justifies the exercise of the criminal law power.” (at para 62) This conclusion, however, does not end the matter for Syncrude, whose “principal argument” it will be recalled is that the RFRs are ineffective in achieving their purpose.

(In)Effectiveness of the RFRs

Syncrude conceded that questions of whether the RFRs are worthwhile or useful are not germane to the characterization analysis. However, Syncrude sought to use evidence it argued supported the conclusion that the RFRs would not in fact reduce GHG emissions to characterize the dominant purpose of the legislation. The evidence as to the practical effects of the RFRs, it argued, “overwhelmingly contradict the suggestion that the dominant purpose of the RFRs is to reduce GHG emissions.” (at para 52) However, Justice Rennie was unmoved by Syncrude’s argument on either an evidentiary or legal basis. He was satisfied that the Governor in Council had considered the issue and that the RIAS had considered a body of scientific research to support the relationship between the renewable fuel requirement and the reduction of GHGs. The evidence offered by Syncrude that the RFRs would not in fact reduce GHG emissions was “not compelling” (at para 59). From a legal perspective, Justice Rennie was also not willing to entertain the argument that because the RFRs were ineffective their dominant purpose must have been to establish local markets. This argument, he reasoned, sought to circumvent the proposition as stated in Ward, that “the purpose of legislation cannot be challenged by proposing an alternative, allegedly better, method for achieving that purpose (at para 60).

Regulation as an Economic Measure

Syncrude’s argument that the dominant purpose of s 5(2) was to create a market in renewable fuels and was therefore ultra vires similarly failed. While it was not contested that an increased demand for renewable fuel would have favourable economic consequences and market responses in agriculture, Justice Rennie held that these consequential effects should not be considered in isolation. The reason the government hoped to develop a Canadian renewable fuels market was to support the long-term reduction of GHGs. Recognizing that it is at times practically impossible to disassociate the environment and economy (citing Friends of the Oldman River Society v Canada (Ministry of Transport), [1991] 1 SCR 3), Justice Rennie concluded that “[t]he existence of the economic incentives and government investments, while relevant to the characterization exercise, do not detract from the dominant purpose of what the RFRs do and why they do it.” (at para 67) So, while part of the objective of the RFRs was indeed to encourage next-generation renewable fuel production and to create opportunities for farmers in renewable fuels, it was sufficient that the evidence also demonstrated that this market demand and supply was being created “to achieve the overall goal of greater GHG emission reductions.” (at para 68) All criminal laws seek to deter and modify behaviour. It follows therefore that simply because Parliament “foresees behavioural responses either in persons or in the economy” does not mean that the regulation is an economic measure and does not invalidate the exercise of the criminal law power (at para 69).

Absence of an Absolute Prohibition

Syncrude’s argument that the RFRs cannot be a valid exercise of the criminal law power because they contain exemptions and do not ban outright the presence of GHGs in fuel was also unsuccessful. Affirming the findings of the Federal Court and guided by the Supreme Court’s direction in both the Firearms Reference and RJR-MacDonald Inc. v Canada (Attorney General) [1995] 3 SCR 199 (CanLII), Justice Rennie states that “[a] prohibition need not be total, and it can admit exceptions.” (at para 73). He goes on to state “there is no constitutional threshold of harm that must be surpassed before the criminal power is met, provided there is a reasonable apprehension of harm” (at para 75). Noting that Syncrude had no answer to the question of when the RFRs become constitutional – at 10%, 25%, 50% or 100% renewable fuel requirement – Justice Rennie confirms “[t]here is no magic number.” (at para 75) This conclusion is consistent with Syncrude’s concession that other regulations limiting the concentrations of lead and sulphur in fuel are valid (Sulphur in Diesel Fuel Regulations, SOR/2202-254). Nothing distinguishes these prohibitions from that found in the RFRs and all are valid.

Intrusion Into Provincial Jurisdiction Over Natural Resources

Justice Rennie answers the question of whether the RFRs intrude into provincial jurisdiction over natural resources by examining the structure and operation of the RFRs themselves. In so doing, Justice Rennie concludes that the regulations are “agnostic as to who is required to meet the target, and importantly, agnostic as to how they do it, whether by blending fuels or purchasing compliance units” (at para 79). What matters is that the target of consuming 2% less fossil fuels – which is the same on a yearly, Canada wide basis – is met. Also important to Justice Rennie is that s 5(2) applies to Syncrude “as a consumer of diesel in its operations, not its production of synthetic crude oil” (at para 80). He goes on to note that the “RFRs do nothing to affect the rate or timing of resource extraction…” (at para 80) – Syncrude stands in no different position than any other consumer of diesel fuel in Canada. The RFRs are, therefore, laws of general application and not directed at the management of natural resources.

Indirect Means Argument

Syncrude also argued that the criminal law power does not support the use of indirect economic effects to achieve the dominant purpose of protecting the environment. The RFRs, it argued, indirectly address the emission of GHGs by creating a demand for renewable fuels in order to displace fossil fuels and thereby reduce GHG emissions. The finding that creating demand for renewable fuels is not the dominant purpose of the RFRs provides Justice Rennie with a short answer to this argument. However, in the alternative Justice Rennie finds that Syncrude’s argument “that Parliament cannot use the criminal law power to indirectly reduce an evil has no support in the jurisprudence.” (at para 83) In the Firearms Reference the Supreme Court confirmed that “indirect means” may be used to achieve Parliament’s ends. (at para 84, citing Firearms Reference at paras 39-40) Similarly, in RJR-MacDonald the Court affirmed that when considering whether a valid criminal law purpose exists, the court’s emphasis must not be on Parliament’s method of achieving that otherwise valid purpose, no matter how “circuitous” the path taken to achieve Parliament’s goal. (at para 85, citing RJR-MacDonald at paras 50-51)

The Colourability Argument

Building on its assertion that the RFRs are ineffective in combating climate change, Syncrude also argued that they must therefore, by logical inference, “…be a colourable attempt to create a market for renewable fuels or to regulate provincially controlled natural resources” (at para 87). Syncrude constructed this argument as follows: the evidence suggests that the government knew that the use of renewable fuels do not in fact have a lower GHG emissions over their life cycle; the government understood that the RFRs would spur collateral economic incentives to agriculture and industry associated with planting and refining biofuels; and, therefore the primary purpose of the RFRs must have been to intrude into provincial responsibilities to create a market for Canadian renewable fuels. (at para 89)

Justice Rennie held, however, that the evidence supports the opposite conclusion. (at para 90) When considered in context, the references in the evidence associated with the creation of a domestic market for renewable fuels were directed at preventing or reducing air pollution through the reduction of GHGs. Justice Rennie also recognizes that in using the criminal law power to protect the environment, and in this case reduce GHG emissions, Parliament must necessarily navigate the economic consequences associated with doing so. While sometimes “crafting the regime so as to mitigate the economic side effects may be the majority of the work” and “managing economic effects plays a role, even a large role” this does not mean that the law is a colourable attempt to pursue an unconstitutional objective.” (at para 91). This is so even if capital incentives and subsidies exist – provided the clear objective of these economic measures is to meet the ultimate purpose of reducing air pollution by reducing GHG emissions. And this is precisely what the Federal Court of Appeal finds that the RFRs are designed to do.

Ancillary Powers

In light of the preceding reasons, the FCA concludes that s 5(2) of the RFRs is a valid exercise of the criminal law power and is intra vires the Constitution Act 1867. Without examining the issue in any detail, Justice Rennie also concludes that had the law been ultra vires, it would have been saved by the ancillary powers doctrine for substantially the same reasons as those of the Federal Court.

Commentary

So what does the decision mean for Canada going forward?

Absent an appeal to the Supreme Court of Canada, this FCA decision removes the lingering question as to whether the federal government can rely on the criminal law power to regulate GHG emissions, an evil that justifies the exercise of the criminal law power. This is so even if the legislation or regulation creates favourable economic and market responses in other sectors or supports the use of indirect economic effects to achieve its dominant purpose. It is not necessary that the legislation or regulation contain an absolute ban on GHG emissions – the prohibition need not be total or, as exemplified by the RFRs, even substantial, and exemptions are tolerated. And any such legislation or regulations will not be open to challenge on the basis that it is ineffective at achieving its purpose or on the basis that it intrudes into provincial jurisdiction over natural resources, provided that it is a law of general application.

In Canada’s National Statement at COP21, Prime Minister Justin Trudeau promised that “Canada can and will do more to address the global challenge of climate change.” At present, “[i]n the spirit of cooperation and collaboration” the federal and provincial governments are in the midst of a sixth month process to devise a pan-Canadian framework to address climate change. The first of these meetings held in Vancouver in March 2016 culminated in the Vancouver Declaration on Clean Growth and Climate Change. The Vancouver Declaration reflects, for the first time, a political consensus that Canada must live up to its international climate obligations. Specifically, Prime Minister Trudeau and the premiers committed to “[i]mplement GHG mitigation policies in support of meeting or exceeding Canada’s 2030 target…” and to “[i]ncrease the level of ambition of environmental policies over time… consistent with the Paris Agreement.” However, also reflected in the Declaration is the federal government’s commitment to giving provinces and territories the flexibility to design their own policies to meet emission reduction targets. This is in keeping with the province led, bottom-up approach to GHG regulation that has developed in Canada. So even as discussions on a pan-Canadian framework move forward, proactive provinces continue to set provincial targets, announce climate change plans and pass related legislation (see for example, Alberta’s new Climate Leadership Implementation Act here). For its part, the federal government has largely seemed content to assume the role of cheerleader while continuing to insist that at the end of this six month process there will be a “package of measures” that will include a price on carbon (see here). What that package will look like remains to be seen, but following the Syncrude decision the FCA has made it clear that if necessary the federal government has the power – the criminal law power – to put in place regulations directed at reducing Canada’s GHG emissions in order to meet the commitments the Trudeau government has made under the Paris Agreement.

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Rights, Camera, Action

Mon, 06/20/2016 - 10:00am

By: Erin Sheley

 PDF Version: Rights, Camera, Action

Case Commented on: R v McCoy, 2016 ABQB 240 (CanLII)

The series of police encounters that triggered the Black Lives Matter movement have raised many bitter and potentially unanswerable social questions about the relationship between law enforcement and the citizen. From the perspective of criminal procedure, however, they have also demonstrated the importance of video evidence in establishing the “true” story behind the inherently fraught, often violent, almost-always subjective situation of an arrest. In a context where a few words or gestures can make the difference between a colourable case of resisting arrest and an unwarranted exercise of police force, we have seen how eyewitness accounts can be flatly contradictory. As Justice Iaccobucci pointed out in R v Oickle, 2000 SCC 38, referring to video-recorded confessions, police notes may accurately record the content of what is said, but cannot capture tone or body language in a way that recording can (at para 46, citing J.J. Furedy and J. Liss, “Countering Confessions Induced by the Polygraph: Of Confessionals and Psychological Rubber Hoses” (1986), 29 Crim LQ 91, at 104). In light of this potentially important evidentiary function, the in-car digital video system (ICDVS, or “dash cam”) has become an increasingly widely-used piece of police technology. RCMP officers are required to make use of dash cams in all cars equipped with them (see K Division Operational Manual at s 1.1).

In R v McCoy, 2016 ABQB 240, the Alberta Court of Queen’s Bench ruled on the constitutional significance of the RCMP’s policy on dash cams. The arresting officers had pulled the accused over at a check point and, upon smelling alcohol, attempted to administer a breathalyzer test. After the accused—intermittently claiming that medical problems made it difficult for him to breathe properly into the device—ultimately refused to do so, he was arrested for failing to provide a breath sample, a charge for which he was ultimately convicted (at paras 11-14). The arresting officer’s car was equipped with a dash cam, but he did not turn it on until leaving the checkpoint for the RCMP station (at para 16).

On appeal of his conviction, McCoy argued that:

  1. The trial judge erred in law in finding that the failure of the RCMP officer to activate his In-Car Digital Video System did not violate his sections 7 and 8 Charter rights;
  2. The trial judge made several unreasonable findings of fact that were critical to McCoy’s conviction and otherwise misapplied the law regarding a reasonable excuse to fail to provide a breath sample; and
  3. The trial judge erred in law in his application of the test for assessing witness credibility required by R v WD, [1991] 1 SCR 742.

The Alberta case law on the Charter significance of whether police follow the policy requiring use of dash cams in the first place has been muddled. The cases suggest a range of potential standards, most of them turning on the subjective intentionality of the officers responsible for operating the dash cam (at paras 34-44). Where Alberta courts have found a section 7 violation for the lack of dash cam use, there generally has been unusually objectionable conduct on the part of the officers (most amusingly, perhaps, in R v Nabrotzky (25 November 2014), Sherwood Park 141033977P1 (ABPC), where one officer failed to turn on the device because he did not like the sound of his voice recorded, and the conduct of all other involved officers collectively suggested a “pattern of indifference” as to following the rule (at para 41)).

By contrast, there is a clear rule governing the loss of already existing evidence which the Supreme Court of Canada has applied to misplaced or destroyed dash cam footage. In R v La [1997] 2 SCR 680 the Court held that a section 7 violation occurs where the police conduct resulting in the destruction of existing footage rises to the level of “unacceptable negligence” (at para 30). In McCoy, however, the ABQB held that—contrary to the arguments of the accused—the case law creates a distinction between situations where existing evidence is destroyed and situations where the police failed to obtain evidence in the first place (at para 47). According to the Court, “As there is no obligation on the Crown to create evidence, the failure to record is not an issue of full disclosure. A failure to create evidence cannot be equated with a failure to preserve or disclose evidence for the purpose of founding a Charter violation” (at para 47). The Court also noted that even in Oickle, with its obiter praising the use of video recording in the confession room, the Supreme Court declined to find that the absence of recording in and of itself constituted a Charter violation (at para 56).

On the policy front, the Court noted that the accused is entitled to a fair trial, not a perfect trial, and found that “[n]on-compliance with the RCMP policy must be considered in light of the possibility of human or technological error and the consequence to the public of such rigid requirements” (at para 67). The Court added that without the benefit of video recordings, courts will simply “perform the same function that they do in all other trials; they weigh the evidence and make credibility assessments on the evidence available” (at para 68). The bottom line on the constitutional question in McCoy appears to be that, because the Crown has no duty to create evidence (in contrast to its duty to disclose evidence, as implicated in cases involving lost footage), an officer’s simple failure to record an interaction, even in violation of an RCMP policy, does not in and of itself constitute a Charter violation (at para 70).

The Court briefly considered whether the officers’ conduct in this particular case evinced the sort of “outrageously cavalier” or “indifferent” behavior as to the dash cam policy that had been found to constitute a section 7 violation in other cases. No evidence supported such a contention in this case, due, among other reasons, to the officer’s reasonable explanation that had he turned the dash cam on it would have failed to record any of the stop due to the location of the accused’s vehicle ten feet away and out of range (at para 76).

As to section 8, McCoy tried to argue that the officers’ administration of the breathalyzer test without following the RCMP’s recording policy constituted an unreasonable search (at para 87). He attempted to reason by analogy to the constitutional standards for the reasonableness of bodily strip searches, which have been informed, in the case law, by reference to authorities such as police training manuals (at para 89). The ABQB made short work of this argument, noting that the cases on bodily searches deal with “deliberate unexplained conduct on the part of the police” and, perhaps more to the point, deal with the manner of a search rather than the evidentiary record of it (at para 92). Thus, they do not govern the dash cam question and section 8 was not implicated by the facts of this case.

While the majority of the Court’s reasons focus on the appellant’s Charter arguments, it also considered McCoy’s contention that the trial court had inappropriately discounted inconsistencies in the arresting officer’s testimony in making its credibility determination (at para 99). Specifically, McCoy pointed to the officer’s admitted exaggeration of a seizure McCoy sustained at the police station, and his inaccurate claim that he had recorded the seizure in his notes (at para 101). The ABQB noted the relative inconsequence of these inconsistences (particularly the fact that the officer had reported the seizure in his General Report, though not specifically in his notes), and found them insufficient to override the deference due to the trial court in findings of fact (at paras 103-104). The Court likewise rejected McCoy’s contentions that the trial court inappropriately discounted his own testimony due to his faulty recollection of various events in the evening, which he claimed related to his ongoing medical problems (at para 105). In reality the trial court had in fact accepted that McCoy had medical problems, but merely rejected his account of the actual interaction with the officer, which he in fact claimed to remember (at para 107). Furthermore, the Court noted that McCoy’s arguments were of particularly little avail due to the substance of the charged offence, which places a burden on the accused to provide a reasonable excuse for refusing to provide a breath sample (at para 115). As the mens rea and actus reus did not appear to be in dispute, the defence turned on the existence of reasonable excuse which the accused failed to meet.

Finally, the Court addressed the trial court’s application of the famously confusing test in R v. WD for evaluating the credibility of competing witness accounts. The WD test provides the following direction to a factfinder:

First, if you believe the evidence of the accused you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused (at para 118).

This test is widely criticized in the scholarly literature for creating a number of logical paradoxes (particularly the ostensible proposition at the second prong, that disbelieved testimony by the accused can itself create reasonable doubt), but remains the law on the issue. The Court summarized the trial court’s findings of fact as to the first and second prongs of WD, much of which turned on the gaps in the accused’s recollection affecting his credibility. The Court stated that the trial court did NOT conclude “I prefer the testimony of the officer over the testimony of the Appellant,” which would not have been enough to overcome the reasonable doubt standard under WD, but that “instead, he is explaining why the evidence of the Appellant does not leave him with a reasonable doubt, including due to credibility issues” (at para 122). At that point, the trial court turned, as was appropriate, to the third prong of WD, and concluded that the rest of the Crown’s evidence did support a finding of guilt beyond a reasonable doubt.

In holding that the trial court had appropriately weighed the credibility of the conflicting accounts, the ABQB noted, as has been accepted since the unfavorable reception of WD, that it was not necessary for it to have explicitly articulated the three steps of the test. WD is not, the Court emphasized, a “magic incantation” (at para 125). This decision is consistent with the weight of the authority since WD was decided, which emphasizes that it was primarily intended to prevent fact finders from distorting the Crown’s burden of proof in cases of conflicting testimony by simply picking the account of the Crown’s witness over that of the accused in cases where the former is more convincing yet reasonable doubt remains.

Another point is worth noting about McCoy in conclusion. While the Court did not mention it explicitly, had McCoy’s Charter argument prevailed it might have had a perverse effect on police practices. Dash cams are valuable sources of evidence, useful both to successfully prosecuting the guilty and holding police officers accountable for their behavior while conducting stops. It is therefore a good thing for substantive justice for the RCMP to mandate dash cam use wherever feasible. Yet should courts come to treat internal police policies as creating fixed Charter standards, the logical reaction on the part of law enforcement would be to loosen their standards for self-regulation so as to avoid widespread exclusion of evidence. Any attempt by courts to constitutionalize all aspects of police procedure—particularly in the absence of judicial expertise as to the physical and financial constraints on police departments—risks creating such a double bind. Should all failures to follow the dash cam policy constitute automatic section 7 violations, it seems unlikely the policy itself would last for long. As dash cam technology becomes more commonplace and cost-efficient, however, it is not unreasonable to suspect that courts might revisit its constitutional role in the future.

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The Power of a Trustee in Bankruptcy to Disclaim Unproductive Oil and Gas Properties and the Implications for the AER’s Liability Management Program

Fri, 06/17/2016 - 10:00am

By: Nigel Bankes

PDF Version: The Power of a Trustee in Bankruptcy to Disclaim Unproductive Oil and Gas Properties and the Implications for the AER’s Liability Management Program

Case commented on: Redwater Energy Corporation (Re), 2016 ABQB 278

In a much anticipated decision Chief Justice Neil Wittmann has concluded that there is an operational conflict between the abandonment and reclamation provisions of the province’s Oil and Gas Conservation Act, RSA 2000, c O-6 (OGCA) and Pipeline Act, RSA 2000, c P-15 and the federal Bankruptcy and Insolvency Act, RSC 1985, c B-3 (BIA). Thus, a trustee in bankruptcy is free to pick and choose from amongst the assets in the estate of the bankrupt by disclaiming unproductive oil and gas assets even where (and especially so) those assets are subject to abandonment orders from Alberta’s oil and gas energy regulator, the Alberta Energy Regulator (AER). As a result, the value of the bankrupt’s productive assets is preserved for the benefit of secured creditors. AER abandonment orders do not bind a trustee with respect to the disclaimed properties and do not constitute costs of administration of the bankrupt’s estate. Since the trustee has no responsibility for disclaimed assets, the trustee should be in a position to transfer non-disclaimed producing assets to a third party purchaser without objection from the AER on the basis of any deterioration in the liability rating associated with the unsold non-producing assets. If either the AER or the Orphan Well Association (OWA) carries out the abandonment of the disclaimed assets such costs may constitute a provable claim in bankruptcy but, as a general creditor, the AER/OWA would likely only recover cents on the dollar.

The practical effect of this decision is that the AER’s authority to enforce abandonment orders at the cost of the licensee is unenforceable at precisely the time when the AER most needs to be able to exercise that power i.e. when the licensee is insolvent. Furthermore, one of the AER’s principal mechanisms to ensure that a licensee has assets on hand to cover its liabilities (its authority to withhold consent to the transfer of assets which result in the deterioration of a licensee’s ability to discharge its obligations) is no longer available. Thus, the entire provincial scheme for protecting Albertans from the abandonment costs in relation to non-productive wells is seriously compromised, and, as a result, in the case of a bankrupt licensee the costs of abandonment will necessarily be assumed by the Orphan Well Fund or the province. If the costs are assumed by the Fund this means that the industry as a whole bears the burden; if the costs are assumed by the province (perhaps by a cash infusion into the Fund) this means that all Alberta taxpayers bear the burden of discharging these abandonment and reclamation obligations. While this result flies in the face of any conception of the polluter pays principle it is, according to Chief Justice Wittmann, the necessary result of the interpretation of the relevant statutes and the application of the constitutional doctrine of paramountcy.

Any effort to restore the pre-eminence of the polluter pays principle will require statutory amendments or changes in regulatory practice. The most obvious candidate for amendment is the BIA itself but this may well prove to be an immovable object given the desire to protect the interests of secured creditors and to avoid a “third party pays” scenario. Any changes to provincial laws will have to be carefully crafted to remain onside the federal scheme. Much however might be achieved through changes in AER practice so as to prevent “producers” from carrying so many unproductive properties and inventories of suspended wells. Although this is akin to closing the stable door once the horse has already escaped given the number of companies likely facing financial difficulties as a result of low oil prices, it is still a task that needs to be undertaken on a go-forward basis. It will also be necessary to consider significant increases to the annual levy if the AER and the province are serious about making sure that the industry covers its costs.

The balance of this post proceeds as follows. The next section presents the AER’s liability management regime and the following sections discuss the inconsistencies between the provincial regime and the BIA as identified by Chief Justice Wittmann.

The AER’s Liability Management Regime

The AER maintains a liability management regime which is designed (at para 26) “to prevent costs associated with suspension, abandonment, remediation and reclamation of AER licensed properties (well, facility or pipeline) … from being borne by the public of Alberta should a licensee become defunct … [and] to minimize the risk to the Orphan Fund administered by the OWA [Orphan Well Association].” The regime is based on a number of AER Directives and the Oil and Gas Conservation Rules, Alta Reg 151/1971, Part 1.1 (OGCR); while the details are complex the underlying concepts are fairly straightforward. The basic proposition is that a licensee must maintain a positive liability management ratio (LMR) in relation to its assets. The LMR is the ratio of a licensee’s deemed assets (e.g. producing wells) and its deemed liabilities (e.g. suspended wells). If a licensee’s LMR falls below 1.0 the AER will require the licensee to post increased security to cover the difference. Similarly, if a licensee is proposing to transfer assets and the result of the transfer will reduce the LMR of either the transferor or the transferee below 1.0, the AER may require the relevant licensee to provide additional security before it will approve the transfer.

The AER may direct a licensee to abandon a well or facility in a number of circumstances and in particular may do so, as here, where “in the opinion of the Regulator the well or facility may constitute an environmental or a safety hazard” (OGCR s. 3.012). Where a licensee (or other working interest participants (WIPs) in the well) fail to do so the AER may carry out the abandonment itself or may declare the well or facility to be an orphan, at which point the OWA assumes responsibility for the abandonment and reclamation of the property. The financial resources available to the OWA include the Orphan Fund Levy funds (an annual levy on all licensees) and any security deposit made by that licensee.

There are a number of premises that underlie the efficacy of this scheme. The first is that the deeming rules that underlie the calculation of the ratio are realistic. To the extent that the deeming rules overestimate assets or underestimate actual liabilities then the assets on hand to cover liabilities will be inadequate. The AER’s concerns in relation to this scheme led it to tighten the rules of the program significantly in 2013 with a roll out of the new rules over a three year period. The new rules inter alia increased the deemed costs and also reduced deemed revenues by shortening the period for averaging industry netbacks. These changes led to LMRs below 1.0 for some companies, which required them to make additional security payments. While these requirements undoubtedly increased the financial pressure on junior oil and gas companies and may contribute to their insolvency, these tightened rules do provide some assurance with respect to the first premise, and as well shall see, also the second major premise.

The second premise is that the licensee’s assets will actually be available to fund the licensee’s abandonment and reclamation activities at the relevant time. The result of the decision in Redwater is that in the case of a bankruptcy, the assets will not be available or certainly not on a preferential basis. The assets will first be used to satisfy the rights of secured creditors. Thus the second major premise underlying the AER’s liability management scheme is fundamentally flawed. The only assets that we can be assured will be available in an insolvency are those security deposits held by the AER.

The second major premise is flawed because the provincial rules that assume the availability of the assets are unconstitutional. They are unconstitutional because of an operational conflict with the BIA.

There is of course no doubt about the validity of the provincial laws that make up the AER’s liability management scheme (see para 93). The question for present purposes is whether elements of those rules are inoperable by virtue of the doctrine of paramountcy. There are two branches of the paramountcy test. The Supreme Court of Canada put the test this way in Alberta (Attorney General) v Maloney, 2015 3 SCR 327, 2015 SCC 51, at para. 18:

A conflict is said to arise in one of two situations, which form the two branches of the paramountcy test: (1) there is an operational conflict because it is impossible to comply with both laws, or (2) although it is possible to comply with both laws, the operation of the provincial law frustrates the purpose of the federal enactment.

In his judgement, Chief Justice Wittmann canvassed three possible conflicts. (1) Is there a conflict between the trustee’s power to renounce and continuing liability under provincial legislation? (2) Is there a conflict between the distributional scheme mandated by the BIA and the allocation of resources required by provincial legislation? (3) Is there a conflict between the scheme of the BIA and the AER’s rules and practices with respect to the approval of licence transfers?

Is there a conflict between the trustee’s power to renounce and continuing liability under provincial legislation?

Section 14.06 of the BIA allows a trustee to renounce or disclaim any interest in real property that is affected by an environmental clean-up order. There is no similar opportunity to disclaim under the provincial legislation. A licensee has a continuing liability under the provincial rules and a licensee is defined to include “a trustee or receiver?manager of property of a licensee” (OGCA, s 1). Accordingly, there is an operational conflict between the BIA and the provincial statutes insofar as the trustee would remain liable notwithstanding its renouncement. Chief Justice Wittman summarized his conclusion as follows (at para 156):

In the result, the Trustee is not a licensee of the renounced assets, ought not to be required to assume any liabilities, and is not bound by the Abandonment Orders relating to the renounced assets in seeking approval of the sales process to market and sell the assets remaining under its possession and control of. In other words, so long as the Trustee renounces the affected property in accordance with section 14.06(4), the AER cannot attempt to impose on the Trustee the obligation to remediate the renounced property by performance or posting security. In addition, the effect of section 1 of the OGCA and the Pipeline Act is to remove the benefits otherwise available in a renunciation and thus frustrates the purpose of section 14.06 of the BIA. Despite renouncing, a receiver would have to assume control of the remediation activities and incur the very risks that section 14.06 of the BIA is designed to avoid, which may lead to trustees refusing mandates where there are potential liabilities if they have to comply with abandonment orders.

Is there a conflict between the distributional scheme mandated by the BIA and the allocation of resources required by provincial legislation?

If given full effect, the provincial laws would require the trustee to carry out the abandonment operations in priority to satisfying the claims of secured creditors. In order to determine whether that gives rise to a conflict it is first necessary, as the majority of the Supreme Court of Canada put it in Newfoundland and Labrador v AbitibiBowater Inc, 2012 SCC 67 (CanLII) (at para 17), “to determine whether an environmental order [the abandonment order in this case] that is not framed in monetary terms is in fact a monetary claim.” It is only if the order is a monetary claim that there is a conflict.

Justice Deschamps on AbitibiBowater suggested that the provisions of the BIA offered a three part test for determining whether an environmental order should be so treated (at para 26, emphasis in the original): “First, there must be a debt, a liability or an obligation to a creditor. Second, the debt, liability or obligation must be incurred before the debtor becomes bankrupt. Third, it must be possible to attach a monetary value to the debt, liability or obligation.” Chief Justice Wittmann applied that test here, noting that both the AER and the OWA conceded (at para 164) that the first two elements of the test were satisfied.

As for the third element, the record was somewhat mixed. Indeed Chief Justice Wittmann suggested that “The answer is no in a narrow and technical sense, since it is unclear whether the AER will perform the work itself or if it will deem the properties subject to the orders, orphans. If so, the OWA will probably perform the work, although not necessarily within a definite timeframe.” However he went on to conclude that the orders should be treated as monetary claims since:

[173] … the situation does meet, in my opinion, what was intended by the majority of the Court in AbitibiBowater. Compliance with the orders would require the Trustee and Receiver to expend funds by way of security that would be used to perform the abandonment work. The effect is that if the obligations to remediate property are fully complied with by the Trustee within this bankruptcy context, the claim of the Province for remediation costs will be given a super priority not provided for under section 14.06. The creditors deprived of the usual order of priority in bankruptcy will be subject to a “third-party-pay” principle in place of the “polluter-pay” principle.  The history of amendments to the BIA in this case shows that Parliament intended that the priority of creditors as provided under section 14.06, and thus the distribution of funds, ought not to be disturbed by provincial legislation. In the result, I find that although not expressed in monetary terms, the AER orders are in this case intrinsically financial.

[174] In this case, the obligation to comply with the orders directly affects Redwater’s estate. Indeed, the obligation to comply with the orders requires payment of or the posting of security for, the abandonment costs to the AER in priority to all other creditors. Those actions frustrate the primary purposes of the BIA. These costs are not a sanction of regulatory nature, but would have a direct effect on the scheme of distribution provided under the BIA.

It is worth observing that Chief Justice Wittmann has effectively concluded here that an abandonment order ought to be treated a monetary claim so as not to undermine the scheme of the BIA. It is very much an example of result-oriented or consequentialist reasoning.

Once it is determined that an order is a monetary claim, then it follows that the AER’s efforts to enforce that claim in priority to the claims of secured creditors frustrates the scheme of s 14.06 of the BIA, both generally, as well as several of its specific provisions. At the general level Chief Justice Wittmann observed that Parliament had addressed its mind to the priority to be accorded to environmental orders. The specific provisions designed to give effect to that ordering of priority were inconsistent with the provincial rules. For example, s 14.06(6) provides that once a trustee has disclaimed property, any costs associated with remedying the condition of the disclaimed property cannot rank as costs of administration. Instead, Parliament had decided (s 14.06(7) & (8)) that the monetary claim of a provincial regulator such as AER/OWA would be entitled to security, but only as against the particular property and not more generally against the assets of the bankrupt.

Is there a conflict between the scheme of the BIA and the AER’s rules and practices with respect to the approval of licence transfers?

It followed from the above that any scheme adopted by the AER which allowed it to continue to take into account disclaimed properties in deciding whether to consent to the transfer of licences is also inconsistent with and frustrates the purposes of the BIA. Such a scheme (at para 178):

… has a direct financial impact on all creditors. Under the guise of simply exercising its regulatory powers, the AER is ensuring that the polluter or its licensee will pay for the environmental damages, which is certainly a very important concern. In other words, if the property is found to include that which was renounced by the receiver, Directive 006 still frustrates the purpose of section 14.06 of the BIA by including renounced assets in its calculation for determining the approval of a sale. The effect of section 14.06 is that renunciation is possible, with the purpose of protecting the trustee and receiver with the ultimate goal of equitable distribution, and as such, provincial legislation that interferes with this purpose amounts to frustration of intent.

Conclusion

The decision is under appeal. I understand that the parties have been able to secure a September date for a hearing in the Court of Appeal and it is reasonable therefore to think that we might have a decision by the end of the year. The AER and the OWA will face an uphill battle since they will need to succeed on all three of the adverse rulings outlined above. While Chief Justice Wittmann may have equivocated on the question of whether an abandonment order in Alberta is a regulatory requirement or a monetary claim, and while his reasoning on that point may be open to question, success on this issue alone will not be enough to save the integrity of the AER’s liability management scheme, which has clearly been badly compromised and needs an overhaul. And this time the overhaul should not be some behind-the-doors deal between the AER and representatives of the oil and gas industry but should be subject to rigorous public scrutiny.

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Ordinary Self-Represented Litigant or Organized Pseudolegal Commercial Argument Litigant?

Thu, 06/16/2016 - 10:00am

By: Jonnette Watson Hamilton

PDF Version: Ordinary Self-Represented Litigant or Organized Pseudolegal Commercial Argument Litigant?

Case commented on: Alberta v Greter, 2016 ABQB 293 (CanLII)

The September 2012 decision of Meads v Meads, 2012 ABQB 571, established a continuum of litigants, ranging from very commonly encountered self-represented litigants, to infrequently encountered vexatious litigants, through to the highly unusual sub-set of vexatious litigants that Associate Chief Justice J.D. Rooke labelled “organized pseudo-legal commercial argument” or OPCA litigants. For a number of reasons, it can sometimes be easy to conflate these categories. Vexatious and OPCA litigants are almost always also self-represented. And a few of the OPCA concepts and strategies that Justice Rooke described in Meads might the part of the ordinary self-represented litigant’s way of coping with unfamiliar legal processes, documents and jargon. In addition, the rising tide of self-represented litigants can be overwhelming for judges, trying their tolerance and patience. All of this has been documented in the research reports of the National Self-Represented Litigants Project (NSRLP). But whatever the reasons, conflating these categories is almost always detrimental to the ordinary individual who represents him- or herself in court simply because they have no choice. Although there are not enough facts set out in the judgment of the Master in Chambers, Sandra Schulz, to be sure, I wonder if Angela Greter, the defendant in Alberta v Greter, is simply an ordinary self-represented litigant and not the OPCA litigant questioning the authority and legitimacy of the courts that Master portrayed her to be.

Alberta v Greter is a straight-forward case, involving a simple claim by the Province of Alberta for repayment by Ms. Greter of almost $70,000 in student loans that she had received between 2004 and 2012. Ms. Greter had completed her PhD, with a focus on animals significant to food production, from the Department of Animal Biosciences at the respected University of Guelph (ranked fourth in the world for veterinary science) in December 2012. Her student loans therefore became repayable, after a standard six-month grace period, in July 2013.

When the Province of Alberta sued Ms. Greter in June 2015, she had not made any payments on her student loans. This is not that unusual; according to the most recent Canada Student Loans Program review, default rates on Alberta student loans were between eleven and fourteen percent annually before drop in oil prices in late 2014. Ms. Greter filed a Statement of Defence in August 2015.

The Province applied for summary judgment in March 2016, arguing that Ms. Greter had breached her agreement to repay her student loans and had no defence to the Province’s claim. The goal of a summary judgment application is to persuade the court that the other party has no chance of success and judgment should be given against them without a trial. According to the NSLRP and their recent report on “The Use of Summary Judgment Procedures Against Self?Represented Litigants: Efficient Case Management or Denial of Access to Justice”, the number of summary judgment applications being brought against self-represented litigants increased by 1160% between 2004 and 2014, and, if the summary judgment application was brought by a party represented by a lawyer, as was the Province of Alberta in this case, the success rate in 2014 was 96%.

The Province’s summary judgment application was first set to be heard May 2, 2016. Ms. Greter’s husband appeared and asked for an adjournment, and a two-week adjournment to May 16, was granted. When the Province’s summary judgment application was heard on May 16, it was uncontested; Ms. Greter did not appear or make any representations. Instead, she had advised the Province that she would not be appearing. Not surprisingly, the Province was granted its summary judgment for the student loans, interest and costs of $3,000, all based on the affidavit evidence it filed.

That sounds simple and speedy enough. The province waited two years to sue after the loans became repayable. Once the Province sued and a Statement of Defence was filed in a timely manner, the Province waited a further nine months to bring their summary judgment application. Their summary judgment application was heard, uncontested, on a date only two weeks after it was first scheduled by the Province to be heard. It seems to have been the only application made by either party in the action. The hearing itself probably would have been relatively brief because it was uncontested. The Master’s written decision followed the application just over one week later, giving the Province everything it asked for.

So why did the Province say that Ms. Greter had used “freeman on the land” tactics before and during the litigation? (para 3) And why did Master Schulz accuse Ms. Greter of using strategies that Meads v Meads categorized as Organized Pseudolegal Commercial Arguments “which appear with troubling frequency in Canadian courts” and which are “a simply worthless scam that only causes harm and waste to all involved” (para 10)?

Apparently Ms Greter sent the Province two documents and a copy of a letter and she filed one document in the Province’s court action. All were included in the Province’s affidavit evidence and all were either quoted at length or attached as appendices to Master Schulz’s judgment: a “Notice of Default” dated December 8, 2013 (Appendix A); a “User Agreement Fee Schedule Notice” dated February 22, 2014 (Appendix B); a copy of a letter dated February 28, 2014 to a collection agency (para 26); and a “Rebuttal to Service Alberta, Crown Debt Collections” (Appendix C).

There is no question that these four documents adopt the form and content of some of the typical OPCA documents described in Meads v Meads. Master Schulz described the “Notice of Default” as a “foisted unilateral agreement debt elimination scheme” (paras 11-22), described in Meads v Meads (paras 447-72, 487-504) and Bank of Montreal v Rogozinsky, 2014 ABQB 771 (CanLII). The “User Agreement Fee Schedule Notice” is an example of another type of foisted unilateral agreement which purports to set penalties and costs for interactions between litigating parties in advance (paras 23-25), also described in Meads v Meads (paras 505-23). The copy of the letter to the collection agency was an example of the “double/split person” OPCA strategy (paras 26-28), also detailed in Meads v Meads (paras 417-46). Lastly, the one court document filed by Ms. Greter, the “Rebuttal to Service Alberta, Crown Debt Collections”, followed up on her earlier Notice of Default (para 29).

Based on the OPCA strategies evident in these four documents, the Master concluded that Ms. Greter had no viable defence and that “[s]he has simply attempted to deny and evade her obligations to repay the government loans that financed her education and present career” (para 30).

But was there nothing at all of substance in the three documents that Ms. Greter sent the Province and the one document that she filed with the court?

Ms. Greter appears to have had two issues with the Province’s claim. The first related to her understanding that she would receive $20,000 in loan relief. Apparently a change in the student loan relief program restricted the amount of her loan that was forgiven to $6,000 (para 9). Ms. Greter and Student Aid Alberta exchanged emails and correspondence about this issue in 2013. There is no indication in the judgment that there was anything unusual or amiss with the exchanges in 2013 on this issue. And this issue is not explicitly mentioned in the four documents appended to or quoted in the judgment. This issue appears to be irrelevant to the charge of using OPCA strategies.

The second issue is at the heart of the OPCA accusation and more difficult to discern in the midst of all of the incomprehensible language and concepts included in Ms. Greter’s four documents. The copy of the letter to an unnamed collection agency provides a hint. And the Student Aid Alberta website, under “Default Consequences”, warns that there are “serious consequences” if a recipient of student loans misses payments. One of the listed serious consequences is that “Your loans will be sent to a collection agency.” Now “sent to a collection agency” might mean sold to a collection agency at a discounted price, making the collection agency the owner of the debt. Or it might mean that the Province remains the owner of the debt and simply pays the collection agency a fee or percentage of any amounts recovered. Ms. Greter’s documents indicate that she was concerned that the Province had sold her debt to the collection agency.

For example, her “Notice of Default” includes, in paragraph 2, a request for “Proof of claim that the Student Aid Alberta Service Centre is the current holder of the above mentioned original debt instrument and that it has not been on-sold to another party” (Appendix A). The other demands in this document, such as the request for an accounting for the Province’s loss and for production of the original promissory note, are understandable if the concern is that the Province sold her debt to a collection agency. The “Rebuttal to Service Alberta, Crown Debt Collections” (Appendix C) essentially looks for the same things. The letter to the collection agency is much more bizarre but it does include a claim that Ms. Greter did not agree to pay the collection agency (para 26).

It is true there is nothing at all relevant to this issue in the “User Agreement Fee Schedule Notice” (Appendix B). The “User Agreement Fee Schedule Notice” is inexplicable except as a part of a package of materials, the rest of which seemed to be relevant to a concern that the Province had sold the debt. Although totally over-the-top in many ways (such as the demand for a billion dollars in silver “if injected or any private organic matter such as blood/tissue or DNA samples are forcibly removed from me under duress”), part of the “User Agreement Fee Schedule Notice” does resemble “Schedule C: Tariff of Recoverable Fees” in the Alberta Rules of Court, AR 124/2010.

But what about the substance of Ms. Greter’s concern that the Province had sold her debt to a collection agency? Master Schulz does deal with this issue. She states that “[s]ale of a debt, or “securitization” is irrelevant to whether the original creditor may enforce that debt” (para 18) and she cites five cases as authority for that statement of the law. However, none of those five cases appears to be good authority for the proposition that the sale of a debt by the original creditor is irrelevant to whether that original creditor may enforce the debt.

Three of the cases that Master Schulz cites are from the province of Quebec and appear to be decided under the provisions of the Civil Code of Québec rather than the common law that governs debt collections in Alberta: Banque Royale du Canada c Tremblay, 2013 QCCQ 12827 (CanLII) at para 15, affirmed 2013 QCCA 2035 (CanLII) at para 7; Banque de Nouvelle-Écosse c Paquin, 2014 QCCQ 10119 (CanLII); and Xceed Mortgage Corporation/Corporation hypothécaire Xceed c Pépin?Bourgouin, 2011 QCCS 2116 (CanLII) at paras 15-25. In addition, Banque Royale du Canada c Tremblay deals with bank securitization of credit card debt and Pépin?Bourgouin merely states that if the debt in that case had been sold, different evidence was needed, but Xceed denied selling the debt (paras 21-22). The point for which the fourth case, Bank of Nova Scotia v Lee, 2013 ONSC 6698 (CanLII) at paras 9, 12, was cited was also irrelevant to the issue. Lee alleged that a mortgage included a promissory note which had been assigned, but the evidence showed there was neither a note nor an assignment. The court held that even if the Bank’s mortgage portfolio had been securitized, the mortgage itself would still be valid. It said nothing about who should be paid, and deals with a different factual scenario, mortgages. The fifth case, Bank of Montreal v Rogozinsky, 2014 ABQB 771 (CanLII) , again involves an argument about credit card debts being monetized and sold on the bond market for multiples of their original value. The main point (at para 46 in Rogozinsky) was that the source of the loan was irrelevant to whether the debtor had to repay it. Like the other four cases, it says nothing about who the debtor had to pay. None of these cases discuss whether the debts at issue were assigned and notice of the assignment given to the debtor.

Of course, the Province probably does not sell its unpaid student loans to collection agencies. It more likely pays collection agencies on an hourly or other basis to collect the debt. But it is surely understandable that if a person is being chased by both a collection agency and Student Aid Alberta, the question of who to pay to satisfy the debt might easily arise. In any event, it appears that Ms. Greter talked to a lawyer for the Province a few weeks ago and is satisfied that the province is still the debt holder: see Douglas Quan, “Graduate slammed for invoking ‘pseudolegal’ tactics to avoid repaying $64,000 student loan”, National Post, May 31, 2016.

According to that newspaper article, Ms. Greter believes that the court “grossly misrepresented” what she was seeking. All she wanted was assurance from the Province it was still the debt holder and that it hadn’t sold the debt to another party. And because, like most self-represented litigants, she could not afford a lawyer right after graduating, she turned to the Internet. In this she was not unusual. About one-third of Canadians confronted with everyday legal problems, such as debt problems, do search online for help: Trevor C.W. Farrow et al., Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: Canadian Forum on Civil Justice, 2016) at 7-9. But as the Final Report of The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants noted (at 10), there are significant limitations and deficiencies to this on-line material. Like the Court Guides Assessment project it references, this NSRLP report found that there are a multiplicity of websites offering legal information, most using jargon and unexplained legal terms, often with no means of differentiating which is the most legitimate. One might think that Ms. Greter should be better equipped than many self-represented litigants to distinguish bad information from good, given her PhD, but those of us inured to the legal profession’s jargon and concepts tend to forget (unless we teach Property Law to first year law students) just how incomprehensible and mystifying the language and procedures of the law can be.

The newspaper article states that Ms. Greter feels that “this ruling really misrepresents my side. … I’m concerned by how this could be misinterpreted in the public arena.” Apparently she is considering an appeal, even though the same article also states that she has set up a repayment plan. There seems to be no doubt that the Province is owed what Master Schulz ordered they be paid. An appeal would be hopeless ? and perhaps seen as vexatious. And Master Schulz did not misrepresent the four documents that Ms. Greter sent the Province or filed with the court. They used OPCA strategies and concepts, they have been debunked by dozens of recent cases and, as Meads v Meads and every case since Meads v Meads has made more than clear, their use does attract strong sanctions and penalties. And frankly, the newspaper article, which repeats Master Schulz’s critiques as well as Ms. Greter’s concerns, gives far more publicity to her experience in this case than did the Master’s judgment itself.

Nonetheless, there are aspects of Master Schulz’s judgment ? in addition to the lack of authority for the substantive point about who to pay ? which are cause for concern.

One is the identification of Ms. Greter with the Freemen-on-the-Land. Apparently in its arguments before Master Schulz, the Province alleged that “Ms. Greter had also used ‘freeman on the land’” tactics before and during the collection litigation” (para 3). Freemen-on-the-Land is one of six categories of OPCA litigants identified in Meads v Meads. Justice Rooke describes them as a Canadian movement whose membership’s focus is strongly anti-government, with libertarian and right wing overtones (Meads v Meads at para 172). That anti-government focus is lacking in the documents appended to or quoted by Master Schulz in this case. Just why Ms. Greter’s documents or actions attracted that label from the Province, or why it was repeated by Master Schulz, is unclear.

Another is Master Schulz’s description of Ms. Greter’s documents as disclosing OPCA strategies and concepts that are worthless scams “that only causes harm and waste to all involved” (para 10). While the “harm and waste” point may be true in almost all litigation involving OPCA litigants, there is little evidence of either in this case. I have already detailed the steps in this case and how they seemed simple and speedy enough, with the Province getting everything it asked for, without a contest, within two weeks of the initial date set for hearing its application, and they did so on the basis of the evidence in one affidavit. If there was any waste or harm, it is not disclosed in the judgment (and the Province did not seem shy about putting forward other OPCA evidence). There is little in the judgment to suggest that Ms. Greter pursued the OPCA strategies beyond delivering three documents to the Province before the court action was started and filing one with the Court. It seems she did publish her “User Agreement Fee Schedule Notice” on a website, but Master Schulz indicates she did not attempt to actually use that document (para 25). Compared to the dozens of cases summarized in Meads v Meads, the use of OPCA strategies in this case seems minimal.

Finally, and building on the Master’s threat of “punitive steps” and sanctions “such as being declared a vexatious litigant” had Ms. Greter attempted to use the “User Agreement Fee Schedule Notice” (para 25), there is the concluding paragraph of the judgment, where Master Schulz talks directly to Ms. Greter:

As a final note to Ms. Greter, I caution her against further attempts to use OPCA concepts. Alberta originally sought double costs in its Statement of Claim, but did not pursue elevated and punitive court costs in its oral submissions at the summary judgment application. If Alberta had maintained that claim I would have granted the double costs award sought, or ordered solicitor and own client indemnity costs against Ms. Greter. This reflects this Court’s categorical rejection of pseudolaw as a means to advance false claims or to frustrate the administration of justice, the operation of the courts, and the enforcement of legal obligations. (para 33)

Ms. Greter filed only one OPCA document with the court. Her husband asked for one adjournment on her behalf and she did not make any other interlocutory applications. She did not appear at the summary judgment application, even advising the Province that she would not be attending. Her concern with who owned her debt and who she should pay is explicable and not obviously a “false claim”. To state that these actions “frustrate the administration of justice, the operation of the courts, and the enforcement of legal obligations” seems to dramatically overstate the impact of those actions.

Whether Ms. Greter was an OPCA litigant deserving of the punitive court sanctions that Master Schulz would have granted, or an ordinary self-represented litigant who initially made some mistakes, is a question that cannot be easily answered based on the facts in the judgment.

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Supporting the Unrepresented: Case Management of Self-Represented Litigants

Wed, 06/15/2016 - 10:00am

By: Alena Storton

PDF Version: Supporting the Unrepresented: Case Management of Self-Represented Litigants

Case Commented on: Pintea v Johns, 2016 ABCA 99 (CanLII)

In Pintea v Johns, 2016 ABCA 99 (CanLII), the majority, Justices McDonald and Veldhuis, and dissent, Justice Martin, strongly disagreed on whether to uphold a case management judge’s decision to dismiss a self-represented litigant’s cause of action. Valentin Pintea brought this case against Dale and Dylan Johns for damages related to a car accident that had left Pintea in a wheelchair. In May 2014, after considerable time in case management, the case management judge directed Pintea to provide a witness list as a means of preparing the case for trial. Pintea did not comply (at para 24).

In July 2014, the appellant moved residences, but did not file a change of address with the court as required by the Alberta Rules of Court (at para 25). Following this move, all documents were served on the appellant at his former address and were not forwarded to his new address. Consequently, the appellant failed to respond to or appear at all subsequent applications and case management meetings (at para 25). When the appellant failed to appear for a case management meeting on January 21, 2015, the respondent’s counsel requested that the Statement of Claim be struck. The case management judge agreed to strike the claim if the appellant failed to appear for a meeting on January 30, 2015. The case management judge directed the respondent to serve notice of these conditions on the appellant, but dispensed with the requirement for personal service. The respondent left the notice in the mailbox at Pintea’s former address, which, again, resulted in it not being brought to his attention (at para 26).

On January 30, 2015, the case management judge found Pintea in contempt of court for having failed to obey earlier court orders and attend as directed. For those reasons, the trial management judge dismissed the case and awarded over $82,000 in costs to the respondent (at paras 27-28). This dismissal and costs award was served at Pintea’s former address, but on this occasion, it was also sent to his email. The appellant received the email and began this appeal, which asserted that the application documents regarding the January 30, 2015 case management hearing were improperly served at his former address and, by implication, expressed his wish for the action to be restored (at paras 5-6). In response to the appeal, the respondent applied to adduce fresh evidence to support an assertion that the appellant had engaged in “mischief” after his claim was struck by presenting documents that were falsified to suggest that he had filed a timely change of address with the court.

The Alberta Court of Appeal addressed two issues: whether Pintea had filed the requisite change of address and whether the case management judge’s decision to dismiss his claim was reasonable. Applying the Palmer test (at para 10, citing R v Palmer [1980] 1 SCR 759), the majority allowed the Dales to enter evidence from the Court of Queen’s Bench support staff members that, despite Pintea’s assertion, they had not received an address change from him (at para 17). It further found that it was reasonable for the case management judge to deem service at Pintea’s claim address to be sufficient and strike the claim for a failure to obey orders and appear. Finally, it noted that notwithstanding the fact that Pintea had no counsel, he was required to follow the Rules of Court, including filing the change of address notification (at para 20).

In his dissent, Justice Martin focussed on Pintea’s personal circumstances and his self-representation. He did not find Pintea’s alleged document falsification relevant and would have referred the matter back to the case management judge to determine whether the mischief had occurred (at para 31). Justice Martin also found that the Statement of Claim was struck solely due to a failure to comply with a procedural matter (at para 32).

Further, Justice Martin concluded that the consequences of dismissing the appeal would be excessively punitive, particularly because the appeal made it clear that the appellant’s failure to appear was due to him being unaware of the meetings rather than an act of contempt. According to Justice Martin, a dismissal would result in the Court not reinstating a viable claim that could have resulted in significant damages for the appellant. In Justice Martin’s words, “now instead, this disabled, unemployed man is saddled with a cost award of almost $83,000” (at para 34). Due to this disproportionate result for a failure to comply with a procedural order, the dissent would have reinstated the Statement of Claim and set aside the order of costs.

This case likely does not provide strong precedential value, given the evidence that indicated that the appellant attempted to provide evidence that fraudulently gave the impression that he had properly notified the Court of a change of address. This case, however, does present a prime example of the courts grappling with the issue of how to approach decisions that primarily turn on the competency of self-represented litigants to participate in a trial process.

In this case, the majority was not willing to give any leniency to Pintea for being a self-represented litigant. Instead, the majority expected every party to follow the Rules of Court, regardless of whether the person was self-represented. With all due respect to these justices, I believe that it is unreasonable to expect self-represented litigants to know, understand, and comply with every procedural requirement, particularly as lawyers go through years of training to be able to find and understand all of the legal requirements applicable to a given case.

In the face of longer and more expensive legal proceedings, self-representation has increasingly become the most viable option for people who cannot afford to retain legal counsel for the amount of time required to conclude a case (An Overview of Self-Represented Litigation Innovation, Its Impact, and an Approach for the Future: An Invitation to Dialogue, at p 521). This results in an increasing number of people who are untrained and largely inexperienced with the legal system trying to navigate court processes. Disregarding the special circumstances of these individuals attempting to participate in a trial process that is inherently complicated and includes many diverse procedural requirements would likely result in a trial that is skewed in favour of a party that is able to retain counsel.

Although I disagree with the majority’s conclusion that all litigants should be equally expected to comply with the Rules of Court, I also cannot agree with Justice Martin’s reasoning for reinstating the case. I find that Justice Martin overstepped the boundaries of impartial decision-making by exercising broad discretion when interpreting the case management judge’s written decision and applying retroactive reasoning, all seemingly to avoid saddling this disabled, unemployed man with a cost award of almost $83,000 (at para 34).

Justice Martin interpreted the case management judge’s decision as primarily being based on the appellant’s failure to appear, saying “I cannot think his failure to file a witness list or take such other procedural steps as required would have made a significant contribution to the decision to strike the statement of claim” (at para 32). The case management judge’s written decision, however, contains no suggestions that the judge elevated the failure to appear over the failure to comply with previous orders as a basis for striking the claim. The judge simply states, “I do find him to be in contempt of court for having failed to obey my earlier court orders and failing to attend as directed” (at para 27).

Beyond interpreting where the emphasis lay in the previous decision, Justice Martin also found the knowledge that the Court gained through the appeal to be quite persuasive. Although he noted that it was understandable that the case management judge would conclude that Pintea’s failure to appear indicated his abandonment of the case, Justice Martin determined that Pintea would have continued to attend case management meetings if he had received notice (at paras 32-33). This conclusion seemed to be based solely on the information that the Court gained through this appeal – that Pintea had not received notice and was not acting in contempt of court. Justice Martin’s conclusion ignored the fact that the case management judge was not aware of those circumstances and did not address whether the decision was reasonable in light of information that was available to the case management judge at the time of the dismissal.

Overall, I believe that this liberal interpretation of the case management judge’s reason for striking the claim and attention to details that only became clear through the appeal process demonstrates that Justice Martin exercised outcome-oriented decision-making. It seems that Justice Martin focussed on these aspects of the case in order to avoid dismissing this self-represented litigant’s appeal due to a failure to comply with a procedural requirement.

After careful consideration of the judgements in this case, I find that I am at the mid-point along a spectrum that is bounded by the decisions of the majority and dissent. Along the lines of Justice Martin, it seems prudent to create a mechanism for accommodating the special circumstances and often pressing cases of self-represented litigants in order to face the reality that self-representation is becoming increasingly prevalent. However, the appropriate time for accommodating these special circumstances must be carefully evaluated.

The Alberta Court of Appeal addressed the need for balance between supporting self-represented litigants and maintaining a fair trial in Malton v Attia, 2016 ABCA 130 (CanLII), while deciding an appeal regarding procedural fairness and reasonable apprehension of bias by a trial judge. The Court noted that judges have a responsibility to ensure that self-represented individuals are given fair access to and equal treatment by the court, which may include judges providing information regarding the law and evidentiary requirements. It is clear that this responsibility does not relieve self-represented litigants from the obligation to prepare their own case and familiarize themselves with court procedures (at para 31). Ultimately, the Court made the following statement about the balance between supporting self-represented litigants and maintaining a fair trial:

While a trial judge may, therefore, allow some leeway to the self-represented litigant and provide some assistance, particularly in procedural matters, he or she must not become an advocate for the litigant. Nor can a trial judge allow assistance to a self-represented litigant to override the right of a represented litigant to a fair trial (at para 34).

The Court went on to reaffirm the importance of judicial impartiality. It determined that a judge must be free from actual bias, as well as seen as being free from bias in order to avoid a reasonable apprehension of bias (at para 81).

Similar to the majority in Pintea, I am of the opinion that the decision-making process undertaken by judges during a hearing is not the appropriate time to accommodate the special considerations of self-represented litigants. A judge providing the assistance that generally would be required for a self-represented person to effectively participate in a trial would likely fall short of the dual mandate in Malton, which is providing self-represented litigants with enough support to meaningfully access the court system and ensuring that represented litigants receive a fair, impartial trial.

Self-represented litigants often need extensive pre-trial support, as was seen in Pintea. In an already heavily loaded court system, judges are not well positioned to provide this type of extensive pre-trial support. On the other hand, during a trial, a judge would need to be cognizant of the personal characteristics and needs of a self-represented litigant in order to provide appropriate assistance and information on legal and evidentiary requirements. This sort of focus on the self-represented litigant’s situation may lead to outcome-oriented decision-making as a means of compensating for the self-represented person’s circumstances, a method which Justice Martin seemed to follow in Pintea. This focus would likely go beyond giving self-represented individuals meaningful access to the courts. Instead, it would infringe on a represented party’s right to a fair trial that is based on the merits of the case. As a result, a judge providing assistance and information to a self-represented litigant during a trial would likely be seen as favouring that party and lead to a finding of reasonable apprehension of bias.

Given the need to assist self-represented litigants and to avoid potential judicial bias, I am of the opinion that the appropriate time to accommodate the special considerations of self-represented litigants is during pre-trial case management. In particular, an expansion of the Case Management Counsel program to help facilitate civil cases that involve at least one self-represented individual would likely go a long way toward supporting their participation in the legal system, while ensuring that courts do not become unnecessarily encumbered with litigants who cannot effectively navigate procedural requirements.

Case Management Counsel (CMC) began as a two-year pilot project at the Alberta Court of Queen’s Bench in Edmonton and Calgary in 2011 (The Advisory, p 14). The purpose of CMC was to “assist in the orderly, proportionate, focused and expeditious handling of civil files (including family) streamed into case management” (Court of Queen’s Bench of Alberta Notice to the Profession, p 1). The responsibilities of CMC included “assisting to narrow [and/or] resolve issues, assisting with scheduling and the development of litigation plans, providing guidance to parties… vetting applications to ensure parties are in a position to proceed, [and] monitoring and assisting in the management of litigation” (Court of Queen’s Bench of Alberta Notice to the Profession, p 1).

Following the pilot project, CMC was established as a permanent program at the Court of Queen’s Bench in Edmonton and Calgary. Currently, CMC may only oversee cases that have been formally assigned into case management (Case Management Counsel in the Court of Queen’s Bench). In addition, only family law cases that are high conflict and involve at least one self-represented person are eligible for CMC in Calgary. In Edmonton, however, any civil law case, regardless of whether there is a self-represented litigant, may be managed by CMC (Case Management Counsel in the Court of Queen’s Bench). These cases may be referred to CMC either by the Calgary Chief Justice or the Edmonton Associate Chief Justice after the case has been sent to case management and prior to the case being heard by a case management judge, or by a case management judge during case management (Case Management Counsel in the Court of Queen’s Bench).

Case Management Counsel could be used to provide self-represented litigants with the support and knowledge needed to comply with complex procedural requirements and appropriately complete all applications and orders in a timely manner. In this way, CMC could take much of the guesswork out of court processes for self-represented individuals, while ensuring that cases efficiently move forward. Utilized in this manner, CMC appears to be an ideal mechanism for accommodating the inexperience and lack of training of self-represented litigants without jeopardizing the position of either party at trial. Accordingly, the CMC program should be expanded to more court centres and civil cases with at least one self-represented individual should generally be referred to CMC as a means of enabling self-represented litigants to more easily and effectively participate in the legal system.

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Community Consultation Is “Not Mere Window Dressing” in Development Permit Applications

Tue, 06/14/2016 - 10:00am

By: Nickie Nikolaou

PDF Version: Community Consultation Is “Not Mere Window Dressing” in Development Permit Applications

Case Commented On: Thomas v Edmonton (City), 2016 ABCA 57 (CanLII)

Disputes between developers of new residential properties and landowners, especially in the context of mature neighborhoods, are common when variances are sought from local land-use bylaw standards. In Thomas v Edmonton (City), the Court of Appeal tipped the scales slightly in favor of landowners where the bylaw mandates community consultation. The Court held that where a development standard variance is required, and the applicable zoning bylaw mandates community consultation, that consultation is a condition precedent to obtaining a valid development permit. Moreover, the Subdivision and Development Appeal Board (SDAB) has no authority to waive the requirement.

Facts

This was an appeal from the issuance of a development permit to the developer of a condominium complex known as “Sylvancroft” in Groat Estates, Edmonton. The respondent on the appeal was the developer The House Company Ltd. (House Co.), and the appellants were five residents of the Groat Estates neighborhood whose properties back on to Sylvancroft.

After Sylvancroft was subdivided, House Co. sought and obtained a series of development permits from the City for single family dwellings within Sylvancroft, which is zoned as RF3 (Small Scale Infill Development) under the City of Edmonton’s Zoning Bylaw 12800. However, Groat Estates falls within the geographical area to which the Mature Neighborhood Overlay (“Overlay”) in the Zoning Bylaw applies. Generally, the Overlay imposes specific requirements for new low density residential housing in mature neighborhoods. House Co. had already applied for variances for three developments in Sylvancroft, and in each case, the variance and development permit was granted.

This appeal relates to House Co.’s fourth proposed variance in Sylvancroft. The proposed development, a single detached house, did not comply with the Overlay regulations in the Zoning Bylaw in regard to setback requirements, and House Co. applied for a variance. The express purposes of the Overlay are to ensure that new low density development in Edmonton’s mature residential neighborhoods is sensitive in scale to existing development, and ensures privacy and sunlight penetration for adjacent properties.

Section 814.3(24) of the Zoning Bylaw required House Co. to conduct a community consultation. As summarized by the Court:

In short, where a proposed development does not comply with the Overlay regulations, the applicant must consult with all assessed owners of land within 60 metres of the development, discuss requested variances, document any concerns of affected parties and what modifications were made to address these concerns and submit this documentation to the Development Officer. (at para 7)

House Co. decided not to conduct a community consultation for its fourth variance application. It had spoken to the appellants in regard to the three prior applications, and decided that to do so again would be “a waste of time” (at para 8). The Development Officer denied House Co.’s application on the basis that the development failed to comply with the specified setback requirements in the Overlay, but did not order community consultation to be undertaken. House Co. appealed the decision to the SDAB. The SDAB allowed the appeal and granted the development permit by exercising its discretion to grant variances to setback requirements under section 687(3)(d) of the Municipal Government Act, RSA 2000, c M-26 (MGA). It did not, however, require community consultation prior to doing so. The question on appeal was whether the SDAB had the authority to waive the requirement for community consultation in the Zoning Bylaw.

The answer turned on the proper interpretation of section 687(3)(d) of the MGA. This section empowers the SDAB to grant development permits even when a proposed development does not meet the requirements of a land use bylaw. It reads as follows:

(3) In determining an appeal, the subdivision and development appeal board (…)

(d) may make an order or decision or issue or confirm the issue of a development permit even though the proposed development does not comply with the land use bylaw if, in its opinion,

(i) the proposed development would not

(A) unduly interfere with the amenities of the neighborhood, or
(B) materially interfere with or affect the use, enjoyment or value of neighboring parcels of land

and

(ii) the proposed development conforms with the use prescribed for that land or building in the land use bylaw.

Does the phrase “even though the proposed development does not comply with the land use bylaw” in this section encompass both substantive (i.e., physical development standards like setbacks) and procedural requirements (e.g., community consultation), or just substantive physical standards? The SDAB took the view that it included both. In other words, it had the authority to waive both procedural and substantive requirements under the Zoning Bylaw. In its view, House Co.’s failure to comply with the mandated community consultation (a procedural requirement) “did not, in of itself, materially interfere with the amenities of the neighborhood or materially interfere with or affect the use, enjoyment and value of neighboring parcels of land” (at para 11). It thus waived the requirement, allowed the setback variance, and issued the development permit.

A majority of the Court of Appeal disagreed. Writing for the majority, Fraser C.J. concluded that section 687(3)(d) does not empower the SDAB to waive the requirement for community consultation in the Zoning Bylaw. Rather, such consultation is a critical procedural requirement that must be fulfilled prior to the issuance of any development permit to which the Overlay applies.

Decision

The Court agreed that the applicable standard of review in this case was correctness. In its view, whether the SDAB has the authority under section 687(3)(d) to waive the required community consultation is a question of “pure statutory interpretation” (at para 17) that does not engage the expertise of the SDAB. The Board’s decision was therefore not owed any deference by the Court.

Fraser C.J., for the majority, conducted a careful and thorough review of the purposes of both the SDAB’s variance powers under the MGA and the requirement for community consultation in the Zoning Bylaw. She concluded that in the absence of apparent inconsistency, the MGA and the Zoning Bylaw should be interpreted in a manner that ensures harmony, coherence and consistency between them.

As every first-year law student knows, the starting point for statutory interpretation is the contextual or purposive approach. Ultimately, the goal is to uncover the intention of the legislator. Fraser C.J. noted that this search requires a consideration of the specific words in question, the scheme, purpose and structure of the part of the MGA in which the words are found, along with other legislation (including delegated legislation like the Zoning Bylaw) touching a similar or related matter. In that way, the overall objective of the specific enactment can be identified and fulfilled. (at paras 19-22)

Applying the contextual approach here, Fraser C.J. concluded that section 687(3)(d) does not grant the SDAB authority to waive compliance with the community consultation requirement for three key reasons. First, she held that a purposive and contextual interpretation of the relevant provisions in the MGA reveal that it is the “proposed development” itself that must not be in compliance with the land use bylaw for purposes of section 687(3)(d) (at para 31). She reviewed the relevant parts of the definition of “development” in the Act (i.e., “a building or an addition to or replacement or repair of a building and the construction or placing of any of them on, in, or under land”) and concluded that “…to engage the SDAB’s variance authority, it is the physical structure that must not comply with the relevant land use bylaw, not the failure to fulfill the procedural requirements for community consultation.” (at para 33; emphasis added) This interpretation was supported, in her view, by a review of the whole of section 687(3)(d), as well as other relevant sections in the MGA (in particular, section 640(6) which grants a nearly identical variance power to development officers) (at para 34).

Further, as she noted, “[a]llowing the SDAB (and by extension, a Development Officer) to waive the community consultation requirement would effectively render s. 814.3(24) of the Zoning Bylaw meaningless.” (at para 36) Under this approach, non-compliance with a community consultation could never, in itself “unduly interfere with the amenities of the neighborhood or materially interfere with or affect the use, enjoyment and value of neighboring parcels of land” (at para 36). Thus, there would never be a valid reason under section 687(3)(d) to not waive the community consultation requirement. This would effectively abolish the consultation requirement in the Zoning Bylaw, and such an interpretation must be rejected (at para 37).

Second, Fraser C.J. stated that her interpretation of section 687(3)(d) is supported by “compelling public policy justifications” for community consultation. She noted that community consultation exists for a reason and that a fair process is the “basis for public confidence in the legitimacy of all democratic processes, including those relating to planning and development of land” (at para 41). In her view, it would make little sense to waive a step in the development process that is intended to help determine whether a proposed development’s non-compliance with development standards should be waived in the first place. Having an applicant consult with the community provides necessary information to determine whether non-compliance with a bylaw development standard would in fact interfere with the “neighboring parcels of land” or the “amenities of the neighborhood”. This is especially so, she said, “where, as here, the requirement for community consultation is held out to members of mature neighborhoods as being a valid method of ensuring a proper balance between existing and new development.” (at para 42)

Fraser C.J. stated that the requirement is “not mere window dressing or a false promise to taxpayers in mature neighborhoods” (at para 42). Rather, all landowners to whom the requirement applies should have confidence that the rules will be applied fairly and equally. If the SDAB could waive the community consultation requirement, some landowners would receive the benefits of it, while others would not. This could not have been the intention of the City in passing the consultation requirement in the Zoning Bylaw.

Lastly, the majority of the Court held that the failure to conduct the required consultation constituted a breach of procedural fairness. An administrative decision that affects “the rights, privileges or interests of an individual” (see Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817) triggers a duty of procedural fairness on the decision-maker. While the content of the duty is highly contextual and varies depending on a number of factors, Fraser C.J. concluded that the existence of legitimate expectations was a critical factor in this case. She noted that where a claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness. (at para 50)

Here, the affected neighbors expected to be consulted and should have been. Since the Zoning Bylaw mandates community consultation in every instance where the Development Officer determines that the proposed development does not comply with the Overlay regulations, such landowners had a legitimate expectation that they would be consulted. The language in the Zoning Bylaw with respect to the community consultation requirement is “clear, unambiguous and unqualified” (at para 50). Evoking the seminal work of legal theorist Hohfeld, Fraser C.J. concluded that “[t]he corollary of a mandatory obligation on an applicant to consult affected landowners is a right, on the part of the affected landowners, to be consulted” (at para 50).

Fraser C.J. also rejected the argument that the breach of procedural fairness was “cured” by the appellants having participated in the hearing before the SDAB. (at para 54) Were this the case, developers would be encouraged, indeed entitled, to treat the community consultation as an unnecessary and time-consuming step. And affected persons may consciously choose to not attend the hearing at all. Neither result, to her mind, accords with the spirit, intent, and the language of the Zoning Bylaw. (at para 55)

Nonetheless, Fraser C.J. conceded that procedural or informational defects of an “insubstantial” or “minor” kind should not be allowed to thwart the development process. She noted that an efficient land development process is in the collective self-interest of a community, and that mechanisms exist under both the Zoning Bylaw and the MGA to ensure that “insubstantial procedural errors” and “technical irregularities” do not vitiate decisions made by a Development Officer and the SDAB. She noted also that the SDAB has “implicit authority regarding procedural defects” (at para 63) in the exercise of its discretion under the MGA. But none of these, in her view, empowered the SDAB to “waive” or “cure” the procedural unfairness inherent in the developer’s failure to comply with the mandatory community consultation in this case.

In his dissent, Slatter J.A. focused on the majority’s remarks about the SDAB’s procedural jurisdiction. In his view, once it is conceded that the SDAB is authorized to overlook procedural errors and irregularities, its jurisdiction to waive even a mandatory consultation requirement must be accepted. Either the SDAB has procedural jurisdiction under section 687(3)(d) or it does not. To his mind, there is no legal distinction between a community consultation procedure and any other procedure; either they all fall within the wording of section 687(3)(d) or none do. As he concluded, “[o]nce it is conceded that the SDAB has such a procedural jurisdiction, whether any particular procedural shortcoming is “insubstantial”, “minor”, or within the “margin of appreciation” is within the mandate of the SDAB.” (at para 81) And that decision is, presumably, subject to deference by the Court.

Commentary

While Slatter J.A.’s approach is attractive for its simplicity, with respect, it fails to give effect to the clear and unambiguous mandatory language of the community consultation requirement in the Zoning Bylaw. The majority is correct to conclude that section 687(3)(d) must, except in the case of apparent inconsistency, be reconciled with the intent, purpose and language of the Zoning Bylaw. Were it otherwise, the SDAB could simply ignore any and all procedural dictates on the part of the delegated legislator. Surely the failure to comply with a mandatory direction in regard to community consultation is not a “minor” or “insubstantial” procedural breach in the development permitting process.

Moreover, as noted by the majority, the community consultation requirement in the Zoning Bylaw is intended to bring forth relevant information needed to assist development officers and the SDAB to determine whether the proposed variance will “unduly interfere with the amenities of the neighbourhood” or “materially interfere with or affect the use, enjoyment or value of neighboring parcels of land”. Mandating community consultation in one variance application but not in another would have the effect of negating the importance of information from affected landowners about the cumulative effects of separate variance applications. Because the SDAB typically evaluates each variance request on the basis of the community as it exists at the time of the hearing, this could have the effect of minimizing the cumulative impact of a series of variances on a mature neighborhood. As noted by the majority, community consultation is one way to mitigate this risk. It also encourages developers to make accommodations where possible to try to reduce opposition to a variance application.

That said, how far do the Court’s views on the importance of community consultation in this case extend? Certainly there is broad language here about the importance of consultation and the legitimacy of democratic processes. But it is unlikely these comments extend more generally, outside of situations where there is a clear mandated requirement for community consultation in a land use bylaw. And the comments clearly apply only to those landowners actually identified in the land use bylaw as being entitled to the consultation, not to the public at large.

So the Court of Appeal has slightly tipped the scales in favor of landowners in the development permit application process through this decision. But why only “slightly”? The result of this case was that the development permit was quashed and the matter remitted back to the SDAB, with a direction to ensure that House Co. completes the necessary community consultation. The consultation had to occur, but is there any requirement that the developer must accommodate the concerns brought forth? Probably not. While section 814.3(24) of the Zoning Bylaw requires developers to “document any opinions or concerns, expressed by the affected parties, and what modifications were made to address their concerns”, this language likely does not have the effect of requiring developers to actually accommodate the concerns in all cases. Such an interpretation would be hard to reconcile with the broad discretion given to development officers and the SDAB under the MGA to grant variances. Even the majority of the Court talked about consultation being an incentive for developers to make “reasonable” accommodations in response to affected landowner concerns. Ultimately, even if landowners are consulted, they may still get a decision they do not like – and that decision, unlike the one in this case, would be subject to a reasonableness standard of review that would attract considerable judicial deference.

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Access to Justice, Self-Represented Litigants and Court Resources: A Snapshot from Alberta Superior Courts for the Month of May

Mon, 06/13/2016 - 10:00am

By: Jennifer Koshan and Drew Yewchuk

PDF Version: Access to Justice, Self-Represented Litigants and Court Resources: A Snapshot from Alberta Superior Courts for the Month of May

Cases commented on: Pintea v Johns, 2016 ABCA 99 (CanLII); Erdmann v Complaints Inquiry Committee, 2016 ABCA 145 (CanLII); JE v Alberta (Workers’ Compensation Board), 2016 ABCA 147 (CanLII); HH v DB, 2016 ABQB 164 (CanLII); Pickett v Walsh, 2016 ABQB 222 (CanLII); McCallum v Edmonton Frame and Suspension (2002) Ltd, 2016 ABQB 271 (CanLII); R v Cullen, 2016 ABQB 272 (CanLII); Alberta v Greter, 2016 ABQB 293 (CanLII); ET v Rocky Mountain Play Therapy Institute Inc, 2016 ABQB 299 (CanLII)

As the Coordinator and Student Assistant for ABlawg, we review all Alberta Court of Queen’s Bench and Court of Appeal decisions each week for their blogworthiness. During the month of May, we noted several cases dealing with issues related to access to justice and the courts’ role in and resources for dealing with self-represented litigants. Of course, resource issues do not only arise in cases involving self-reps. On June 1, 2016, Justice Berger of the Court of Appeal chastised counsel for parties to protracted litigation with the following words:

I would be remiss if I failed to express serious concerns for that which I perceive to be a disregard on the part of counsel for the limited resources available to the judiciary, particularly at a time when the courts are functioning with less than a full complement (Weatherford Canada Partnership v Kautschuk, 2016 ABCA 173 at para 7).

This statement refers to the fact that Alberta is short of both Court of Queen’s Bench and Court of Appeal justices. The need for the federal Minister of Justice to make judicial appointments to fill these vacancies and to create new positions given the increase in Alberta’s population has been commented on by Alberta’s Justice Minister Kathleen Ganley, as well as Chief Justice Neil Wittman of the Court of Queen’s Bench (see here and here). Chief Justice Wittman called the shortage a “crisis” as far back as October 2015, when he stated that the courts “are literally at the breaking point right now.”

In light of this crisis, it seems worthwhile to look at a snapshot of cases involving issues concerning access to justice, the impact of self-represented litigants on the courts’ resources, and how the courts have been handling such issues. Some of these cases will also be the subject of more detailed ABlawg commentary. Although the nine decisions covered by this post amount to what could be called “anecdata” – a term used by Nicole Aylwin at the recent Access to Social Justice Symposium in Calgary to describe some of the research of the Cost of Justice project – our hope is that it is still useful to round up a month’s worth of decisions to get a sense of the breadth and depth of the problems. The cases we look at here are probably just the tip of the iceberg – some of the courts’ decisions might be communicated orally and not result in written reasons. And, it is important to note that the decisions we comment on here say nothing about the many, many legal problems that never end up in court because the parties do not have the support or resources to litigate.

Issues on Appeal

Three decisions of the Alberta Court of Appeal deal with issues arising when self-represented litigants manage and assess the prospects of success of their own litigation.

In Pintea v Johns, 2016 ABCA 99 (CanLII), the appellant missed service of notice of a hearing before a case management judge because he had moved and failed to provide his new address to the respondents or the court. A majority of the Court of Appeal (Justices Bruce McDonald and Barbara Lea Veldhuis) upheld the case management judge’s decision striking the appellant’s statement of claim in relation to a motor vehicle accident and issuing an order for costs against him. The majority found that “The fact that the appellant is a self-represented litigant in this appeal does not excuse his failure to comply with the Rules of Court in respect of notifying both the court and opposing counsel of a change of his address for service.” (at para 20) Justice Peter Martin, writing in dissent, disagreed, noting that in his opinion:

[T]he consequences of dismissing this appeal are excessively punitive. We now know that the appellant’s failure to attend the case management meetings was not an act of contempt; he was simply not aware of them. The appellant is a self-represented litigant, who we understand had no fault in the motor vehicle accident and who could reasonably have expected a significant award of damages for the injuries he suffered. Now instead, this disabled, unemployed man is saddled with a cost award of almost $83,000. In my respectful opinion, that is a significantly disproportionate consequence for failing to file a change of address with the court. (at para 34)

Justice Martin would have would have allowed the appeal, restored the statement of claim and set aside the order of costs (at para 35).

Self-represented litigants had their appeals dismissed in two other cases where the Court of Appeal noted that their claims were non-meritorious. In JE v Alberta (Workers’ Compensation Board), 2016 ABCA 147 (CanLII), Justice Veldhuis, sitting alone, considered an application to restore a worker’s compensation appeal that was struck by the Registrar for failure to file the appeal record. The applicant deposed that “he took significant steps to retain counsel to represent him, including refinancing his home to raise fees” (at para 3). However, there was delay in proceeding with the appeal, and in any event, the Court found that it had no arguable merit: “This appeal could never succeed, and it would be a waste of the parties’ resources to restore this appeal.” (at para 9).

Similarly, in Erdmann v Complaints Inquiry Committee, 2016 ABCA 145 (CanLII), Justices Jack Watson, Bruce McDonald and Frederica Schutz dismissed an appeal of a professional disciplinary body’s decision against the appellant, where she had been found guilty of three counts of unprofessional conduct as a chartered accountant and ordered to pay fines and costs. One of the appellant’s grounds of appeal was her lack of legal competency, but the Court found that this argument had no merit:

The only evidence on this issue was a GAF test score put forward by the appellant at the hearing before the Appeal Tribunal. No expert witness was called or tendered to interpret the score or explain the test results, and the appellant herself refused to testify under oath and be subjected to cross-examination. (at para 39)

The appellant’s other grounds of appeal were also found to have no merit and her appeal was dismissed.

Issues at Trial

A number of decisions at the Court of Queen’s Bench level concern issues relating to self-represented litigants at trial.

In HH v DB, 2016 ABQB 164 (CanLII), Justice J.S. Little dealt with Ms H’s appeal of a parenting order made in Provincial Court, where she was represented by counsel and Mr B was not. Quoting an Ontario Court of Appeal decision, Justice Little noted that “Running a trial with a self-represented individual can put a trial judge in a very difficult position: ‘When one party is self-represented, balancing trial efficiency and effectiveness with the appearance of independence and impartiality can be truly challenging’” (at para 10, quoting Martin v Martin2015 ONCA 596(CanLII) at para 108). Justice Little found that in this case, the trial judge’s conduct – which included interrupting Ms H’s counsel and limiting her time to examine her client, helping Mr B cross-examine Ms H, leading the direct examination of Mr B, and limiting Ms H’s counsel’s cross-examination of Mr B – led to the conclusion that “a well- informed person viewing the trial would conclude that consciously or unconsciously, the trial judge did not decide fairly.” (at para 17) The matter was sent back to Provincial Court for a re-hearing.

In contrast, in McCallum v Edmonton Frame and Suspension (2002) Ltd, 2016 ABQB 271 (CanLII), Justice Robert A. Graesser considered an appeal from a small claims court ruling where both parties were self-represented. He cited a recent decision, Malton v Attia, 2016 ABCA 130 (CanLII) – which falls just outside our snapshot, having been decided on April 29, 2016 – where the Court of Appeal recognized the challenges posed by self-represented litigants in another case where the trial judge was found to have gone too far in assisting the litigant:

[2] Self-represented litigants appear with increasing frequency in our trial courts. In response, courts have made procedural reforms to facilitate effective and efficient dispute resolution. However, the fundamentals of trial process have not changed. A fair hearing requires an impartial, independent adjudicator. It requires that parties know the case they have to meet, have the opportunity to martial evidence to meet it, and the opportunity to make submissions with respect to it. These are core elements of our justice system.

[3] These basic requirements can pose a challenge to the trial judge presiding over a trial with self-represented litigants. He or she must carefully walk the line between being of assistance to those litigants and becoming their advocate.

In McCallum, however, “both sides were on a level playing field: both were unrepresented by counsel. The trial judge played no favourites and applied the same rules to both parties. He was not obliged to relax his standards to accommodate the parties’ lack of experience or familiarity with the rules of evidence and trial procedures.” (at para 107) Justice Graesser found “no bias or reasonable apprehension of bias on the part of the trial judge” (at para 100), and dismissed the appeal. He did note that if the appellant had possessed greater familiarity with court procedure, that could have led to a different result, but this was not seen as an error attributable to the trial judge:

The results might have been different if Mr. McCallum had been able to secure the attendance of the expert from Derrick Dodge, as he had planned. However, his inability to do so is not visited on the trial judge, but rather Mr. McCallum’s unfamiliarity with the rules of evidence and court procedure. (at para 102)

Conversely, in Pickett v Walsh, 2016 ABQB 222 (CanLII), a dispute over spousal support and matrimonial property, Justice Wayne Renke found that a trial had not been hindered by the parties’ lack of counsel – though issues related to self-representation were not directly before the court: “The parties represented themselves. They conducted the trial with calm civility and focus. I thank them for the seriousness and objectivity they brought to the proceedings.” (at para 7)

There are other cases where being self-represented clearly hinders the ability of parties to properly conduct their litigation.

In R v Cullen, 2016 ABQB 272 (CanLII), a self-represented litigant attempted to file an application alleging Charter breaches in relation to his arrest as well as against mental health and government housing agencies. Justice B.R. Burrows noted that the accused had counsel for the trial of his criminal charges, but not for the Charter application. He indicated that while he was “mindful that both the Crown and the Court will always exercise great flexibility so as to ensure that an accused in custody can bring alleged breaches of Charter rights to Court and to seek a remedy”, the problem was that in this case, “the materials are so woefully deficient that to permit the application to proceed would necessitate the exercise of an unreasonable degree of flexibility.” (at para 8) The application was adjourned so that the accused, who has mental health issues, “can seek a Charter remedy either by filing appropriate materials in this application or by commencing a new application.” (at para 12) Although he gets a second chance, one is left to wonder about Mr Cullen’s capacity to develop appropriate application materials if he continues to be self-represented.

Adverse consequences in the form of costs awards may also befall some self-represented litigants. In ET v Rocky Mountain Play Therapy Institute Inc, 2016 ABQB 299 (CanLII), the claimant was subject to an enhanced costs award against him of $18,000 for making “serious unfounded allegations” (at para 9) against the respondents and their counsel in an interlocutory proceeding related to his claim for breach of contract, defamation and negligence. More fortunate was the self-represented litigant in Alberta v Greter, 2016 ABQB 293 (CanLII), who attempted to use “pseudolaw” concepts to excuse her liability to repay her student loans. The Alberta government originally sought double costs against her, but did not pursue this position following its successful application for summary judgment. According to Master in Chambers S.L. Schulz, “If Alberta had maintained that claim I would have granted the double costs award sought, or ordered solicitor and own client indemnity costs against Ms. Greter.” (at para 33) Instead, Ms Greter was ordered to pay costs of $3000. These cases are interesting to compare to Pintea, where the costs award of $83,000 seems highly punitive, especially in light of Justice Martin’s point about the merits of the action.

Commentary

One initial observation is that the nine decisions covered in this post cover a broad range of underlying legal issues, including motor vehicle accidents, employment-related claims, family and criminal law issues, and small claims and debt-related matters. This is consistent with the recent findings of the Cost of Justice project that access to justice issues can arise in relation to myriad “everyday legal problems” (See Trevor C.W. Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup and Lisa Moore, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report at p 8).

The Everyday Legal Problems report focuses on the cost of legal problems to the litigants, based on a telephone survey of 3000 Canadians. Our snapshot of cases captures a somewhat different picture, which is the cost of self-represented litigants to the justice system in terms of frivolous, unsupported, or improperly framed claims, applications and appeals, resulting in adjournments and, more generally, wasted and inefficiently used court time. But the justice system and its requirements may also impose costs on self-represented litigants – not just costs in the technical sense of a penalty for unsuccessful litigation, but also costs in terms of the inability to properly mount claims that may be meritorious. In cases where judges step in to assist self-represented litigants, they must exercise great caution in remaining impartial and independent so as to avoid having their conduct lead to further litigation.

These are issues that courts in Alberta and elsewhere have been facing for some time – see for example the work of Julie Macfarlane on self-represented litigants in Canada. In Alberta, however, the shortage of judges is likely exacerbating some of the negative effects of a system full of self-represented litigants, for example by increasing the use of court time, resulting in delays and the negative consequences associated with delays. We add our voices to those of others who have called on the federal Minister of Justice to make it a priority to fill the vacancies in Alberta superior courts and to provide a proper complement of judges in Alberta, before matters get any worse.

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The AER Provides Useful Guidance in a New Pool Delineation Decision

Fri, 06/10/2016 - 3:45pm

By: Nigel Bankes

PDF Version: The AER Provides Useful Guidance in a New Pool Delineation Decision

Decision commented on: Proceeding 336 Application 1820596 Pool Delineation, Crossfield Basal Quartz C & V Pools, June 2, 2016, 2016 ABER 007

Alberta’s Oil and Gas Conservation Act, RSA 2000, c O-6 (OGCA) defines a pool as “(i) a natural underground reservoir containing or appearing to contain an accumulation of oil or gas, or both, separated or appearing to be separated from any other such accumulation”. Wells are identified as producing from particular pools and many provisions of the OGCA and the Oil and Gas Conservation Rules, Alta Reg 151/1971 (OGCR) turn on the question of whether or not a particular well is producing from a particular pool. For example, s 15(3) of the OGCA provides that “No person shall apply for a licence for a well for the purpose of obtaining production from the same pool as that from which another well is obtaining or capable of obtaining production in the same drilling spacing unit …”.

In this particular case, the applicant, Bearspaw Petroleum Ltd wanted its well classified as producing from the Crossfield Basal Quartz C Pool (BQ C Pool) rather than the single well BQ V pool in order to be able to gain access to the gas processing plant operated by the C Pool working interest owners – if necessary by means of a common processor order under s 53 of the OGCA. Since it is usually necessary to establish drainage as a pre-condition to obtaining a common processor order (i.e. that H’s well or wells are draining production from underneath B’s leased lands) (see Directive 065, Resources Applications for Oil and Gas Reservoirs, Unit 1, Equity) B first had to establish that its well was in the same pool as H’s wells.

The Factual Background

The applicant in this case, Bearspaw (B in the above), was the licensee of a well (102/11-24) in the single section, single well Crossfield Basal Quartz (BQ) V pool. Bearspaw applied under s 33 of the OGCA to have that well included in the multi section, multi well BQ C Pool. Section 33 provides as follows:

33(1) The Regulator may, by order,


(b) designate a pool by describing the surface area vertically above the pool and by naming the geological formation, member or zone in which the pool occurs or by some other method of identification that the Regulator in any case considers suitable;

The BQ C Pool working interest owners (Harvest Operations Corp., Nexen Crossfield Partnership, and Exxon Mobil Canada Energy – hereafter Harvest, and H in the above) objected to the reclassification on the basis that there was insufficient evidence of communication between the C pool and the reserves identified by Bearspaw’s well.

The AER’s Decision

The Alberta Energy Regulator (AER) began its analysis by noting that as the applicant, Bearspaw had the burden of proof to establish, on the balance of probabilities, that its 102/11-24 well should be included in the BQ C Pool. It also recognized (at para 16) that:

There are no prescribed factors that the AER must take into account when considering an application made under section 33(1) of the OGCA. Previous pool delineation decisions made by the AER’s predecessors have taken into account a variety of factors including geology, geochemistry, gas composition, pressure data, and other matters that may be broadly described as reservoir characteristics.

The Regulator used these factors to structure its decision.

Bearspaw and Harvest each offered an interpretation of the geology “that was broadly similar but different in detail” (at para 19). Both acknowledged that the region consisted of sands deposited in a complex fluvial system but while Harvest emphasised factors such as deeply incised fluvial channel systems that would contribute to the separation of pools in the reservoir, Bearspaw, while acknowledging the heterogeneity of the reservoir, preferred to interpret the reservoir as consisting of a braided fluvial system. The AER concluded that the evidence of the highly heterogeneous nature of the reservoir could not on its own support the application to redraw the boundaries of the BQ C Pool (at para 27). The AER reached a similar conclusion with respect to gas chemistry, noting (at para 29) that while there was a “marked similarity” with respect to most components of the gas produced from the BQ C wells and Bearspaw’s well, there were also some differences.

In the end therefore the decision turned on the AER’s assessment of the evidence with respect to observed pressures and reservoir characteristics. The challenge for Bearspaw here was that the pressure data did not track what would be expected in a homogeneous reservoir (i.e. – and this is my take on the technical issues – a clearly observed linear drop in pressure at the Bearspaw well resulting from production from the BQ C Pool wells). But that did not deter the AER since (at para 32) it was accepted that the reservoir was heterogeneous:

In a homogeneous pool or a pool that was more homogeneous than heterogeneous, we would expect the pressure in the 102/11-24 well to be much closer to that of the pressures in the C pool wells if the wells were in the same pool. However, we find that the BQ reservoir is more heterogeneous than homogeneous and so the fact that the initial static gradient pressure of the 102/11-24 well differs by more than we would expect in a homogeneous pool is not conclusive evidence of 102/11-24 being in the same or a separate pool.

While hardly a resounding endorsement of Bearspaw’s position, the AER was further fortified in its conclusion that it should re-draw the boundaries by evidence from Harvest’s own experts of the pressure performance of different wells already included in the BQ C Pool. This evidence tended to show that while some wells in the C Pool exhibited similar pressure/time characteristics, the 6-26 well (diagonally offsetting Bearspaw’s well) did not exhibit the same performance but did show evidence of (at para 33) “limited communication”. This was further reinforced by evidence that demonstrated that the initial pressure in supposedly separate pools in the reservoir differed when one would have expected similar pressures in discrete pools in the same reservoir. This suggested communication (and therefore drainage) prior to “discovery” of a “new” pool. Other evidence also suggested, on the balance of probabilities, gradual pressure decline at Bearspaw’s well consistent with depletion by wells in the BQ C pool (at para 45). In response Harvest contended that if the AER accepted this “ongoing measureable decline” as evidence of pressure communication, such communication was not “effective”. This appears to be an argument that drainage over a long period of time (quaere what is a long period of time) should be discounted.

In a very real sense therefore the issue for the AER boiled down to the question of how much communication was enough to conclude that the reserves should be treated as being in one and the same pool and therefore capable of being drained from any particular well in the pool. The AER emphasised that the test was not an economic test (at para 56) (“The monetary value of potential or lost production does not assist …”) but a physical test (at para 57):

Neither party made arguments based on statutory interpretation, case law, or previous decisions of the regulator or its predecessors on this point. The OGCA does not require or establish thresholds of communication for the purposes of determining whether pools which are in fact physically connected can appear to be separate for the purposes of pool delineation. In light of the overall purposes of the OGCA set out in section 4, especially preventing waste and providing for efficient development of oil and gas resources of Alberta, the panel finds that for the purposes of determining whether an accumulation of oil or gas appears to be separate, communication is the ability of production from one or more wells in a reservoir to affect production by depleting reserves that might otherwise be produced from another well in the same reservoir.

Applying that test to the evidence before it the AER concluded as follows (at para 58):

… our interpretation of the BQ reservoir pressure evidence is that the 102/11-24 well is and has been experiencing drainage. [Whatever the scale of that drainage] … the fact that pressures that reflect drainage are repeatedly measurable and ongoing is sufficient. The only producing wells in evidence before us that could affect production from the 102/11-24 well are the C pool wells. As a result, we conclude that on a balance of probabilities, the accumulation of gas in the BQ at the 102/11-24 well does not appear separate from that in the C pool.

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Should the Dispute Remain Between the Accused and the Crown? Third-Party Intervention in Criminal Proceedings

Wed, 06/08/2016 - 3:03pm

By: Jessica Magonet

PDF Version: Should the Dispute Remain Between the Accused and the Crown? Third-Party Intervention in Criminal Proceedings

Cases Commented On: R v Vallentgoed, 2016 ABCA 19 (CanLII) and R v Barton, 2016 ABCA 68 (CanLII)

Should courts shun third party intervention in criminal proceedings? Two recent Alberta Court of Appeal cases address this issue: R v Vallentgoed, 2016 ABCA 19 (CanLII) (January 2016) and R v Barton, 2016 ABCA 68 (CanLII) (March 2016).

In Vallentgoed, the Edmonton and Calgary Police Services (EPS / CPS) were denied leave to intervene in a criminal appeal by Justice Veldhuis. The appeal concerned the scope of the Crown’s obligation to disclose approved instrument (AI) maintenance logs. Approved instruments are instruments used to measure blood alcohol levels. The accused, Vallentgoed and Gubbins, were charged with impaired driving offenses and had requested additional disclosure of AI maintenance records.

In Barton, Justice Berger granted leave to intervene to the Women’s Legal Education and Action Fund (LEAF) and the Institute for the Advancement of Aboriginal Women (IAAW) in the Crown’s appeal of Barton’s acquittal for the murder of Cindy Gladue. Ms. Gladue, a Cree woman engaged in sex work, died as a result of an injury caused by Mr. Barton. According to LEAF’s press release, “At the trial, the jury accepted the defence argument that Ms. Gladue, an Indigenous woman, had consented to ‘rough sex’ and acquitted the man accused of her murder, Bradley Barton.” (Women’s Legal Education and Action Fund (LEAF) and the Institute for the Advancement of Aboriginal Women (IAAW) Seek Leave to Intervene in R. v Barton).

Vallentgoed and Barton initially present starkly different visions of the intervener’s role in criminal proceedings. In Vallentgoed, Justice Veldhuis claims that intervener status should be rarely granted in criminal proceedings. She writes:

The discretion to grant intervener status should be exercised sparingly, particularly in criminal proceedings where the dispute must remain between the accused and the Crown: R v Neve, [1996] 8 WWR 294 at para 16, 184 AR 359 (CA). Interventions in criminal appeals are “generally shunned by the courts for a variety of policy and prudential reasons”, especially the risk “that the hearing of other voices can distort an appeal”: R v JLA, 2009 ABCA 324 at para 2, 464 AR 310. (para 6, emphasis added)

Two months later, Justice Berger acknowledges this perspective in Barton:

Some judges have opined that it is very unusual for the court to consider interventions in criminal appeals. By way of illustration, Watson J.A. in R. v. J.L.A., 2009 ABCA 324 (an important precedent-setting criminal law pronouncement heard by a designated five person panel reported as R. v. Arcand, 2010 ABCA 363) explained that “the issue in such cases is between an individual and the state.” (para 5)

But Justice Berger then rejects this approach:

I say, with great respect, that judges are too quick to shun intervention by a third party in a criminal case. Watson J.A. has observed “all necessary voices with proper standing will necessarily be heard through the traditional binary process” – but not always. In fact, I have a real concern that the focus on the risk that “the hearing of other voices can distort an appeal,” cited theoretically as a basis to reject the intervention of a party who is perceived to lend support to the Crown’s position, is then invoked far too frequently to deny the appropriate intervention of a party who might assist the court but whose submissions may also be helpful to the defendant in the case. See, for example, R. v. J.L.A., supra. (para 10, emphasis added)

I disagree with Justice Veldhuis’s claim that criminal disputes should remain between the accused and the Crown. Criminal law concerns the entire community—it is a conversation about how to interpret and apply our criminal law and related procedural protections, and in some cases, about how to sanction and rehabilitate a community member who has committed a grave wrong. While the Crown is mandated to represent the public interest in criminal disputes, it often fails to do so because the public interest and the state’s interest frequently diverge. Moreover, different members of our community have incompatible interests, so it is impossible for the Crown to do justice to all of these perspectives. Interveners thus have a critical role to play in criminal proceedings by explaining to the court how the case will affect the people they represent. In Barton, LEAF and IAAW wanted to explain how the precedent set by this case would impact women, particularly Aboriginal women. As they write in their leave application:

This appeal raises legal issues regarding the law on sexual assault that transcend this particular case and the Court’s decision on those issues will significantly affect the law on sexual assault. In particular, the Proposed Interveners are interested in this appeal because of the precedent that it will set and the impact it will have on sexual assault complainants, particularly Aboriginal women engaged in sex work. (LEAF and IAAW Application, para 6)

By granting leave to intervene to LEAF and IAAW in Barton, Justice Berger ensured that the perspectives of women could inform and enrich a decision that directly affects them.

While I believe interveners play an important role in criminal proceedings, I think Justice Veldhuis is right that particular caution is warranted in determining who should be granted leave to intervene in criminal cases. When assessing a leave application for criminal proceedings, courts must be especially careful to ensure that the applicant will provide a fresh perspective, and will not merely reinforce the Crown’s position. Of course, in civil proceedings, courts must also verify that the proposed intervener will bring a new perspective to the case. If an intervener merely bolsters the position of one of the parties, the trial may become unfair. Granting leave to intervene to an applicant that just repeats the views of one party essentially gives that party more air time before the judge. While courts should ensure that all trials are fair, they have a particular obligation to guarantee the fairness of criminal trials since the accused’s freedom is at stake. In fact, the right of an accused to a fair trial is constitutionally protected in section 11(d) of the Charter, which states:

  1. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal…

Significantly, Justice Veldhuis and Justice Berger both focus on whether the applicants would bring a fresh perspective to the case in determining whether to grant them leave to intervene.

In Barton, Justice Berger writes:

At the end of the day, the relevant inquiry is whether the proposed intervener will advance different and valuable insights and perspectives that will actually further the court’s determination of the matter (see: Canadian Doctors for Refugee Care v. Canada (Attorney General), 2015 FCA 34 at para. 15, citing with approval Canada (Attorney General) v. Pictou Landing First Nation, 2014 FCA 21 at para. 11). Put another way, can the applicant add to the effective adjudication by ensuring that all the issues are presented in a full adversarial context? See: Reference re Workers’ Compensation Act, 1993 (Nfld.), 1989 2 SCR 335, at para. 13. (para 8, emphasis added)

Justice Berger notes “judges of the Court of Appeal who will sit in judgment on the appeal will benefit from the unique perspectives of the interveners” (para 13, emphasis added). LEAF and IAAW intend to discuss “the definition of “sexual activity” in s. 273.1(1) of the Criminal Code” and to “provide a substantive equality analysis of the meaning of consent and also observations on the procedure required by s. 276 of the Criminal Code (para 12).

In his response to LEAF and IAAW’s application for intervention, Barton cited Justice Watson’s statement in R v J.L.A. that: “[w]here the defendant already faces the voice of the state, the courts must necessarily be concerned about introduction of any other voice that could hurt the defendant” (para 2, emphasis added) (Respondent’s Memorandum of Argument in Barton, para 7). Justice Berger rightly rejected this view. The protection of the defendant’s liberty interest should not come at the cost of stifling the voices of parties who are affected by the outcome of a case and have a fresh perspective to provide. Inviting interveners into the courtroom may at times place an additional burden on the accused, but as long as they are not merely bolstering the Crown’s position, their voices should be heard.

Justice Veldhuis’s analysis in Vallentgoed also focuses on whether the applicants would provide a new perspective on the case. She writes:

Intervener status will be granted where the applicant: (1) is directly and significantly affected by the outcome of the appeal, and (2) has expertise and a fresh perspective on the subject matter of the appeal that is useful for the appeal’s resolution: R v Morgentaler, [1993] 1 SCR 462 at para 1, [1993] SCJ No 48 (QL); City of Edmonton v Edmonton (Subdivision and Development Appeal Board), 2014 ABCA 340 at para 8, 584 AR 255. (para 5, emphasis added)

Justice Veldhuis notes that CPS and EPS would be directly and significantly affected by the outcome of the appeal, as the case could oblige them to disclose AI maintenance records. “However,” she explains, “it is doubtful that the EPS and CPS will provide a fresh perspective on the issues or present different submissions from the Crown on appeal” (para 8, emphasis added). This was doubtful because EPS and CPS, like the Crown, were arguing for limited disclosure. CPS wanted to claim “that the common and similar disclosure requests made by defence counsel are really a ‘strategy’ to ‘stall the prosecution of impaired driving cases’” (para 10). Justice Veldhuis notes that “[i]t is unclear how these arguments differ from or provide a unique perspective relative to that of the Crown” (para 10). As for EPS: “During oral submissions, counsel for EPS argued the Crown factum did not sufficiently cover the issue of the scope of disclosure and if permitted to intervene, the EPS would seek to expand on the Crown’s position” (para 15).

I wonder if Justice Veldhuis and Justice Berger would have reached the same outcomes had their cases been switched. Both judges focused their analysis on whether the intervener would provide a fresh perspective. Whereas LEAF and IAAW were bringing a unique perspective to the case, by discussing its impact on women, EPS and CPS sought to merely reinforce the Crown’s position. Moreover, the interests of the Crown and of the police coincide substantially—both actors are part of the state.

Justice Veldhuis writes in Vallentgoed:

Permitting the CPS to advance arguments that substantially overlap with and bolster the Crown’s position is prejudicial as it simply serves to amplify the voice of the state at the potential cost of the Respondents. (para 10, emphasis added)

 This quote suggests that for all of Justice Veldhuis’s talk about a criminal law dispute being limited to the Crown and the accused, her real concern is ensuring that the accused’s trial is fair.

I wish she had framed her concern in those terms. By suggesting that third party intervention in criminal cases is rarely appropriate, Justice Veldhuis may have made it more difficult for parties affected by the outcome of a criminal case to intervene. Criminal disputes do not merely affect the accused and the state. These disputes can affect Aboriginal women, doctors, people living with AIDS, and people of faith. While the Crown speaks with one voice, the community speaks with many. These voices should not be silenced in the courtroom.

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Vexatious Proceedings Distinguished from Vexatious Litigants

Mon, 06/06/2016 - 10:00am

By: Jonnette Watson Hamilton

PDF Version: Vexatious Proceedings Distinguished from Vexatious Litigants

Case commented on: R.O. v D.F., 2016 ABCA 170 (CanLII)

This Court of Appeal decision is useful in drawing a distinction between litigation that is vexatious and a litigant who is vexatious. A vexatious court proceeding may be challenged under various provisions in the Alberta Rules of Court, Alta Reg 124/2010. Typically, the vexatious proceeding is brought to an end and costs are awarded against the person responsible. The scope of the relief is confined to the one particular case. A vexatious litigant order, on the other hand, is made under section 23.1 of the Judicature Act, RSA 2000, c J-2, and typically forbids the person against whom it is made from commencing or continuing any proceedings in any court in Alberta against any person. Declaring someone to be a vexatious litigant is a much broader and more serious matter. The issue in this appeal was whether R.O. was a vexatious litigant, as the Court of Queen’s Bench judge had declared her to be, when all of her allegedly vexatious behaviour was confined to this one case.

The issue is not easy to decide because of the wording of section 23(2) of the Judicature Act, which describes when a vexatious litigant order may be made:

23(2) For the purposes of this Part, instituting vexatious proceedings or conducting a proceeding in a vexatious manner includes, without limitation, any one or more of the following:

(a) persistently bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction;

(b) persistently bringing proceedings that cannot succeed or that have no reasonable expectation of providing relief;

(c) persistently bringing proceedings for improper purposes;

(d) persistently using previously raised grounds and issues in subsequent proceedings inappropriately;

(e) persistently failing to pay the costs of unsuccessful proceedings on the part of the person who commenced those proceedings;

(f) persistently taking unsuccessful appeals from judicial decisions;

(g) persistently engaging in inappropriate courtroom behaviour. (emphasis added)

The opening clause of section 23(2) states that a vexatious litigant order can be made for “conducting a proceeding in a vexatious manner”, i.e., for conducting only one proceeding in a vexatious manner. This is apparently contradicted by the list of seven examples which follow, because all but the last example in the list refer to “proceedings” or “appeals” in the plural. Nonetheless, section 23(2) leaves open the question of whether acting vexatiously in only one proceeding is enough to leave a person vulnerable to an order that bars them from bringing any further proceedings.

Justices Peter Costigan, Marina Paperny, and Patricia Rowbotham heard this appeal from two orders made by Mr. Justice B.A. Millar, the case management judge, on June 18, 2014. One of his orders found R.O. to be in contempt of court for failing to comply with previous orders that banned the identification of the parties and penalized her contempt by striking her statement of claim and directing her to pay costs of $217,000. The Court of Appeal upheld this order, acknowledging that while the penalties were harsh they were justified because “this was a very serious breach of a clear court order” (para 32).

The other order by Justice Millar declared R.O. to be a vexatious litigant in very broad terms:

  1. [R.O.] is declared a vexatious litigant pursuant to Section 23.1 of the Judicature Act, RSA 2000, c J-2, and is hereafter prohibited from instituting any further proceedings, or instituting proceedings on behalf of any other person, or continuing any proceeding which she has already instituted without leave of the Court in which the proceeding is to be initiated or continued.
  2. This Order shall be binding upon the Provincial Court of Alberta, the Court of Queen’s Bench of Alberta and the Alberta Court of Appeal. (emphasis added)

As the Court of Appeal noted, the decision to declare someone a vexatious litigant is a discretionary one: see section 23.1 of the Judicature Act providing that “the Court may order”. The standard of review for this discretionary ruling is reasonableness (para 33, citing Liu v Matrikon Inc, 2010 ABCA 383 (CanLII) at para 10). The Court of Appeal found the vexatious litigant order made by Justice Millar to be unreasonable because it was “overbroad” (para 37).

Justice Millar’s stated reasons for granting the vexatious litigant order focused on this particular case. R.O. had been found in contempt for breaching court orders twice, had filed four applications seeking many types of interlocutory orders, had attempted to re-litigate matters that had already been decided, had failed to pay court costs when ordered to do so, had threatened to sue others connected to D.F., and had put forward “far flung conspiracy theories” (para 35).

Certainly some of this behaviour falls within the types of behaviour listed in section 23(2). But is it “persistent”? Did R.O. “persistently [bring] proceedings to determine an issue that had already been determined”? Did she “persistently [fail] to pay the costs of unsuccessful proceedings”?

The Court of Appeal noted (at para 38) that Justice B.A. Browne, in 644036 Alberta Ltd v Morbank Financial Inc, 2014 ABQB 681 (CanLII), had explicitly drawn a distinction between a vexatious proceeding and a vexatious litigant. Justice Browne had held that the litigant before her was vexatious because his behaviour was not confined to the case before her but had spilled over into other proceedings in Alberta and British Columbia. She held that the “more general response” of a vexatious litigant order ? “a wider net … cast to constrain” ? was warranted because of the breadth of his litigation activities (644036 Alberta Lt at para 97).

In this case, the Court of Appeal found that there had not been enough evidence before Justice Millar to justify a finding that R.O. had a history of “persistently” engaging in any of the behaviours in section 23(2) against anyone other than D.F. (para 39). The key point is that R.O.’s behaviour was confined to this one proceeding, and, being so confined, it did not warrant the broad response of a vexatious litigant order.

This is a helpful line that has been drawn, and certainly more helpful than the authority that the Court of Appeal cited for drawing it. They refer to Pawlus v. Pope, 2004 ABCA 396 (CanLII) for its general support (para 39). However, the court in Pawlus v. Pope set aside a vexatious litigant order because the necessary notice had not been given to the Minister of Justice and Attorney General so that argument could be made about the impact of section 23 of the Judicature Act on the court’s inherent jurisdiction (Pawlus v. Pope at para 17) and because the proposed vexatious litigant had requested an adjournment and that request was not opposed by the other party (Pawlus v. Pope at para 18). Neither of these reasons is relevant in this case.

Because Justice Millar’s goal was to put an end to all litigation between R.O. and D.F. and those associated with D.F. ? a reasonable goal in the Court of Appeal’s estimation ? the Court of Appeal substituted its own much narrower vexatious litigant order: “Any litigation or steps in litigation against [D.F.] and those associated with him, including his family (immediate and extended) and his employer shall require leave of the Court of Queen’s Bench” (paras 37, 40).

As mentioned, the helpful guiding point for lower courts is that vexatious behaviour confined to one case will not justify (except possibly in exceptional circumstances) the broad response of a typical vexatious litigant order under section 23.1 of the Judicature Act. It will justify bringing the vexatious proceeding to an end and an order forbidding the commencement of further proceedings against the same individual. A broad vexatious litigant order will require (except perhaps in exceptional circumstances) a history of vexatious behaviour in more than one case.

It also appears that it now takes a shorter history and fewer instances of vexatious behaviour in fewer cases to warrant the issuance of a vexatious litigant order than it did even five years ago. In 2011, I noted in “How persistent does a vexatious litigant have to be?” that it seemed to take a lot of improper behaviour against a large number of long-suffering defendants for a very long time (e.g., ten years) before a person was denied unmediated access to a court. That no longer seems to be true.

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Five Million Dollars Versus One Night in Jail

Wed, 06/01/2016 - 4:30pm

By: Drew Yewchuk

PDF Version:Five Million Dollars Versus One Night in Jail

Case Commented On: R v Peers, 2015 ABQB 129 (CanLII), R v Peers, 2015 ABCA 407 (CanLII), leave to appeal granted May 26, 2016

On May 26, 2016 the Supreme Court of Canada (SCC) granted leave to appeal from the decision of the Alberta Court of Appeal in Peers. The three appellants are all charged with a variety of offences under section194 of the Securities Act, RSA 2000, c S-4, which provides for a maximum penalty of “a fine of not more than $5 000 000 or to imprisonment for a term of not more than 5 years less a day, or to both”. The basis of their appeal is that section11(f) of the Canadian Charter of Rights and Freedoms — which guarantees “the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment” — entitles them to a jury trial, because a penalty of five years less a day of imprisonment and a $5 000 000 fine is “a more severe punishment” than “imprisonment for five years”. This appeal raises a constitutional question left open 27 years ago in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927 (CanLII) (Irwin Toy): can some personal economic rights be protected by the section7 Charter guarantee of “life, liberty, and security of the person?”

Background

The details of the offences under the Securities Act are not particularly interesting or relevant to the constitutional question. The appellants are seeking a stay of the charges, a Charter remedy all the Court of Appeal Justices dismissed as inappropriate, even if the appellants succeeded with their constitutional argument (R v Peers 2015 ABCA 407 (CanLII) at paras 17-23) (Peers CA). The scope of the Charter right to jury trials, important though it may be, is not even the most intriguing question that these cases have brought before the courts. The more general question is whether the legal rights in the Charter can protect economic interests.

For clarity, there have already been six decisions in this litigation at this point: The two Mr. Peers (Jeremy and Robert) succeeded in Provincial Court (unreported), had the decision reversed at Queen’s Bench (R v Peers, 2015 ABQB 129 (CanLII)) (Peers QB), and appealed to the Court of Appeal. Mr. Aitken was unsuccessful in Provincial Court (R v Aitken, 2015 ABPC 21 (CanLII)) (Aitken PC), unsuccessful on appeal to Queen’s Bench (unreported), and appealed to the Court of Appeal. The two appeals were heard together at the Court of Appeal (Peers CA), where a majority rejected their constitutional argument and dismissed the appeal. Justice O’Ferrall, concurring in the result, did not decide the constitutional question, but dismissed the appeal because the remedy sought was inappropriate. Finally, the Peers made an application for a stay order that was denied (R v Peers, 2016 ABCA 22 (CanLII)).

The Argument For the Appellants

The appellants’ argument is based on a plain, non-technical reading of section 11(f) of the Charter. Section 11(f) reads:

11.Any person charged with an offence has the right


(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

The factum of the appellant Robert Peers at the Court of Appeal explained their argument thus: “…how much is a night in jail worth to a reasonable Canadian? If a night in jail is worth $5 million or less then the appeal must succeed” (Peers CA at para 9). The argument has intuitive appeal. Alberta Provincial Court Judge Day accepted the argument in an unreported decision and transferred the proceedings to the Court of Queen’s Bench, as provincial courts cannot hold jury trials. Justice Topolinski summarized Judge Day’s decision as follows:

The determination of whether a penalty can be characterized as a more severe punishment must be reviewed on a case by case basis, taking into consideration the magnitude of the fine. Positing whether a punishment of 1,774 days imprisonment plus a five million dollar fine is a more severe punishment than 1,775 days in prison, the Judge’s answer was “yes”. (Peers QB at para 9)

Justice O’Ferrall of the Court of Appeal said that he was not satisfied this argument was “without merit” (Peers CA, at para 21).

The Argument Against the Appellants

The result sought by the appellants was criticized as unworkable by other judges because it would create uncertainty about when a sentence was more severe than five years imprisonment:

…subjectivity would apply at both ends of the equation: a judge’s view, would, of necessity be subjective; and each accused is different and accordingly his view of whatever punishment might be imposed on him, would be subjective. The infinite variables of length of imprisonment coupled with size of fine, and the application of any combination of the two, as applied to an individual accused, require little illustration. Suffice it to say that, for example, while a fine in the range of millions of dollars is completely beyond the ability of the average Canadian to pay, people do exist (especially perhaps in the investment industry) to whom a fine of several million dollars may mean comparatively little; while even a month in gaol with concomitant loss of reputation, prestige etc. would be catastrophic. (Aitken PC at para 40)

What would be the result, for example, if the maximum penalty were “four years imprisonment plus a $5 million fine”? Is that a “more severe punishment” than five years imprisonment? The problem with the appellants’ argument is that it is impossible to measure how much “a night in jail is worth” when compared in a qualitative sense to imprisonment. (Peers CA (majority decision, per Justices Berger and Slatter) at para 9)

The remaining arguments against the appellants are more complicated. I will quickly review the reasoning of the Court of Queen’s Bench and the Court of Appeal.

The Court of Queen’s Bench accepted an argument based on the Limiting Class Rule (ejusdem generis) of statutory interpretation. Justice Topolniski applied the rule contextually, noting that Reference Re BC Motor Vehicle Act (British Columbia) s 94(2), [1985] 2 SCR 486 (CanLII) at paras 27-28 established a connection between section 7 and sections 8 to 14 of the Charter. The Court interpreted section 11(f) to only apply where the punishments interfere with the rights to life, liberty and security of the person (Peers QB, at paras 69-70). In determining if a punishment is more severe than 5 years’ imprisonment, the court should only consider those aspects of the punishment that interfere with section 7 rights.

Justice Topolniski noted that section 7 does not include a right to property, “[e]xcepting a limited class of interests fundamental to human survival” (Peers QB at 80) and hence the rights that spring from it do not include economic interests. She concluded:

The interrelationship between Charter ss 7 and 11(f) precludes consideration of the fine available under Securities Act s 194 in assessing the meaning of the words or a more severe punishment in Charter s 11(f). I conclude that s 11(f) applies only where the rights to life, liberty and security of the person are affected. (at para 82)

The majority of the Court of Appeal appears to have disagreed at least slightly with the Court of Queen’s Bench, writing that “s. 7 is neither a floor nor a ceiling on the s. 11 rights.” (Peers CA at para 7) The Court reached a similar conclusion though, finding that “our system of criminal justice does not recognize an equivalency between imprisonment and money” (at para 13) and that “the expression ‘imprisonment for five years or a more severe punishment’ should be interpreted as primarily engaging the deprivation of liberty inherent in the maximum sentence of imprisonment imposed by the statute” (at para 15). The purpose of section 11(f) is to distinguish the crimes that are serious enough to warrant a jury trial from those that are not. The majority concluded that fines do not increase the severity of a punishment for the purposes of section 11(f):

This is not to say that there might not be some forms of punishment that could be added to a term of imprisonment which would be so punitive that they might constitute a “more severe punishment”. Examples might possibly include corporal punishment, banishment from the community, forced labour, or revocation of citizenship. However, the mere prospect of a fine or financial penalty does not qualify. (at para 15)

What Issue(s) Might Interest the Supreme Court?

This case gives the Supreme Court the opportunity to decide on a number of matters. The case deals with the constitutional interpretation of sections 7-14 of the Charter. The circumstances in which section 11(f) entitles a person to a jury trial is the immediate issue to be decided. But the decision of whether fines and economic penalties can be considered for the purposes of section 11(f) is given greater importance when considered in light of particular discussions in the lower court decisions. The Court of Queen’s Bench determined that there is a body of law finding Charter relief inapplicable to economic rights (Peers QB at paras 4, 80, 81; also see Aitkens PC at para 62-64 for similar findings by Judge Camp). The Court of Queen’s Bench cites (amongst other authorities) Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927 (CanLII) (Irwin Toy) (at para 80). Consider a portion of Irwin Toy about economic rights made by the Supreme Court:

The intentional exclusion of property from s. 7, and the substitution therefor of “security of the person” has, in our estimation, a dual effect.  First, it leads to a general inference that economic rights as generally encompassed by the term “property” are not within the perimeters of the s. 7 guarantee.  This is not to declare, however, that no right with an economic component can fall within “security of the person”.  Lower courts have found that the rubric of “economic rights” embraces a broad spectrum of interests, ranging from such rights, included in various international covenants, as rights to social security, equal pay for equal work, adequate food, clothing and shelter, to traditional property — contract rights.  To exclude all of these at this early moment in the history of Charter interpretation seems to us to be precipitous.  We do not, at this moment, choose to pronounce upon whether those economic rights fundamental to human life or survival are to be treated as though they are of the same ilk as corporate-commercial economic rights. (at 1003-1004)

The Peers case offers the Supreme Court a chance, 27 years after Irwin Toy, to pronounce upon whether there are situations where economic penalties do fall within the scope of sections 7-14. There are definitely issues of uncertainty that will be created if section 11(f) is determined to allow for considerations of fines and economic penalties. Exactly what constitutes a more severe penalty than five years imprisonment would doubtless be the subject of litigation. However, the decision illustrates how strange it is that sections 7-14 of the Charter are currently considered to be unresponsive to economic penalties and concerns. It is bizarre to think that a $5 million fine will have no impact on the life, liberty, or security of the person of an individual, and yet that seems to be the state of the law. The majority in the Court of Appeal stated that “loss of liberty cannot be monetized” (Peers CA at para 10). If that is the case, then even a brief period of confinement is an interference with liberty that the Charter can address, but potentially being driven to bankruptcy or poverty is not.

If the Supreme Court prioritizes clarity and decides that section 11(f) includes no consideration of economic penalties, that decision comes at the price of stating that the legal rights in the Charter are unable to recognize the immense impact of economic penalties on life, liberty and security of the person. If they decide that Charter section 11(f) can address the impacts of economic penalties, they open up new and uncertain territory for Charter litigation relating to economic conditions. So the question that is going before the Court is effectively: can the Charter fathom why people would prefer one extra night in jail to a five million dollar fine?

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Balancing Freedom of Expression and the Privacy of Child Victims

Tue, 05/31/2016 - 4:30pm

By: Hasna Shireen

PDF Version: Balancing Freedom of Expression and the Privacy of Child Victims

Case Commented On: R v Canadian Broadcasting Corporation, 2016 ABQB 204 (CanLII)

The Court in R v Canadian Broadcasting Corporation allows the Canadian Broadcasting Corporation (CBC) to maintain pre-publication ban articles on the web, thus allowing access to the identity of a deceased child victim. One of the major purposes of a publication ban is to protect a child victim’s privacy and thereby ensure future victims will come forward with the assurance of anonymity. This case demonstrates that freedom of expression of the media can take priority over a victim’s privacy rights. The case also demonstrates the lack of policy and legal authority dealing with web-based material, the transmission of information, victim’s privacy, and publication bans.

Tyrell Perron (the accused) was charged with the first degree murder of a minor (D.H.). The Crown requested a publication ban and a judge ordered a mandatory ban under section 486.4(2.2) of the Criminal Code, RSC 1985, c C-46. This type of order means there is a prohibition on “the publication, broadcast, or transmission in any way, of information that could identify the victim” (at para 2). Two pre-publication ban articles (“the articles”) which identified the victim remained on the CBC Edmonton website, although the CBC agreed not to publish any more articles with the victim’s name. The evidence showed that the victim’s identity was already well-known through social media and because the victim had lived in a small community. The Attorney General (AG) made an application to seek criminal contempt of court by the CBC for breaching the publication ban. The CBC also challenged the constitutionality of Criminal Code section 486.4(2.2) on the ground that it violated freedom of expression. The application sought an interim injunction requiring the CBC to remove the articles from its website pending the outcome of the contempt application. The Alberta Court of Queen’s Bench (Justice Peter Michalyshyn) was asked to decide on the interim injunction application.

The Law on Publication Bans and Injunction Applications

Both the parties agreed on the following legal test for granting a mandatory injunction, citing RJR MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311 (CanLII) and Medical Laboratory Consultants Inc. v Calgary Health Region, 2005 ABCA 97 (CanLII) (at para 10):

(a) Does the Crown have a strong prima facie case?

(b) Will the Crown suffer irreparable harm if the injunction is not granted?

(c) Will greater harm or inconvenience result if the application is not granted, than if it were?

In applying the test to the case at hand the Court decided as follows.

Does the Crown Have a Strong Prima Facie Case?

On this part of the test for granting mandatory injunctive relief the Court followed Modry v Alberta Health Services, 2015 ABCA 265 (CanLII) that the applicant must “demonstrate a strong and clear prima facie case”, one “that will probably prevail at trial” or “is likely to succeed at trial” (at para 30). The Court decided that the AG had not demonstrated a strong prima facie case of criminal contempt of court that would likely succeed at trial.

The AG relied on criminal and civil analogies in the publication ban context. Using the example of defamatory libel, the AG mentioned section 299 of the Criminal Code, which defines “publish” in this context to mean if one “(a) exhibits it in public; (b) causes it to be read or seen; or (c) shows or delivers it, or causes it to be shown or delivered, with intent that it should be read or seen by the person whom it defames or by any other person” (at para 22). The AG also referred to civil defamation cases, which consider publication in the context of limitation periods (at para 24). Based on these criminal and civil analogies, the AG argued for a “broad interpretation” of the terms “publish” and “transmit” in the context of publication bans as well as in the criminal contempt context. The Court concluded that the AG’s analogies were not conclusive and a restrained approach should be followed as opposed to a “broad interpretation” of the terms “publish” and “transmit” in the publication ban or criminal contempt of court context (at paras 28 and 33).

The Court was not convinced that the AG would likely succeed in proving beyond a reasonable doubt that the CBC, by leaving the impugned articles on its website, had done anything that constituted a public act of defiance of the court order as per UNA v Alberta (Attorney General), [1992] 1 SCR 901 (CanLII) (at para 12). The Court was persuaded that the CBC was not a party who “can predict in advance whether [its] conduct will constitute a crime”, nor did its “action (or inaction) constitutes a public act of defiance of the court in circumstances where it knew, intended or was reckless as to the fact that its act (or failure to act) would publicly bring the court into contempt.” (at para 34).

Will the Crown Suffer Irreparable Harm if The Injunction Is Not Granted?

RJR MacDonald defines “irreparable” as the nature of the harm suffered rather than its magnitude (at para 36). The offences specified in section 486.4 of the Criminal Code are offences of a sexual nature. Under this section the court has the authority to impose a publication ban on any information that could identify a victim under the age of 18 years. This protection given to young persons victimized or allegedly victimized by a sexual offence has since been extended to young persons victimized or allegedly victimized by any offence. This extended protection came into force as part of the Victims Bill of Rights Act, SC 2015, c 13. One of the main purposes of the Act is to adequately protect the privacy of young victims/alleged victims by making publication bans for victims under the age of 18 mandatory on application to the Court (at para 39).

The CBC argued that in this case there was no evidence of irreparable harm to the victim because he had unfortunately died tragically. The CBC also claimed that the definition of “victim” does not include a person other than one against whom an offence has been committed. Finally, it argued that there was no evidence of any other harm, irreparable or otherwise, that would result if the injunction was not granted (at para 44). On this basis, the CBC submitted that an interim injunction could not be granted without evidence of harm (at para 45).

The AG argued that there would be irreparable harm to the administration of justice if the injunction was not granted, although she did not deny the absence of ongoing harm to the deceased young person or actual evidence of harm to any other. The AG emphasized the recognition by Parliament and the courts of the need to protect young persons affected by crime, and of the need to protect anonymity, even in the case of deceased young persons (at para 47). According to AB (Litigation Guardian of) v Bragg Communications Inc., 2012 SCC 46 (CanLII) this protection will ensure other young persons will not be deterred from “seeking therapeutic assistance and other remedies, including legal remedies where appropriate” (at para 47). Moreover, the Court has recognized in the context of sexual assaults that protecting a victim’s privacy encourages reporting: Canadian Newspapers Co. v Canada (Attorney General), 1988 CanLII 52 (SCC).

However, the Court agreed with the CBC that the policy objectives of encouraging young victims to come forward in cases of sexual offences were not present here. Without evidence, the Court did not accept that young victims of any offence would be deterred from coming forward if the identity of a young murder victim is not protected or that this would otherwise prevent some type of harm to the administration of justice (at para 54).

Will Greater Harm or Inconvenience Result if the Application is Not Granted, Than if it Were?

Several matters will be considered based on each individual case to weigh the “balance of inconvenience” for both the parties as per RJR MacDonald. The AG claimed broader impact and serious risk of prejudice to the administration of justice if the court did not grant an injunction. The AG did not raise any privacy interests of the deceased victim. The CBC raised freedom of expression and the public interest in having reasonable access to the CBC’s expression (at paras 58-59).

The Court recognized that Charter freedom of expression guarantees are potentially compromised by any publication ban. A publication ban of the earlier published articles against CBC undeniably would compromise the CBC’s freedom of expression and the public’s interest in that expression. The Court agreed that “compromise is an aspect of harm that must be balanced against the evidence of harm to the administration of justice if the injunction is not granted.” (at para 60) The Court concluded on the basis of evidence before it that the harm to the administration of justice was trivial in this case (at para 60).

Commentary

The Crown’s argument on analogous grounds for publication bans indicates gaps in the law in terms of policy, legislation, and case law for a deceased victim’s rights. The Crown argued for publication bans from the perspective of harm to the administration of justice rather than the victim’s privacy. The Court seemed reluctant to acknowledge the privacy interests of the deceased victim and his or her family as potential harm to the administration of justice. The balance between a victim’s privacy and freedom of expression requires compromises. This case shows that courts may be more likely to favour the interests of the media and freedom of expression. As a result it is possible that the willingness of future living victims coming forward may be curtailed for fear of media exposure.

Access to information on the web and freedom of expression are constantly creating new issues in law. The CBC argued that the publication ban was being sought after-the-fact and would be ineffective because of the reach of social media (at para 62). The law is lagging in terms of the reality of social media and the speed and spread of information. In this case, the CBC complied with the publication ban for any articles prepared and posted after the publication ban, and made sure that no links were available to take readers from any newer articles back in time to the older ones; however, the pre-publication ban articles remain searchable and linkable (at para 55). The courts could demonstrate a commitment to the privacy interests of victims and their families by ordering the media to remove all versions of the story from their websites, pre- and post-publication ban, with minimal effort on their part.

It would have been more rational for the Court to have found in favour of the interim injunction and ordered the pre-publication ban articles to be removed by the CBC. This rationale follows from the purpose of the original order for a mandatory ban under section 486.4(2.2) of the Criminal Code that “prohibits the publication, broadcast or transmission in any way of information that could identify the victim”. The victim in this case was a child. The offences specified in section 486.4 of the Criminal Code authorize the court to impose a publication ban on any information that could identify a victim under the age of 18 years. The Victims Bill of Rights Act also empowers the court to adequately protect the privacy of young victims/alleged victims by making publication bans for victims under the age of 18. Canada is also a co-sponsor of a resolution that led to the adoption in July 2005 of the Guidelines on Justice for Child Victims and Witnesses of Crime (UN Economic and Social Council (ECOSOC), UN Economic and Social Council 2005/20: Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime, 22 July 2005, E/RES/2005/20). These guidelines call for the “best interests of the child” to be a primary consideration in the treatment of children involved in the criminal justice system. Ordering the CBC to remove the offending articles would prevent further victimization of this deceased child and his family.

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Good Kid, M.A.D.D. City: Seeking Proportionality in Drunk Driving Sentencing

Fri, 05/27/2016 - 10:00am

By: Joshua Sealy-Harrington and Joe McGrade

PDF Version: Good Kid, M.A.D.D. City: Seeking Proportionality in Drunk Driving Sentencing

Cases Commented On: R v Lacasse, 2015 SCC 64; R v Sargent, 2016 ABCA 104

Constantly drinking and drive. Hit the powder then watch this flame that arrive in his eye. […] I live inside the belly of the rough Compton, USA. Made me an angel on angel dust.

good kid m.A.A.d. city (Kendrick Lamar, 2012)

Despite the Supreme Court’s recent consideration of the law governing sentencing appeals, such appeals remain a controversial area of legal analysis for our appellate courts. This persisting ambiguity, which is rooted in how the law is applied, rather than the law itself, motivates us to revisit the Court’s leading decision in R v Lacasse. This comment summarizes the majority and dissenting judgments in Lacasse, notes the ambiguity left by the disagreement between those judgments, outlines a recent Alberta Court of Appeal decision – R v Sargent, 2016 ABCA 104 – which demonstrates that ambiguity, and discusses the significant policy consequences associated with the Supreme Court’s unanimous holding that it is appropriate to more severely punish individuals with sympathetic mitigating factors (good kids) when they reside in communities with high crime rates (mad cities).

BACKGROUND: SENTENCING PRINCIPLES AND LOWER COURT DECISIONS

The facts underlying the offence in Lacasse are straightforward: the accused, Mr. Lacasse (who was only 20 years old at the time of sentencing), pled guilty to two counts of alcohol?impaired driving causing death contrary to the Criminal Code, RSC 1985, c C-46, s 255(3).

Given that Mr. Lacasse pled guilty, the key issue at trial and through each layer of appeal was the appropriate sentence. Accordingly, this post provides a brief overview of the sentencing process before discussing the trial, appeal, and Supreme Court decisions.

Sentencing Overview

The Criminal Code guides the process of judicial sentencing. In particular, it provides the following:

  1. Purpose of Sentencing: to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society (Criminal Code, s 718).
  2. Means of Achieving Purpose of Sentencing: imposing just sanctions that have one or more of the following objectives:
    1. denouncing crime and its associated harms;
    2. deterring crime;
    3. separating offenders from society, where necessary;
    4. rehabilitation of offenders;
    5. providing reparations to victims and the community; and
    6. promoting responsibility in offenders and acknowledgment of the harm they have caused.

(Criminal Code, ss 718(a)-(f)).

  1. Requirement of Any Sentence: that it be proportional to:
    1. the gravity of the offence; and
    2. the degree of responsibility of the offender.

(Criminal Code, s 718.2).

In sum, despite the variety of sentencing objectives listed above, the Criminal Code requires that every sentence be proportional.

In addition to the general statutory principles described above, courts in some jurisdictions have outlined specific sentencing guidelines to assist in judicial reasoning with respect to certain offences. Specifically, for impaired driving causing death, the Court of Québec outlined three ranges of sentences in R v Comeau, 2008 QCCQ 4804 at para 177, which were confirmed by the Québec Court of Appeal in R v Paré, 2011 QCCA 2047 at para 68, namely:

  1. Lenient sentences: if the predominant factors favour the accused, then there should be a sentence varying between 18 months’ and three years’ imprisonment.
  2. Harsh sentences: if the factors of deterrence and denunciation outweigh the personal factors of the accused, then there should be a sentence varying between three years’ and six years’ imprisonment.
  3. Very harsh sentences: if personal factors are unfavourable to the accused, then there should be a sentence varying between six years’ and nine years’ imprisonment (and even more severe sentences are possible in “worst-case” circumstances).

(The Sentencing Ranges).

Lacasse Trial Sentence

At trial, Judge Couture sanctioned Mr. Lacasse with a sentence of 6 years and 6 months for each count of impaired driving causing death to be served concurrently, minus one month for pre-trial detention. As Mr. Lacasse’s sentence was for 6 years and 6 months, it was a “very harsh sentence” pursuant to the Sentencing Ranges.

In awarding this very harsh sentence, Judge Couture weighed mitigating factors (i.e. factors favouring a more lenient sentence) and aggravating factors (i.e. factors favouring a harsher sentence).

Judge Couture attached less weight to several mitigating factors, including:

  1. the fact that Mr. Lacasse pled guilty, because he had done so very late; and
  2. the fact that Mr. Lacasse had no criminal record, because the offence was likely to be committed by people who do not have criminal records.

In contrast, Judge Couture attached more weight to several (purportedly) aggravating factors, including:

  1. the fact that Mr. Lacasse had been intoxicated and had smoked cannabis;
  2. the speed at which he was driving;
  3. the fact that he had received previous speeding tickets; and
  4. the number of victims (2) and the impact of the accident on the victims’ families.

Lastly, Judge Couture justified imposing a very harsh sentence because of the frequency of impaired driving offences in Mr. Lacasse’s region (the Beauce region). Specifically, Judge Couture indicated that nearly one in five cases in the Beauce region involves impaired driving, and held that this factor weighed in favour of a harsher sentence because it demonstrates a greater need for deterrence – one of the statutorily recognized objectives of sentencing – in the Beauce region. In addition, in his written reasons Judge Couture posed the question: “Might it be that driving in such a state is trivialized here more than elsewhere?” (at para 72).

Lacasse Appeal Sentence

On appeal, the Québec Court of Appeal reduced the length of the trial sentence to a sentence of 4 years’ imprisonment, minus one month for pre-trial detention – shifting from a “very harsh sentence” to a “harsh sentence” pursuant to the Sentencing Ranges.

The Court of Appeal noted that a very harsh sentence generally requires personal factors unfavourable to the accused, and that, in this case, personal factors were not unfavourable to Mr. Lacasse (at paras 15-16). Further, the Court of Appeal held that Judge Couture should have placed greater emphasis on Mr. Lacasse’s potential for rehabilitation and less emphasis on making an example of him for the purpose of deterrence (at para 17).

SUPREME COURT JUDGMENTS

This post discusses two issues considered by the Supreme Court in Lacasse, namely:

  1. whether the Court of Appeal erred in overturning the length of sentence imposed by the Judge Couture; and
  2. whether the frequency of impaired driving in the region where an offence is committed may be considered in sentencing.

These issues were considered in two Supreme Court judgments:

  1. the majority judgment, authored by Justice Wagner and concurred in by Justices Abella, Moldaver, Karakatsanis, and Côté (the Majority), which restored the trial sentence and endorsed a legal framework that is more deferential to trial sentencing; and
  2. the dissenting judgment, authored by Justice Clément Gascon and concurred in by Chief Justice Beverley McLachlin (the Dissent), which affirmed the appeal sentence and endorsed a legal framework that is more interventionist of trial sentencing.

Where the Judgments Agree

To effectively distill where the Majority and Dissent disagree, it is critical to first identify where they agree. In particular, the Majority and Dissent both agree that:

  1. the Criminal Code guides the reasoning process for sentencing (Majority, at para 1; Dissent, at para 127);
  2. the severity of a sentence weighs (1) the seriousness of the crime’s consequences, and (2) the offender’s moral blameworthiness (Majority, at para 12; Dissent, at para 127);
  3. sentencing ranges are not binding on judges, but act merely as guidelines, such that judges may deviate from sentencing ranges in response to specific circumstances in individual cases (Majority, at para 60; Dissent, at para 143); and
  4. appellate intervention is warranted if a sentence is demonstrably unfit (Majority, at para 11; Dissent, at para 136).

Where the Judgments Disagree

When read side-by-side, the Majority and Dissent tests for appellate intervention in sentencing appear quite different (see paras 11 and 136). But, when read as a whole, the two judgments’ legal tests only differ in two narrow respects:

  1. whether sentencing errors must be material before they can justify appellate reconsideration; and
  2. how the local frequency of an offence may be considered in sentencing.

Disagreement Over Materiality Requirement

As indicated above, both the Majority and Dissent agreed that appellate intervention is warranted if a sentence is demonstrably unfit (Majority, at para 11; Dissent, at para 136). Accordingly, their disagreement in respect of the test for appellate intervention was limited to circumstances other than demonstrable unfitness, where appellate intervention is warranted.

In the Majority’s view, the only additional circumstance warranting appellate intervention is an error of law or principle “that has an impact on the sentence” (at para 11). By requiring that the error of law or principle impact the sentence, the Majority created what we will call a “materiality requirement” for errors of law or principle to justify appellate intervention in sentencing i.e. the requirement that such an error must be “material” to permit appellate intervention.

In contrast, the Dissent held that there are three circumstances warranting appellate intervention other than demonstrable unfitness, namely (at para 136):

  1. an error in principle;
  2. failure to consider a relevant factor; and
  3. overemphasis of a relevant factor.

At first blush, the Dissent provides for a much broader scope of appellate intervention, by casting a net of intervention wider than errors in principle. But this impression is quickly corrected by a review of the Majority reasons. Later in its reasons, the Majority also writes that “an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating factor or mitigating factor can justify the intervention of an appellate court” (at para 43). Presumably, then, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor are examples of “errors of law” which, according to the Majority’s test, can justify appellate intervention. Arguably, the Majority’s phrasing (“erroneous consideration” of a relevant factor) displays a subtle divide with the Dissent’s phrasing (“overemphasis” of a relevant factor), which could be interpreted as a further disagreement between the judgments. But the Majority expressly endorses the language of “overemphasis” of relevant factors in its reasons as a legitimate circumstance of appellate intervention (at para 41).

Given the above, the Majority and Dissent tests for appellate intervention in sentencing are near identical, and may be put as follows: that appellate intervention in sentencing can only be justified if:

  1. the sentence is demonstrably unfit; or
  2. the trial judge commits (1) an error in principle, or (2) an error of law (which includes failing to consider a relevant factor, overemphasizing a relevant factor, or erroneously considering an aggravating or mitigating factor).

In consequence, the only difference between the judgments’ tests for appellate intervention is that the Majority holds that errors under item 2 must be material to warrant appellate intervention (at paras 43-44), whereas the Dissent holds that the error itself warrants appellate reconsideration of the fitness of the sentence (at para 139).

With the above difference between the Majority and Dissent distilled to simply being the materiality requirement, the judgments are much easier to compare. In particular, the Majority and Dissent do not disagree about the Court of Appeal’s intervention in this case because their tests for intervention are different, but rather, because they apply their similar tests in different ways. A review of the two judgments’ views on the Court of Appeal and trial judgments illustrates this point.

According to the Majority, the Court of Appeal erred when it overturned the trial sentence because the basis for that intervention was the mere fact that the trial judge deviated from the established Sentencing Ranges (at para 12). But both judgments agree that mere deviation from the Sentencing Ranges is insufficient to warrant appellate intervention (Majority, at para 60; Dissent at para 143). Indeed, the Dissent’s reason for upholding the Court of Appeal’s intervention was because, in the Dissent’s view, Judge Couture made multiple reviewable errors pursuant to the test outlined above, not because Judge Couture simply deviated from the Sentencing Ranges (at para 164).

Similarly, the bulk of the Majority and Dissent’s disagreement over the trial judgment relate to how they characterize the reasons of Judge Couture rather than the appropriate legal test for overruling them. According to the Majority, Judge Couture properly emphasized deterrence in this case, and the Dissent’s real concern with Judge Couture’s reasons was that he mis-weighed certain factors (at paras 72 and 77-78). But, again, the Dissent indicates that merely mis-weighing relevant factors does not warrant appellate intervention. To the contrary, the Dissent criticizes Judge Couture’s reasons for the multiple reviewable errors summarized below (at para 164).

A review of the Lacasse decision leaves the impression that the Majority and Dissent attended different appeals. To correct the “two ships passing in the night” that these judgments appear to be, a more granular analysis of the specific errors of Judge Couture identified by the Dissent is necessary. This analysis will also isolate the narrow instance where the materiality requirement divided the Court.

The Dissent’s endorsement of the Court of Appeal’s intervention (at para 164) is based on multiple alleged reviewable errors, namely:

  1. erroneous consideration of aggravating/mitigating factors, including:
    1. considering an element of the offence – impairment – an aggravating factor (Dissent, at paras 146-47), and
    2. discounting certain factors – Mr. Lacasse’s youth and expressed remorse – which are generally considered mitigating factors (Dissent, at para 143);
  2. failure to consider a relevant factor e. Mr. Lacasse’s favourable presentence report (Dissent, at paras 149-50); and
  3. overemphasis of a relevant factor e. exemplarity and deterrence (Dissent, at para 151-163).

Critically, all of the above errors fall within the scope of the Majority and Dissent’s test for appellate intervention in sentencing (subject, of course, to the Majority requiring that such errors must be material to warrant appellate intervention).

The first error identified by the Dissent – considering impairment (an element of the offence) to be an aggravating factor – is refuted by the Majority on a legal basis (on the basis of materiality). In essence, the Majority acknowledges that Judge Couture committed a legal error in this instance, but overlooked that legal error because, in the Majority’s view, it did not have “an actual impact on the sentence” (at para 83).

The other errors, in contrast, reflect a disagreement between the Majority and Dissent with respect to how their similar tests should be applied. Specifically, while the Dissent considered all of the above errors as justifying appellate intervention in sentence, the Majority explained otherwise, finding:

  1. That the trial judge did not err when considering the mitigating factors. In particular:
    1. Lacasse’s youth was properly discounted as a mitigating factor because (1) young people are most affected by impaired driving; (2) there is a need to emphasize deterrence of impaired driving; and (3) there were dire consequences in this case (at para 79); and
    2. Lacasse’s expressed remorse was properly discounted because his guilty plea was delayed (at para 81).
  2. That the trial judge did not err when considering the relevant factor of the presentence report, but rather, simply allocated little weight to it (at para 82).
  3. That the trial judge did not err when emphasizing deterrence given (1) the particular importance of deterrence in the context of impaired driving offences (at paras 5-9); and (2) the “scourge” of impaired driving in the Beauce region (at paras 97-99 and 103).

In sum, the Lacasse judgments display far more disagreement in the application of the law than in the law itself. Admittedly, the judgments disagreed about whether legal errors must be material to justify appellate intervention. But that materiality requirement only explains the disagreement between the judgments for one of the four errors relied upon by the Dissent in upholding the Court of Appeal’s intervention – the improper consideration of intoxication as an aggravating factor. In contrast, the remaining three errors display a surprising amount of disagreement within the Supreme Court regarding how to apply its own test for appellate intervention in sentencing.

Disagreement Over How Local Frequency May Be Considered in Sentencing

The disagreement between the judgments over how the local frequency of an offence may be considered in sentencing is also surprisingly narrow.

Short of making certain “comments” qualifying the Majority’s strong views, the Dissent conceded that the local frequency of an offence in the judge’s home district may be considered in sentencing (see Majority, at para 90; Dissent, at para 154) and even that judicial notice of such local frequency is permissible, though “not without limits” (Majority, at para 95; Dissent, at para 158).

Given the above, the actual disagreement between the Majority and Dissent with respect to considering the local frequency of an offence in sentencing was limited to two narrow points:

  1. With respect to the legal principles at stake, the Majority held that a trial judge may take judicial notice of the frequency of a crime in other judicial districts (at para 98), whereas the Dissent held that a trial judge’s judicial notice of the frequency of a crime should be limited to that judge’s own judicial district (at para 158).
  2. With respect to applying those legal principles, the Majority held that Judge Couture did not take judicial notice of the frequency of impaired driving outside the Beauce region in this case (at para 97), whereas the Dissent interpreted Judge Couture’s remarks about whether impaired driving is trivialized in the Beauce region more than elsewhere as the Judge inappropriately taking judicial notice of facts outside his judicial district (at paras 158 and 163).

PERSISTING AMBIGUITY IN SENTENCING PRINCIPLES: R V SARGENT

The persisting ambiguity following Lacasse is demonstrated in the recent Alberta Court of Appeal decision in Sargent. In Sargent, just as in Lacasse, the Alberta Court of Appeal was divided on how to apply the governing legal principles. Both the majority and dissenting opinions recognized that Lacasse (a Supreme Court decision from only 5 months prior) was the governing decision on sentencing appeals. Nonetheless, the majority substituted Ms. Sargent’s initial 90-day intermittent sentence for two counts of possession for the purpose of trafficking with a sentence of 12 months in prison (at paras 1 and 20) on the basis that the initial sentence was demonstrably unfit (at para 12). In stark contrast, the dissent of Justice Berger would have maintained the initial sentence which, while lenient, was based on a number of sympathetic mitigating factors, including:

  • Sargent’s lack of a criminal record (at para 25).
  • Sargent’s diagnosed Post-Traumatic Stress Disorder and depression (at para 25).
  • The fact that Ms. Sargent was recovering from an opioid addiction and was on methadone treatment at the time of the incident (at para 25).
  • The fact that Ms. Sargent’s presentence report recommended community service and mental health counselling (at para 26).
  • The fact that the offence was out of character for Ms. Sargent and that she was clearly remorseful (at para 26).
  • The fact that Ms. Sargent was threatened by her incarcerated boyfriend and felt pressured by him to bring the drugs into the prison (at para 27).
  • The fact that Ms. Sargent had considerable family support, was living with her parents, and was employed as a manager at Pet Smart at the time of her sentencing (at para 29).

The palpable division at the Court of Appeal in respect of sentencing appeals is best put in Justice Berger’s own words:

The majority opinion reflects the persistent disregard in a number of judgments that this Court has issued of the clear and unequivocal directions of the Supreme Court of Canada that emphasize the importance of individualized sentencing and limit appellate intervention in the exercise of sentencing discretion by trial judges.

[…]

With great respect, my colleagues minimize the significance of the mitigating factors relied upon by the sentencing judge for which there is ample support in the record. […] Such parsing of factors and weighing one against the other by the appellate court is a flagrant usurpation of the role of the sentencing judge and a clear breach of the admonition of the Supreme Court of Canada (at paras 22 and 32).

Interestingly, despite the differences between Lacasse and Sargent, the outcome was the same: the imposition of a harsh criminal sentence on an accused with sympathetic personal factors. These similar strict sanctions occurred in opposing circumstances, with the court in Lacasse imposing a harsh sentence by deferring to the trial judge and the court in Sargent imposing a harsh sentence by disregarding the trial judge. While these two examples fall well short of a scientific trend, they raise a significant concern, namely, the lack of clarity in the law with respect to sentencing resulting in the imposition of excessively harsh sentences because such sentences can always be defensibly imposed.

COMMENTARY

As discussed above, a narrow divide differentiates the Majority and Dissent in Lacasse. Still, this narrow divide has tangible consequences. Indeed, this narrow divide extended Mr. Lacasse’s sentence from 4 years to 6 years and 6 months (an increase of 62.5%) and, indirectly, extended Ms. Sargent’s sentence from 90 days to 12 months (an increase of 300%).

Given the significant consequences of the currently unsettled law on sentencing appeals, this comment will explore what we consider the most significant issues that arise from the Court’s decision in Lacasse:

  1. Should there be a materiality requirement in sentencing appeals?
  2. Should the local frequency of an offence impact sentencing?

Should There Be a Materiality Requirement in Sentencing Appeals?

In our view, the Majority describes three different interpretations of the materiality requirement (at paras 11, 83, and 43), and whichever interpretation is followed results in a flawed approach to sentencing appeals. Specifically:

  1. Interpretation 1: The initial legal principle described by the Majority (at para 11) is flawed because it lacks effect.
  2. Interpretation 2: How the Majority later applies that legal principle (at para 83) is flawed because it is excessively deferential.
  3. Interpretation 3: When the Majority alludes to a subjective materiality requirement (at para 43) it is flawed because it is analytically confusing.

Interpretation 1: The “Principled” Materiality Requirement Lacks Effect

The Majority initially described the materiality requirement in the following terms: that an error only warrants appellate intervention if it “has an impact on the sentence” (at para 11). The lack of effect from this principled materiality requirement is apparent in its operation. Specifically, this materiality requirement precludes appellate intervention when the error justifying that intervention has no impact on the sentence imposed. But, if the error had no impact, then a review of that error should not alter the sentence whether or not a materiality requirement exists. In other words, this materiality requirement, as it was initially described by the Majority, is self-defeating. It permits intervention when an error impacts a sentence and it precludes intervention when an error does not impact a sentence – the same approach a court would take if it completely disregarded the materiality requirement.

Indeed, one of the decisions cited by the Majority in support of a materiality requirement – R v Gavin, 2009 QCCA 1 – demonstrates how this principled materiality requirement lacks effect. In Gavin, the Court of Appeal held that a trial judgment should not be overturned when a single misconstrued sentencing factor (1) was “nothing more than incidental”; (2) did not result in a harsher sentence; and (3) “had no real effect on the sentence” (at para 35). But if the Dissent had similarly considered Judge Couture’s errors this trivial, it would have presumably left his sentence undisturbed (see para 139).

Further, the principled materiality requirement has no impact on judicial resources because both the Majority and Dissent tests involve reassessing the trial judge’s reasoning. Admittedly, the Majority’s test only intervenes when a trial judge’s error is material to the sentence imposed. But that materiality can only really be determined if the appellate court reviews the trial judge’s reasoning. In particular, whether an error has “no real effect” on a sentence requires a review of the basis for that sentence. In this way, the Majority’s test still requires a review of the lower court’s sentence, and merely characterizes that review differently, with the Majority reviewing the erroneous reasoning below for materiality (at para 44) and the Dissent reviewing the erroneous reasoning below for fitness (at para 139). In any case, the Majority must also review the sentence below for fitness since demonstrable unfitness requires intervention under either test.

Interpretation 2: The “Applied” Materiality Requirement Is Excessively Deferential

The materiality requirement actually applied by the Majority later in its reasons is stricter than the one described above. In application, the Majority changed the materiality requirement from requiring that a reviewable error “impact on the sentence” (at para 11) to requiring that a reviewable error “unduly” impact on the sentence (at para 83). As a consequence, the Majority’s materiality requirement, in application, inappropriately insulates erroneous reasoning from appellate review.

This stricter materiality requirement is reflected in the reasons of the Majority. The Majority held that Judge Couture’s erroneous characterization of impairment (an element of the offence) as an aggravating factor was non-reviewable because it was “a non-determinative error that did not unduly affect the sentence, given that Judge Couture identified other aggravating factors” (at para 83; emphasis added). In other words, the presence of other aggravating factors depreciated (but did not eliminate) the impact of this error on the ultimate sentence. Indeed, the Majority never pointed to language in Judge Couture’s reasons to the effect that this specific error ‘had no impact’ or ‘did not influence’ the sentence ultimately imposed. As a consequence, the test actually applied by the Majority required that the error have an undue impact to warrant appellate intervention – a higher threshold than the materiality requirement initially described.

In our view, the Majority’s stricter applied materiality requirement is unworkable. The exercise of sentencing almost always involves weighing various mitigating and aggravating factors. In consequence, the Majority’s reasons essentially preclude appellate review of sentence wherever a judge “dilutes” various legal errors by surrounding them with other legal non-errors, an unconventional approach to appellate review which tolerates excessively harsh sentences stemming from recognized legal errors. A judge should not have to make, for example, “at least four errors in principle” (see para 47) that obviously affect their analysis to warrant appellate intervention.

Further, this unconventional approach to appellate review is particularly problematic in the context of sentencing. Any given sentence falls on a continuous spectrum of days that a judge could impose as a final sentence. As a consequence, it is difficult to think of an express legal error in reasoning not impacting the final sentence, at least slightly. The Majority disregarded Judge Couture’s error in characterizing impairment as an aggravating factor because it was surrounded by other legal non-errors. But that in no way disproves that this error extended the very harsh sentence ultimately imposed on Mr. Lacasse. In effect, the Majority permitted Mr. Lacasse’s incarceration, a significant deprivation of liberty, to be extended by a recognized legal error.

Similarly, the fact that sentences inherently fall on a spectrum makes the Majority’s statement that “non-determinative” errors cannot warrant appellate intervention difficult to understand. The Majority (and Dissent) repeatedly emphasized how the sentencing process involves the “weighing” of various considerations (see e.g. Majority, at para 54; Dissent, at para 164). By corollary, no single error could be ever be “determinative” of a sentence. Rather, the sentencing factors each independently contribute to the ultimate sentence. As a result, requiring that legal errors be “determinative” (of what?) to justify appellate intervention is a confusing standard.

Lastly, the Majority’s approach makes it too easy for sentencing judges to insulate their sentences from appellate review. In effect, pursuant to the Majority’s test, a sentence cannot be appealed where the sentencing judge superficially mentions multiple sentencing factors. Indeed, such superficial analysis was upheld by the Majority in this case. Judge Couture’s “consideration” of Mr. Lacasse’s favourable presentence report consisted merely of noting that a sentence “should not be so long as to hamper the rehabilitation of the accused” (at para 82). As the Dissent observes, this remark fails to show that Judge Couture “really considered this important factor” (at para 159) in his ruling on sentence. In our view, the proper legal test should enable appellate courts to dig deeper into the analysis of sentencing judges to ensure that there is actual consideration of the relevant sentencing factors. Otherwise, judges will be free to impose erroneous sentences as long as they merely allude to relevant factors – too lenient a standard of appellate review.

Interpretation 3: The “Subjective” Materiality Requirement is Analytically Confusing

As a final point, the materiality requirement is analytically confusing. The Majority’s requirement that a reviewable error must have impacted the sentence to warrant appellate intervention is meant to make its test more deferential to lower courts. But, as discussed above, that materiality requirement is ineffective (in principle) because the Dissent’s test would similarly maintain a trial sentence if a trial judge’s error had no impact on the sentence.

However, an alternative understanding of the Majority’s test (interpretation 3) may explain why the Majority considers its test more deferential. Perhaps, by saying that an error is only material if it had “an impact on the trial judge’s reasoning” (at para 43), the Majority is limiting appellate intervention to when the error was material from the perspective of the trial judge when imposing their sentence, not material from the perspective of the appellate court when reviewing that sentence. If this is the test advanced by the Majority, it is too confusing to support.

Such a test would be confusing because ascertaining whether an error was subjectively material to a trial judge’s reasoning, when the trial judge themselves did not even realize they were making that error, is a highly theoretical exercise. It is difficult to understand the precise ways in which various listed factors independently influenced a judge below. For example, on the facts of this case, the counterfactual of what sentence Judge Couture would have awarded had he not considered an improper aggravating factor is, in our view, difficult to divine. It is quite possible that a proper balancing of aggravating and mitigating factors would have resulted in Judge Couture imposing a lower sentence. The Majority’s claim that the sentence would have “clearly” been the same notwithstanding this error (at para 16) is doubtful.

In contrast, the approach of the Dissent is more straightforward. Once a reviewable error is identified, the door is opened for the possibility (but not the certainty) of appellate intervention (at para 139) – an approach that explores the objective merit of the reasoning below, rather than the impact of that erroneous reasoning on the subjective mindset of the trial judge.

In addition to being confusing, this subjective materiality requirement is excessively deferential. In effect, the Majority’s test insulates a trial judge from appellate intervention if they unknowingly make reviewable errors and volunteer that these errors were immaterial to the final sentence imposed. But how many reviewable errors can a trial judge make, and characterize as immaterial, before that trial judge’s characterization of their own errors as immaterial itself amounts to an error? In other words: should a trial judge really be insulated from intervention when they rule that a harsh sentence will be imposed because of a single accurate aggravating factor as long as they characterize the remaining erroneously considered mitigating factors immaterial to their sentence?

Should the Local Frequency of an Offence Impact Sentencing?

Both the Majority and Dissent accepted that the local frequency of an offence may impact a sentence (Majority, at para 90; Dissent, at para 154). In our view, considering the local frequency of an offence has legal and policy consequences which, at a minimum, should have been more thoroughly considered by the Court (and, at a maximum, should have led the Court to reject the local frequency of an offence as a legitimate sentencing factor).

We have two concerns about considering the local frequency of an offence in sentencing:

  1. from a legal standpoint, it conflicts with certain statutory provisions regarding sentencing; and
  2. from a policy standpoint, it risks disproportionately impacting marginalized communities.

First, considering the local frequency of an offence in sentencing conflicts with certain statutory provisions underlying sentencing. The Criminal Code provides that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (Criminal Code, s 718.1). The Majority and Dissent clearly endorsed this “fundamental principle” of sentencing (Majority, at para 12; Dissent, at para 127). But the local frequency of an offence does not really factor into either of these considerations, and accordingly, its consideration arguably contributes to disproportionate sentencing.

This disproportionality is best illustrated by example. Assume that Accused #1 drives drunk and kills two people in his community where drunk driving is infrequent and that Accused #2 drives drunk and kills two people in his community where drunk driving is frequent. Also assume that, besides their different communities, Accused #1 and Accused #2 are otherwise indistinguishable. The gravity of the offence (i.e. the seriousness of the crime’s consequences) is identical in both scenarios – two people have died. Similarly, the offender’s responsibility is identical – the two offenders are indistinguishable. And yet, considering the local frequency of the offence imposes a harsher sentence on Accused #2, contrary to the proportionality enshrined in the Criminal Code.

Admittedly, deterrence is a prescribed sentencing objective in the Criminal Code (s 718(b)), and such deterrence may be more required in specific communities where lower sentences have proven ineffective at deterring crime. But it is nevertheless difficult to fit a deterrence-based sentence within the rubric of proportionality required by the Criminal Code. Requiring proportionality between an offender’s moral blameworthiness and the gravity of their specific offence demands an individualized sentencing process. And, as the Dissent explained: “[w]hen considered in the sentencing context, the frequency of a crime in a given region does not help paint a portrait of the accused, but instead reflects external factors” (at para 153). In our view, it would be an overstatement to claim that considering the local frequency of an offence in sentencing is wholly irreconcilable with the provisions on sentencing in the Criminal Code. That said, we think that the complexity involved in reconciling such consideration with the requirement in the Criminal Code of proportional sentencing merited more exploration by the Court.

Second, considering the local frequency of an offence in sentencing risks disproportionately impacting marginalized communities. A necessary consequence of considering the local frequency of an offence in sentencing is that defendants who live in areas with higher crime rates will receive higher sentences. But studies have found strong statistical associations between marginalized communities and high crime rates (see here at pg 66). Accordingly, considering the local frequency of an offence in sentencing may specifically increase sentences for marginalized citizens.

Again, an example illustrates the injustice of this approach. Assume that Accused #1 possesses illegal drugs in a community where drug possession is rampant and that Accused #2 possesses illegal drugs in a community where drug possession is rare. Also assume that, besides their different communities, Accused #1 and Accused #2 are otherwise indistinguishable. If Accused #1 resides in a community (like the downtown east side in Vancouver) where drug possession is both frequent and undeniably linked to economic and social conditions, the imposition of a stiffer sentence on Accused #1 merely reinforces the inequality she experiences, despite the offence’s gravity and the offender’s responsibility being indistinguishable from those of Accused #2. Marginalized and vulnerable populations are already likely to reside in communities with higher crime rates and greater policing. Adding harsher sentences to these factors only perpetuates and entrenches that marginalization.

CONCLUSION

Despite the Supreme Court’s recent consideration of sentencing principles, our courts still struggle to apply those principles in a consistent and predictable manner. Indeed, the recent divide in Sargent reflects heated disagreement at the Alberta Court of Appeal on this very issue. Consequently, the ambiguities described above relating to how our courts should be applying the legal test for sentencing appeals should be clarified.

In addition, the consideration of an offence’s local frequency merits further discussion by our courts. It is critical that individuals convicted of crimes in Canada receive individualized sentences that reflect their specific circumstances, and permitting the local frequency of an offence to justify harsher sentences necessarily generalizes the sentencing process. Further, it risks disproportionately impacting marginalized communities, who are already over-criminalized in the status quo. While these concerns may not justify a complete rejection of an offence’s local frequency as a sentencing factor, they certainly justify further reflection on the implications involved. Without that further reflection, too many “good kids” will be made examples of the “mad cities” in which they reside, and will be denied the individual sentence they deserve – an individual sentence which recognizes how mad cities explain criminal behaviour, and understands how sensitivity to those environments is critical to effective criminal sentencing.

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A Terminal Dispute? The Alberta Court of Appeal Versus the Federal Government on Assisted Death

Thu, 05/26/2016 - 4:15pm

By: Jennifer Koshan

PDF Version: A Terminal Dispute? The Alberta Court of Appeal Versus the Federal Government on Assisted Death

Case and Legislation Commented On: Canada (Attorney General) v E.F., 2016 ABCA 155 (CanLII); Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), 42nd Parliament, 1st Session (as amended by the Standing Committee on Justice and Human Rights)

Anyone not familiar with the controversy surrounding assisted death got a taste of it last week during the debate over Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), which culminated in Elbowgate in the House of Commons. Also last week, in the first appellate decision to consider assisted dying post-Carter, the Alberta Court of Appeal weighed in on the criteria for constitutional exemptions during the suspension of the declaration of invalidity of the criminal provisions which prohibit assisted death (see Carter v Canada (Attorney General), 2015 SCC 5 (CanLII) (Carter 2015) and Carter v Canada (Attorney General), 2016 SCC 4 (CanLII) (Carter 2016); and for posts on those decisions see here and here). The Court of Appeal’s decision in Canada (Attorney General) v E.F., 2016 ABCA 155 (CanLII), highlights the lack of congruence between what Carter 2015 constitutionally required and what the government has, so far, delivered in Bill C-14, particularly when it comes to whether a person seeking medical assistance in dying must have an illness that is “terminal”. E.F. also comments on the appropriate role of the Attorney General of Canada in applications seeking judicial authorization of the constitutional exemption allowing assisted dying in certain circumstances during the suspended declaration of invalidity.

Facts and Background

Canada v E.F. is the second landmark ruling to come out of Alberta on assisted death post-Carter. In H.S. (Re), 2016 ABQB 121 (CanLII), Justice Sheilah Martin of the Alberta Court of Queen’s Bench considered the first application for authorization of physician assisted death outside of Quebec (for my post on H.S. see here). One of the key points of Justice Martin’s decision was that a constitutional exemption from what would otherwise be criminal activity had already been granted in Carter 2016, and the role of the authorizing courts was to determine whether individuals meet the criteria for the exemption laid out in Carter 2015 (H.S. at paras 46-47). This interpretation was confirmed by the Court of Appeal in Canada v E.F. According to Justices Peter Costigan, Marina Paperny and Patricia Rowbotham,

It is important to note that the application for authorization from the superior court is not an application to be granted a constitutional exemption; the constitutional issues have already been considered and decided by the Supreme Court of Canada, and the exemption has been granted to qualified individuals. The task of the motions judge who hears the application is to ascertain whether the applicant is within the class of people who have been granted a constitutional exemption during the four month period that ends on June 6, 2016. (E.F. at para 5)

Judicial authorization applications should therefore focus on whether the applicant meets the criteria for exemption as stipulated in Carter (at para 14, citing Carter 2015 at para 127); they must be:

(1) a competent adult who (2) clearly consents to the termination of life and (3) has a grievous and irremediable medical condition (including an illness, disease or disability) that (4) causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

The Court of Appeal noted the following facts with respect to the applicant, E.F. (E.F.at para 7):

E.F. is a 58 year old woman who endures chronic and intolerable suffering as a result of a medical condition diagnosed as “severe conversion disorder”, classified as a psychogenic movement disorder. She suffers from involuntary muscle spasms that radiate from her face through the sides and top of her head and into her shoulders, causing her severe and constant pain and migraines. Her eyelid muscles have spasmed shut, rendering her effectively blind. Her digestive system is ineffective and she goes without eating for up to two days. She has significant trouble sleeping and, because of her digestive problems, she has lost significant weight and muscle mass. She is non-ambulatory and needs to be carried or use a wheelchair. Her quality of life is non-existent. While her condition is diagnosed as a psychiatric one, her capacity and her cognitive ability to make informed decisions, including providing consent to terminating her life, are unimpaired. She deposes that she is not depressed or suicidal, but “simply exhausted after years of suffering indescribable pain”. Medical opinion evidence confirms that the applicant is not suffering from depression and is able to and is voluntarily consenting. Her mental competence is not in dispute. We also note that the applicant’s husband and adult children are supportive of her decision.

Issues

E.F.’s application for judicial authorization of physician assisted dying was made on April 22, 2016, with notice to the Attorneys General of Canada, Alberta and British Columbia. British Columbia, which was included because that is the jurisdiction where the physician who has offered to assist E.F. resides, opposed the application, as did Canada. Their opposition was based on concerns about the sufficiency of the psychiatric evidence provided, and, for Canada, on the position that E.F. did not meet the Carter criteria because her illness was not terminal and it was rooted in a psychiatric condition. The judge at first instance, Justice M.R. Bast, authorized physician assisted death in spite of these objections, and Canada and British Columbia appealed her ruling. The same arguments in opposition to judicial authorization were made on appeal; neither Canada nor British Columbia argued that E.F. lacked competence or the ability to consent. (at paras 8-13)

Court of Appeal Decision

The Court of Appeal indicated that this was the first of approximately 16 to 20 applications for judicial authorization in Canada that had been opposed, and the first to be appealed by an Attorney General (at paras 6, 15). According to the Court, “In these circumstances, the standard of review takes on particular importance and requires us to consider the role of the motions judge in the application for authorization, and of this Court on review” (at para 16). On the issues related to whether E.F. met the Carter criteria, the Court found that as questions of law, they were subject to review on a standard of correctness (at para 17). On the issue related to the sufficiency of evidence, the Court found that it related essentially to fact finding and the application of those facts to the law as stated in Carter 2015, and was therefore entitled to review on the more deferential standard of palpable and overriding error (at para 19). It disagreed with Canada’s submission that the standard of review should be higher because the case involved a constitutional exemption, noting again that “the task of the authorizing court is limited to determining whether a particular claimant satisfies the criteria established in Carter 2015 so as to qualify for the exemption already granted by the Supreme Court”, which is not in itself a constitutional inquiry. (at para 23)

On the issue of whether a terminal illness is required in order for an applicant to be eligible for authorization under the constitutional exemption, Canada acknowledged that Carter 2015 did not explicitly set out such a requirement, but argued that it was implied by the Supreme Court’s statement that:

The scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought. (Carter 2015 at para 127)

Because the relevant plaintiffs in Carter had terminal illnesses, and the Supreme Court repeatedly referred to “people like Ms Taylor” (Ms. Taylor being one of the plaintiffs in Carter 2015) and “end of life care”, Canada argued that the Supreme Court intended to restrict the scope of its decision to cases of terminal illness (E.F. at paras 29-31).

The Court of Appeal found that Justice Bast had correctly rejected this argument. It pointed to a background document to Bill C-14 prepared by Justice Canada, which acknowledges (at p 29) that the declaration in Carter 2015 “describes a broad right, [and] that the terms used to describe it, such as “grievous and irremediable medical condition” … could include conditions that are not life-threatening or terminal.” (at para 28) It also found that Canada’s argument was not supported by the language of the Carter 2015 decision highlighted by the federal Attorney General, nor its underlying principles (at paras 33-36). Referencing Carter 2015’s opening paragraph, which noted that persons “who are grievously irremediably ill” face the “cruel choice” of taking their own lives prematurely, or suffering until they die of natural causes, the Court of Appeal stated that “The cruelty in the situation is there regardless of whether the illness causing the suffering may be classified as terminal.” (at para 37)

The Court of Appeal decision also emphasized that Carter 2015 was based on the Supreme Court’s conclusion that the blanket criminal prohibitions against assisted dying were found to be an overbroad violation of the rights to life, liberty and security of the person, contrary to section 7 of the Charter, and that the Court’s declaration of invalidity was carefully tailored to this finding. Accordingly,

Any attempt to read in or infer additional limitations to those expressly set out in paragraph 127 [of Carter 2015] must respect the balance of competing values struck by the court – balancing the sanctity of life, broadly speaking, and society’s interest in protecting the vulnerable, against the Charter rights of an individual to personal autonomy without state intervention, including autonomy over personal decisions regarding one’s life and bodily integrity. (at para 40)

Seen in this light, it was not appropriate to read in a requirement that the applicant’s illness be a terminal one, as argued by Canada – if the Supreme Court had intended such a limitation, it would have said so in Carter 2015 “clearly and unequivocally”. (at para 41)

Similarly, Canada could not point to any express language in Carter 2015 that limited the scope of the decision so as to exclude psychiatric conditions, and the Court of Appeal was not prepared to infer such a limitation (at paras 44-45). It also rejected Canada’s argument that the Supreme Court had accepted the opinion of an expert in Carter, Professor Montero, that psychiatric conditions should be excluded, pointing again to the language of paragraph 127 of Carter 2015 and the explicit safeguards introduced by the Supreme Court around competence and clear consent (at paras 47-51). The Court of Appeal noted that the availability of assisted dying for psychiatric illnesses had been “very much part of the debate and on the record” in Carter 2015 (at para 54), and that “nevertheless the [Supreme Court] declined to make such an express exclusion as part of its carefully crafted criteria.” (at para 59) Lastly, it declined to accept Canada’s contention that because none of the applications for judicial authorization in Canada to date have dealt with psychiatric conditions, they should be excluded, noting that these applications were fact dependent and it was not determinative that this kind of condition had not been considered previously (at para 46).

The third issue, the sufficiency of the evidence before Justice Bast to establish that E.F. had a “grievous and irremediable medical condition”, was raised by both Canada and British Columbia on appeal. British Columbia argued that E.F.’s condition was “relatively poorly understood”, and that the court should therefore have been provided “with direct evidence from a psychiatrist with expertise in the condition who has seen the applicant, [and who can] establish that the condition is irremediable; [and] that no further treatment options, acceptable to the individual, are available.” (at para 60) The Court of Appeal held that Justice Bast had not erred in rejecting this argument. She had been presented with evidence from E.F.’s attending physician of 28 years, a second physician competent to provide assistance in dying, and a psychiatrist with expertise in severe conversion disorder, all of whom had concluded that E.F.’s condition was grievous and irremediable. The fact that E.F. had not been examined by the psychiatrist was not fatal, as “there [was] no reason to think that this experienced specialist would have rendered that opinion if he were not satisfied with the medical information he was provided, or if there was a treatment option that could or should be tried by the applicant.” (at para 64) Canada’s argument that the evidence of E.F.’s condition was “vague and stale” was also rejected (at para 68).

Having dismissed all three grounds of appeal, the Court of Appeal went on to provide its view of the role of Attorneys General on judicial authorization applications. It noted that the Supreme Court did not intend these applications to be adversarial, and that it is the courts rather than Attorneys General “that are tasked with being the gatekeeper in an authorization application.” (at para 71) As such, the Court of Appeal stated that it was not in the public interest for the Attorney General of Canada to “assume the role of adversary when she is not satisfied that the application meets the Carter 2015 criteria.” (at para 71) The Court also questioned why the Attorneys General of Canada and British Columbia “considered [it] necessary to put an applicant to the test on appeal, particularly where, as here, one of the primary issues is fact-finding.” (at para 72) The fact that Bill C-14 is currently before Parliament did not offer an adequate explanation: “Issues that might arise regarding the interpretation and constitutionality of eventual legislation should obviously wait until the legislation has been enacted.” (at para 72) In contrast, the Attorney General of Alberta was said to have taken the proper approach by appearing in an advisory role and not participating in the appeal (at para 70).

Two final points were addressed by the Court of Appeal. First, because it was first raised on appeal, the Court declined to deal with British Columbia’s argument that courts in one jurisdiction should not authorize physician assisted deaths that will take place in another, unless special circumstances exist to show why this is necessary. Second, it did not address the argument that Justice Bast had improperly granted a partial publication ban, as this ground of appeal was not pursued by the Attorneys General at the appeal hearing.

Commentary

It takes no great leap to speculate that the reason the Attorney General of Canada took the position she did in this case was to support the stance the Liberals have taken in Bill C-14 on assisted death. Bill C-14 defines medical assistance in dying in the proposed section 241.1 of the Criminal Code as follows:

(a) the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death; or

(b) the prescribing or providing by a medical practitioner or nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death. (aide médicale à mourir)

Bill C-14 restricts medical assistance in dying to those who meet the criteria in the proposed section 241.2 of the Criminal Code:

(a) they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;

(b) they are at least 18 years of age and capable of making decisions with respect to their health;

(c) they have a grievous and irremediable medical condition;

(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and

(e) they give informed consent to receive medical assistance in dying. (emphasis added)

In turn, a person is defined to have “a grievous and irremediable medical condition” only if they meet all of the following criteria, according to proposed section 242.2:

(a) they have a serious and incurable illness, disease or disability;

(b) they are in an advanced state of irreversible decline in capability;

(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and

(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining. (emphasis added)

The requirement in section 241.2(d) that death be “reasonably foreseeable” is addressed in the preamble, which states that this restriction “strikes the most appropriate balance between the autonomy of persons who seek medical assistance in dying, on one hand, and the interests of vulnerable persons in need of protection and those of society, on the other.” This requirement of a terminal illness has been one of the most controversial aspects of Bill C-14, with counsel for the Carter plaintiffs, Joe Arvay, arguing that it is a significant and unconstitutional departure from the Supreme Court’s decision in that case (see also the positions on Bill C-14 by Dying with Dignity Canada and the BC Civil Liberties Association). The Court of Appeal’s ruling in E.F. confirms that Carter 2015 did not require candidates for medical assistance in dying to have terminal illnesses, and thus calls into question the constitutionality of Bill C-14.

As for Canada’s position on psychiatric conditions in E.F., this may also line up with Bill C-14, section 9.1 of which provides that:

9.1 The Minister of Justice and the Minister of Health must, no later than 180 days after the day on which this Act receives royal assent, initiate one or more independent reviews of issues relating to requests by mature minors for medical assistance in dying, to advance requests and to requests where mental illness is the sole underlying medical condition.

Mental illness is not defined in Bill C-14, so it is unclear whether the type of psychiatric condition that E.F. has would be captured here. It could be argued that regardless of section 9.1, E.F. meets the criteria for medically assisted dying in section 241.1 and 241.2, with the exception of the reasonable foreseeability of death.

There are many other cases where governments have gone further than the courts mandated in enacting curative legislation after a constitutional challenge. The regime for production of personal records in sexual assault cases is one example, where Bill C-46 was more restrictive of production than required by the majority of the Supreme Court in R. v. O’Connor, [1995] 4 SCR 411 (CanLII), yet was upheld in R. v. Mills, [1999] 3 SCR 668 (CanLII). The notion of “dialogue” between the courts and legislatures is often invoked in these scenarios (see Peter W. Hogg & Allison A. Bushell. “The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter Of Rights Isn’t Such A Bad Thing After All)” (1997), 35 Osgoode Hall LJ 75). In this case, however, the Attorney General of Canada arguably went beyond the appropriate parameters of dialogue theory by taking an adversarial position in an individual case that had the potential to produce the sort of cruelty decried by the Supreme Court in Carter. One is reminded of the language used by Justice McLachlin, as she then was, in her dissenting opinion in Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519 (CanLII) at 621 where she stated that Sue Rodriguez was being “asked to serve as a scapegoat” because she was denied access to assisted death even though she did not present any of the risks that can be associated with such cases.

Parliament is expected to vote on Bill C-14 during the last week of May, but the Bill must then wind its way through the Senate, and all bets are off on whether the Bill will pass before the Supreme Court’s deadline of June 6, 2016 (see Carter 2016). In the meantime – and perhaps thereafter, if no new law is in force by the deadline – the Court of Appeal decision in Canada (Attorney General) v E.F. provides welcome guidance to applicants for assisted dying, their counsel, the courts, and perhaps most importantly, Attorneys General in terms of how to conduct themselves in judicial authorization proceedings.

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BCCA Unfortunately Chooses Not to Follow Alberta’s Lead on the Issue of Whether the Charter ...

Thu, 05/26/2016 - 4:15pm

By: Linda McKay-Panos

PDF Version: BCCA Unfortunately Chooses Not to Follow Alberta’s Lead on the Issue of Whether the Charter Applies To Universities

Case Commented On: BC Civil Liberties Association v University of Victoria, 2016 BCCA 162 (CanLII)

There are a number of ABlawg posts dealing with the issue of whether the Canadian Charter of Rights and Freedoms (Charter) applies to universities (see: Face-ing the Charter’s Application on University Campuses; University Campus is not Charter-Free; Freedom of Expression, Universities and Anti-Choice Protests). Many of these decisions involve freedom of expression, which is considered to be a very important element of university life (e.g., for academic freedom, free discussion and debate of ideas). Recently, I posted about a case involving the University of Victoria (see Does the Charter Apply to Universities? Pridgen Distinguished in U Vic Case) in which the British Columbia Supreme Court did not follow the judgment of Alberta Court of Appeal Justice Paperny in Pridgen v University of Calgary, 2012 ABCA 139. Although the case law synthesized by Justice Paperny was not determinative in Pridgen, her judgment provides an excellent, logical synthesis of how the precedents on the application of the Charter should be applied in various contexts, including universities. This post discusses the BCCA decision on the University of Victoria case.

In University of Victoria (UVic CA), a pro-life student group (“Youth Protecting Youth”) applied to the University of Victoria (University) for a permit to hold a demonstration on campus. At first, the permit was granted, but it was later revoked when the University learned that Youth Protecting Youth (YPY) had been sanctioned by the Students’ Society at the University. YPY held a demonstration anyway, and the University threatened further sanctions. YPY’s president, Cameron Côté, and the British Columbia Civil Liberties Association (BCCLA) applied for a declaration that Charter s 2(b) freedom of expression applied to the University’s decisions, and had been infringed. They also argued in the alternative that the decisions should be quashed for being unreasonable. Here, I am most interested in the Charter discussion. The British Columbia Supreme Court (BCSC) dismissed the application and held that the Charter did not apply.

On appeal, Côté and the BCCLA sought a declaration under the Constitution Act, 1982, s 52 that section 15.00 of the Booking of Outdoor Space by Students Policy (Policy) is ultra vires, void, and of no force or effect, as it violates Charter sections 2(b), (c) and (d).

Côté and the BCCLA acknowledged that the University is not an organ of the state, but relied on Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 to argue that certain decisions made by the University could be subject to Charter challenges. Further, they argued that the University’s regulation of its property under the authority of the University Act, RSBC 1996, c 468 (Act), amounts to “government activity” and thus attracts Charter scrutiny. The University’s Policy involved the exercise of regulatory power conferred by the Act that could not be separated from the University’s core role of delivering publicly-funded post-secondary education (UVic CA, para 6).

Côté and the BCCLA also submitted that the lower Court had relied unduly and incorrectly on some older cases involving mandatory retirement, such as McKinney v University of Guelph, [1990] 3 SCR 229 and some more recent cases from other jurisdictions, such as Lobo v Carleton University, 2012 ONCA 498 (UVic CA, para 6). Côté and the BCCLA submitted that the UVic CA case is more closely analogous to a line of cases (from Alberta and Saskatchewan) in which university students were held to be entitled to assert Charter rights in disputes with governing bodies of universities (e.g., Pridgen) (UVic CA, para 7).

Côté and the BCCLA also argued that there is a public interest in extending the scope of Charter protection, because the ability to express political ideas on campus is not separable from other aspects of university education (UVic CA, para 9). Further, the University plays a central role in the democratic, economic and social life of the province, thus it must use its statutory powers in the public interest (UVic CA, para 9).

As a separate ground, Côté and the BCCLA argued that even if they could not assert an infringement of Charter rights, the University must take into account Charter values when applying the Policy, and had failed to do so. They had unsuccessfully made a similar argument before the BCSC (UVic CA, para 11).

At the BCCA, Justice Willcock, Justices Saunders and Dickson concurring, upheld the lower court decision, agreeing that the actions of the University in creating the Policy could not be said to violate Côté’s Charter rights. Further, the question of whether Charter values applied was moot and should not be considered (UVic CA, para 16).

The BCCA embarked on a lengthy discussion of the scope of Charter application to universities. Justice Willcock discussed the scope of Charter s 32(1). This section provides:

32.(1)This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

He first cited RWDSU v Dolphin Delivery, [1986] 2 SCR 573 for the proposition that s 32(1) does not refer to the government in its generic sense—“meaning the whole of the governmental apparatus of the state”—but rather to a branch of the government, narrowly defined (UVic CA, para 19). He also cited Stoffman v Vancouver General Hospital, [1990] 3 SCR 483, where Justice LaForest —in turn relying on Dolphin Delivery — said that references to government in s 32 “…could not be interpreted as bringing within the ambit of the Charter the whole of that amorphous entity which in contemporary political theory might be thought of as ‘the state’.” (UVic CA, para 19).

Justice Willcock also noted that, at the same time, the jurisprudence on s 32 provides that it should not be so narrowly defined as to permit the government to act with impunity by using subordinate bodies (UVic CA, para 20). While the Charter likely applies to delegated legislation, regulations, orders-in-council, municipal by-laws and by-laws and regulations of other creatures of Parliament and legislatures, cases have excluded from “government” entities such as universities in Ontario and British Columbia, and the Vancouver General Hospital, yet have included community colleges and the transportation authority of the Greater Vancouver Regional District (UVic CA, para 20).

Justice Willcock relied on McKinney, Stoffman, and Harrison v University of British Columbia, [1990] 3 SCR 451 (Harrison), to hold that the fact that a university is fiscally accountable under the University Act, does not establish government control or influence on the core functions of the university, including policies and contracts (UVic CA, paras 21, 26). He was not persuaded that the UVic CA case was distinguishable from the Harrison case in any material way on the issue of the application of the Charter to universities (UVic CA, para 21). It should be noted that all three of these cases relied upon by Justice Willcock are about mandatory retirement of faculty/staff.

Côté and the BCCLA argued that this case fits into an exception that is carved out from the general rule cited in Harrison. Because the University is given statutory authority under the University Act to regulate its property, the Charter can be used to challenge measures undertaken under these statutory provisions (UVic CA, paras 22, 23). Justice Willcock noted that this argument had been rejected in McKinney (UVic CA, para 24).

To respond to the argument that the specific activity that was affected by the University’s decisions­­—public expression­­­­­—is one that the University is established to encourage in the public interest, Justice Willcock relied on McKinney, which said that the delivery of a public service by an agency does not automatically incorporate it into government (UVic CA, para 28). Justice Willcock noted that the circumstances in which an activity could subject an entity to Charter scrutiny were set out in Eldridge. Because the Vancouver General Hospital in Eldridge was putting into place a government program or acting in a governmental capacity in adopting policies regarding the delivery of medical care mandated by statute, these were “inherently governmental actions” and the court could consider whether the hospital was subject to the Charter. In particular, the court could examine whether the government maintained responsibility for the program, despite the use of a private agency to deliver it; whether there was a specific government program or policy directing the hospital to act; and whether the government had delegated the implementation of its policies and programs to the private entity (UVic CA, para 30).

Justice Willcock noted that Eldridge provided two important points about the scope of the applicability of the Charter to private entities. First, the mere fact that an entity performs a public function, or the fact that a particular activity may be described as public in nature, will not be enough to bring it into “government” for the purposes of s 32 (UVic CA, para 31, citing Eldridge at para 43). Second, determining whether an entity attracts Charter scrutiny with respect to a particular activity requires an investigation not into the nature of the entity but into the nature of the activity itself (UVic CA, para 31, citing Eldridge at para 44).

When Justice Willcock applied these two criteria from Eldridge, he concluded that he could not find that the specific acts in question of the University were governmental in nature. He noted that the government had neither assumed nor retained any express responsibility to provide a public forum for free expression at universities (UVic CA, para 32).

Justice Willcock went on to distinguish Pridgen, noting that it was decided on administrative grounds, and that any discussion by Justice Paperny about the Charter’s application was obiter dicta (judge’s remarks that do not form a necessary part of the decision) (UVic CA, para 37). Further, Alberta’s statutory framework with respect to universities did not apply in British Columbia. Finally, in Pridgen, Justice Paperny found that disciplinary sanctions fell into the category of statutory compulsions (one of five possible categories of entities, laws and activities that could attract Charter scrutiny as set out by her in Pridgen); Justice Willcock held that the decisions at issue involved no exercise of statutory authority beyond the authority held by private individuals or organizations (UVic CA, paras 37 to 39).

It is interesting to note that Justice Willcock did not take note that Alberta Court of Queen’s Bench Justice Strekaf in Pridgen would have categorized the university as a non-governmental entity implementing a government objective, similar to that in Eldridge, and thus the policy would have fit under a different category than that relied upon by Justice Paperny (statutory compulsion). Côté and the BCCLA had actually relied on the “implementing a government objective” category from Eldridge to make their arguments.

Justice Willcock also held that the lower court had correctly relied upon Lobo. In Lobo, the lower court had held that the appellants had failed to plead the material facts necessary to establish that the university was implementing a specific government program or policy when it failed to allocate space to the appellants to advance their extra-curricular objectives (UVic CA, para 40). In addition, the Ontario Court of Appeal had held that when the university books space for non-academic extra-curricular use, it is not implementing a particular government policy or program as considered in Eldridge (UVic CA, para 40, citing Lobo, para 4).

It should not be forgotten that even if the Charter were to apply in the circumstances of this case, the University would have the opportunity to rely on Charter s 1 to demonstrate that the limits on the Charter right were demonstrably justified in a free and democratic society. Thus, the University would not be without an opportunity to justify its actions or policies, even if its policies were subject to Charter scrutiny.

Commentary

Because this decision does little to clear up the division on this issue between courts in Alberta and Saskatchewan, and those in British Columbia and Ontario, I sincerely hope that the parties will consider seeking leave to appeal this decision to the Supreme Court of Canada (SCC). It is clear that Charter s 32 requires a contextual analysis, and courts can certainly distinguish cases based on different contexts, yet I am perplexed by this case.

Even the SCC in their majority judgments in McKinney (paras 42, 371 and 436) and Stoffman (p 507), recognized that there may be circumstances where a university is implementing a government policy such that the Charter could apply. These circumstances were contrasted with the situation where a university is acting as an employer, where the Charter clearly does not apply. This distinction would support the long-stated notion that universities should be autonomous with respect to internal operations.

If the situation described in UVic CA does not meet with those circumstances outlined in McKinney—where the university is implementing a government policy—I am at a loss to conjure up situations where McKinney’s “exceptional” circumstances could apply to universities.

Although Justice Paperny’s five categories of circumstances where the Charter can apply were indeed obiter dicta, there is much to recommend in her logical, thoughtful summary and reconciliation of the cases. If the matter reaches the SCC, hopefully the SCC will seriously consider Justice Paperny’s judgment in Pridgen.

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Who Are the ""Parents of the Nation”? Thoughts on the Stephan Case and Section 215 ...

Thu, 05/26/2016 - 4:15pm

By: Lisa Silver

PDF Version: Who are the “Parents of the Nation”? Thoughts on the Stephan Case and Section 215 of the Criminal Code

Matter commented on: Section 215 of the Criminal Code, RSC 1985, c C-46

Much has been written and said on the characteristics of a “good” parent. Such information is easily accessible by anyone with a library card and internet access. It can be found by a click of our mouse on various blog postings (click here for a list of parenting blogs, which share the “real truth” about parenting) and dedicated websites (click here for a list of “not-to-be-missed” websites). Even celebrity has something to say about parenting practices; cue self-styled “lifestyle” guru, Gwyneth Paltrow, who famously has her children on a controversial low-carb, sugar free diet. Social media is another fount of information, often in the form of criticism or apologies. All of these venues enforce a “normative” notion of parenting. But through all this data there seems to be a bright-line drawn between “good” and “bad” parenting. For example, “bad” parents administer cocaine to a child (R v TB, 2010 ONSC 1579), knowingly leave a child in a car for an extended period of time during a hot summer afternoon (R v Huang, 2015 ONCJ 46), or intentionally attack a child with a knife (R v BJG, 2013 ABCA 260). In those instances, the egregious conduct is not merely “bad” parenting but criminal behavior deserving of state imposed sanctions and its concomitant stigma. Although we can recognize “criminal” parenting when we see it, the real difficulty lies in identifying behaviors that are not so evidently “bad.” The recent Stephan case has ignited a debate on where that line between “bad” and “criminal” should be drawn; or is the line already drawn perhaps not as bright as we might have previously believed?

David and Collet Stephan were convicted of failing to provide the necessities of life to their 19-month old child, Ezekiel, who died from bacterial meningitis after the couple rejected medical treatment for the child opting instead for naturopathic remedies. They are currently awaiting sentencing (the only written decision in the case to date is on the voluntariness of statements made by the Stephans to the police, social workers and a physician). The Stephans’ seven-day trial attracted intense media and social media attention. For instance, a quick and crude Google search of “David Stephan” provided 91,400 results, while “Collet Stephan” produced 67,700 hits. Interestingly, a Google search for “David and Collet Stephan” netted 40,800 results, while the reverse search of “Collet and David Stephan” suggestively revealed only 912 web hits. This difference can probably be explained by David Stephan’s very public disappointment in the verdict and the “open letter” to the jury he posted on Facebook. In any event, the reaction to the verdict was not homogeneous, with many people supportive of the couple shocked at the guilty verdict, while others were distinctly unsurprised. The reason for this disconnect may lie in the actual offence charged, which is found under section 215 of the Criminal Code.

Section 215(1) creates legal duties on people based on the nature of the relationships between them, or based on undertakings to care for a person in need. Under subsection 2, it is the failure to perform that duty which lies at the crux of the offence. Traditionally, criminal law is disinclined to base criminal sanction on omissions or failures to act. This disinclination can be seen in the parameters of criminal omissions such as found in section 219, criminal negligence, wherein an omission can be an element of the offence if it involves a “duty imposed by law.” Indeed, such a legal duty can be found under section 215. Even though omissions sit uncomfortably within the criminal law, section 215 as a crime of neglect has been in the Criminal Code since its inception in 1892.

Section 215 has changed very little over the ensuing 134 years other than making the application of the section gender neutral and increasing the maximum penalty upon conviction. Since 2005, if the Crown elects to proceed by indictment, the maximum sentence is five years incarceration, increased from the previous maximum of two years. On summary conviction the maximum has also increased to a period of eighteen months incarceration, up from six months and/or a $2,000 fine. Despite the longevity of this section, there appears to be a surprisingly small number of reported cases (a Westlaw search produced 371 cases with 149 of those pertaining to the duty of a “parent” to a child). The historical reason for the parental legal duty was to account for the husband/father deserting a wife and child, which caused an endangerment of life and health (R v Middleton, 1997 CanLII 12350 (ON SC) LaForme J (as he then was) at para 10). Although in later amendments, the definition of “parent” included either spouse, the broader objective of criminalizing parental conduct remained the same.

Case law has distinguished the duty imposed as a result of a familial or family-like relationship from the duty arising from an undertaking to care for a person in need. In the latter case, it is this “undertaking” to protect and provide for another person that controls the duty. This focus on an “undertaking” has its genesis in contract law as noted in Burbidge’s Digest of the Criminal Law published in 1890 before the Criminal Code was introduced. In Article 269 the duty to provide the necessaries of life arises “by contract or by law, or by the act of taking charge.” This concept of “taking charge” with a resultant undertaking to assist is consistent with common law omissions, which arise from a positive act of the accused. Once an accused acts by undertaking to care for another then the duty to continue those actions arises. Any failure or neglect of that undertaking or duty, which results in harm or a risk of harm, becomes the omission under the criminal law. Much of the legal controversy regarding this duty naturally focuses on the actual initial act or undertaking and in what circumstances the law should find such a duty to exist.

In the matter of a “parent, guardian or head of a family” who fails to provide the “necessaries of life” for a child under sixteen years, it is the ongoing nuclear relationship which binds them. Case law, as it relates to a parent’s duty to a child, does not focus on the creation of that relationship. Rather, the more pressing issue, in terms of the actus reus requirements, is whether or not the neglect constitutes a failure to provide the “necessaries of life” which endangers the life or health of the child. In the 1912 Sydney case (20 CCC 376 (SKCA)), the term “necessaries” included “food, clothing, shelter, and medical attendance.” That list was non-exhaustive and depended upon the circumstances of the case. The term also acquires its meaning from the Criminal Code as the heading under which section 215 is found is entitled Duties Tending to Preservation of Life. By this “preamble,” necessaries must be those which “tend to preserve life” and are not necessaries “in their ordinary legal sense” (Rex v Brooks (1902), 5 CCC 372 (BCCA)).

This uncodified judicial definition of “necessaries of life” has broadened in scope over the years to reflect society’s changing values. Modernity lies at the core of these changes as technological advances, the humanistic approach, and as mentioned earlier, the advent of media has required more or even different parental obligations. The “necessaries of life” has become more than adequate subsistence as it reflects society’s concern to protect the most vulnerable in our society from harm. To that end, Justice G. A. Martin in the 1981 Ontario Court of Appeal case of Popen (60 CCC (2d) 232) found the “necessaries of life” should not be confined to specific necessities such as food and shelter. Rather, it also includes a more general duty to provide “necessary protection of a child from harm” (Popen at para 20). This broader definition was applied in the Hariczuk case, [1999] OJ No 1424 (ONCJ), in which Justice Vaillancourt found a parental duty, under section 215, to provide a safe environment for a child. Tragically, the accused, who was making great progress in his drug addiction treatment in order to be a “good” parent to his six-year old son, prepared his methadone treatment by mixing it with his son’s favourite beverage. Although Mr. Hariczuk cautioned his son not to drink it, the child did so when he awoke thirsty in the middle of the night. In that case, Hariczuk was convicted of manslaughter.

Although society shares the obligation to protect children as seen through the myriad of child protection legislation both federally and provincially, public policy requires parents to meet the standard of conduct of a reasonably prudent parent. It is in those cases where the failure in the section 215 duty is a “marked departure” from the norm, that the criminal law bright-line is drawn between a “bad” parent and a “criminal” one (R v Naglik, [1993] 3 SCR 122, 1993 CanLII 64 (SCC), Lamer CJ at paras 45 to 46). This marked or criminal departure from the accepted standard of care constitutes the mens rea or fault element of the offence under section 215. It is an objective standard of liability, which does not depend on the awareness or intention of the accused but on the legal construction of a standard embodied by the “reasonably prudent parent”. Therefore, the determination of criminal responsibility depends on “a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child” (Naglik at para 46; R v JF, [2008] 3 SCR 215, 2008 SCC 60 at para 8).

Despite Lamer CJ’s great efforts in the late eighties and early nineties to imbue the objective standard with the personal characteristics of the accused as a concession to human frailties in order to ensure the morally innocent would not be captured by the criminal law, the “reasonably prudent parent” does not “look” like the accused. The modification to the objective standard, if it can even be called that, lies in the requirement that the trier of fact assess the standard in light of the circumstances of the case. Therefore, it is in the determination of the facts and how they connect to both the actus reus and mens rea requirements that will result in a finding that certain parental conduct is or is not criminal.

Of course, this suggests a range of contextualized conduct that will attract penal sanctioning. In fact, many cases involving the death of a child result in charges of murder (section 229) or manslaughter (section 222(5)(a) or (b)) or criminal negligence causing death (section 221). The legal duty found under section 215 can provide the underlying unlawful act for all of these charges, even for the offence of murder, which requires a subjective fault element. For example, in R v Boittneau, 2011 ONCA 194, the grandparents were convicted of second-degree murder for the neglect of their grandson. Another Alberta trial is soon to begin in which the parents are charged with first-degree murder as a result of the death of their son who died of a bacterial infection, allegedly contracted as a result of neglect. Some cases, not involving a fatality, may also be subject to a criminal negligence charge, under section 219 of the Criminal Code, predicated on section 215 as the legal duty required as part of the actus reus of the offence. In those cases, the prosecution must not only establish the required elements of section 215 but must also prove that the conduct of the accused, objectively viewed, displayed a “wanton and reckless disregard for the lives and safety of others” and was a marked and substantial departure from the required standard. The higher degree of departure being both “marked” and “substantial” is consistent with the higher possible penalties upon conviction (see R v ADH, [2013] 2 SCR 269, 2013 SCC 28 Cromwell J at para 61).

Understanding the background and make-up of section 215 does assist us in discussing the Stephan case and the resultant public interest in the file. In many ways, the circumstances fit easily within the legal duty outlined in section 215 and the judicial interpretation of the necessaries of life. There are many cases where a parent’s failure to provide a child with prompt and adequate medical attention has resulted in a conviction under section 215 or for the more serious offences of criminal negligence or manslaughter. Some of these cases arise in the context of the belief system of the parents, typically on religious grounds. In the seminal case of Tutton and Tutton, [1989] 1 SCR 1392, Arthur and Carol Tutton were convicted of manslaughter as a result of stopping their diabetic child’s insulin injections in favour of faith healing. The Supreme Court of Canada sent the matter back for retrial but on the basis of the inadequacy of the charge to the jury on the defence of mistake of fact. In that case too, public opinion was divided. According to a news article describing the conviction, “a number of supporters cried and embraced” the Tuttons.

Although factually, the Stephan case seems to “fit” the kind of conduct prosecuted under section 215, the emphasis must not be on the tragic outcome but on whether the conduct was a “marked departure” from the reasonable parent standard. As with so many legal terms, “marked” is not quantified but is to be read in the context of the criminal sanction. As with driving offences, to attract a criminal sanction, the conduct must involve more than mere imperfections. Thus, the question of what is “marked” is not based on “are these parents “bad” parents,” or even, “based on my own personal standards are these parents bad parents,” but rather the question is based on the societal standard in place in the context of the circumstances. Therefore, it is not those who occasionally slip off that standard or even those who are continually slightly below that standard, who should be subject to society’s ultimate approbation through our criminal law. For instance, in the Brennan case, 2006 NSPC 11, Rhonda Brennan was acquitted of failing to provide the necessaries of life to her two-month old child. The child was born seven and a half weeks premature. Although the baby initially gained weight and seemed to thrive while in the hospital, once in the mother’s care, the baby’s weight declined. Ms Tutton generally followed medical instruction, took her baby to the public health nurse and pediatrician, and implemented a feeding regime. In acquitting Tutton, Provincial Court Judge Tufts found that although she failed to adequately feed the baby, the risk of harm to the child would not have been apparent to a reasonably prudent parent. Another parent may have been more “attuned” to the situation and more “aggressive” in their approach but the accused’s conduct was not a marked departure from the standard (at para 65). In the Stephan case, people will disagree on the verdict based on their own concept of parenting and strongly held beliefs but, accepting that the jury was properly instructed on the law, the finding of guilt would be based on a finding that in all of the circumstances, objectively viewed, the Stephans’ conduct was a marked departure from that of the reasonably prudent parent.

Still, there is room for debate over the criminalization of parenting and the efficacy of permitting the law access into our most intimate relationships (in a different context I harken back to Prime Minister Pierre E. Trudeau’s oft quoted statement that “The state has no business in the bedrooms of the nation”). We should, as a society, discuss where the line should be drawn and when we should “invite” the law into our homes or sanction its entrance through our Criminal Code in the guise of parens patriae (Latin for “parents of the nation”). Perhaps we should also reconsider how we judge ourselves and our neighbours, particularly on social media. In an age of opting out of vaccinations and home schooling, the boundaries of “good” and “bad” parenting seem to shift and waver with each Twitter re-tweet and every Facebook “like”: Was that lunch nutritious enough? Do my kids go to bed too late? Are my children too scheduled? And, finally, am I being judged for my parental decisions? Although all of these concerns are a far cry from the kind of conduct underlying section 215, all of those criminal cases, including the Stephan case, raise the tension we all feel between private life and public expectations.

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Vagueness in FOIPP: Can Citizens Effectively Access Their Personal Information?

Thu, 05/26/2016 - 4:15pm

By: Lynn Anderson

PDF Version: Vagueness in FOIPP: Can Citizens Effectively Access Their Personal Information?

Case Commented on: Edmonton (City) v Alberta (Information and Privacy Commissioner), 2016 ABCA 110

The Freedom of Information and Protection of Privacy Act, RSA 2000, c. F-25 (“FOIPPA”, or “the Act”) outlines the obligations of a public body to provide access to records, including access to your own personal information. The overall purpose of the Act (s 2) is to balance our right to access records in the custody and control of public bodies, like the City, with protecting the privacy of individuals by controlling the manner in which public bodies collect, use and disclose personal information. Although there are exceptions to accessing records, these are limited, and interpretation of the Act should be made with the goal of maximum disclosure. As citizens, we have a right to know what information about ourselves is being held by a public body. For example, if someone is making a complaint about us we have a right to know the details so we can defend ourselves. Disclosure by the public body allows citizens to participate in decisions in a more informed and meaningful way.

Judicial History

The present case is an appeal from the Court of Queen’s Bench decision in Edmonton (City) v Alberta (Information and Privacy Commissioner), 2015 ABQB 246 (“Edmonton v OIPC, ABQB”). The Court of Queen’s Bench case was an application for judicial review by the City of Edmonton (“City”) of the decisions of an adjudicator, appointed by the Information and Privacy Commissioner (“Order F2013-53”). The adjudicator looked at a request by Ms. McCloskey, the applicant, under the FOIPPA, for access to certain records in the custody and control of the City. The adjudicator held that Ms. McCloskey only requested personal information and that the City did not fulfill its duty to assist. The adjudicator asked the City to go back and review all the relevant circumstances in their decision to reveal or withhold information requested by Ms. McCloskey. The City should also be more explicit on why they characterised some information as general as opposed to personal in nature. The City disagreed with the adjudicator’s findings and requested a judicial review. The Court of Queen’s Bench dismissed the City’s application for judicial review. The standard of review was reasonableness, which gives wide latitude to the adjudicator’s findings. On appeal, the Alberta Court of Appeal was asked to determine whether the City properly or adequately discharged its obligations as a public body to provide access to records under the FOIPPA.

Facts and Issue on Appeal

Ms. McCloskey made a request for access to certain records in the custody and control of the City under FOIPPA. Ms. McCloskey’s initial request was for “… all records, regardless of format, relating to myself and to my property that may be held by the City of Edmonton” (Edmonton v OIPC, ABCA, at para 2). A City official later phoned Ms. McCloskey to discuss her request. Ms. McCloskey advised the City she made a broad request because she did not know what types of records the City had in its custody and control. She made it known to the City official that she wanted to know of any complaints and any more records attached to the complaints (Edmonton v OIPC, ABCA, at para 2). The City characterised the request as related to property rather than to a person, and attached a fee to the request, while editing the records before they were released (Edmonton v OIPC, ABCA, at paras 6, 9). Ms. McCloskey was not satisfied with the records the City provided. As a result, Ms. McCloskey requested a review by the Information and Privacy Commissioner (“Commissioner”). The adjudicator appointed by the Commissioner considered whether the City met its obligations under s 10(1) of the Act, which requires a public body to make every reasonable effort to assist and to respond to each applicant openly, accurately and completely. The adjudicator found that the City did not respond to the applicant’s request openly, accurately and completely (Edmonton v OIPC, ABCA, at para 58).

Essential to this dispute is the meaning of personal information, as defined in s 1(n) of the Act. If the information is characterised as personal information then the records are released without a fee. If they are characterized as general information, the applicant must pay a fee and seek an alternate route to obtain the records. In the Act, personal information means recorded information about an identifiable individual. The adjudicator found the boundary between personal information and information about a business or property may be blurred (Edmonton v OIPC, ABCA, at para 8). The adjudicator concluded that although these records were related to a particular piece of property, the information in the records reflected on the conduct of the individual associated with the property and thus the request was for personal information (Edmonton v OIPC, ABQB, at para 9). As a result, the City had not responded appropriately to Ms. McCloskey’s request.

A related issue is the removal of information from the records that may be harmful to third parties as determined by s 17 of the Act. The adjudicator found that the City was not sufficiently transparent in their reasons for severing certain information from the released documents, and referred the issue back to the City (Edmonton v OIPC, ABCA, at para 11). The adjudicator determined that the City did not properly assist Ms. McCloskey and ordered the City to process the request for documents “in accordance with the Act” and to “consider all relevant circumstances” (Edmonton v OIPC, ABCA, at para 12).

At issue in Edmonton v OIPC, ABQB was whether the adjudicator’s approach to the term personal information was both reasonable and accurate. Justice Renke found the adjudicator’s reasoning on the core issue was reasonable: information that was connected to property might well be about an individual if it had a personal dimension to it (Edmonton v OIPC, ABCA, at para 15). The ABQB found the City misinterpreted the legal meaning of personal information, and, as a result, there was a breach of s 10 of the Act. The duty to assist was a result of a misunderstanding of the meaning of personal information rather than a wilful disregard for providing the records. Justice Renke concluded the City owed a better explanation to Ms. McCloskey (Edmonton v OIPC, ABCA, at para 17). In this particular context, the essence of the request was for complaints and opinions expressed about Ms. McCloskey. The complaints and opinions were personal in nature. The City had argued that it was unreasonable for the adjudicator to direct the City to provide an explanation on how they came to their decision.

The Court of Appeal’s Decision

In Edmonton v OIPC, ABCA, the Alberta Court of Appeal (Justices Slatter, McDonald, and Bielby) allowed the appeal in part. The adjudicator’s finding that the City had breached s 10(1) of the Act was based on the assumption that the City did not make every reasonable effort to assist the applicant. The Court of Appeal found that the adjudicator’s conclusion the City did not fulfill its duty to assist and to respond openly, accurately, and completely was not rooted in the facts or the law (Edmonton v OIPC, ABCA para 58). A mistake does not mean necessarily a failure to assist. Although Court of Appeal found the City acted in good faith, they agreed with the adjudicator’s findings on the scope of the term personal information, the resulting payment of fees, and the need for further particulars about the application of s 17 as reasonable (Edmonton v OIPC, ABCA, para 59).

The Court of Appeal concluded the Commission could not exercise its duty without knowing the basis on which the scope of production was made or refused (Edmonton v OIPC, ABCA, at para 53). The Court of Appeal specifically looked at the adjudicator’s finding of a failure to assist Ms. McCloskey in an open, accurate, and complete manner (s 10(1) of the Act). They found that public bodies such as the City are required to do their best to comply with their obligations to disclose documents, and must act in good faith in interpreting the statute. However, it is unreasonable to think that they must be correct every time (Edmonton v OIPC, ABCA, at paras 39, 40). It was unreasonable for the adjudicator to find that the City failed to assist Ms. McCloskey on the basis of their interpretation of personal information (Edmonton v OIPC, ABCA, at para 44). The Court of Appeal came to the conclusion that the City did make all reasonable efforts to provide documents to the Commissioner’s office. The City may have made a mistake, however the scope of the production did not arise from a failure to use all reasonable efforts (Edmonton v OIPC, ABCA, para 51). The Court of Appeal mentions that the “spirit of the Act suggests that unless third party interests are engaged, it is better to produce some documents that may not be of interest than to miss documents of important to the query” (Edmonton v OIPC, ABCA, at para 52). Once the scope of production was clarified by the reasons of the Court, the City would be required to disclose the appropriate documents. The quality of the produced documents could not be evaluated until after the City had produced documents with the benefit of the clarification of the Court (Edmonton v OIPC, ABCA, at para 53).

Commentary

The outcome of this case demonstrates how onerous it may be for citizens to obtain access to records from a public body. Ms. McCloskey had experience in privacy matters, while many people do not. The Court of Appeal’s decision and reasons for reversal of the adjudicator’s finding that the City made every reasonable effort to assist Ms. McCloskey is not persuasive. One of the objectives of the Act is to maximize access to records held by public bodies. In s 2 of the Act, the overall purpose is greater openness, while limiting access is the exception to the rule. Although the release of records depends on the context, the public body should always respond to an individual’s request on the basis of transparency and accountability. In s 10(1) of the Act, there is a duty to assist applicants that requires the head of a public body to make every reasonable effort to respond to the request openly, accurately and completely. The applicant argued that the City only gave a partial response to her request for information (Order F2013-53 at para 18). The City should have informed Ms. McCloskey of all the records held in their custody and control, even those documents that may not be disclosed, and should have provided reasons why certain records were severed. The City should also provide the name of a contact person and provide notice of a right to review their decision (The Annotated Freedom of information and Protection of Privacy Act, Edmonton: Clark Dalton and Queen’s Printer (2015), Commentary on s 10-Generally, at 5-10-1). This allows for greater openness and accountability on the part of a governing body. In the original Order F2013-53, it does not appear that the City gave sufficient reasons to the applicant as to why some of the information was severed. Thus, there is a positive duty placed on the public body to give reasons. In this instance, the Court of Appeal gave wide latitude to the City in their duty to assist. Public bodies, like the City, should be held to a high standard when servicing private citizens.

The adjudicator found that the City did not properly define Ms. McCloskey’s request for information. Part of the problem lies in the lack of specificity in the definition of personal information in s 1(n) of the Act. Although the definition is meant to cover a variety of circumstances, it may lead to confusion and a lack of transparency and accountability in public bodies’ access to information decision-making processes. In this instance, there was some disagreement as to what constitutes personal information as opposed to general information. The City argued that the applicant would have received more information about her property under a request for general information. Although this is an alternate route, the City is still obligated to give the applicant as much access to records as possible. The Act is considered a complete system and the City must fulfill its duty to provide access to records rather than point the applicant in another direction (Edmonton v OIPC, ABCA, at para 25).

The City withheld some information on the basis of s 17 of the Act (disclosure may be harmful to a third party). With respect to withheld information, (Order F2013-53, at para 57), how can the adjudicators review decisions made by a public body when even they are not clear on what decision the public body made? Was information severed from the disclosed record for fear of harming a third party, or was it withheld because it was non-responsive to the request?

A principled approach should guide a public body’s duty to provide access to records to citizens. We have a right to know what public bodies know about us. Democracy means we can participate in how we are governed by a public body. The more information the governing body provides to citizens making inquiries, the less potential there is for lack of transparency and unaccountability.

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A Terminal Dispute? The Alberta Court of Appeal Versus the Federal Government on Assisted Death

Thu, 05/26/2016 - 10:00am

By: Jennifer Koshan

PDF Version: A Terminal Dispute? The Alberta Court of Appeal Versus the Federal Government on Assisted Death

Case and Legislation Commented On: Canada (Attorney General) v E.F., 2016 ABCA 155 (CanLII); Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), 42nd Parliament, 1st Session (as amended by the Standing Committee on Justice and Human Rights)

Anyone not familiar with the controversy surrounding assisted death got a taste of it last week during the debate over Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), which culminated in Elbowgate in the House of Commons. Also last week, in the first appellate decision to consider assisted dying post-Carter, the Alberta Court of Appeal weighed in on the criteria for constitutional exemptions during the suspension of the declaration of invalidity of the criminal provisions which prohibit assisted death (see Carter v Canada (Attorney General), 2015 SCC 5 (CanLII) (Carter 2015) and Carter v Canada (Attorney General), 2016 SCC 4 (CanLII) (Carter 2016); and for posts on those decisions see here and here). The Court of Appeal’s decision in Canada (Attorney General) v E.F., 2016 ABCA 155 (CanLII), highlights the lack of congruence between what Carter 2015 constitutionally required and what the government has, so far, delivered in Bill C-14, particularly when it comes to whether a person seeking medical assistance in dying must have an illness that is “terminal”. E.F. also comments on the appropriate role of the Attorney General of Canada in applications seeking judicial authorization of the constitutional exemption allowing assisted dying in certain circumstances during the suspended declaration of invalidity.

Facts and Background

Canada v E.F. is the second landmark ruling to come out of Alberta on assisted death post-Carter. In H.S. (Re), 2016 ABQB 121 (CanLII), Justice Sheilah Martin of the Alberta Court of Queen’s Bench considered the first application for authorization of physician assisted death outside of Quebec (for my post on H.S. see here). One of the key points of Justice Martin’s decision was that a constitutional exemption from what would otherwise be criminal activity had already been granted in Carter 2016, and the role of the authorizing courts was to determine whether individuals meet the criteria for the exemption laid out in Carter 2015 (H.S. at paras 46-47). This interpretation was confirmed by the Court of Appeal in Canada v E.F. According to Justices Peter Costigan, Marina Paperny and Patricia Rowbotham,

It is important to note that the application for authorization from the superior court is not an application to be granted a constitutional exemption; the constitutional issues have already been considered and decided by the Supreme Court of Canada, and the exemption has been granted to qualified individuals. The task of the motions judge who hears the application is to ascertain whether the applicant is within the class of people who have been granted a constitutional exemption during the four month period that ends on June 6, 2016. (E.F. at para 5)

Judicial authorization applications should therefore focus on whether the applicant meets the criteria for exemption as stipulated in Carter (at para 14, citing Carter 2015 at para 127); they must be:

(1) a competent adult who (2) clearly consents to the termination of life and (3) has a grievous and irremediable medical condition (including an illness, disease or disability) that (4) causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

The Court of Appeal noted the following facts with respect to the applicant, E.F. (E.F.at para 7):

E.F. is a 58 year old woman who endures chronic and intolerable suffering as a result of a medical condition diagnosed as “severe conversion disorder”, classified as a psychogenic movement disorder. She suffers from involuntary muscle spasms that radiate from her face through the sides and top of her head and into her shoulders, causing her severe and constant pain and migraines. Her eyelid muscles have spasmed shut, rendering her effectively blind. Her digestive system is ineffective and she goes without eating for up to two days. She has significant trouble sleeping and, because of her digestive problems, she has lost significant weight and muscle mass. She is non-ambulatory and needs to be carried or use a wheelchair. Her quality of life is non-existent. While her condition is diagnosed as a psychiatric one, her capacity and her cognitive ability to make informed decisions, including providing consent to terminating her life, are unimpaired. She deposes that she is not depressed or suicidal, but “simply exhausted after years of suffering indescribable pain”. Medical opinion evidence confirms that the applicant is not suffering from depression and is able to and is voluntarily consenting. Her mental competence is not in dispute. We also note that the applicant’s husband and adult children are supportive of her decision.

Issues

E.F.’s application for judicial authorization of physician assisted dying was made on April 22, 2016, with notice to the Attorneys General of Canada, Alberta and British Columbia. British Columbia, which was included because that is the jurisdiction where the physician who has offered to assist E.F. resides, opposed the application, as did Canada. Their opposition was based on concerns about the sufficiency of the psychiatric evidence provided, and, for Canada, on the position that E.F. did not meet the Carter criteria because her illness was not terminal and it was rooted in a psychiatric condition. The judge at first instance, Justice M.R. Bast, authorized physician assisted death in spite of these objections, and Canada and British Columbia appealed her ruling. The same arguments in opposition to judicial authorization were made on appeal; neither Canada nor British Columbia argued that E.F. lacked competence or the ability to consent. (at paras 8-13)

Court of Appeal Decision

The Court of Appeal indicated that this was the first of approximately 16 to 20 applications for judicial authorization in Canada that had been opposed, and the first to be appealed by an Attorney General (at paras 6, 15). According to the Court, “In these circumstances, the standard of review takes on particular importance and requires us to consider the role of the motions judge in the application for authorization, and of this Court on review” (at para 16). On the issues related to whether E.F. met the Carter criteria, the Court found that as questions of law, they were subject to review on a standard of correctness (at para 17). On the issue related to the sufficiency of evidence, the Court found that it related essentially to fact finding and the application of those facts to the law as stated in Carter 2015, and was therefore entitled to review on the more deferential standard of palpable and overriding error (at para 19). It disagreed with Canada’s submission that the standard of review should be higher because the case involved a constitutional exemption, noting again that “the task of the authorizing court is limited to determining whether a particular claimant satisfies the criteria established in Carter 2015 so as to qualify for the exemption already granted by the Supreme Court”, which is not in itself a constitutional inquiry. (at para 23)

On the issue of whether a terminal illness is required in order for an applicant to be eligible for authorization under the constitutional exemption, Canada acknowledged that Carter 2015 did not explicitly set out such a requirement, but argued that it was implied by the Supreme Court’s statement that:

The scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought. (Carter 2015 at para 127)

Because the relevant plaintiffs in Carter had terminal illnesses, and the Supreme Court repeatedly referred to “people like Ms Taylor” (Ms. Taylor being one of the plaintiffs in Carter 2015) and “end of life care”, Canada argued that the Supreme Court intended to restrict the scope of its decision to cases of terminal illness (E.F. at paras 29-31).

The Court of Appeal found that Justice Bast had correctly rejected this argument. It pointed to a background document to Bill C-14 prepared by Justice Canada, which acknowledges (at p 29) that the declaration in Carter 2015 “describes a broad right, [and] that the terms used to describe it, such as “grievous and irremediable medical condition” … could include conditions that are not life-threatening or terminal.” (at para 28) It also found that Canada’s argument was not supported by the language of the Carter 2015 decision highlighted by the federal Attorney General, nor its underlying principles (at paras 33-36). Referencing Carter 2015’s opening paragraph, which noted that persons “who are grievously irremediably ill” face the “cruel choice” of taking their own lives prematurely, or suffering until they die of natural causes, the Court of Appeal stated that “The cruelty in the situation is there regardless of whether the illness causing the suffering may be classified as terminal.” (at para 37)

The Court of Appeal decision also emphasized that Carter 2015 was based on the Supreme Court’s conclusion that the blanket criminal prohibitions against assisted dying were found to be an overbroad violation of the rights to life, liberty and security of the person, contrary to section 7 of the Charter, and that the Court’s declaration of invalidity was carefully tailored to this finding. Accordingly,

Any attempt to read in or infer additional limitations to those expressly set out in paragraph 127 [of Carter 2015] must respect the balance of competing values struck by the court – balancing the sanctity of life, broadly speaking, and society’s interest in protecting the vulnerable, against the Charter rights of an individual to personal autonomy without state intervention, including autonomy over personal decisions regarding one’s life and bodily integrity. (at para 40)

Seen in this light, it was not appropriate to read in a requirement that the applicant’s illness be a terminal one, as argued by Canada – if the Supreme Court had intended such a limitation, it would have said so in Carter 2015 “clearly and unequivocally”. (at para 41)

Similarly, Canada could not point to any express language in Carter 2015 that limited the scope of the decision so as to exclude psychiatric conditions, and the Court of Appeal was not prepared to infer such a limitation (at paras 44-45). It also rejected Canada’s argument that the Supreme Court had accepted the opinion of an expert in Carter, Professor Montero, that psychiatric conditions should be excluded, pointing again to the language of paragraph 127 of Carter 2015 and the explicit safeguards introduced by the Supreme Court around competence and clear consent (at paras 47-51). The Court of Appeal noted that the availability of assisted dying for psychiatric illnesses had been “very much part of the debate and on the record” in Carter 2015 (at para 54), and that “nevertheless the [Supreme Court] declined to make such an express exclusion as part of its carefully crafted criteria.” (at para 59) Lastly, it declined to accept Canada’s contention that because none of the applications for judicial authorization in Canada to date have dealt with psychiatric conditions, they should be excluded, noting that these applications were fact dependent and it was not determinative that this kind of condition had not been considered previously (at para 46).

The third issue, the sufficiency of the evidence before Justice Bast to establish that E.F. had a “grievous and irremediable medical condition”, was raised by both Canada and British Columbia on appeal. British Columbia argued that E.F.’s condition was “relatively poorly understood”, and that the court should therefore have been provided “with direct evidence from a psychiatrist with expertise in the condition who has seen the applicant, [and who can] establish that the condition is irremediable; [and] that no further treatment options, acceptable to the individual, are available.” (at para 60) The Court of Appeal held that Justice Bast had not erred in rejecting this argument. She had been presented with evidence from E.F.’s attending physician of 28 years, a second physician competent to provide assistance in dying, and a psychiatrist with expertise in severe conversion disorder, all of whom had concluded that E.F.’s condition was grievous and irremediable. The fact that E.F. had not been examined by the psychiatrist was not fatal, as “there [was] no reason to think that this experienced specialist would have rendered that opinion if he were not satisfied with the medical information he was provided, or if there was a treatment option that could or should be tried by the applicant.” (at para 64) Canada’s argument that the evidence of E.F.’s condition was “vague and stale” was also rejected (at para 68).

Having dismissed all three grounds of appeal, the Court of Appeal went on to provide its view of the role of Attorneys General on judicial authorization applications. It noted that the Supreme Court did not intend these applications to be adversarial, and that it is the courts rather than Attorneys General “that are tasked with being the gatekeeper in an authorization application.” (at para 71) As such, the Court of Appeal stated that it was not in the public interest for the Attorney General of Canada to “assume the role of adversary when she is not satisfied that the application meets the Carter 2015 criteria.” (at para 71) The Court also questioned why the Attorneys General of Canada and British Columbia “considered [it] necessary to put an applicant to the test on appeal, particularly where, as here, one of the primary issues is fact-finding.” (at para 72) The fact that Bill C-14 is currently before Parliament did not offer an adequate explanation: “Issues that might arise regarding the interpretation and constitutionality of eventual legislation should obviously wait until the legislation has been enacted.” (at para 72) In contrast, the Attorney General of Alberta was said to have taken the proper approach by appearing in an advisory role and not participating in the appeal (at para 70).

Two final points were addressed by the Court of Appeal. First, because it was first raised on appeal, the Court declined to deal with British Columbia’s argument that courts in one jurisdiction should not authorize physician assisted deaths that will take place in another, unless special circumstances exist to show why this is necessary. Second, it did not address the argument that Justice Bast had improperly granted a partial publication ban, as this ground of appeal was not pursued by the Attorneys General at the appeal hearing.

Commentary

It takes no great leap to speculate that the reason the Attorney General of Canada took the position she did in this case was to support the stance the Liberals have taken in Bill C-14 on assisted death. Bill C-14 defines medical assistance in dying in the proposed section 241.1 of the Criminal Code as follows:

(a) the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death; or

(b) the prescribing or providing by a medical practitioner or nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death. (aide médicale à mourir)

Bill C-14 restricts medical assistance in dying to those who meet the criteria in the proposed section 241.2 of the Criminal Code:

(a) they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;

(b) they are at least 18 years of age and capable of making decisions with respect to their health;

(c) they have a grievous and irremediable medical condition;

(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and

(e) they give informed consent to receive medical assistance in dying. (emphasis added)

In turn, a person is defined to have “a grievous and irremediable medical condition” only if they meet all of the following criteria, according to proposed section 242.2:

(a) they have a serious and incurable illness, disease or disability;

(b) they are in an advanced state of irreversible decline in capability;

(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and

(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining. (emphasis added)

The requirement in section 241.2(d) that death be “reasonably foreseeable” is addressed in the preamble, which states that this restriction “strikes the most appropriate balance between the autonomy of persons who seek medical assistance in dying, on one hand, and the interests of vulnerable persons in need of protection and those of society, on the other.” This requirement of a terminal illness has been one of the most controversial aspects of Bill C-14, with counsel for the Carter plaintiffs, Joe Arvay, arguing that it is a significant and unconstitutional departure from the Supreme Court’s decision in that case (see also the positions on Bill C-14 by Dying with Dignity Canada and the BC Civil Liberties Association). The Court of Appeal’s ruling in E.F. confirms that Carter 2015 did not require candidates for medical assistance in dying to have terminal illnesses, and thus calls into question the constitutionality of Bill C-14.

As for Canada’s position on psychiatric conditions in E.F., this may also line up with Bill C-14, section 9.1 of which provides that:

9.1 The Minister of Justice and the Minister of Health must, no later than 180 days after the day on which this Act receives royal assent, initiate one or more independent reviews of issues relating to requests by mature minors for medical assistance in dying, to advance requests and to requests where mental illness is the sole underlying medical condition.

Mental illness is not defined in Bill C-14, so it is unclear whether the type of psychiatric condition that E.F. has would be captured here. It could be argued that regardless of section 9.1, E.F. meets the criteria for medically assisted dying in section 241.1 and 241.2, with the exception of the reasonable foreseeability of death.

There are many other cases where governments have gone further than the courts mandated in enacting curative legislation after a constitutional challenge. The regime for production of personal records in sexual assault cases is one example, where Bill C-46 was more restrictive of production than required by the majority of the Supreme Court in R. v. O’Connor, [1995] 4 SCR 411 (CanLII), yet was upheld in R. v. Mills, [1999] 3 SCR 668 (CanLII). The notion of “dialogue” between the courts and legislatures is often invoked in these scenarios (see Peter W. Hogg & Allison A. Bushell. “The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter Of Rights Isn’t Such A Bad Thing After All)” (1997), 35 Osgoode Hall LJ 75). In this case, however, the Attorney General of Canada arguably went beyond the appropriate parameters of dialogue theory by taking an adversarial position in an individual case that had the potential to produce the sort of cruelty decried by the Supreme Court in Carter. One is reminded of the language used by Justice McLachlin, as she then was, in her dissenting opinion in Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519 (CanLII) at 621 where she stated that Sue Rodriguez was being “asked to serve as a scapegoat” because she was denied access to assisted death even though she did not present any of the risks that can be associated with such cases.

Parliament is expected to vote on Bill C-14 during the last week of May, but the Bill must then wind its way through the Senate, and all bets are off on whether the Bill will pass before the Supreme Court’s deadline of June 6, 2016 (see Carter 2016). In the meantime – and perhaps thereafter, if no new law is in force by the deadline – the Court of Appeal decision in Canada (Attorney General) v E.F. provides welcome guidance to applicants for assisted dying, their counsel, the courts, and perhaps most importantly, Attorneys General in terms of how to conduct themselves in judicial authorization proceedings.

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