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Die Another Day: The Supreme Court’s Decision in Ernst v Alberta Energy Regulator and the Future of Statutory Immunity Clauses for Charter Damages

Mon, 01/16/2017 - 10:00am

By: Jennifer Koshan

PDF Version: Die Another Day: The Supreme Court’s Decision in Ernst v Alberta Energy Regulator and the Future of Statutory Immunity Clauses for Charter Damages

Case Commented On: Ernst v Alberta Energy Regulator, 2017 SCC 1 (CanLII)

On January 13, 2017, the Supreme Court of Canada released its decision in Ernst v Alberta Energy Regulator, 2017 SCC 1 (CanLII), an appeal it heard in January 2016. As noted in a previous ABlawg post, the appeal arose from the decisions of Alberta courts to strike Jessica Ernst’s claim for damages against the Energy Resources Conservation Board (now the Alberta Energy Regulator) for allegedly violating her freedom of expression under s 2(b) of the Charter. At issue before the Supreme Court was whether the decisions to strike her claim should be upheld, which turned on whether the statutory immunity clause in s 43 of the Energy Resources Conservation Act, RSA 2000, c E-10 (ERCA) could constitutionally bar a claim for damages under s 24(1) of the Charter against the Board. The length of time the Court took to deliver its decision might be explained by the Court’s 4:4:1 split. Justice Abella serves as the swing judge by siding with Justice Cromwell (with Justices Karakatsanis, Wagner, and Gascon) in upholding the decision that Ernst’s claim for Charter damages should be struck, basing her decision primarily on Ernst’s failure to provide notice of the constitutional challenge in earlier proceedings. I had predicted that the Supreme Court would deny leave to appeal based on that lack of notice, yet had to eat my words when a three-member panel of the Court – including Justice Abella – granted leave despite the lack of notice. The other two judges who granted the leave application, Karakatsanis and Côté JJ, are split between the Cromwell faction and the dissent (written by Chief Justice McLachlin and Justices Moldaver and Brown, with Justice Côté concurring), which would have allowed the appeal and permitted Ernst’s claim for Charter damages against the Board to proceed.

This post will parse the three judgments to determine what the Court actually decided on the viability of the Charter damages claim and for what reasons. There may be subsequent posts by my colleagues on other aspects of the decision. It is important to note that Ernst’s underlying tort claims against Encana and the provincial government for contamination of her groundwater are ongoing; the Supreme Court only ruled on whether Ernst’s claim for Charter damages against the Board for violating her freedom of expression could proceed.

Facts and Issues

In R v Imperial Tobacco Canada Ltd, 2011 SCC 42 (CanLII) at para 17, the Court held that “A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action” (cited by Justice Abella at para 68 and by Chief Justice McLachlin et al at para 148). The facts related to Ernst’s Charter claim that must be accepted as true relate to the alleged violation of her freedom of expression by the Board and its staff. Ernst had concerns about Encana’s hydraulic fracturing and drilling close to her property and was critical of the Board’s role in monitoring Encana’s operations and performing its statutory duties as the regulator in this context. Ernst voiced her concerns to the Board, as well as publicly and to the media. This led the Board to refuse to communicate with her for a 16-month period from 2005 to 2007 unless she agreed to refrain from going public. Along with her principle actions in negligence (against Encana) and regulatory negligence (against both the Board and Alberta Environment), Ernst brought a Charter claim against the Board alleging that its actions were punitive and intended “to prevent her from making future public criticisms” of the Board (at para 144). She claimed $50,000 in Charter damages for this alleged breach of her freedom of expression.

The Board moved to strike the Charter claim on the ground that it was barred by s 43 of the ERCA, which provides that:

  1. No action or proceeding may be brought against the Board or a member of the Board or a person referred to in section 10 or 17(1) in respect of any act or thing done purportedly in pursuance of this Act, or any Act that the Board administers, the regulations under any of those Acts or a decision, order or direction of the Board.

The Supreme Court addressed three key issues, although not all of the justices agreed that these issues were worthy of consideration, nor did they agree on the order in which they should be considered:

  1. Whether it was plain and obvious that s 43 of the ERCA barred Ernst’s Charter claim;
  2. Whether it was plain and obvious that Charter damages were not an appropriate and just remedy in Ernst’s claim against the Board; and
  3. Whether Ernst’s failure to provide notice of a constitutional challenge to s 43 was fatal to her claim.

The Decisions

Justices Cromwell, Karakatsanis, Wagner, and Gascon found that the Alberta courts properly struck Ernst’s claim for Charter damages. On the first issue, they held that s 43 of the ERCA did, on its face, bar Ernst’s claim for damages against the Board. On the second issue, the headnote suggests that the basis for the Cromwell judgment was that damages “could never be an appropriate and just remedy for Charter breaches” by the Board. However, Justices Cromwell et al also based their decision on Ernst’s failure to discharge her burden of proving that s 43 of the ERCA was unconstitutional (at paras 21-23). They did not deal with the third issue concerning notice.

Chief Justice McLachlin et al, dissenting, would have allowed the appeal and permitted Ernst’s Charter claim for damages to proceed. They dealt with the second issue first, and disagreed with Justice Cromwell that it was plain and obvious that damages could never be an appropriate and just remedy for Charter breaches by the Board. They also disagreed with the Cromwell group on the first issue, finding it was not plain and obvious that s 43 of the ERCA barred Ernst’s claim for Charter damages where the allegations were unrelated to the Board’s adjudicative role. The McLachlin group thus left open the question of whether the immunity clause was constitutional, and did not address the lack of notice directly.

Justice Abella sided with the Cromwell group in holding that Ernst’s claim for Charter damages should be struck, but, as noted, based her decision on the third issue – Ernst’s failure to provide notice of the constitutional challenge to s 43 of the ERCA. She agreed with Justice Cromwell on the first issue, finding it was plain and obvious that s 43 barred Ernst’s claim for damages against the Board. However, on the second issue, Justice Abella found that a ruling on the constitutionality of s 43 was required before looking at whether damages were an appropriate and just remedy under s 24 of the Charter. She also left open the possibility that s 43 could be constitutionally challenged, siding with the Chief Justice et al on that point (although she suggested in obiter that it was unlikely that Charter damages would be an appropriate and just remedy against this Board (at para 123)).

Overall then, the majority decision is that s 43 of the ERCA did, on its face, bar Ernst’s claim for Charter damages against the Board (Justice Cromwell et al plus Justice Abella), with a differently constituted majority ruling that the constitutionality of that provision remains an open question (Chief Justice McLachlin et al plus Justice Abella). One might argue that to the extent the Cromwell group based their decision in part on Ernst’s failure to prove the unconstitutionality of s 43, they leave that matter open as well (although Chief Justice McLachlin et al see Justice Cromwell et al as having ruled definitively – indeed too definitively – on the constitutionality of s 43). While the constitutionality of s 43 is an open question for at least five justices, Ernst will not be able to pursue this issue, because a majority of the Court struck her action against the Board.

Exploring the reasons for decision of the different factions of the Court in more depth sheds light on their disagreements and on whether and how the constitutionality of statutory immunity clauses such as s 43 might be challenged in the future. I reserve my commentary for the end of this post, but to foreshadow a bit, I argue that there are elements of each of the three decisions that are open to criticism.

Reasons for Decision

Justice Cromwell et al

Justices Cromwell, Karakatsanis, Wagner, and Gascon found that s 43 of the ERCA did, on its face, bar Ernst’s claim for damages against the Board. They reached this conclusion largely because it was “common ground between the parties” that s 43 had this effect and there was no argument to the contrary (at paras 10, 11). Although they agreed with Chief Justice McLachlin et al that the Court was not bound by Ernst’s position that s 43 barred her claim, they noted that there was no authority to the contrary, and that to hold otherwise would be unfair to the Board, which had not made submissions on this issue. Justice Cromwell et al were critical of the decision of the dissenting justices that it was not plain and obvious that s 43 acted as a bar to Ernst’s action against Board, stating that their position on this issue cast doubt “on the scope of scores of other immunity provisions in many statutes across Canada” and was therefore “unnecessary, undesirable and unjustified” (at para 17).

On the second issue, whether it was plain and obvious that Charter damages were not an appropriate and just remedy in Ernst’s claim against the Board, Justice Cromwell et al made two findings. First, Ernst “failed to discharge her burden of showing that the law is unconstitutional”, such that her challenge to s 43 failed, the immunity clause applied, and her claim must be struck (at para 21). This finding was framed (at para 20) as a disagreement with the approach of Chief Justice McLachlin et al, who found that the record was inadequate to consider the Charter claim, yet left open the possibility that s 43 was unconstitutional and could be challenged at a later date by Ernst. While this would have been a sufficient reason to strike the claim, Justice Cromwell et al went on to consider the merits of the constitutional challenge as a second basis for their decision on this issue.

On the merits, Justice Cromwell et al found that “Charter damages could never be an appropriate and just remedy for Charter breaches by the Board”, such that s 43 did not bar a remedy that would otherwise be available, and was not therefore be unconstitutional (at para 24). In so holding, they considered the wording of s 24 of the Charter, which provides that “Anyone whose [Charter] rights or freedoms … have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances” (emphasis added). They also applied the principles from the Court’s leading decision on Charter damages, Vancouver (City) v Ward, 2010 SCC 27 (CanLII). Ward held that Charter damages should be reserved for cases where the purpose of those damages – compensation, vindication of rights, and deterrence – were met, and where countervailing factors did not weigh against damages as “an appropriate and just” remedy. The countervailing factors identified in Ward – which are not a closed list, as Justice Cromwell noted (at para 28) – include whether there is an effective alternative remedy to damages and whether damages would raise concerns about good governance.

Without explicitly considering whether any of the purposes of Charter damages would be served by Ernst’s Charter claim against the Board, Justice Cromwell et al went directly to the countervailing factors. They found that an alternative remedy existed in Ernst’s case, namely judicial review of the alleged Charter breaches (at para 32). This alternative – which could not be ousted by s 43 – was seen as potentially providing “substantial and effective relief against alleged Charter breaches by a quasi-judicial and regulatory board” (at para 35) and to “in all likelihood provide vindication in a much more timely manner than an action for damages” (at para 36). Judicial review would also make it unnecessary to consider whether the immunity in s 43 required reading down so as to permit claims in circumstances involving an “elevated liability threshold” such as the misconduct of government actors (at para 38) – a point raised by the dissenting justices.

Justice Cromwell et al also found that the “good governance” factor operated against Charter damages in this case. Here, they considered several policy rationales drawn from the “practical wisdom” of private law, including “(i) excessive demands on resources, (ii) the potential “chilling effect” on the behaviour of the state actor, and (iii) protection of quasi-judicial decision making” (at para 45). They also considered the rationales behind statutory and common law immunities for quasi-judicial decision makers, including their “freedom from interference” so as to protect their independence and impartiality, and their capacity “to fulfill their functions without the distraction of time-consuming litigation” (at para 51). Overall, consideration of the good governance factor led Cromwell et al to find that “Opening the Board to damages claims will distract it from its statutory duties, potentially have a chilling effect on its decision making, compromise its impartiality, and open up new and undesirable modes of collateral attack on its decisions” (at para 55). In response to Ernst’s argument that Charter damages claims should be assessed on a case by case basis, Justice Cromwell stated that this approach would “largely undermine the purpose of conferring immunity in the first place” (at para 56).

Ernst thus failed in her constitutional challenge to s 43 and was bound by the immunity clause, which barred her claim on its face, leading Justice Cromwell et al to uphold the striking of her action for Charter damages.

Chief Justice McLachlin et al

The dissenting justices introduced their judgment by noting that this was “a difficult case raising novel and difficult issues” and one in which “counsel and judges at all levels have struggled to find the appropriate template through which to view Ms. Ernst’s claim” (at para 135). Their template reversed the consideration of issues undertaken by Justice Cromwell. On the issue of whether Charter damages were an appropriate and just remedy, Chief Justice McLachlin et al interpreted the Cromwell judgment to have ruled “not only that Charter damages are not appropriate and just in the circumstances of Ms. Ernst’s claim, but also that Charter damages could never be appropriate and just in the circumstances of any claim against the Board — or, indeed, against any quasi-judicial decision-maker like it” (at para 150). McLachlin CJ et al disagreed with this holding. They were the only justices to speak to s 2(b) of the Charter in any detail, noting Ernst had raised a novel yet viable claim that the Board had limited her freedom of expression by curtailing her ability to speak to the media and public and by prohibiting her from communicating with the Board (at paras 158-160). They also considered – unlike the Cromwell group– whether Ernst’s claim would fulfill one of the rationales of Charter damages, finding that the objectives of vindication and deterrence were engaged (at para 160). The dissent only then turned to Ward’s countervailing factors, noting that the burden was on the state to substantiate that these factors should override eligibility for Charter damages.

On the issue of other remedies, Chief Justice McLachlin et al disagreed with Justice Cromwell that judicial review was an effective alternative. The dissenting justices noted that judicial review would not necessarily achieve the same objectives as Charter damages “in this case, let alone in all cases, against the Board” (at para 167). This section of their decision is brief, but their finding seems to be based on the functions of damages as a remedy, rather than on the availability of judicial review for the Charter breach. The Chief Justice et al also rejected good governance concerns as a persuasive countervailing factor in this case, drawing a distinction between the adjudicative functions of statutory tribunals (where policy considerations may favour immunity) and non-adjudicative – indeed, allegedly punitive – actions such as those at issue in Ernst (where policy considerations do not favour immunity). Nor did the dissent find the private law’s “practical wisdom” to be persuasive in supporting an absolute immunity under s 43. Rather, they pointed to a number of claims for Charter damages against state actors where the Court qualified or read down immunities to permit damages claims in cases of bad faith, abuse of power, fraud and the like (at paras 174-6). Overall, Chief Justice McLachlin et al found that “whether the countervailing factors are examined individually or collectively, the record at this juncture does not support recognizing such a broad, sweeping immunity for the Board in this case, let alone in every case” (at para 177).

The dissenting justices then turned to the issue of whether it was plain and obvious that s 43 of the ERCA barred Ernst’s Charter claim, answering this question in the negative. They acknowledged that Ernst had argued otherwise throughout the proceedings, but noted the Court was not bound by this argument, and found that the “exceptional circumstances” of the case “compel[led] the Court to consider an issue not raised by the parties” (at para 183). The exceptional circumstances included the novelty and complexity of the interaction between s 43 of the ERCA and s 24 of the Charter, and the “significant public importance” of the issues raised by Ernst and their potential consequences for other cases (at para 184). Setting aside Ernst’s position on s 43, the dissent found that the sort of punitive conduct she alleged against the Board was not plainly and obviously within the scope of that section, particularly the wording “any act or thing done purportedly in pursuance of this Act.”

Having found that it was not plain and obvious that Charter damages were inappropriate, nor that s 43 barred the Charter claim, Chief Justice McLachlin et al found that the application to strike failed, and would have allowed the appeal and restored Ernst’s Charter claim against the Board. They declined to answer the constitutional question, stating that this determination was “therefore unnecessary” (at para 186), and that even if it were necessary, “the record before us does not provide an adequate basis on which to do so” (at para 189). If the claim for Charter damages had proceeded against the Board, they noted that Ernst then could have provided notice of the constitutional challenge to s 43, allowing the provincial and federal governments to provide evidence and submissions on the constitutionality of that section (including the application of section 1 of the Charter, the reasonable limits clause) (at para 191).

Justice Abella

In her concurring judgment dismissing Ernst’s appeal, Justice Abella focused on the third issue, finding that Ernst’s failure to provide notice of a constitutional challenge to s 43 of the ERCA was fatal to her claim. It was fatal because s 43 did, on its face, bar Ernst’s claim for Charter damages against the Board (at paras 70-72). Justice Abella thus agreed with Cromwell et al on the first issue, although her decision was based on the interpretation of s 43 more so than the position the parties had taken on this question.

On the issue of notice, Justice Abella noted the public interest purpose behind notice provisions such as s 24 of Alberta’s Judicature Act, RSA 2000, c J-2, indicating that “strict adherence” to notice provisions is required to ensure that governments have a full opportunity to support the validity of their legislation with a full evidentiary record (at paras 99-100). She found that Ernst had not clearly given notice of an intent to challenge s 43 until her Supreme Court appeal – Ernst had earlier indicated that she was challenging the application of that section to her Charter claim rather than its constitutionality (at paras 65-66; see also paras 92-94). Justice Abella acknowledged that the Court can answer newly raised constitutional questions in exceptional circumstances, where “the state of the record, the fairness to all parties, the importance of having the issue resolved by this Court, the question’s suitability for decision, and the broader interests of the administration of justice demand it” (at para 101). However, this threshold was “nowhere in sight in this case” (at para 102). Furthermore, Ernst’s constitutional challenge, once recognized as such, raised “profound implications for judicial and quasi-judicial decision-makers across Canada” who are protected by immunity clauses similar to s 43 (at para 114). Echoing Justice Cromwell, Justice Abella noted that these immunity clauses are intended to protect judicial and quasi-judicial decision makers’ independence and impartiality and the administration of justice. She disagreed with the dissent’s distinction between immunity for adjudicative and other administrative decisions, noting that all such decisions were subject to judicial review (at para 119). She also noted that Charter damages had never been awarded or upheld by the Court against judicial or quasi-judicial decision makers, again supporting the need for notice and a full evidentiary record in this case.

In a brief consideration of the second issue, Justice Abella stated that Ward “likely leads to the conclusion that Charter damages are not an “appropriate and just” remedy in the circumstances.” However, she believed that this question could only be answered following “a prior determination of the constitutionality of the immunity clause” (at para 123). Under this approach, “if the clause is constitutional, there is no need to embark on a Ward analysis. If, on the other hand, it is found to be unconstitutional, only then does a Ward analysis become relevant” (at para 123). Justice Abella’s approach differs from that taken by Justice Cromwell et al, who looked at whether Charter damages were “appropriate and just” under Ward without first considering the constitutionality of s 43. Her method also differs from that of Chief Justice McLachlin et al, who found that it was unnecessary to consider the constitutionality of s 43 before considering Ward and the availability of damages (although the dissent did discuss the alleged s 2(b) violation before Ward). Lastly, although this point was not made under Ward’s analysis of alternative remedies, Justice Abella agreed with Justice Cromwell et al that “judicial review was the appropriate means of addressing [Ernst’s] concerns” (at para 127) and called Ernst’s Charter claim an “end-run… around the required process” (at para 129).

Commentary

The Ernst decision is challenging to read. It comes across as largely technical and devoid of the substance of Ernst’s Charter claim, except for the dissenting decision of Chief Justice McLachlin et al, which provides the most contextual assessment of the issues. It is also challenging to identify the precedential value of the case. A majority of the Court agreed that s 43 of the ERCA acts as a bar to claims for Charter damages, but for Justice Cromwell et al, that holding seems to be based on procedural considerations (who argued what and when) rather than the proper interpretation of the section, which Justice Abella and the dissenting justices disagree upon. In contrast, procedural fairness concerns are largely absent from the decision of the Chief Justice et al that s 43 should not be read as a bar to Charter damages.

The Court’s rulings on the issue of whether s 43 is constitutional also appear largely procedural, which is perhaps appropriate given that the issue arose in the context of an application to strike. Chief Justice McLachlin et al did not believe it was necessary to decide the issue. Justice Abella found that the lack of notice was determinative, using language that is quite harsh towards Ernst (see e.g. her reference to Alice in Wonderland at para 66), which is uncharacteristic of Justice Abella’s compassionate treatment of most Charter claimants. The judgment of Justice Cromwell et al on this issue can also be read as procedural in that they found the case lacked a sufficient evidentiary record to support the constitutional argument. However, the Cromwell faction provides a decision on the constitutional issue on the merits as well, with Chief Justice McLachlin et al opining that they went too far in doing so. But Justice Cromwell et al’s ruling on the merits is arguably obiter and in any event, is not the majority position on whether damages “could never be an appropriate and just remedy for Charter breaches” against the Board (even though Justice Abella states the view that Ward “likely leads” to that conclusion at para 123). Justice Cromwell et al’s judgment is also subject to the criticism that they misapplied Ward by going straight to the countervailing considerations rather than first looking at whether Charter damages would be appropriate and just based on the functions of those damages for the claimant. Because Cromwell et al did not consider the purpose of Charter damages against the Board first, their reliance on the availability of judicial review (at paras 33-41, with Justice Abella concurring at para 84) and their use of private law principles to refute the appropriateness of damages is open to critique as well.

I also take issue with Justice Cromwell’s use of “chilling effect” language as applied to the state; in other freedom of expression cases, the chilling effect is considered in relation to the impact of state limits on the expression of other groups and individuals, rather than on the state’s ability to act without constraints (see most recently R v Khawaja, 2012 SCC 69 (CanLII) and Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 (CanLII)). Should we not reserve terms like “chilling effect” for those who are vulnerable to the power of the state? I acknowledge that the Court has used this term previously to describe the impact that judicial actions may have on the other branches of government or state actors, but I would argue it was inappropriately employed there as well (see e.g. Henry v British Columbia (Attorney General), 2015 SCC 24 (CanLII)).

So, what is the bottom line from Ernst? The constitutionality of s 43 (and similar immunity clauses) is still a live issue – the Court did not rule that the Board, the Alberta Energy Regulator, or any other Canadian regulator are immune from Charter damages claims; the majority only held that Ernst won’t have the benefit of challenging the immunity in her own litigation. Given that immunity clauses such as s 43 will live (or die) another day, what guidance does the Court offer in terms of how this issue could be constitutionally challenged in the future?

First, notice of the constitutional challenge should be provided to the appropriate parties so that a proper evidentiary record can be amassed. Although the lack of notice was not fatal for eight justices in Ernst, they all remarked on the insufficiency of the evidentiary record, which flowed from the failure to provide notice.

Second, Justice Abella indicates that the constitutionality of the immunity clause should be considered before the question of whether Charter damages would be appropriate and just under Ward. She does not elaborate on what an assessment of the constitutionality of s 43 and other immunity clauses should look like, apart from noting that the government would have an opportunity to justify the immunity under section 1 of the Charter (at paras 111-112; see also McLachlin CJ et al at para 191, seemingly agreeing on this point). But what is the Charter breach that section 1 might “save”? Is the idea here that the violation of the underlying Charter right or freedom requires a remedy that cannot be immunized against without justification – i.e. a right to a remedy? This was the gist of Ernst’s argument, but counsel framed the issue as the “inapplicability” or “inoperability” of s 43, which are remedies from the federalism rather than Charter context. If the right to a remedy is the proper focus, and s 43 were found to violate this right, would the usual justification test from R v Oakes, [1986] 1 SCR 103 (CanLII), apply under section 1, requiring consideration of the government’s pressing and substantial objective, rational connection, minimal impairment, and balancing of salutary and deleterious effects? Unfortunately, the path forward for those seeking to bring constitutional challenges to statutory immunity clauses such as s 43 of the ERCA – or to defend such clauses – is not at all clear, in spite of the long wait and the hope that Ernst would clarify this area.

Thanks to Shaun Fluker and Martin Olszynski for their comments on an earlier version of this post.

This post may be cited as: Jennifer Koshan “Die Another Day: The Supreme Court’s Decision in Ernst v Alberta Energy Regulator and the Future of Statutory Immunity Clauses for Charter Damages” (16 January, 2017), online: ABlawg, http://ablawg.ca/wp-content/uploads/2017/01/Blog_JK_Ernst.pdf

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Street v Mountford Applied to Decide: A Residential Tenancy Agreement or a Licence?

Fri, 01/13/2017 - 10:00am

By: Jonnette Watson Hamilton

PDF Version: Street v Mountford Applied to Decide: A Residential Tenancy Agreement or a Licence?

Case Commented On: Singh v RJB Developments Inc., 2016 ABPC 305 (CanLII)

This Provincial Court decision by Judge Jerry LeGrandeur, Associate Chief Judge, is of interest primarily because he used the common law in order to determine whether the Residential Tenancies Act, SA 2004, c R-17.1 (RTA) applied to Jaspreet Singh’s occupation of a portion of a building owned by RJB Developments Inc (RJB). While this resort to the common law in this context is rarely seen, we can expect to encounter it more often, given the increasing variety in short- and long-term residential accommodations. The courts usually do rely on the common law in those few borderline cases, such as this one, where the question is whether the RTA applies, even though the statute appears to answer all questions about its scope. However, when resorting to the common law, the courts — including Judge LeGrandeur in this case — do not always indicate why they believe it is both necessary and possible to do so. This is unfortunate because the RTA is usually used by non-lawyers who often rely on explanations of the statute that are provided by Service Alberta (e.g., RTA Handbook and Quick Reference Guide) or non-profit organizations such as the Centre for Public Legal Education Alberta (e.g., Renting 101: A Guide to Renting in Alberta). None of those explanations indicate that landlords and tenants need to look outside the RTA to find out if it applies; they all simply paraphrase the statute.

Facts

The Lethbridge building that RJB owned contained four condominium units. Each condominium unit contained four or five bedrooms, multiple bathrooms, an entry, a kitchen, and a living room. Singh occupied a bedroom assigned to him by RJB in Unit #1, and shared the use of its bathrooms, entry, kitchen, and living room ? the “common areas” ? with four other residents, each of whom had been assigned one of the other bedrooms by RJB. Unit #1 was fully furnished, including dishes, pots, pans, utensils, tables, desks, beds, sofas, and chairs.

All of the residents of the condominium unit, including Singh, were students. RJB only rented to students and tried to create an environment that suited a student way of life in their building. RJB also apparently modelled their agreements with Singh and the other residents on one used by Lethbridge College for its student residences (at para 9).

The question of whether the relationship between Singh and RJB was governed by the RTA arose because of the wording in their September 9, 2015 written agreement that set out the terms of Singh’s occupation from September 1, 2015 to April 28, 2016, an eight-month occupation that Singh pre-paid for in advance. Clause 3 of that agreement stated that it was a licensing agreement and that the RTA did not apply.

Singh and RJB had the only keys to Singh’s assigned bedroom and Singh was the sole occupant of that bedroom. However, the September 9, 2015 agreement provided that RJB had the right to reassign Singh to a different condominium unit or to a different bedroom within the same condominium unit upon 48-hours notice. Singh also had no say in who the occupants of the other four bedrooms in Unit #1 were; that was up to RJB. The agreement also provided that it could be terminated by RJB if the resident withdrew or was terminated from his or her academic program at the Lethbridge College or the University of Lethbridge.

The agreement also provided RJB with the right to enter Singh’s bedroom and the common areas of the condominium unit. Clause 8(d) provided that RJB “may enter the premises any time to make necessary repairs, to maintain health and safety standards, and to ensure compliance with rules, regulations and policies.” A Rules and Information Guide, made part of the September 9, 2015 agreement, reiterated that RJB “reserve[d] the right to enter student units and bedrooms” for those same purposes and concluded with the warning: “You can expect someone to enter your unit.” Specific dates for inspections were separately set out in writing and agreed to by Singh.

RJB became unhappy with Singh’s conduct, as well as the conduct of some visitors to his room, and, on January 15, 2016, told him that if he did not leave voluntarily the police would be called. That was followed up by a termination notice on the same day. Singh left on January 18, although Judge LeGrandeur found that he was forced out by the threat of the police and his occupation was wrongfully terminated. After leaving, Singh lived with a friend for about five days until he found another place to live. He had to give up his part-time job because his new residence was too far away from his workplace and he did not have a vehicle. RJB kept the money that Singh had prepaid for his occupation to the end of April.

Singh sued for the return of his prepayment for the period from January 18 to April 28, for punitive or exemplary damages, for the return of a small portion of a security deposit he claimed was wrongfully withheld, for interest, and for costs. He succeeded on all of these except his claim for punitive or exemplary damages. On that claim he was instead awarded $700 for RJB’s breach of quiet possession, inconvenience and stress. He succeeded under the RTA, which Judge LeGrandeur held did apply to what he found to be their landlord/tenant relationship, and he would have succeeded under a licence had Judge LeGrandeur concluded the relationship was one of licensor/licensee.

Statute

In deciding whether the RTA applied to the relationship between RJB and Singh, the statute is the first place to look. It appears to define its own scope in the following provisions:

  • Section 2(1), the most important provision, provides: “Subject to subsection (2), this Act applies only to tenancies of residential premises.” [emphasis added]
  • Section 1(1)(l) defines “residential premises” as meaning “any place occupied by an individual as a residence.”
  • Section 1(1)(t)(i) defines “tenant” as meaning “a person who is permitted by the landlord to occupy residential premises under a residential tenancy agreement.”
  • Section 1(1)(m) defines “residential tenancy agreement” as referring to “a written, oral or implied agreement to rent residential premises.”

Based on subsection 2(2) and the relevant definitions, it would appear that if you are an individual occupying a place as a residence, the RTA applies to you. The definition of “residential premises”, while circular, is at the core of all of these provisions.

Notably, “tenancies” is undefined in the RTA, while “tenant” is defined. That definition can be paraphrased to say that a tenant is an individual who is allowed by the landlord to occupy premises as a residence under an agreement to rent those premises.

And what of subsection 2(2), which subsection 2(1) states it is subject to? Subsection 2(2) provides that the RTA does not apply to a number of listed relationships, of which the most relevant are:

  • (c) “rooms in the living quarters of the landlord, if the landlord actually resides in those quarters”
  • (d) “a hotel, motel, motor hotel, resort, lodge or tourist camp, a cottage or cabin located in a campground, or a trailer park, tourist home, bed and breakfast establishment or farm vacation home, if a person resides there for less than 6 consecutive months”
  • (e) “a tenancy agreement between an educational institution as landlord and a student of that institution as tenant if the tenant does not have exclusive possession of a self-contained dwelling unit”
  • (f) “a nursing home …”
  • (g) “lodge accommodation …”
  • (h.1) “a supportive living accommodation …”

Decision

In deciding whether the September 9, 2015 agreement was a “residential tenancy agreement” governed by the provisions of the RTA or an agreement between the parties creating only a licence which would not be governed by the RTA, Judge LeGrandeur began by noting that the difference between a tenancy and a licence is that in a tenancy an interest in land passes but in a licence it does not (at para 19). Judge LeGrandeur then quoted from the leading statement of this principle in the decision of the Australian High Court in Radaich v Smith (1959), 101 CLR 209 at 22, a statement adopted by both the Supreme Court of Canada in Ocean Harvesters Ltd. v Quinlan Brothers Ltd (1974), 44 DLR (3d) 687 (CanLII) at 687-88 and the House of Lords in Street v Mountford, [1985] AC 809 at 827, [1985] UKHL 4 (BaiLII):

What then is the fundamental right which a tenant has that distinguishes his position from that of a licence? It is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a legal right of exclusive possession of the land for a term or from year to year or for life or lives, If he was, he is a tenant. [emphasis added]

Judge LeGrandeur went on (at paras 20-22) to note that although exclusive possession is essential to a tenancy, exclusive possession alone may not be enough to decide whether a tenancy or a licence has been created. Whether or not the parties call their agreement a lease or license does not determine the issue. Instead, the court must consider the surrounding circumstances, the negotiations, the nature and extent of the accommodations, and the mode of occupation of the accommodation (at para 20, citing AG Securities v Vaughan (HLE), 1991 AC 417).

This led Judge LeGrandeur (at para 23) to set out the relevant provisions of the RTA, namely subsection 2(1) and its limiting the scope of the RTA to “tenancies of residential premises,” and the definitions of “residential premises”, “residential tenancy agreement, and “tenant”, all quoted above. He then stated (at para 24), in the crucial passage that allowed the common law of “lease or licence” to be relevant:

Although it is necessary that the premises be residential premises, … the fact that a person occupies the premises as a resident does not mean that they do so under a residential tenancy agreement that is governed by the Act. The fact that it is occupied as a residence is only one consideration.[emphasis added]

Unfortunately, Judge LeGrandeur does not say why occupation as a residence is not enough. My guess is that he focused on subsection 2(1) which limits the scope of the RTA to “tenancies of residential premises,” with the emphasis on “tenancies,” a term undefined in the RTA.

Whatever the reason that Judge LeGrandeur found that occupation of premises as a residence was not enough to determine whether the RTA applied, his analysis of this issue is almost entirely a common law one, taking up all but two of the 34 paragraphs he uses to deal with the issue.

Having held that it was not enough for an individual to occupy the premises as a residence, Judge LeGrandeur then turned to the parties’ agreement. He noted, among other things, that it was titled “Residential Tenancy Agreement” and defined “resident” as a person living in an assigned room in the unit (at para 25). He noted RJB’s promise that the resident shall “peaceably hold the room during the term of this agreement, all in accordance with the terms and conditions of this agreement,” deciding this gave the occupier “peaceful possession and enjoyment of the room”, consistent with the landlord’s promise in section 16(b) RTA. He acknowledged that the agreement specifically stated that the residents did not have an exclusive right of possession to the premises, that the relationship was a licence, and that the resident could not rely on the RTA (at para 27), but he ruled these provisions were not decisive.

Judge LeGrandeur also examined the provisions allowing RJB to enter Singh’s unit and bedroom “to make necessary repairs, to maintain health and safety standards, in order to ensure compliance with rules and policies” (at para 31), as well as the provision allowing the landlord to reassign a resident to a different unit or a different bedroom on 48 hours notice (at para 33).

Having canvassed the parties’ September 9, 2015 agreement, Judge LeGrandeur then returned to the common law and, specifically, the leading case of Street v Mountford, with its thorough review and discussion of “the question of whether the occupation of a single room is capable of being a tenancy or whether it is limited to that of an occupier by license” (at para 34). Judge LeGrandeur stated that the rule that Street v Mountford laid down was: “where residential accommodation is been granted for a term, at a rent, with exclusive possession, the grantor providing neither attendance nor services, the legal consequence was the creation of a tenancy” (at para 36).

After setting out that rule, Judge LeGrandeur then strung together seven more paragraphs of quotes from Street v Mountford that restated the distinction between a tenant and a lodger in different ways (at paras 37-43). Of prime importance for this post is those portions of the quotes which describe the type of licensee known as a lodger. For example, Street v Mountford approved of a passage from Allan v Liverpool Overseers (1874) LR 9 QB 180 at 191-192, where the court said that a lodger has “the exclusive use of rooms in the house, in the sense that nobody else is to be there… yet he is not in exclusive occupation in that sense, because the landlord is there for the purpose of being able, as landlords commonly do in the case of lodgings, to have his own servants to look after the house and the furniture, and has retained to himself the occupation, though he is agreed to give the exclusive enjoyment of the occupation to the lodger” (at para 39).

Judge LeGrandeur followed this recitation of the law by noting that the primary question is therefore whether Singh was granted exclusive possession or simply a personal right to occupy the bedroom in Unit #1 (at para 45). In answering this question, he discusses the fact that Singh occupied his room as his residence and that he was entitled to privacy and peaceful possession, subject to RJB’s limited right to enter, repair and view the bedroom (at para 45).

The existence of RJB’s limited right to enter Singh’s room led Judge LeGrandeur to discuss the concept of exclusive possession (at paras 46-48), focusing on how it is enforced by the state. Thus, he notes that exclusive possession is secured by a tenant’s right to maintain a trespass action (at para 46, quoting Radaich), to keep out strangers, including the landlord unless the landlord is exercising the limited rights of entry, repair and viewing that he reserved (at para 47, quoting Street v Mountford), and exercise sole possession or dominant control good against the world at large (at para 48, quoting Ocean Harvesters).

Judge LeGrandeur concluded that Singh had exclusive occupation at a rent for a term and therefore the relationship was a tenancy (at para 50). He based this conclusion on the following facts:

It is an occupation of a premises (room) as a home away from home, for a lengthy period of time – school term – for school purposes, with payment in advance for the term, which premises including the individual rooms were dedicated to the safety and well being of the occupants and to facilitate successful completion of school requirements over that lengthy period of time and the occupants were assured of peaceable possession and privacy (at para 49).

Just what the school purposes of the occupation and the repeated references to school have to do with the law of lease or license is not made clear. However, that passage does mention the residential nature of an occupation for which privacy was assured, for a term and at a rent. Judge LeGrandeur went on to describe RGB’s power to reassign Singh to a new room or a new condominium unit as simply a contractual term substituting a new residence for the initial one without the need to enter into a new residential tenancy agreement (at para 51).

Comments

(a) On the borderline

Based on the facts and both the RTA and the common law test for distinguishing between tenants and lodgers, this is a borderline case. In some ways, this case is typical of those that have followed Street v Mountford. That House of Lords case settled the law but shifted the conflict between freedom of contract and security of tenure from law to facts. (See, e.g., D.M.R. Townend, “Recent Development in Land Law: Continuing Difficulties in Distinguishing the Lease from the Licence” (2010) 29:3 The Law Teacher 352 more on this argument.)

Statutorily, Singh’s situation is close to that of a roomer. Many types of roomers and boarders are explicitly excluded from the RTA by subsection 2(2), noted above. When the forerunner of the RTA, the Landlord and Tenant Act, 1979, SA 1979, c 17, was recommended by the then Institute of Law Research and Reform (now the Alberta Law Reform Institute), the question of whether these types of lodgers should come under the recommended statute was addressed. The Institute did not think that roomers or boarders should be included in the proposed statute because “a roomer often shares facilities such as a bathroom with the owner and other roomers, and the arrangement is more personal than a tenancy”: Institute of Law Research and Reform, Residential Tenancies, Report No. 22 (February 1977) at 12 [emphasis added]. A boarder’s arrangement is, of course, even more personal because meals are included.

Had Singh shared the unit with the landlord, the RTA would not have applied to him according to subsection 2(2)(c); he would have been a roomer. Instead, he shared the unit with other residents assigned to their rooms by the landlord and so subsection 2(2)(c) did not apply. RJB was not an educational institution, so subsection 2(2)(e) did not apply either. And the exceptions for roomers and boarders living in motel-like accommodations, nursing homes, lodges, and supportive living facilities in subsection 2(2)(d), (f), (g) and (h.1) were equally inapplicable.

As for the common law and its test, it is true that Singh appeared to have the exclusive use of his bedroom, but did he really have exclusive possession of that bedroom and of the common areas jointly with the other residents? The landlord appeared to retain quite a bit of power to enter Singh’s bedroom and the common areas, including the ability to do so in order to ensure compliance with the house rules and policies. RJB rented only to students and tried to create an environment that suited a student way of life on the basis that students all had a similar lifestyle and similar schedules and similar goals. Nothing was to disrupt that student way of life (at para 9). That suggests that RGB was there to have its officers and employees look after the conduct of the residents, as well as their use of Unit #1. That is more intrusive than are most landlords.

There is also the fact that RJB got to choose who the other residents of the five-bedroom Unit #1 were. Singh did not. And Singh was assigned a bedroom by RJB and RGB had reserved to itself the right to assign Singh to a different unit or a different room in the same unit on 48 hours notice. This also suggests an arrangement that was much more personal in nature than the usual landlord and residential tenant relationship.

I do not disagree with Judge LeGrandeur’s conclusion that Singh was a tenant and therefore within the RTA. But I do think that it was a close call. The decision seems to conflate “exclusive possession” and “exclusive occupation”. There is little doubt that the five residents of Unit #1 collectively had exclusive occupation of the unit. However, if one of them left, the remaining four did not have the right to exclude anyone else from the unit. They could not exclude a fifth resident chosen by RJB and assigned to the vacant bedroom. The discussion of the similar fact situation in AG Securities v Vaughan by Jonathan Hill in “Shared Accommodation and Exclusive Possession” (1989) 52:3 The Modern Law Review 408 at 415-16 expands on this point.

(b) The use of the common law to determine the RTA’s scope

My primary concern is whether or not Street v Mountford and its lease or license distinction, and the cases following it, are appropriate sources of law for the resolution of the question of whether the RTA applied.

Judge LeGrandeur did not discuss subsection 2(2) of the RTA, set out above. That subsection lists a variety of situations to which the RTA does not apply. None of those situations applied in this case, as noted above. But the question raised by the existence of the subsection 2(2) list of situations to which the RTA does not apply is whether or not there is room for case law that distinguishes between leases and licences.

In Canada, under the doctrine of parliamentary sovereignty, parliament or a provincial legislature has the authority to repeal or modify any principles set out in case law provided that it does so in accordance with constitutional limitations: G. Gall, The Canadian Legal System, 4th ed. (Toronto: Carswell, 1995) 41. If a particular common law rule or body of law is in need of reform, a legislature can enact legislation to repeal or modify that rule or laws. The Ontario Court of Appeal in Re W.D. Latimer Co. Ltd. et al. and Bray et al (1975), 1974 CanLII 698 (ON CA), 6 OR (2d) 129 at 157 put this idea as follows:

Where a statute by its terms or by clear implication precludes the introduction of a common law rule and where the imposition of such a rule would frustrate the will of the Legislature or of Parliament as expressed in the statute, the court is not free to insist that the common law rules prevail, however, inviting it may be for a court to do so.

Generally speaking, the question is whether the legislature intended the RTA to be a complete code and thus overrule the common law or whether it did not intend it to be a complete code, thus leaving the common law untouched when the Act is silent or the two can co-exist in harmony. Unfortunately, while the RTA is almost a complete code, it omits any mention of the landlord’s remedy of distress, which is governed substantively by the common law and procedurally by the Civil Enforcement Act. So the question is whether the common law of lease or licence can co-exist in harmony with section 2.

It seems to me that there is at least a question as to whether or not subsection 2(2) of the RTA has spoken about which lodger-like situations and relationships are excluded from the RTA. Because the RTA has excluded a large variety of the lodgers and licensees that Street v Mountford and subsequent cases distinguished from tenants, is it really appropriate for a court to resort to the common law? If a court thinks that there is still room for the common law rules that distinguish between tenants and lodgers, borders, roomers and other licensees, then it should state its reasons for thinking so.

I do think the answer to those questions might be found in subsection 2(1), which states: “Subject to subsection (2), this Act applies only to tenancies of residential premises” [emphasis added]. This subsection can be read as demanding that a relationship must be a landlord and tenant relationship before the question of whether it is a residential tenancy arises. This argument is bolstered by the fact that the absence of any definition of “tenancy/ies” in the RTA was deliberate. The Institute of Law Research and Reform, Residential Tenancies, Report No. 22 (February 1977) at 11 recommended the proposed legislation not attempt to define “tenant” or “tenancy”. It felt that drawing the line between a tenancy and another type of legal relationship was more properly a judicial function than a legislative one because the courts could resolve borderline cases in a more flexible and responsive manner and because a definition of “tenancy” would be too complex to provide certainty. Tenancy was not defined in the original act and it continues to be undefined in the RTA. It could therefore be argued that the common law understanding of tenancy is relevant. However, this argument is weakened by the fact that “tenant” is defined in the RTA, contrary to the Institute’s recommendation. Section 1(1)(t)(i) defines “tenant” as meaning “a person who is permitted by the landlord to occupy residential premises under a residential tenancy agreement” [emphasis added]. The language of “permission” and “occupation” is the language of licences, not leases.

Judge LeGrandeur is not alone in relying on the common law to decide whether the RTA applies in a particular situation. The best example is 990713 Alberta Ltd. (Airport Motel) v. Cook, 2013 ABPC 36 (CanLII). Cook occupied a room at the Airport Motel for five-and-a-half years and was sued for more than $25,000 in outstanding charges. The question of whether or not the RTA applied to Cook’s stay at the motel was raised because a number of rent increases had been imposed, but not in accordance with the rules in the RTA. Subsection 2(2)(d) excludes motels from the RTA “if a person resides there for less than 6 consecutive months.” Cook argued that, since he had resided at the motel for more than six consecutive months, the RTA did apply. The Airport Motel argued that his occupation was under a license and there was no tenancy. Judge L.E. Nemirsky held (at para 30) that “more has to be established than the mere fact of there having been at least six consecutive months of residency” in order for the RTA to apply. The facts also had to support a lease having been entered into and that required that Cook be shown to have had exclusive possession. Cook was held to be a licensee because he was free to walk away at any time, he was assigned first one room and then a different room, and the motel staff had access to his room daily or weekly to provide housekeeping services.

Arguably, the Cook case is an easier case to find that the RTA was silent then is this one. As Judge Nemirsky pointed out (at para 37) subsection 2(2)(d) does not say that the RTA shall apply where there has been at least six months of continuous residence in the listed types of establishments. It only says that the RTA shall not apply if there have been less than six months of continuous residence. Judge Nemirsky therefore held that continuous residence over six months only left open the possibility that the RTA applied, leaving room for the common law to determine if the relationship was one of landlord and tenant.

Conclusion

The RTA is a piece of consumer protection legislation. As such, the more landlords and tenants are required to research the law outside the confines of the RTA, the greater the barriers to access to justice for parties who cannot afford lawyers. Reliance on the undefined word “tenancies” in section 2(1) of the RTA is a proverbial trap for the unwary.

Alberta can do better for its residential tenants and landlords, It could enact a modern, all-inclusive statute that does away with property law concepts and adopts a power-balancing, consumer-friendly approach that addresses issues such as — to name but a few — Airbnb, retirement villages, quickly enforceable minimum housing standards, companion animals for the elderly and others, and affordable housing for the half of people with disabilities who live in shared living arrangements or rooming/boarding houses with others who are not family members (Council of Canadians with Disabilities, “As a Matter of Fact: Poverty and Disability in Canada”).

This post may be cited as: Jonnette Watson Hamilton “Street v Mountford Applied to Decide: A Residential Tenancy Agreement or a Licence?” (13 January, 2017), online: ABlawg,
http://ablawg.ca/wp-content/uploads/2017/01/Blog_JWH_SinghvRJB.pdf

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Supreme Court to Render Judgment in Ernst on Friday

Wed, 01/11/2017 - 11:03am

Case commented on: Ernst v Alberta Energy Regulator, 2013 ABQB 537, aff’d 2014 ABCA 285, leave to appeal granted April 30, 2015 (SCC)

On Friday, January 13, 2017, the Supreme Court of Canada will deliver its long-awaited judgment in Jessica Ernst v. Alberta Energy Regulator. As Jessica Ernst notes on her blog, the appeal was heard on January 12, 2016, making it the only case from the 2016 spring session in which the Court has not yet rendered judgment.

The case involves the issue of whether a statutory immunity clause (in this case, s 43 of the Energy Resources Conservation Act, RSA 2000, c E-10) can bar a Charter claim for a remedy under s 24(1) of the Charter (in this case, a claim for damages for an alleged violation of Ernst’s freedom of expression by the respondent regulator). Earlier decisions in the case involved broader issues related to administrative law and negligence as against the regulator, the provincial government, and Encana for the contamination of Ms. Ernst’s groundwater allegedly caused by Encana’s hydraulic fracturing operations in the Rosebud area. ABlawg has posted several comments on this litigation, which are available here (from most recent to oldest):

Jennifer Koshan, Leave to Appeal granted in Ernst v Alberta Energy Regulator

Shaun Fluker, Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment

Martin Olszynski, Regulatory Negligence Redux: Alberta Environment’s Motion to Strike in Fracking Litigation Denied

Jennifer Koshan, The Charter Issue(s) in Ernst: Awaiting Another Day

Shaun Fluker, Ernst v Alberta (Energy Resources Conservation Board): The Gatekeeper is Alive and Well

Martin Olszynski, Revisiting Regulatory Negligence: The Ernst Fracking Litigation

Watch for commentary on the forthcoming SCC decision on ABlawg.

Board Cannot Ignore Injurious Affection Losses

Mon, 01/09/2017 - 10:00am

By: Nigel Bankes

PDF Version: Board Cannot Ignore Injurious Affection Losses

Case Commented On: Koch v Altalink Management Ltd, 2016 ABQB 678 (CanLII)

This case involves WATL (the Western Alberta Transmission Line) and parcels of land owned by the Kochs that will be bisected by the line. The principal point of law involved relates to the injurious affection suffered by the lands retained by the Kochs (i.e. these are Koch lands which lie outside the area of the right of way acquired by Altalink). It is a standard principle of compensation law that such losses should be recoverable. However, in this case, Altalink, in an argument accepted by the majority of the Surface Rights Board panel hearing the case, took the position that the Kochs had bought the lands at a price that was already discounted from its original market value by the prospect of WATL being constructed. Accordingly, the Kochs had suffered no injurious affection losses and were therefore not entitled to any compensation under this head of damages. On this theory the party that had suffered the loss was the vendor to the Kochs and to compensate the Kochs for injurious affection would to award them a windfall. The minority would have awarded injurious affection damages of $125,780. The Kochs appealed.

Justice Sisson concluded that the majority had made an error of law which rendered the majority’s conclusions with respect to injurious affection unreasonable. Section 25(d) of the Surface Rights Act, RSA 2000, c. S-24 provided that adverse effect (or injurious affection) refers to the effect of the taking and operations of the operator on “the remaining land” of the owner; it does not (at para 45) “refer to the adverse effect on the [owners’] financial position.”

As for the calculation of the amount of an injurious affection award the Court conceded that this would always be a matter of judgement but that it was not unreasonable to apply a percentage to discount the value of the land as a result of the project (i.e. before and after). In this case the Court rejected the owners’ contention that 30% would be a reasonable discount factor and concluded instead that 15% was more reasonable. This would have resulted in an injurious affection award of $131,135. However, rather than ordering that amount the Court preferred to adopt the award that the minority had endorsed of $125,780 on the basis, effectively, that it was ‘close enough’; or, as the Court actually put it (at para 170) “In result, Mr. Zenko’s award of $125,780 appears reasonable and I see no reason to make minor adjustments.” It is not clear to me that this particular conclusion was open to the Court given the reasoning it had followed to that point. I say this because I don’t think that the idea of deference applies to a minority award. The minority’s decision and its reasoning might well inform the Court’s own approach, but if the Court’s own reasoning results in conclusion “A” as to the amount of compensation, then I am not sure that it is then open to the Court to adopt conclusion “B” on the basis that conclusion “B” was that reached by the minority and it did not differ significantly in amount from conclusion “A”.

This post may be cited as: Nigel Bankes “Board Cannot Ignore Injurious Affection Losses” (9 January, 2017), online: ABlawg,
http://ablawg.ca/wp-content/uploads/2017/01 /Blog_NB_Koch.pdf

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International Child Abduction: Safeguarding against Grave Risks of Harm in ‘Prompt Return’ Applications

Tue, 01/03/2017 - 10:00am

By: Rudiger Tscherning

PDF Version: International Child Abduction: Safeguarding against Grave Risks of Harm in ‘Prompt Return’ Applications

Case Comment On: JP v TNP, 2016 ABQB 613 (CanLII)

Introduction

In an earlier post, I discuss in detail the objective and mechanism of the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 19 ILM 1501, to discourage the wrongful removal of a child from his or her habitual residence and the mechanism of ‘prompt return’ of the child to his or her habitual residence. In this post, I revisit the topic of international child abduction to discuss the decision of JP v TNP, 2016 ABQB 613 (CanLII) and the “grave risk” exception in Article 13(b) of the Convention. This exception can be invoked in ‘prompt return’ applications where a parent alleges that the child would be exposed to an “unreasonable and grave risk of physical and psychological harm” if the court ordered the child’s return to his or her habitual residence. In JP v TNP, the Court of Queen’s Bench of Alberta struck a fair balance between the competing interest of the child and the overall objective of discouraging international child abductions.

Background

JP v TNP involved a ‘prompt return’ application by an American father of two children to their habitual residence in Pennsylvania. The mother, a Canadian, did not dispute the fact that the habitual residence of the two children was Pennsylvania (where they had lived their entire lives). However, she sought to invoke the Art 13(b) “grave risk” exception on the basis of alleged abusive behaviour by the father. The family had come to Alberta in the summer of 2016 to visit the mother’s relatives. At the end of the summer, the mother refused to return to Pennsylvania with the children, contending that the father posed a grave risk of physical and psychological harm to the children. Whilst in Alberta, the mother obtained an Emergency Protection Order (EPO) from the Alberta courts against the father. The father remained in Alberta until he was informed that he would be deported if he did not leave Canada immediately. This followed an RCMP intervention in response to a fight between the parents.

The background facts to the case included a collection of serious mental, physical and sexual abuse allegations raised by the mother, including the RCMP intervention as a result of threatening behaviour, death threats and instances of physical abuse against both the mother and at least one of the children. On one occasion, the father started to choke the mother in the presence of one of the children. He then took a gun and started shooting in the woods. There was evidence by the mother that the father hit one of the children when the child was in his sole care for six weeks prior to coming to Alberta and that the father “smacked” one of the children so hard that the child had finger marks on his face (at para 25).

This history of violence, along with the recognition that the breakdown of the parties’ relationship could aggravate the situation, convinced an Alberta court to grant the EPO to the mother. To complicate the family difficulties further, their home in Pennsylvania was in foreclosure by the end of the summer of 2016.

Issue Before the Court of Queen’s Bench

As neither parent challenged the habitual residence of the children, the sole issue before the Court was whether there was a grave risk that the return of the children to Pennsylvania would expose them to a risk of physical and psychological harm or otherwise place the children in an intolerable position as per Art 13(b) of the Hague Convention.

The Court set out the Canadian jurisprudence on the “grave risk” exception, noting that in Thomson v Thomson, [1994] 3 SCR 551 (CanLII), the Supreme Court of Canada held that psychological harm to a child would have to be greater than ordinarily expected when moving a child from one jurisdiction to another and that the harm must amount to placing the child in an “intolerable situation” (at para 31). One such case was Pollastro v Pollastro (1999) 43 OR (3d) 485 (Ont CA) (CanLII), where the court held that the return of the child to his habitual residence with an abusive and violent father in California would have placed him in an “inherently intolerable situation” (emphasis in original, at para 35).

In DR v AAK, 2006 ABQB 286, 396 AR 33 (CanLII), however, prior alleged sexual touching of the child by the father was insufficient to demonstrate that the child would face a grave risk of harm if the child was returned to France. The court there held that to successfully invoke the Art 13(b) exception, it is also necessary to establish that the country of the child’s habitual residence would be unwilling or unable to protect the child from further harm.

In the case at bar, the Court of Queen’s Bench also underlined that in order to determine the “grave risk” exception, the courts must not only consider the nature of the alleged harm, but also the “evidence supporting the allegations” (at para 40). The Court concluded that on the facts before it, it was not necessary to hold a hearing to test the evidence of the parents or to obtain expert evidence owing to the fact that “the risk of physical or psychological harm can be mitigated by ordering undertakings until this issue and other issues relevant to the custody of the children are determined by the court in Pennsylvania” (at para 47). With this reasoning, the Court emphasised the summary nature of the Hague Convention mechanism, and struck a fair balance between the competing interests.

Imposing Mitigating Safeguards

In its consideration of the “grave risk” exception, the Court examined the Canadian case law on mitigating safeguards imposed to ensure a child’s safety and well-being when a court orders the return of a child to his or her habitual residence pursuant to the Hague Convention. For example, in Thomson, the Supreme Court of Canada discussed the possibility that when ordering the return of a child to his or her habitual residence, a court may require undertakings from the requesting party so as to ensure that the best interests of the child are protected. If there is a risk of physical or psychological harm, and this can be mitigated against by ordering undertakings, “the court should pursue that” (at para 31). On the facts in Thomson, the father accepted undertakings that were sufficient to mitigate the effects of the return of the child to Scotland and the court found that it was unlikely that the child would face grave risk of harm.

The Court of Queen’s Bench also noted that Rechsteiner v Kendell (1998), 39 RFL (4th) 127, 58 OTC 184 (Ont Ct J, aff’d (1999), 1 RFL (5th) 1001, 125 OAC 356 (Ont CA) (CanLII) (at para 34), confirmed that a finding of grave risk to the child under Art 13(b) does not automatically end the inquiry. Rather, “if undertakings can mitigate the risk and allow for an eventual return, that is another avenue the Court may elect to take” (at para 34).

The Court also reviewed Finizio v Scoppio-Finizio (1999), 46 OR (3d) 226 (Ont CA) (CanLII) and agreed with its conclusion that the courts of the child’s habitual residence are the most suitable forum for determining the long-term best interests of the child. In Finizio, the Ontario Court of Appeal undertook an evaluation of whether the Italian authorities had failed to protect the children in the past and noted that the Hague Convention mechanism operated on the presumption that “the other contracting state will make suitable arrangements for the children’s welfare” (at para 38). The court in that case highlighted the use of mitigating undertakings when a court is asked to determine the risk of potential harm in Art 13(b) applications. On the facts, the father had agreed to provide the children and their mother with separate accommodation as well as a lump sum payment to assist them until the Italian courts could formalise the support obligations. The father also undertook to refrain from engaging in harassing behaviour towards the mother. These measures were intended to mitigate the alleged negative effects of promptly returning the children to Italy.

Commentary

The mother was unsuccessful before the Court of Queen’s Bench of Alberta in establishing that the return of the children to Pennsylvania would expose them to an intolerable and grave risk of physical and psychological harm under Art 13(b) of the Hague Convention. The Court ordered their return to their habitual residence, but imposed conditions to ensure their safety in their transition back to living in Pennsylvania. This is arguably the correct decision, owing to the underlying objective of the Hague Convention mechanism and its strict implementation by the reciprocal courts of signatory countries.

The decision of the Court illustrates that the children’s interests and well-being can be safeguarded even when a ‘prompt return’ is ordered, as a court can impose conditions that must be met before a child may be returned to his or her habitual residence. Per Thomson, such conditions are designed to ensure a child’s safety and well-being for the short period between the child’s return and a determination of the substantive matter by the courts and authorities of the country of habitual residence. This process therefore strikes a fair balance between the underlying objective of the Hague Convention and the welfare of the child in question.

To mitigate the risk of the father continuing to pose a threat upon their return to Pennsylvania, the Court imposed a number of conditions to safeguard the children. These included: that the father would have to enter into a voluntary ‘no contact’ order with the mother upon the mother’s return; that the mother must be given the opportunity to file for a Petition of Protection from Abuse in the Pennsylvania courts prior to the family’s return (at which stage the ‘no contact’ conditions would be imposed); and that the mother must be given an opportunity to secure assistance from the authorities in Pennsylvania to obtain accommodation at a woman’s shelter.

As the mother expressed concern that the father may violate the ‘no contact’ order, the Court imposed additional safeguards to ensure the safety of the mother and the two children. These included keeping the location of the family secret from the father upon their return until such time as the courts in Pennsylvania determined if this restriction was necessary. In the interim, the father’s access to the children would be limited to the ongoing weekly Skype contact as provided in the initial EPO of the Alberta courts. His application for interim custody was also rejected by the Court, pending a determination of custody by the Pennsylvania courts. As the sole employed party, it was also a condition of the family’s return to Pennsylvania that the father secure the payment of the flights for the family and provide interim financial support for basic necessities for the children until support obligations were determined by the Pennsylvania courts. These conditions were secured by appropriate undertakings to the Court in Alberta and by the parties’ agreement to file a consent order in Pennsylvania incorporating them.

The availability of mechanisms to protect the children and their mother in Pennsylvania, including automatic access to an emergency shelter as well as counselling and support services, were additional safeguards noted by the Court.

The decision of JP v TNP illustrates that even in arguably very difficult circumstances of serious allegations of abuse and violence, the courts are able to strike a balance between safeguarding the well-being of a child against grave risk and harm and the overall Hague Convention objective of deterring child abductions. This can be done by applying appropriate mitigating measures to ensure a child’s safety and protection. The decision of the Court is therefore reasonable as it confirms the restrictive scope and limited availability of the Art 13(b) exception to interfere with the ‘prompt return’ of a child to his or her habitual residence.

This post may be cited as: Rudiger Tscherning “International Child Abduction: Safeguarding against Grave Risks of Harm in ‘Prompt Return’ Applications” (3 January, 2017), online: ABlawg, http://ablawg.ca/wp-content/uploads/2017/01/Blog_RT_InternationalChildAbduction.pdf

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Defending Rapists

Fri, 12/30/2016 - 10:00am

By: Alice Woolley

Lawyers who defend people accused of sexual assault tend to be subject to one of two narratives in popular conversations, particularly on social media:

The critical narrative: Sexual assault is a violent and under reported crime. Our criminal justice system further victimizes complainants by treating their claims with unwarranted skepticism, and by degrading them both during the investigation of the crime and during the trial of the accused. Lawyers who represent an accused in sexual assault cases engage in morally suspect conduct, except in those (rare) cases where the accused is factually innocent. They directly participate in the victimization of complainants through cross-examination and the arguments they make in court.

The defending narrative: Everyone is entitled to the presumption of innocence. A lawyer who represents a criminal accused ensures the presumption of innocence is a reality, and that lawyer is entitled to be a zealous advocate on behalf of his or her client. Zeal requires doing whatever it takes to secure an acquittal, and the consequences of that for complainants are irrelevant, especially since many accused are innocent.

While these descriptions reflect extreme versions of each, they capture I think the essence of the two narratives. And they also reflect what I have observed in public reactions and commentary on the Ghomeshi trial and judgment, and to Marie Henein’s defence of him, particularly on social media. The critical narrative focuses on the belief that Ghomeshi was factually guilty – the belief that he did in fact commit the physical and mental elements of the offences with which he was charged – and on the pain suffered by the complainants from the original events, through having to testify and be cross-examined, and the judgment that criticized them. The critical narrative sees Henein’s conduct through the lens of the pain felt by the complainants, and holds her responsible for her part in it inflicting it.

The defending narrative focuses on the presumption of innocence. Whether or not Ghomeshi committed the offences, he was entitled to have them proved in court before being convicted.  And in any event, he was acquitted. Henein’s cross-examination was firm but fair, and it resulted in the complainants being shown to be inconsistent at best, and dishonest at worst. The defending narrative sees Henein’s conduct through the lens of her protection of the rule of law, and the constitutional rights of her client. The emphasis is on Ghomeshi’s acquittal; the experiences of the complainants are irrelevant or warranted.

Both of these narratives are deeply problematic, even if I agree with the defending narrative on the proposition that Henein’s conduct of the Ghomeshi trial was ethical and appropriate. In particular, while they each rely on solid premises (the presumption of innocence; the re-victimization of sexual assault complainants), they undermine important and complex conversations about defending a criminal accused in a sexual assault trial, and in particular defending a factually guilty person accused of sexual assault.

The problem with the defending narrative is two-fold. First, it ignores the real and significant cost that the presumption of innocence inflicts on complainants in sexual assault trials, particularly with a factually guilty accused. The presumption of innocence does matter – it is crucial and cannot be sacrificed – but we also cannot ignore the cost that it imposes. A sexual assault trial is like if we cured cancer in one person by giving chemotherapy to another. That cure could be justified if it was the only way to effect it and the chemo-receiver consented, but no one should ignore the reality that one person is suffering harm in order to protect something of value to someone else. And, in the case of a factually guilty person accused of sexual assault, the complainant is being asked to suffer harm to protect something of value to the person who assaulted her. However justified and “right”, there is something grotesque about that reality.

Second, and importantly, the defending narrative discourages important conversations about the boundaries of appropriate and inappropriate defence conduct in a sexual assault trial. Yes, the presumption of innocence is crucial, and an accused person is entitled to a vigorous defence. But an accused person is not entitled to a boundless defence; the lawyer’s duty is one of zealous advocacy within the bounds of legality, not zeal unbounded. Most significantly, cross-examination is ethically limited by the requirement that it not be abusive or degrading, and that it substantively respects the rules of ethics and evidence: questions must have a good faith basis, and must explore matters that are relevant and admissible. Further, where a defence lawyer has knowledge of a client’s factual guilt (actual knowledge, not merely a suspicion) there are limits on the defence the lawyer can bring. In essence, a lawyer cannot mislead the court, and knowledge of guilt makes certain arguments and testimony misleading. The lawyer cannot suggest an alibi or mistaken identity in the face of knowledge of the client’s factual guilt.

The critical narrative also has two problems, and they are the flip-side of the two problems with the defending narrative. Just as the defending narrative ignores the cost to the complainants of a criminal trial, the critical narrative ignores the perspective of the accused. It does not recognize the importance of giving the accused an opportunity to be heard, to test the case made against him, and to ensure that his perspective is taken into account before he is punished. Even if an accused is factually guilty, that does not mean that he has no point of view for the system to take into account (as I discussed here). Further, the critical narrative treats all defence lawyer conduct as the same – viewing any cross-examination or assertion of innocence, regardless of how it is made or its respect for the boundaries of legality, as a wrongful infliction of injury on a victim.  If the defending narrative risks leaving defence lawyers unconstrained, the critical narrative risks making the most careful and respectful defence lawyer seem like a wrongdoer.

Sexual assault trials pose a truly significant ethical challenge for our criminal justice system.  Sexual assaults regularly occur without witnesses. Consent is often the central issue. As a result, proving a sexual assault frequently depends on the testimony of the complainant. Further, acquitting the accused can – even if that acquittal turns on the burden of proof – be construed as a finding that the complainant is a liar, is guilty in some way. Protecting the accused’s presumption of innocence will almost always inflict harm on a complainant and, when the accused is factually guilty, it will be a harm added to the one the complainant has already suffered. The complainant suffers to protect the constitutional rights of an accused, and often an accused who assaulted her.

That trade-off is one that I think our system has to make in order to ensure the rule of law – that the state only punishes people who have been shown beyond a reasonable doubt to deserve it. But we cannot ignore the price that is paid for that outcome, and we have to be as careful as we can to ensure that that price is no greater than it has to be.

Which means that we have to be incredibly clear and careful about articulating and enforcing the ethical boundaries on defence lawyers in sexual assault cases. Both Elaine Craig and David Tanovich have done important work in this area. But more needs to be done to translate that work into practice, to better ensure that complainants suffer only that harm which the presumption of innocence requires. There are also difficult questions that have not yet been fully explored – the limits on representing a client who you know to be guilty are complicated to apply in many cases, but may be even more so in a sexual assault trial; do they preclude a lawyer from seeking permission to explore a complainant’s past sexual history? Do they impose more stringent limits on a lawyer’s ability to invoke rape myths (assuming doing so is ever acceptable)? These are difficult questions, and require thoughtful and nuanced consideration beyond what they have so far received.

All participants in the system need to be clear about where the boundaries are when defending sexual assault cases.  Prosecutors need to object to improper questions and arguments by defence counsel. Judges need to sustain those objections. Defence lawyers need to refrain from asking improper questions or making improper arguments in the first place. And appeal courts need to condemn conduct by any participant in the justice system – lawyers or trial judges – that fail to respect or uphold those boundaries.

This post was originally published on Slaw.

The Freedom to Contract Your Terms of Business (aka Spread Costs, Consequential Damages, Knock for Knock and Contract Interpretation Principles)

Tue, 12/27/2016 - 10:00am

By: Nigel Bankes and Heather Lilles

PDF Version: The Freedom to Contract Your Terms of Business (aka Spread Costs, Consequential Damages, Knock for Knock and Contract Interpretation Principles)

Case Commented On: Transocean Drilling UK Ltd v Providence Resources Plc [2016] EWCA Civ 372, [2016] 2 Lloyd’s Rep 51, 165 Con LR 1, [2016] BLR 360

This decision of the English Court of Appeal (Civil Division) which came out earlier this year (April 2016) is well worth reading both for its treatment of the exclusion of liability for consequential damages and also for its modern approach to the interpretation of commercial contracts. As recognized by the Court, the case “raises some interesting questions about the freedom of two commercial parties to determine the terms on which they wish to do business” (para 1).

Transocean Drilling UK Ltd (Transocean), the owner of a semi-submersible drilling rig, entered into a contract with Providence Resources Plc (Providence) to drill an offshore appraisal well for Providence. On 18 December 2011, Transocean suspended drilling operations due to a misalignment of part of the blow-out preventer. Transocean resumed operations on 2 February 2012. The trial judge determined that the delay was caused by Transocean’s breach of contract. There was no appeal on that point, but Transocean did appeal that part of the judge’s decision in which he allowed Providence to recover the ‘spread costs’ that it had incurred as a result of the delay. The ‘spread costs’ were described (at para 10) as “the costs of personnel, equipment and services contracted [by Providence] from third parties which were wasted as a result of the delay. Examples given by the judge are well logging, well testing and cementing, mud engineers and mud logging services, geological services, diving and ROV (remotely operated vehicle) services, weather services, directional drilling services, and running casings.”

Transocean argued that the contract excluded any liability for losses of this kind through its definition of Consequential Loss and a knock for knock cross indemnity provision which served to exclude liability for such losses. The indemnity clause provided that “[Providence] shall save, indemnify, defend and hold harmless [Transocean] from [Providence’s] own consequential loss and [Transocean] shall save, indemnify, defend and hold harmless [Providence] from [Transocean’s] own consequential loss” (para. 11). Consequential loss was defined in two branches as follows:

… “Consequential Loss” shall mean:

(i) any indirect or consequential loss or damages under English law, and/or

(ii) to the extent not covered by (i) above, loss or deferment of production, loss of product, loss of use (including, without limitation, loss of use or the cost of use of property, equipment, materials and services including without limitation, those provided by contractors or subcontractors of every tier or by third parties), loss of business and business interruption, loss of revenue (which for the avoidance of doubt shall not include payments due to CONTRACTOR by way of remuneration under this CONTRACT), loss of profit or anticipated profit, loss and/or deferral of drilling rights and/or loss, restriction or forfeiture of licence, concession or field interests

The Court began its analysis by examining the overall structure of the particular contract in question to provide (at para 5) “an important part of the context in which those clauses must be construed.” The Court noted (at para 9) that the contract “contained a detailed and sophisticated scheme for apportioning responsibility for loss and damage of all kinds, backed by insurance.” The Court then turned to the interpretation of the indemnity clause quoted above, a clause which, as both parties acknowledged, functioned as an exclusion clause. That said, the Court emphasised that the clause had certain characteristics which differed from a typical exclusion clause, in which a commercially stronger party seeks to exclude or limit liability for its own breaches of contract. In this case, the parties were of equal bargaining power and had entered into mutual undertakings to accept the risk of consequential loss flowing from each other’s breaches of contract. The clause was an integral part of a broader scheme for allocating losses between the parties and, as a result, the Court held (at para 14) that it was not of a kind which required restrictive construction. On the contrary, the Court of Appeal held that the starting point for construing the clause “must be the language of the clause itself” (at para 14). The Court was equally dismissive of the case law based on the rule in Hadley v Baxendale, (1854) 9 Exch. 341, since the clause spoke to both (i) indirect or consequential losses or damages under English law (i.e. a consideration of the two branches of losses in Hadley v Baxendale); and (ii) losses not covered by (i). The question therefore was simply one of “whether its language is apt to encompass the spread costs which Providence seeks to recover” (at para 15). In this case the language used by the parties made it clear that they intended to give the term “loss of use” an extended meaning and (at para 17) they did so using two “without limitation” clauses.

The Court also concluded that the trial judge was wrong to invoke the contra proferentem principle. The Court observed that the principle was not appropriate where there was no ambiguity, where the clause in question favoured both parties, and where the parties had equal bargaining power. Further, the Court noted that the presumption that parties to a contract do not intend to give up their right to claim damages for breach of contract must give way to the language of the contract. The Court’s task (at para 23) “is not to re-shape the contract but to ascertain the parties’ intention, giving the words they have used their ordinary and natural meaning”. The Court summarized (at para 34):

I can see no reason in principle why commercial parties should not be free to embark on a venture of this kind on the basis of an agreement that losses arising in the course of the work will be borne in a certain way and that neither should be liable to the other for consequential losses, however they chose to define them.

Therefore, in the result, the Court reversed the decision at trial on this point and denied recovery of the spread costs.

In sum, the Court had little time for old presumptions and “helpful” rules of interpretation. Instead, the Court endorsed the more important principle that (at para 14) “the court should give the language used by the parties the meaning which it would be given by a reasonable person in their position furnished with the knowledge of the background to the transaction common to them both.” This principle has been endorsed by a series of decisions of both the House of Lords and the UKSC (see Chartbrook Ltd v Persimmon Homes Ltd, [2009] UKHL 38[2009] 1 AC 1101 and Arnold v Britton, [2015] UKSC 6[2015] AC 1619) and is fully consistent with the approach of the Supreme Court of Canada in Sattva Capital Corp v Creston Moly Corp, [2014] 2 SCR 633, 2014 SCC 53 where the Court summarized the current state of contractual interpretation in Canada as follows:

47        … the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding” … To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning:

48        The meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement … [References omitted].

The English Court of Appeal’s approach in Transocean to the construction of knock for knock obligations is also fully consistent with that of the Alberta courts in similar cases: see Precision Drilling Canada Limited Partnership v Yangarra Resources Ltd2016 ABQB 365 (CanLII) commented on here.

This post may be cited as: Nigel Bankes and Heather Lilles “The Freedom to Contract Your Terms of Business (aka Spread Costs, Consequential Damages, Knock for Knock and Contract Interpretation Principles)” (20 December, 2016), online: ABlawg, http://ablawg.ca/wp-content/uploads/2016/12/Blog_NB_HL_Transocean.pdf

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The Vexing Question of Authority to Grant Vexatious Litigant Orders

Fri, 12/23/2016 - 10:00am

By: Jonnette Watson Hamilton

PDF Version: The Vexing Question of Authority to Grant Vexatious Litigant Orders

Case Commented On: Hok v Alberta, 2016 ABQB 651 (CanLII)

Hok v Alberta is an unusual vexatious litigant decision for three reasons. First, the Minister of Justice and Solicitor General of Alberta made submissions in a brief of law. Second, those submissions were purely about the law governing vexatious litigant orders. The submissions had no more to do with the facts of this particular case than they did with the facts of any and every other vexatious litigant case. Because these legal issues apply broadly, this November 2016 decision is worth noting and I will focus on the legal issues exclusively. Third, there appears to be a challenge in this decision to the Court of Appeal’s jurisprudence on vexatious litigant orders and, specifically, to its doubts about the inherent jurisdiction of the Court of Queen’s Bench to issue broad orders restraining abusive conduct in all forums and against all persons in all future litigation.

Three legal issues were raised by the Minister and dealt with by Justice Verville in response to what he called the “unsettled nature” of the Court of Appeal jurisprudence (at para 47).

The first had to do with the fact that the Minister appeared. This appearance was the result of Justice Verville applying a two-step process adopted by the Court of Queen’s Bench in response to the Court of Appeal decision in Lymer v Jonsson, 2016 ABCA 32 (CanLII). Hok v Alberta is the first time the second step in the new two-step process has been taken.

Second, the Minister raised concerns about the proper scope or breadth of vexatious litigant orders. Based on the Court of Appeal decision in RO v DF, 2016 ABCA 170 (CanLII), the Minister submitted that such orders should be narrowed to a defined group of targets where that group can be identified by the litigant’s history. The Minister also argued that these orders should normally be restricted to future actions brought before the court making the order, unless there is evidence that the litigant has acted or would likely act in a vexatious manner in some other court.

Third, the Minister raised what the Court of Appeal identified in Pawlus v Pope, 2004 ABCA 396 (CanLII) as an open question about the source of Alberta superior courts’ authority to restrict litigants’ access to the courts. Is that authority dependent upon the legislature and only found in the Judicature Act, RSA 2000, c J-2, sections 23-23.1 and the Family Law Act, SA 2003, c F-4.5, section 91? Or does the Court of Queen’s Bench, as a superior court, have an inherent jurisdiction to restrict litigant access that co-exists with and is not limited by the statutory authority?

  1. The Court of Queen’s Bench Two-Step Process

In its 2016 decision in Lymer v Jonsson (which I commented on in On Its Own Motion”: Section 23.1(1) Judicature Act), the Court of Appeal held that the rules of natural justice that require courts to provide an opportunity to be heard to those who will be affected by a decision apply to vexatious litigant orders. While the sufficiency of notice will be assessed in the context of the proceedings, failure to provide an opportunity to be heard will be fatal to the order and it will be set aside.

In response to Lymer v Jonsson, the Court of Queen’s Bench adopted a two-step process when dealing with persons against whom court access restrictions are being considered (Hok at para 10). A judge who observes problematic conduct by a litigant is to first assess that conduct to determine if it is an abuse of court process or a sign of vexatious conduct that might require restrictions on court access. If the judge does decide that restrictions are potentially required, then the second step is necessary. The litigant is given an opportunity to make submissions about whether restrictions on their court access are appropriate and about the form that those restrictions should take.

Although the first step has been taken in two Court of Queen’s Bench reported decisions, neither proceeded to the second step. Hok v Alberta is therefore the first case to include the second step of the new two-step process. The first step can be seen in the June 2016 decision in R v Hok, 2016 ABQB 335 (CanLII), at para 105. Justice Verville directed that a copy of his reasons be given to the Minister as notice of the court’s intention to determine whether Ms. Hok was a vexatious litigant and invited both the Minister and Ms. Hok to make written submissions within 30 days of receiving that notice. Both did so. This November 2016 decision is the result of that notice.

In commenting on the new two-step process, Justice Verville noted that the process is not an absolute requirement (at para 11). As already pointed out, Lymer v Jonsson held that the sufficiency of notice will be assessed in the context of the proceedings. The test appears to be: Would the litigant be taken by surprise if the Court issued a vexatious litigant order on its own motion? (at para 12).

Justice Verville went on to point out a difficulty in evaluating what facts will satisfy what he called the Court of Appeal’s “‘no surprise’ rule” (at para 13). The Court of Appeal in Lymer v Jonsson (at para 6) stated that there was nothing in the record to suggest that Mr. Lymer was not taken by surprise when Justice Donald Lee issued a vexatious litigant order in November 2014 in Lymer (Re), 2014 ABQB 696 (CanLII)). However, Mr. Lymer had made submissions about whether his applications in the same case were frivolous or vexatious before Master Smart in June 2014: see Lymer (Re), 2014 ABQB 674 (CanLII) at para 13. Because there seemed to be no surprise in the context of the 2014 bankruptcy proceedings as a whole, Justice Verville thought it difficult to know what would satisfy the test. However, because Master Smart looked at Mr. Lymer’s conduct in the context of a contempt application and Justice Lee did not give notice that he was considering a vexatious litigant order and did not give Mr. Lymer an opportunity to address the vexatious litigant issue, it seems that Justice Verville is reading the “‘no surprise’ rule” too literally.

  1. The Scope of Vexatious Litigant Orders

Should orders restricting a litigant’s access to the courts be limited to that litigant’s usual target group of defendants? And should it be limited to the level of court making the order, for example, in this case, to future litigation in the Court of Queen’s Bench? These were the two questions raised by the Minister.

Both questions were based on the 2016 decision of the Alberta Court of Appeal in RO v DF, 2016 ABCA 170 (CanLII). As I mentioned in a previous post, Vexatious Proceedings Distinguished from Vexatious Litigants, RO v DF appeared to establish that vexatious behaviour confined to one case or one respondent will not justify the broad response of a typical vexatious litigant order under section 23.1 of the Judicature Act, which requires “persistent” improper conduct. Vexatious behaviour confined to one case will justify bringing the vexatious proceeding to an end and an order forbidding the commencement of further proceedings against the same individual. But a broad vexatious litigant order will require a history of vexatious behaviour in more than one case or against more than one person (except possibly in exceptional circumstances such as those found in Henry v El, 2010 ABCA 312 (CanLII)).

Justice Verville began his discussion of the principles that guide the scope of court access restrictions on future litigation by noting the “culture shift” brought about by Hryniak v Mauldin, 2014 SCC 7 (CanLII) (at para 26). Instead of the “historic over-emphasis on procedural rights and exhaustive formality,” that case called for a new emphasis on efficiency and proportional procedures. Justice Verville noted (at para 27) that this new emphasis on efficiency and proportionality applied “especially” to court proceedings involving self represented parties, according to the Supreme Court of Canada in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 at para 110 (CanLII). Chief Justice McLachlin had explained, in Trial Lawyers Association of British Columbia at para 47, that measures that deter frivolous or vexatious cases “may actually increase efficiency and overall access to justice”.

Justice Verville then discussed (at para 30) the impact of a vexatious litigant order, acknowledging first that a person cannot be denied access to Canadian courts, but pointing out that there was, as Trial Lawyers Association of British Columbia put it (at para 47), “no constitutional right to bring frivolous or vexatious cases.” He noted (at para 31) that Trial Lawyers Association of British Columbia had indicated that barriers to court are unconstitutional because they impede access to justice only if those barriers “effectively deny” people access to courts and that “undue hardship” is the measure for whether access is effectively denied.

How is this applied to vexatious litigant orders? Justice Verville observed that the standard order only required the vexatious litigant to obtain leave to commence an action (at para 33). The pre-filing leave application is a screening mechanism (at para 32). Typically, the vexatious litigant must provide an unfiled copy of their proposed statement of claim, motion, or application and an affidavit establishing the evidence and arguments they plan to make. There is no cost to make the application because the documents are not filed. In Justice Verville’s opinion, because any legitimate litigant has to know the evidence they can muster and the arguments they can advance, and because transforming that into an affidavit is a comparatively minor additional step, there is no “undue hardship” (at para 33).

These discussions of the Hryniak “culture shift” and the constitutionality of the typical “evidence mustering” requirement of a vexatious litigant order lead to Justice Verville’s analysis of the Minister’s submission about the scope of these orders. These discussions do not seem that apropos to the scope issue; they seem to be more relevant to expanding the understanding of the inherent jurisdiction of a superior court. Nevertheless, the points raised led him to determine that the balance between the low cost to the litigant’s rights and the benefits of efficiency will favour the granting of vexatious litigant orders as “prospective case management steps” (at para 37). Therefore, the court should focus on anticipated abuses when granting these orders.

Justice Verville concludes that the key questions with respect to the scope of the vexatious litigant order are (at para 36):

  1. Can the court determine the identity or type of persons who are likely to be the target of future abuse of litigation?
  2. What litigation subject or subjects are likely involved in that abuse of court processes?
  3. In what forums will that abuse occur?

When he applies the third question in this particular case, although Justice Verville identified past misconduct in all three levels of Alberta courts and thought it highly likely that the litigation abuse would continue in the Court of Appeal (at paras 45, 47), he did not extend his vexatious litigant order to the Court of Appeal. He did not do so “in light of the jurisprudence that addresses court participant access for that institution” (at para 53).

  1. The Source of the Court of Queen’s Bench Authority

The Minister had pointed out that it is an open question whether the province’s superior courts have an inherent jurisdiction to restrict litigant access or whether their authority must be found in legislation, i.e., the Judicature Act, RSA 2000, c J-2, sections 23-23.1 and the Family Law Act, SA 2003, c F-4.5, section 91. The Minister cited the Court of Appeal’s 2004 decision in Pawlus v Pope as raising but not resolving the issue. As I mentioned in a post last year (Sources of Superior Courts’ Jurisdiction to Declare Litigants to be Vexatious), there are a number post-Pawlus conflicting Alberta decisions in the civil law context, including Lymer (Re), 2014 ABQB 696 (CanLII) at para 12, Shreem Holdings Inc. v. Barr Picard, 2014 ABQB 112 (CanLII) at para 29, and Re Sikora Estate, 2015 ABQB 467 (CanLII). And Hok v Alberta can now be added to that list.

There is no question that the inherent jurisdiction of superior courts to control the particular proceedings before them is not limited by the statutory vexatious litigants provisions; see section 23.1(9) of the Judicature Act and the Law Reform Commission of Nova Scotia (LRCNS), Vexatious Litigants Final Report (April 2006) at 15. The question is whether that inherent jurisdiction includes the ability of superior courts to prevent a vexatious litigant from commencing different legal proceedings against different people in different courts in the future. After reviewing case law and scholarly opinion, the LRCNS report concluded (at 11) that it did not:

At best, it might be suggested there is some case law support for expanding the concept of inherent jurisdiction to empower a court to prevent a known vexatious litigant from commencing a legal proceeding. This would, however, be at odds with the traditionally-understood nature of inherent jurisdiction.

The difference between the two exercises of the court’s power is the difference between their control of vexatious proceedings and their much broader and forward-looking control of vexatious litigants. This difference is the focus of the LRCNS report (at 7-11), which relied upon the oft-cited article by I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal Problems 23. That article identified (at 43) the conceptual gap between courts’ ability to control the actions of people appearing before them and their inability to prevent people from starting actions “which may turn out to be vexatious”. Unfortunately, Justice Verville does not discuss either the LRCNS summary of the law nor Jacob’s article.

What Justice Verville does discuss, albeit in connection with the scope of vexatious litigant orders, is the Hryniak “culture shift” and the constitutionality of the typical “evidence mustering” requirement of a vexatious litigant order. Those discussions may have justifications for expanding the traditionally understood nature of inherent jurisdiction.

Justice Verville does mention that the issue is not free from doubt in those Commonwealth jurisdictions which received their law from the United Kingdom when they were colonies (at para 17). He also discusses three Alberta Court of Appeal decisions that recognized the inherent jurisdiction of both their court and the Court of Queen’s Bench to restrict future litigation by an abusive litigant (at paras 19-20, 23-24). He concludes his discussion of the source of the Court of Queen’s Bench’s authority with the following odd remark (at para 25, emphasis added):

The Alberta Court of Queen’s Bench, a superior court of inherent jurisdiction, has at least the same authority to restrict court access as the Alberta Court of Appeal, especially since the Court of Appeal derives its authority and power from legislation: Court of Appeal Act, RSA 2000, c C-30.

Why compare the Court of Queen’s Bench as “a superior court of inherent jurisdiction” to the Court of Appeal as a court “deriv[ing] its authority and power from legislation”? Is Justice Verville claiming that the Court of Appeal has no inherent jurisdiction to control their own processes and procedures?

I am not sure why Justice Verville pointed out that “the Court of Appeal derives its authority and power from legislation: Court of Appeal Act”. Section 2(1) of that statute states: “The Appellate Division of the Supreme Court of Alberta is continued as a superior court of civil and criminal jurisdiction styled the Court of Appeal of Alberta.” That is all that Act says about the Court of Appeal’s power and authority. The Court of Queen’s Bench Act, RSA 2000, c C-31, says much the same about that court in section 2(1): “The Trial Division of the Supreme Court of Alberta is continued as a superior court of civil and criminal jurisdiction styled the Court of Queen’s Bench of Alberta.”

It is the Judicature Act, RSA 2000, c J-2, which in Part 1 sets out the “Jurisdiction of the Court”, with “Court” defined in section 1 to mean “the Court of Queen’s Bench or, on appeal, the Court of Appeal” (except in Part 2.1 where it is even more inclusive; section 23(1)(b)).

The Judicature Act says almost the same things about the powers of the Court of Appeal that it says about the powers of the Court of Queen’s Bench. It says, for example, that both have “all the jurisdiction, powers and authority that … were … vested in, or capable of being exercised within, Alberta by the Supreme Court of the North-West Territories” (section 2(1)). It says the judges of both courts have “all the powers, rights, incidents, privileges and immunities of a judge of a superior court of record” as fully as those were enjoyed in England by judges of “the Superior Courts of Law or Equity” and other superior courts or courts of record (section 4). Specifically, with respect to “the administration of the law”, both courts “possesses, in addition, … the jurisdiction that on July 15, 1870, was in England vested in (a) the High Court of Chancery, as a common law court as well as a court of equity, including the jurisdiction of the Master of the Rolls as a judge or master of the Court of Chancery, and any jurisdiction exercised by the Master of the Rolls in relation to the Court of Chancery as a common law court” and other superior courts or courts of record (section 5(1)). I am afraid I do not see why it matters to the discussion of inherent jurisdiction that “the Court of Appeal derives its authority and power from legislation: Court of Appeal Act”.

In the LRCNS report, the commissioners noted:

The concept of inherent jurisdiction is an ancient one. It is part of the legal heritage … received from England, where inherent jurisdiction has been associated with superior jurisdiction courts since their beginnings. In Halifax (Regional Municipality) v. Ofume, [(2003), 218 N.S.R. (2d) 234 at 242 (N.S.C.A.)], Saunders, J.A. … confirmed, “…jurisprudence in this country clearly establishes that Canadian courts of superior jurisdiction maintain a general inherent jurisdiction, which includes the discretion to control their own process. (emphasis added)

The LRCNS relied (at 7) upon the English procedural law authority, I.H. Jacob, in “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal Problems 23 at 25- 26 for the basis of inherent jurisdiction. Jacob wrote that “the juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfill the judicial function of administering justice according to law in a regular, orderly and effective manner”.

Jacob was of the opinion (at 43) that “the court has no power, even under its inherent jurisdiction, to prevent a person from commencing proceedings which may turn out to be vexatious.” (emphasis added). The problem, according to the LRCNS and Jacob, is not a lack of inherent jurisdiction, but a lack of an inherent jurisdiction that includes prospective vexatious litigant orders.

_____________

There appears to be some dissatisfaction within the Court of Queen’s Bench about the Court of Appeal’s recent handling of vexatious litigant cases and what Justice Verville referred to as “the unsettled nature” of its jurisprudence (at para 47).

The state of the Court of Appeal’s “jurisprudence that addresses court participant access for that institution” (at para 53), is the reason Justice Verville gives for excluding litigation in the Court of Appeal from the vexatious litigant order he issued in this case, even though he believed “it is highly likely that Ms. Hok’s abuse will continue in that court” (para 47). He extended his broadly-worded vexatious litigant order to the Provincial Court as well as the Court of Queen’s Bench (at paras 47, 49, 51, and 53). He explicitly stated that he made the vexatious litigant order under the authority of both the Judicature Act and the court’s inherent jurisdiction (at paras 48, 51and 53). He even invited tribunals who lacked the power to restrict the vexatious litigants’ access to apply to the Court of Queen’s Bench for protection, again citing the court’s inherent jurisdiction as the source of the court’s power to restrict the abuse of those tribunals’ processes (at para 54). It is only the Court of Appeal that he left to fend for itself.

It would appear that the Court of Queen’s Bench has thrown down the proverbial gauntlet. It will be interesting to see how the Court of Appeal responds to the challenge.

This post may be cited as: Jonnette Watson Hamilton “The Vexing Question of Authority to Grant Vexatious Litigant Orders” (23 December, 2016), online: ABlawg, http://ablawg.ca/wp-content/uploads/2016/12/Blog_JWH_HokvAlberta.pdf

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When the Courts Close One Door, They May Open Many More: Maintenance Logs and the Potential Implications of an Appeal in R v Vallentgoed

Thu, 12/22/2016 - 10:00am

By: Elliot Holzman 

PDF Version:  When the Courts Close One Door, They May Open Many More: Maintenance Logs and the Potential Implications of an Appeal in R v Vallentgoed

Case Commented On: R v Vallentgoed, 2016 ABCA 358 (CanLII)

Following the recent Alberta Court of Appeal decision in R. v. Vallentgoed, 2016 ABCA 358 (CanLII), it appears that Canada’s impaired driving laws may be before the Supreme Court of Canada (SCC) once again – this time, only four years removed from the last major case to be decided by the SCC in this area: see R. v. St-Onge Lamoureux, 2012 SCC 57, (CanLII).

Vallentgoed featured two separate cases that were tried together as “test” cases: both Mr. Vallentgoed and Mr. Gubbins were charged with impaired driving and requested various maintenance records as part of their disclosure requests from the Crown. The question before the Court on both appeals pertained to the Crown disclosure obligations of certain maintenance records for the breathalyzer instruments (also called “approved instruments”) used every day in impaired driving investigations across the country.

In a split 2-1 decision, with Justice Rowbotham dissenting, the Court of Appeal held that while time-of-test records of the approved instruments are clearly relevant and must be disclosed to an accused person, historical maintenance records of the instruments are not subject to the same disclosure obligations. Justice Rowbotham found that an instrument’s maintenance log (which is a summary of all the work/repairs done on an instrument since it was brought into use) constitutes first party disclosure and must be disclosed as part of the standard disclosure package sent by the Crown. The majority (Justices Slatter and Berger) held it was third party disclosure, and not subject to the Crown’s Stinchcombe disclosure obligations (see R. v Stinchcombe, [1991] 3 SCR 326, 1991 CanLII 45 (SCC)). As the Court of Appeal was split in its decision, there will be an appeal as of right to the SCC, should the appellant wish to exercise that right.

Relevant Statutory Provisions 

Canada’s impaired driving legislation is set out in sections 253 to 258 of the Criminal Code, RSC 1985, c C-46. Section 253 states:

253 (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred milliliters of blood.

Section 253 sets out two separate offences for impaired driving (although an accused person cannot be convicted on both, based on the rule against multiple convictions for offences arising out of the same transaction, set out in Kienapple v. R., [1975] 1 SCR 729, 1974 CanLII 14 (SCC)).

  1. A court can find a person guilty if it is satisfied beyond a reasonable doubt that the person’s ability to operate a motor vehicle is impaired (s 253(1)(a)); and
  2. A court can find a person guilty if the person’s blood alcohol exceeds eighty milligrams of alcohol in one hundred milliliters of blood, which is most often measured using an approved instrument at a police detachment (s 253(1)(b)).

The Vallentgoed decision, like many before it, is concerned with the instruments that are used to convict under section 253(1)(b) of the Criminal Code. The Code contains certain statutory provisions related to these instruments. In section 254, the Code defines an “approved instrument” as being any instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the person’s concentration of alcohol in their blood.

In section 258, the Code states that if the Crown can prove that certain preconditions have been met, the “evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses were the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses…” Thus, the reading displayed by the instrument is presumptively reliable and is essentially incontrovertible, barring evidence being tendered to show that the machine was malfunctioning and that the malfunctioning caused the machine to give an inaccurate reading.

Thus, in understanding the statutory “shortcut” that the Crown is given through section 258 of the Code, and the underlying presumption of reliability of the instrument readings, one can see why the maintenance records of these instruments is relevant in criminal proceedings. If we are going to rely on these readings as being presumptively accurate, then we had better be sure that these machines are working properly. 

The Long, Windy Road to Vallentgoed

As the Court noted in para 2, there has been considerable uncertainty and inconsistency in trial court decisions on the obligation of the Crown to disclose maintenance records for approved instruments, especially following the SCC’s decision in St-Onge Lamoureux, which is discussed below.

By way of historical background, in 1969 Parliament made it a criminal offence to operate or have care or control of a motor vehicle while one’s blood alcohol level exceeded .08 (over 80) and made it mandatory under the Code to provide breath samples for analysis. Parliament further introduced presumptions (of accuracy and identity) that would apply if certain preconditions were met. This had the effect of making it easier for the Crown to prove that a person had operated or had care or control of a motor vehicle while their blood alcohol exceeded .08.

The presumption of accuracy took the form of a certificate by the breath technician who was present when the samples were taken. The certificate, which contains the readings on the approved instrument, was presumed to provide an accurate determination of a person’s blood alcohol content at the time the breath samples were taken. In 1997, Parliament established a second presumption that a blood alcohol level that exceeds .08 at the time of analysis is presumed to have exceeded .08 at the time when the offence is alleged to have been committed. This presumption was upheld in R. v. Boucher, 2005 SCC 72 (CanLII).

Prior to amendments to section 258 in 2008, the provision stated that the presumptions could be rebutted by producing “evidence to the contrary”, which the Ontario Court of Appeal interpreted as meaning that the evidence of the accused person, in combination with an explanation by a toxicologist as to the implications of that accused person’s consumption, could be tendered as “evidence to the contrary” in order to raise a reasonable doubt about the results of the breathalyzer readings: see R. v. Carter, 1985 CanLII 168 (ON CA). This came to be known as the “Carter defence”, and was employed frequently to “beat the test.”

The strategy for this approach was that an accused person would testify, for example, that alcohol had been consumed just prior to the test (known as “bolus drinking”), which would lead to a reading that was unrepresentative of their blood alcohol content at the time of driving. Moreover, a toxicologist would also testify that the blood alcohol content of the accused person given their consumption, weight, drinking habits, etc., was lower than the instrument displayed. The toxicologist would run a test with reproduced conditions in a controlled environment and the findings would be then tendered as “evidence to the contrary.”

In 2008, Parliament largely cut out the “Carter defence” by amending section 258 to require an accused, who wishes to rebut the presumption of accuracy of the instrument reading, to (1) raise a reasonable doubt as to the malfunctioning of the instrument, (2) show that the malfunction affected the readings, and (3) show that their blood alcohol content would not have exceeded the legal limit at the time. Thus, while the “Carter defence” could still be relevant for point #3, an accused person still has the burden of presenting evidence on the first two points. But how could an accused person have information on the functional capabilities of the machine they blew into? In St-Onge Lamoureux, the Court held: “The accused can request the disclosure of any relevant evidence that is reasonably available in order to be able to present a real defence.” (at para 78)

Thus, following the decision in St-Onge Lamoureux, the maintenance records of these approved instruments were more frequently requested by accused persons to rebut the presumption of accuracy contained in section 258. In Alberta, the Court of Queen’s Bench held in R. v. Kilpatrick, 2013 ABQB 5 (CanLII) at para 81 that the instrument’s maintenance logs are “fruits of the investigation” and thus constitute first party disclosure that must be disclosed by the Crown where an approved instrument is utilized. The Court of Appeal denied the Crown’s leave to appeal in Kilpatrick, (2013 ABCA 168 (CanLII)), because the evidentiary record in the case was sparse and there was a lack of expert evidence to challenge the findings in the court below.

The Vallentgoed Decision 

What Records Were at Issue in this Case?

Following the Kilpatrick decision, Alberta Justice began regularly disclosing time-of-test records related to the instruments as part of their Stinchcombe disclosure obligations. These time-of-test records are often voluminous, including documents that provide details of the actual breath samples conducted, test records, the certificate of analyses, an affidavit of service of the certificate of analyses, and certificates of annual maintenance, among other documents. At issue in Vallentgoed was whether the Crown was obliged to also disclose historical maintenance records of the approved instruments.

The Real Issue – Are Records Other Than Time-of-Test Ones First Party or Third Party Disclosure? 

Both the majority judgment and dissenting opinion spent considerable time discussing whether historical maintenance records constituted first party disclosure – which must be disclosed as part of the Crown’s Stinchcombe obligations – or third party disclosure, which are subject to a separate application by the defence.

The majority judgment confirmed that it has been clear since Stinchcombe that a person charged with a crime is entitled to disclosure of non-privileged documents that are relevant to making full answer and defence to the charge (at para 32). The appeals turned on whether these historical maintenance records constituted “fruits of the investigation”, where the onus lies on the Crown to disclose the relevant documents. The majority held that: “It follows that only maintenance records for the approved instrument that are contemporaneous with the criminal charge are part of the “fruits of the investigation”…” (at para 47, emphasis added). The majority interpreted St-Onge Lamoureux as follows:

On a proper reading, St-Onge Lamoureux does not hold that maintenance records are relevant and therefore disclosable, it assumes that they might be relevant. The prospect of there being relevant information on malfunctioning of the instrument that the accused could use to raise a full answer and defense was sufficient to make the provision constitutional. If, in a particular case, it is demonstrated that the records are not relevant, or not sufficiently probative, they need not be disclosed. St-Onge Lamoureux found the section to be constitutional on the basis that the accused could prove malfunctioning of the equipment with relevant evidence. If the evidence turns out to be irrelevant, it could not raise a reasonable doubt, and it is therefore not necessary that it be disclosed in order to enable a full answer and defense. Irrelevant evidence cannot assist the accused. The Supreme Court did not intend to rule that, as a matter of law, irrelevant evidence must be disclosed in order to maintain the constitutionality of the section. (at para 53, emphasis in original)

Turning to the issues raised in these appeals, the majority held (at para 72) that the uncontradicted expert evidence was that the historical maintenance records were irrelevant to proving the accuracy or inaccuracy of any particular test. The majority was satisfied that the instruments contained so many checks and balances that were built into them that the chances of an undetected malfunction was “extremely remote” (at para 75). Thus, the majority dismissed the appeals and concluded that the standard disclosure package, which disclosed time-of-test records, was sufficient to discharge the Crown’s Stinchcombe obligations.

I found Justice Rowbotham’s dissenting opinion particularly interesting, as she seemed to disagree on two central findings made by the majority. The first related to what St-Onge Lamoureux actually decided. In relation to the relevance of maintenance records, Justice Rowbotham disagreed that the discussion of maintenance records was “peripheral” to the Court’s opinion in St-Onge Lamoureux (at para 101). In her view, the SCC’s specific reference to “maintenance” of the instrument, which is distinct from “operation” insofar as maintenance suggests matters prior to or after the operation of the instrument, was a signal by the SCC that the relevance of the maintenance records was an integral part of its analysis. In St-Onge Lamoureux, the SCC held that an accused person may request the disclosure of any relevant evidence that could include a maintenance log that shows the instrument was not maintained properly or on admissions by a technician that there had been erratic results on that instrument (at para 78). Justice Rowbotham interpreted this passage to infer that the SCC’s decision in St-Onge Lamoureux “opened the door” to the disclosure of some maintenance records (at para 105) that went beyond solely the disclosure of time-of-test records.

The second point related to statements made in para 78 of the majority judgment related to whether disclosure of historical maintenance records would create a slippery slope where “requesting disclosure of the maintenance logs will only generate requests for more irrelevant records…” In that same section, the majority rejected the argument that because the production of the historical maintenance records did not involve much effort on the part of the Crown, they should therefore be produced.

Justice Rowbotham examined both the Stinchcombe decision and the SCC’s later ruling in R. v. McNeil, 2009 SCC 3 (CanLII), to find that the Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant to the prosecution or the defence. While the Crown argued that the historical maintenance records were in the possession of a third party and not the Crown, Justice Rowbotham stated (at para 120):

It seems that whether applying paragraph 48 of St-Onge Lamoureux or the bridging the gap principle from McNeil, there is a logical result: the Crown is obliged to provide as Stinchcombe disclosure the maintenance log of the approved instrument. The maintenance log is a short document. There are fewer than 200 approved instruments in Alberta. The task is not monumental and, as the appeal judge noted, requiring an O’Connor application in each case “would entail delay and consume significant Crown and defence resources … [which] cannot be in the interests of justice”: para 39. It may be that the maintenance logs could be maintained and updated electronically, and made available as required.

In her dissenting opinion, Justice Rowbotham did not find that all historical maintenance records constituted first party disclosure, but that the maintenance log, which summarizes all the maintenance that has been done to the approved instrument in the preceding years, is relevant and required so that an accused person may try to rebut the presumption of accuracy contained in section 258 of the Code.

Where To From Here?

Based on Justice Rowbotham’s dissenting opinion, there will be an appeal as of right for Mr. Vallentgoed, though she only allowed Mr. Gubbins’ appeal in part, and therefore it remains to be seen whether there will be an appeal to the SCC. Earlier this year, the SCC denied leave to appeal from the Ontario Court of Appeal’s decision in R. v. Jackson, 2015 ONCA 832 (CanLII), which dealt with the same issue of disclosure of maintenance records of an approved instrument in Ontario. The Ontario Court of Appeal rejected Mr. Jackson’s appeal for similar reasons as the majority used in Vallentgoed. On June 30, 2016, the SCC dismissed Mr. Jackson’s application for leave to appeal with no reasons given: David A. Jackson v. Her Majesty the Queen, et al., 2016 CanLII 41073 (SCC). It remains to be seen whether there will be an appeal to the SCC in Vallentgoed and whether the Court will flesh out what it meant in St-Onge Lamoureux regarding the relevance of various maintenance records in impaired driving cases.

This post may be cited as: Elliot Holzman “When the Courts Close One Door, They May Open Many More: Maintenance Logs and the Potential Implications of an Appeal in R v Vallentgoed” (22 December, 2016), online: ABlawg,
http://ablawg.ca/wp-content/uploads/2016/MONTH/Blog_EH_Vallantgoed.pdf

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The Duty to Consult and the Legislative Process: But What About Reconciliation?

Wed, 12/21/2016 - 10:00am

By: Nigel Bankes

PDF Version: The Duty to Consult and the Legislative Process: But What About Reconciliation?

Case Commented On: Canada v Courtoreille, 2016 FCA 311 (Can LII)

In Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council (2010 SCC 43 (CanLII) at para 44), the Supreme Court declined to answer the question of whether legislative action might trigger the duty to consult and, where appropriate, accommodate Aboriginal groups. This question was front and centre in Canada v Courtoreille, 2016 FCA 311 (Can LII), which involved the omnibus budget bills of the Harper administration (2012). The majority (Justices de Montigny and Webb) answered (at para 3) that “legislative action is not a proper subject for an application for judicial review … and that importing the duty to consult to the legislative process offends the separation of powers doctrine and the principle of parliamentary privilege.” Justice Pelletier offered concurring reasons which are somewhat more nuanced as to the possibility of intervention in the legislative process. He would give effect to the duty to consult in a particular, and narrow set of cases, but still concludes that, in most cases, the duty to consult has no place in the legislative process.

The background is well summarized at paras 5 & 6 of the judgement:

In 2012, the Minister of Finance introduced Bill C-38, enacted as the Jobs, Growth and Long-Term Prosperity Act, 1st. Sess., 41st Parl., 2012 (assented to 29 June 2012), S.C. 2012, c. 19 and Bill C-45, enacted as the Jobs and Growth Act 2012, 1st. Sess., 41st Parl., 2012 (assented to 14 December 2012), S.C. 2012, c. 31. These two omnibus bills resulted in the repeal of the Canadian Environmental Assessment Act, S.C. 1992, c. 37; the enactment of the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52 (CEAA, 2012); as well as in amendments to the Fisheries Act, R.S.C. 1985, c. F-14, the Species at Risk Act, S.C. 2002, c. 29, the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33 and the Navigable Waters Protection Act, renamed the Navigation Protection Act, R.S.C. 1985, c. N-22 (NPA).

Mikisew Cree alleges that the omnibus bills reduced the types of projects that were subject to federal environmental assessment, reduced the navigable waters that required federal approval to build obstructing works on them, diminished the protection of fish habitat, and reduced the requirements to approve effects on species at risk. Since environmental assessments and other federal approval mechanisms typically allow First Nations to voice their concerns about effects on its treaty rights to hunt, fish and trap, and have those rights accommodated, the Mikisew Cree argue that this reduction in oversight may affect their treaty rights and accordingly, the Crown should have consulted with it during the development of that legislation and upon its introduction in Parliament. The Mikisew Cree sought declaratory and injunctive relief against the Crown before the Federal Court.

It bears emphasising that the Mikisew Cree First Nation (MCFN) was positioning itself to attack the preparatory steps leading up to the introduction of the legislation rather than the legislative process in Parliament.

Justice Hughes granted the application in part. This was an appeal and cross-appeal from that judgement.

The majority suggested (at para 16) that the appeal gave rise to four issues:

  1. Did the Judge err in conducting a judicial review of legislative action contrary to the Federal Courts Act?
  2. Did the Judge err by failing to respect the doctrine of separation of powers or the principle of parliamentary privilege?
  3. Did the Judge err in concluding that the duty to consult had been triggered?
  4. Did the Judge err in determining the appropriate remedy?

The majority found it unnecessary to address issues 3 & 4 since it was able to dispose of the appeal by answering the first two questions in the affirmative. In fact, the majority (at para 39) could have disposed of the appeal with its affirmative answer to the first question. Technically therefore everything after that is simply obiter. Justice Pelletier also confined his analysis to the first two questions.

Did the Judge Err in Conducting a Judicial Review of Legislative Action Contrary to the Federal Courts Act?

For the majority, the MCFN application was an application for judicial review, but as a statutory Court the Federal Court could only consider the matter if it had jurisdiction to do so under the Federal Courts Act, RSC 1985, c. C-7 (FCA). The majority was of the view that in order to establish that, MCFN had to show two things (at para 23): “First, that there be an identifiable decision or order in respect of which a remedy is sought. Second, that the impugned decision or order be made by a ‘federal board, commission or other tribunal’.”

The majority was of the view that the MCFN could not meet either of these criteria. As to the first, the majority found it difficult to identify any particular decision that was the target of MCFN’s application (or indeed any particular decision that Justice Hughes had identified) (at para 24): “It is not clear, however, what particular decisions [were being referenced]. If it is the decision to move forward with a policy initiative with a view to bringing proposed legislation to Cabinet for approval and eventually, to Parliament for adoption, it would presumably not meet the requirement for a formal decision as it would be inchoate in nature and not formally recorded.” But even if the target could be something a bit more amorphous than a decision (e.g. a ‘matter’) as suggested by s.18.1 of the FCA and some of the relevant case law, there was still the difficulty that the matter had to fall within the purview of administrative law rather than legislative action. While the majority at this point may well be trespassing into the second question, for the majority (at para 21) it was still grounded in the proposition that the Federal Court only had jurisdiction over administrative action and not legislative action. Thus (at para 26) “To the extent, therefore, that the ministers and the Governor in Council were acting in their legislative capacity in developing the two omnibus bills, as argued by the appellants, judicial review would clearly not be available.”

If there was no decision or even a relevant matter, it was equally clear to the majority that there was no ‘federal board, commission or other tribunal’. The question of whether an entity is a ‘federal board, commission or other tribunal’ turns largely on the source of that entity’s authority. If that authority (here the authority to develop and present legislation to Parliament) is sourced in federal legislation, then the entity would be amenable to judicial review. MCFN seems to have argued that in developing new legislation a Minister would be acting under the relevant departmental legislation (e.g. Department of the Environment Act, RSC 1985, c. E-10) at least with respect to the development or consultation phase of that legislation and was thus amenable to judicial review during that phase.

The majority considered that there were two main obstacles to this approach. First, as a matter of text, nowhere does the relevant departmental legislation refer to the responsibility to develop legislation for introduction to Parliament. If the Minister had such a responsibility then (at para 28) such a responsibility “flows from the Constitution itself and from our system of parliamentary democracy, and not from a delegation of powers from Parliament to the executive.” Second, the majority was obviously not persuaded that there was a clear or workable distinction between the administrative or executive elements of the development of legislation and the legislative process itself. Rather (at para 29) “the legislative process is a fluid exercise involving many players, both at the political and at the government officials level. It would be artificial to parse out the elements of a minister’s functions associated to either its executive or legislative functions for the purpose of drawing a red line between the dual roles of the members of Cabinet.” That was probably enough to dispose of the matter but the majority did go on to reference s.2(2) of the FCA suggesting (at para 32) that Justice Hughes had offered a restrictive interpretation of that section. Section 2(2) provides that: “(2) For greater certainty, the expression ‘federal board, commission or other tribunal’, as defined in subsection (1), does not include the Senate, the House of Commons, any committee or member of either House ….”.

In light of that the majority concluded as follows on the first issue (at para 38): “The source of the power that the appellant ministers exercised and which is the true object of the respondent’s complaint was … legislative in nature and derived from their status as members of Parliament. Therefore, the matter is not a proper subject for an application for judicial review under the Federal Courts Act.”

Justice Pelletier, concurring in the result, side-stepped much of the analysis under this first heading. Justice Pelletier reasoned (at paras 66 – 82) as follows: (1) MCFN’s application was largely a request for a series of declarations, (2) a declaration can be sought either by way of an action or on application, (3) an action under s.17 of the FCA is an action against the Crown and need not be against a ‘federal board commission or other tribunal’, and (4) since the Court has a broad jurisdiction to correct procedural irregularities the failure to proceed against a ‘federal board commission or other tribunal’ could not be fatal.

Did the Judge Err by Failing to Respect the Doctrine of Separation of Powers or the Principle of Parliamentary Privilege?

The majority recognized (at para 40) that “there is a clear tension in the case law between the doctrine of the separation of powers and the duty to consult”. The “separation of powers doctrine is not explicitly entrenched in the Canadian Constitution” but “courts have frequently recognized” its “normative value”. In resolving that tension in this case, the majority came down firmly in favour of the separation of powers, the sovereignty of Parliament, and the related principle that the courts cannot impose additional procedural obligations on the legislative process. This did not mean that MCFN was without a remedy and the majority mentioned three avenues of relief that might be available. Two of these avenues were extra-judicial. First, the majority suggested that Ministers of the Crown might (and perhaps should) consult as a matter of public policy. Second, First Nations like MCFN might take advantages of opportunities to participate in the legislative process such as by appearing before parliamentary committees. And third, a First Nation might attack either the resulting legislation or the subsequent statutory decisions based on that legislation. Here is what the majority had to say about that (at para 63):

To the extent that the impugned decisions directly derive from the policy choices embedded in a statute, the validity of such a statute may be called into question and consultation prior to the adoption of that statute will be a key factor in determining whether the infringement of an Aboriginal or treaty right is justified. But courts cannot and should not intervene before a statute is actually adopted. To come to the opposite conclusion would stifle parliamentary sovereignty and would cause undue delay in the legislative process. This is the very vehicle through which many reform initiatives, including those necessary for the proper development and recognition of Aboriginal rights and interests, are adopted.

As noted in the introduction, Justice Pelletier was somewhat more nuanced. He agreed that in this particular case the development of the omnibus legislation did not trigger a duty to consult because (at para 91) it was “legislation of general application whose effects are not specific to particular Aboriginal peoples or to the territories in which they have or claim an interest. The origin and development of the duty to consult does not support the view that it requires the Crown to consult with Aboriginal peoples in cases where the governmental action is aimed at the whole of the territory of Canada and all of its peoples.” In such a case “The duty must be found in the decisions by which such legislation is operationalized.” However, in comments that were clearly obiter Justice Pelletier suggested that he might see matters differently if the legislation in question was, for example, project specific approval legislation (not unknown in many Canadian jurisdictions and particularly common at one time in Newfoundland and Labrador) (at para 87):

Putting the matter another way, the duty to consult would undoubtedly be triggered by the executive’s approval of a project which adversely affected a First Nation’s interest in a given territory. Can it be said that the duty to consult would not be triggered if the same project were approved and set in motion in a special law passed for that purpose? While this is not the case we have to decide, it does highlight the point that the argument that the legislative process is indivisible, from policy development to vice-regal approval, may be problematic in other circumstances.

This idea however could not be applied more broadly for fear of paralyzing the legislative process (at para 92):

The duty to consult cannot be conceived in such a way as to render effective government impossible. Imposing a duty to consult with all Aboriginal peoples over legislation of general application would severely hamper the ability of government to act in the interests of all Canadians, both Aboriginal and non-Aboriginal. Consultation takes time and the more groups there are to be consulted, the more complex and time-consuming the consultations. At some point the ability to govern in the public interest can be overwhelmed by the need to take into account special interests.

Commentary

There are three parts to these comments. The first section discusses the scope or breadth of application of the decision. The second section discusses the majority’s comments as to the three forms of recourse said to be available to indigenous communities in the absence of importing the legal duty to consult into the legislative process. The third section suggests that we need to re-imagine the relationship between the doctrine of the sovereignty of Parliament and the duty to consult in light of the goal of reconciliation.

Scope

This decision is very much a decision about the (non) application of the duty to consult in the parliamentary process (and in the provinces, the legislative assembly process); it does not speak more generally and inclusively to that category of decisions known as delegated legislative decisions, i.e. rule-making whether in the form of regulations, rules, adoption of land use plans etc. While there is conflicting authority as to whether or not the duty to consult applies to such decisions, there is little if anything in this judgement to support the view that delegated legislative decisions do not attract the duty to consult. Such decisions cannot benefit from arguments of parliamentary privilege and such decisions are in principle subject to judicial review in the ordinary course – albeit not usually on procedural grounds: see Att. Gen. of Can. v. Inuit Tapirisat et al, [1980] 2 SCR 735, 1980 CanLII 21 (SCC);  Homex Realty v. Wyoming, [1980] 2 SCR 1011, 1980 CanLII 55 (SCC).

Available Recourse: Fact or Fiction?

The majority offered MCFN the consolation that it would still have some level of recourse even if it did not have a right to be consulted as part of the legislative process. But none of the options identified seem very realistic. The first two depend upon the political commitment of governments to engage rather than a legal commitment to do so and the reference to parliamentary committees seems particularly hollow (and indeed almost insulting) in relation to the Bills in question. These Bills were deliberately presented by the government of the day as omnibus bills and characterized as money bills in order to escape scrutiny by the specialized House standing committees. Furthermore, confining indigenous communities to this sort of engagement serves to categorize indigenous communities as mere stakeholders rather than communities with constitutionally protected rights. It is as if the majority had completely forgotten that it was these bills that triggered the Idle No More Movement and significant engagement of civil society across Canada. These particular applicants needed no reminder from the Court of other avenues of civic engagement.

The final recourse offered is recourse to the courts after the legislation has passed, potentially questioning the validity of the statutes or statutory amendments as an unjustifiable infringement of aboriginal or treaty rights. I think that there are several difficulties here. The first is that any indigenous community taking on this issue would face a huge evidentiary challenge which would of necessity be based on the counter factual: i.e. it would involve a comparison with what the situation would be under the previous state of the law versus the position under the impugned statutes. This will be a monumental task – far harder than proving that the cumulative effect of the Crown’s taking up activities constitutes a breach of treaty hunting rights. Second, and even more seriously, this solution is far too reactive. It contemplates breach of duty and then justification of that breach rather than a deliberative process aimed at responding to concerns (‘demonstrable integration’) and avoiding breach. The case law from R. v. Sparrow, [1990] 1 SCR 1075, 1990 CanLII 104 (SCC) to Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), shows a welcome movement from breach and reaction towards more proactive and creative approaches that seek to avoid infringements of constitutionally protected rights. This judgement, if upheld, reverses that trend.

Reconciliation

As a statement of the law of Canada as it stood in 1982 before the enactment of s.35 of the Constitution Act, 1982, this decision is clearly doctrinally correct. But we have moved on from the Constitution as Bagehot (quoted at para 31) knew it. The relevant questions are thus two-fold: first, is this understanding still good law, and, even if it is good law, is the decision consistent with a reading of the Constitution that is sensitive to the ideas informing the Report of the Truth and Reconciliation Commission and the need to decolonize Canadian law. Surely one must be suspicious and questioning of a decision that relies so heavily on the sovereignty of Parliament (see references at paras 12, 52, 54, 57, 59, 60, 63) at the same time as the Supreme Court instructs that the purpose of s.35 of the Constitution Act, 1982 and the duty to consult and accommodate is to bring about a reconciliation of Aboriginal peoples to the acquisition of sovereignty by the Crown:  Mitchell v. M.N.R., [2001] 1 SCR 911, 2001 SCC 33 (Can LII); Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511, 2004 SCC 73 (Can LII).

As to the first question (is it still good law?) this is ultimately a question for the Supreme Court of Canada. The Court ducked the question in Rio Tinto but perhaps now the question needs an answer. The majority puts the question in terms of the conflict or tension between “the doctrine of the separation of powers” and the judicially developed duty to consult. And perhaps therein lies the difficulty. Words like ‘conflict’ or ‘tension’ suggest that these two ideas or constitutional principles are in opposition and that one must inevitably trump the other. But that is not a necessary understanding; a different understanding would suggest that the challenge is that of how to read these different parts of the Constitution together. This is pre-eminently a challenge for the Supreme Court of Canada. The Court rose to that challenge in 1990 in its Sparrow decision. There the Court quoted with approval Noel Lyon’s statement to the effect (at 1106) that s.35 “renounces the old rules of the game under which the Crown established courts of law and denied them to question sovereign claims made by the Crown”. The Court itself went on (at 1106) to “sketch the framework for an interpretation of the words ‘recognized and affirmed’.” In much the same way the challenge for the Court now is to sketch an approach to the interpretation of, and reconciliation between, the separation of powers and the duty to consult.

The principal problem with the doctrine of the separation of powers is that it simply doesn’t recognize a role for indigenous peoples; they are not comprehended in the terms legislative, judicial and executive branches of government. The Court needs to find a way to read that doctrine in a way that recognizes a role for indigenous peoples. The absence of explicit language in s.35 on this point should no more deter the Court in this interpretive exercise than it did in Sparrow. As the Court noted in Sparrow (at 1109):

There is no explicit language in the provision that authorizes this Court or any court to assess the legitimacy of any government legislation that restricts aboriginal rights. Yet, we find that the words “recognition and affirmation” incorporate the fiduciary relationship referred to earlier and so import some restraint on the exercise of sovereign power. Rights that are recognized and affirmed are not absolute. Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s. 91(24) of the Constitution Act, 1867. These powers must, however, now be read together with s. 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights.

The challenge for counsel on appeal will be to sketch a vision of how it might be possible (short of amending the Constitution) to operationalize consultation obligations within the legislative process. In doing so it will be necessary to keep in mind that the Court is unlikely to be prescriptive. Past decisions (see especially Haida) make it clear that it is up to the governments to structure an appropriate consultation process that allows the Crown to discharge its obligations.

The Court of course may choose to affirm the early line of authority notwithstanding the change in the constitutional order wrought by the 1982 amendments. But even if it does, that will not let governments off the hook because they at least need to ask whether this hoary principle (what Charles Wilkinson, Crossing the Next Meridian: Land, Water, and the Future of the West (1982) might refer to as one of the “Lords of Yesterday”) is consistent with the ideas underlying the Report of the Truth and Reconciliation Commission. In this context it may be worth looking at the consultation procedures adopted in Norway in 2005 (reproduced below) as part of a political agreement between the Saami and the government of Norway. The procedures lay out a framework for consultation between state authorities and the Saami Parliament. There is no equivalent to the Saami Parliaments of the Nordic countries in Canadian law and polity and careful thought would have to be given to who might be parties to such arrangements. This would undoubtedly be difficult and perhaps divisive as some will recollect from the Charlottetown Accord negotiations, see Native Women’s Assn. of Canada v. Canada, [1994] 3 SCR 627, 1994 CanLII 27 (SCC), (where NWAC was denied a seat at the negotiations to advocate for the ongoing application of the Charter to Aboriginal governments). But it may be worth a try. The proposition that there is no duty to consult in setting the most basic of ground rules for environmental protection because it is: (1) an infringement of the privileges of Parliament (read settler state), and (2) too difficult, is inconsistent with the goal of reconciliation and it is ultimately unacceptable.

In addition to considering the parties to the arrangements it will also be necessary to consider the scope of such arrangements. The guidelines from Norway suggest that while “The consultation procedures apply in matters that may affect Sami interests directly”, “[m]atters which are of a general nature, and are assumed to affect the society as a whole shall in principle not be subject to consultations”. This perhaps echoes, at some level, the distinction that Justice Pelletier makes in his judgement; but in thinking about the appropriate test we should not forget that apparently neutral rules of general application may have a disproportionately disadvantageous effect on indigenous communities: Dick v R, [1985] 2 SCR 309, 1985 CanLII 80 (SCC).

Thanks to my colleagues Jennifer Koshan, Shaun Fluker and Martin Olszynski for their comments on an earlier draft.

Text of the Norwegian Consultation Procedures between State Authorities and The Sami Parliament

Published under: Stoltenberg’s 2nd Government

As an indigenous people, the Sami have the right to be consulted in matters that may affect them directly. In order to ensure that work on matters that may directly affect the Sami is carried out in a satisfactory manner, the Government and the Sami Parliament agree that consultations between State authorities and the Sami Parliament shall be conducted in accordance to the annexed procedural guidelines.

As an indigenous people, the Sami have the right to be consulted in matters that may affect them directly. In order to ensure that work on matters that may directly affect the Sami is carried out in a satisfactory manner, the Government and the Sami Parliament agree that consultations between State authorities and the Sami Parliament shall be conducted in accordance to the annexed procedural guidelines.

Oslo, 11 May 2005 Erna Solberg
Minister of Local Government
and Regional Development Sven-Roald Nystø
President of the Sami Parliament

1. The Objective

The objective of the procedures for consultations is to:

  • contribute to the implementation in practise of the State’s obligations to consult indigenous peoples under international law.
  • seek to achieve agreement between State authorities and the Sami Parliament whenever consideration is being given to legislative or administrative measures that may directly affect Sami interests.
  • facilitate the development of a partnership perspective between State authorities and the Sami Parliament that contributes to the strengthening of Sami culture and society.
  • develop a common understanding of the situation and developmental needs of the Sami society.

2. The Scope

  • The consultation procedures apply to the Government and its ministries, directorates and other subordinate State agencies or activities.
  • The consultation procedures apply in matters that may affect Sami interests directly. The substantive scope of consultations may include various issues, such as legislation, regulations, specific or individual administrative decisions, guidelines, measures and decisions (e.g. in governmental reports to the Norwegian Parliament, the Storting).
  • The obligation to consult the Sami Parliament may include all material and immaterial forms of Sami culture, including music, theatre, literature, art, media, language, religion, cultural heritage, immaterial property rights and traditional knowledge, place names, health and social welfare, day care facilities for children, education, research, land ownership rights and rights to use lands, matters concerning land administration and competing land utilization, business development, reindeer husbandry, fisheries, agriculture, mineral exploration and extraction activities, wind power, hydroelectric power, sustainable development, preservation of cultural heritage, biodiversity and nature conservation.
  • In matters concerning the material  basis for the Sami culture, including  land administration, competing land utilization, and land rights, the obligation to consult the Sami Parliament is applicable to traditional Sami areas; this includes the counties of Finnmark, Troms, Nordland and Nord-Trøndelag, and the municipalities of Osen, Roan, Åfjord, Bjugn, Rissa, Selbu, Meldal, Rennebu, Oppdal, Midtre Gauldal, Tydal, Holtålen and Røros in the county of Sør-Trøndelag, and Engerdal and Rendalen, Os, Tolga, Tynset and Folldal municipalities in Hedmark county, and Surnadal and Rindal municipalities in the county of Møre- og Romsdal.
  • Matters which are of a general nature, and are assumed to affect the society as a whole shall in principle not be subject to consultations.

3. Information

  • State authorities shall fully inform the Sami Parliament about all matters that may directly affect the Sami, as well as about all relevant concerns and queries at all stages of the process.

4. Public disclosure

  • Information exchanged between State authorities and the Sami Parliament in connection with consultations may be exempted from public disclosure provided it is authorised by law. The principle of expanded public disclosure shall be practised. The final positions of the parties in individual matters shall be made public.

5. Regular meetings

  • Regular half-yearly meetings shall be held between the Minister responsible for Sami affairs and the President of the Sami Parliament. Other governmental ministers may attend these meetings when required. At these meetings, the situation and developmental needs of the Sami society, issues of fundamental and principle importance, and ongoing processes, shall be discussed.
  • Regular half-yearly meetings shall also be held between the Sami Parliament and the Interministerial Coordination Committee for Sami affairs. Among other things, information about relevant current Sami policy matters shall be provided at these meetings.

6. General provisions concerning the consultation procedures

  • The consultations carried out with the Sami Parliament, in application of the agreement on consultation procedures, shall be undertaken in good faith, with the objective of achieving agreement to the proposed measures.
  • State authorities shall as early as possible inform the Sami Parliament about the commencement of relevant matters that may directly affect the Sami, and identify  those Sami interests and conditions that may be affected.
  • After the Sami Parliament has been informed on relevant matters, it shall inform the relevant State authority as soon as possible whether further consultations are required.
  • The Sami Parliament can also independently identify matters which in its view should be subject to consultations.
  • If State authorities and the Sami Parliament agree that further consultations shall be held on a specific matter, they shall then seek   to agree on a plan for such consultations, including the dates and venues for further contact (e.g. meetings, video-conferences, telephone contact, exchange of written material), deadlines for responses, whether consultations at the political level are required and the type of political proceedings. Sufficient time shall be allocated to enable the parties to carry out genuine and effective consultations and political consideration of all relevant proposals. In case it is necessary for the Sami Parliament to consider and debate the matter concerned in a plenary session, such debate and consideration must be conducted as early as possible in the process.
  • When necessary, provisions shall be made for further consultations.  Consultations shall not be discontinued as long as the Sami Parliament and State authorities consider that it is possible to achieve an agreement.
  • When a matter is submitted for consideration to the Government (Cabinet), the ministerial submission document shall clearly inform other governmental ministries about the concluded agreement with the Sami Parliament and, if necessary, also to include information about matters where agreement has not been reached. In governmental propositions and reports to the national parliament, the Storting, on matters where the governmental position differs from that of the Sami Parliament, the views and positions of the Sami Parliament shall be reflected in the documents submitted.

7. Minutes

  • Minutes shall be kept of all consultation meetings between State authorities and the Sami Parliament. The minutes shall include a brief account of the subject matter, the views and positions of the parties, and the conclusions made at the meeting.

8. The need for studies/knowledge base

  • The Royal Ministry of Local Government and Regional Development and the Sami Parliament shall jointly appoint a specialized analysis group which, inter alia, shall submit an annual report concerning the situation and developmental trends of the Sami society on the basis of Sami statistics. The report shall be used as the basis for consultations on specific matters and for consultations concerning the developmental needs of the Sami society at one of the half-yearly meetings between the Minister responsible for Sami affairs and the President of the Sami Parliament.
  • When State authorities or the Sami Parliament consider there to be a need for background studies to strengthen the factual or formal basis for assessments and decisions, this shall be raised as early as possible, and both parties shall include questions concerning  the terms of reference for such studies into the consultation process. The Central Government and the Sami Parliament shall seek to reach an agreement on the terms of reference for such a study, and who shall carry out the study. The Central Government and the Sami Parliament are obliged to assist in providing information and materials necessary for carrying out the study.

9. Consultations with other affected Sami entities

  • In matters where State authorities plan to consult local Sami communities and/or specific Sami entities or interests that may be directly affected by legislation or administrative measures, State authorities shall as early as possible notify which Sami entities or organizations it regards as affected by the matter, and discuss the coordination of such consultation processes with the Sami Parliament.

This post may be cited as: Nigel Bankes “The Duty to Consult and the Legislative Process: But What About Reconciliation?” (21 December, 2016), online: ABlawg,
http://ablawg.ca/wp-content/uploads/2016/12/Blog_NB_Courtoreille_MCFN_FCA.pdf

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Anti-Terrorism Law Reform: Required Changes to the Terrorism Financing Provisions

Tue, 12/20/2016 - 10:00am

By: Hayleigh Cudmore, Elliot Holzman, Andrea Mannell, and Sarah Miller

PDF Version: Anti-Terrorism Law Reform: Required Changes to the Terrorism Financing Provisions

Provisions Commented on: Sections 83.02, 83.03 and 83.04, Criminal Code, RSC 1985, c C-46

Editor’s Note: This is the third in a series of three posts on Reviewing Canada’s National Security Framework.

This law reform proposal is focused on the “Financing of Terrorism” provisions in the Criminal Code of Canada, RSC 1985, c C-46. The government is currently engaged in public consultations and substantive review of the controversial aspects of Bill C-51, the Anti-terrorism Act, 2015. The purpose of this post is to consider the structural problems within the Criminal Code and the current anti-terrorism financing regime, discuss the apparent shortcomings in bringing prosecutions under this regime and provide recommendations to improve the efficacy of these provisions.

The particular provisions of the Criminal Code which prohibit terrorism financing – sections 83.02, 83.03 and 83.04 – were neither enacted nor varied by Bill C-51. These provisions came into force as part of the Anti-terrorism Act, SC 2001, c 41, in response to the terrorist attacks of September 11, 2001 and the following UN Resolution 1373 on the financing of terrorist acts. Despite the fact that the provisions are not anchored to Bill C-51, it is still a good opportunity to revisit these provisions and restructure this part of the Code.

Why the Need to Review Terrorist Financing Laws?

The financing of terrorist organizations and terrorist activities is foundational to the development of terrorism as a viable pursuit. With access to money, terrorists’ organizations can provide support and training to recruits, provide safe houses and execute attacks. Restricting the flow of money into terrorist organizations is arguably one of the most effective counter-terrorism measures, providing that the state can effectively do so. The recruiting, training, communication resources and support leading up to a terrorist attack costs terrorist groups money. Terrorist attacks have been questionably labelled “inexpensive” when you do not calculate those external costs (see Shima D. Keene, Threat Finance: Disconnecting the Lifeline of Organised Crime and Terrorism (Burlington: Gower Publishing Company, 2012) at 96).

Attacks therefore become more difficult to plan and execute when resources are limited and monitored appropriately by the state.

Further to the government’s desire to review and address Bill C-51, there are other political aspects which indicate an interest in this issue:

  1. Government of Canada’s National Security Green Paper, 2016: Our Security, Our Rights, Background Document – the Background Document provides information for public engagement and highlights the importance of both Terrorist Financing (pages 51-54) and Procedures for Listing Terrorist Entities (pages 47-50);
  2. Minister of Justice and Attorney General of Canada Mandate Letter – the mandate letter from Prime Minister Trudeau which instructs the Minister to review the Code to ensure Charter compliance, identify duplicitous provisions, and propose amendments if courts have rendered a provision unconstitutional;
  3. The Financial Action Task Force (FATF) recent publication of their Guidance on Criminalising Terrorist Financing (Recommendation 5) – Canada is a member of the FATF (an inter-governmental body established to promote effective implementation of legal measures for combating terrorist financing, inter alia), and their paper shows that the international community is concerned and engaged on the topic of preventing terrorist financing. Canada, as a partner to some of the most powerful nations on the planet and a key member in international politics, should be able to meet international standards and recommendations as found in this FATF publication.

Financing Terrorism

Terrorist organizations are often compared to other organized criminal groups, such as mobs and gangs. But the financing of terrorism is different from traditional crimes. Terrorists collect money and property and use it in order to execute their crimes, but the crime itself yields no personal benefit. Traditional crimes executed by other organized criminal groups, such as fraud or the sale of drugs, results in ‘proceeds of crime’ whereby the purpose of the crime is to obtain money. Historically, Canada has not prosecuted the accumulation of money unless the money was obtained by criminal means. It is now our political and international obligation through UN Resolution 1373 to have criminalization specific to the funding of terrorism. This key difference in the crime requires specific criminal provisions in the Criminal Code, which address the accumulation of materials to support tactical terrorist activities.

Unfortunately, prosecutions have been limited in regards to terrorism financing. The current Criminal Code provisions which prohibit financing of terrorists, terrorist groups or terrorist activities are ineffective and are in part unconstitutional. If we can change these provisions so that our police and investigative services can effectively intercept funds going to terrorist groups, it affects the ability of the group to recruit and radicalize individuals and prevents them from being able to plan, prepare and execute terrorist attacks. 

Jurisprudence in Canada

The limited history of jurisprudence in Canada is indicative of an issue with the current anti-terrorism financing regime. This is due to a plethora of issues, from jurisdictional problems with tracking money, to lack of resources, oversight and investigative capabilities, to a burdensome amount of financial information to review.

In the fifteen years since the “Financing of Terrorism” section of the Criminal Code was established, there have been two successful terrorism financing cases:

R v Khawaja, 2012 SCC 69 (CanLII), A Canadian Muslim became associated with a terrorist cell in the United Kingdom and provided financial support, inter alia, for their activities. Convicted at trial under section 83.03(a) in 2009.

R v Thambaithurai, 2011 BCCA 137 (CanLII), A Canadian of Tamil (Sri Lankan) origin was fundraising and collecting money for the World Tamil Movement that was destined for the Liberation Tigers of Tamil Eelam (a “listed entity”, part of the definition of “terrorist group” in section 83.01). Plead guilty to an offense under section 83.03(b) in 2010.

After review of the provisions and the case law, we have identified two key areas of concern in particular which contribute to a poor prosecution record in Canada for terrorism financing.

(1) Investigations by FINTRAC

The Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) is the financial intelligence unit in Canada responsible for investigating, inter alia, terrorism financing. FINTRAC reports disclosing 287 cases related to terrorist financing between 2007 and 2011, increasing regularly to 337 disclosures in the 2014-2015 year according to their 2015 Annual Report. Although FINTRAC is increasing their efforts to track funds and disclose concerning financial details, the results of these efforts seem to be non-existent or at best simply difficult to discern due to lack of transparency (see Vassy Kapelos, Why so few terror financing charges and convictions? Good luck finding out). Despite vast amounts of investigative detail, Canada’s investigative structure through FINTRAC has not yielded any traceable, successful prosecutions. The lack of prosecutions is key, as that is one way for the public to be able to measure outcomes of FINTRAC’s mostly secretive work. Criminal prosecution is also often relied upon as deterrence mechanism (see Government of Canada, Mandatory Minimum Penalties: Their Effects on Crime Sentencing Disparities, and Justice System Expenditure), which is obviously unable to work if any interception by FINTRAC is of a secretive nature. Of the two cases listed above, it appears neither had investigative material sourced from FINTRAC. And it is not possible to ascertain whether any other benefit has arisen from these disclosures.

FINTRAC and police services work in close cooperation, but that close cooperation should be working to ensure disclosures are resulting in charges that can be prosecuted. There should be more transparency and collaboration between these institutions so we – the public – can identify how these investigations are contributing to Canadian security, and so that we can ensure that our government is addressing the crime of terrorist financing as a foundational issue to all terrorism activities. These details should also be used to validate the ongoing work of FINTRAC, who – for at least the purposes of this review – has shown to be of no evidentiary value.

(2) Drafting Language of the Criminal Code Provisions

The main criticisms of the language of sections 83.02 to 83.04 is that they are ineffective, lacking clarity, duplicitous or redundant, and partially unconstitutional, all of which arguably contribute to how rarely they are used. In their current form they create hurdles for police and investigative bodies to be able to bring charges that can be prosecuted. The text of these provisions is as follows:

Providing or collecting property for certain activities

83.02 Every one who, directly or indirectly, wilfully and without lawful justification or excuse, provides or collects property intending that it be used or knowing that it will be used, in whole or in part, in order to carry out

(a) an act or omission that constitutes an offence referred to in subparagraphs (a)(i) to (ix) of the definition of terrorist activity in subsection 83.01(1), or

(b) any other act or omission intended to cause death or serious bodily harm to a civilian or to any other person not taking an active part in the hostilities in a situation of armed conflict, if the purpose of that act or omission, by its nature or context, is to intimidate the public, or to compel a government or an international organization to do or refrain from doing any act,

is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years.

Providing, making available, etc., property or services for terrorist purposes 

83.03 Every one who, directly or indirectly, collects property, provides or invites a person to provide, or makes available property or financial or other related services

(a) intending that they be used, or knowing that they will be used, in whole or in part, for the purpose of facilitating or carrying out any terrorist activity, or for the purpose of benefiting any person who is facilitating or carrying out such an activity, or

(b) knowing that, in whole or part, they will be used by or will benefit a terrorist group,

is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years.

Using or possessing property for terrorist purposes

83.04 Every one who 

(a) uses property, directly or indirectly, in whole or in part, for the purpose of facilitating or carrying out a terrorist activity, or

(b) possesses property intending that it be used or knowing that it will be used, directly or indirectly, in whole or in part, for the purpose of facilitating or carrying out a terrorist activity,

is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years.

Section 83.03(b) of the Criminal Code

 Key to the discussion of the modernization of the Criminal Code and the review of anti-terrorism laws is a consideration of the definition of “terrorist group”. “Terrorist group” is an essential element of the section 83.03(b) offense and is defined in section 83.01(1). Terrorist group includes in its definition “a listed entity”. The listing of an entity means that the entity is regarded as a terrorist group.

The process of how a group becomes a listed entity is explained in section 83.05. In theory, deeming an entity to be a terrorist group through the listing process simplifies investigations and prosecutions under section 83.03 because the prosecutor does not need to independently prove that the individual or group is a terrorist group. However, currently listings are not required to be proven on a beyond a reasonable doubt standard. The standard to have an entity listed is “reasonable ground to believe”. This is a much lower standard than the standard for criminal conviction and yet is being applied to an essential element of terrorist offences to seek criminal convictions, thereby sidestepping the high standard of proof that would otherwise be required.

The process for listing also has no procedural requirement to notify the group or individual, and as a result they also have no opportunity to respond. In the September 2016 Green Paper on National Security, the Government defended its approach to listing, maintaining that the secrecy involved in the listing process prevents the entity from removing its Canadian assets from Canada before they are frozen by the listing (at 48). This is also problematic, as it bristles against constitutional rights to liberty and the potential for infringement of section 7 Charter rights (see Craig Forcese & Kent Roach, “Yesterday’s Law: Terrorist Group Listing in Canada” (2016) WP2016-34 Social Science Research Network 17). To mitigate potential impacts of the listing process on the Charter rights of individuals and groups, the government permits the listed entity to apply to be de-listed. In the event that the de-listing application is refused, the listed entity may seek judicial review. This redemption is impractical and disproportional, and harks of guilty until proven innocent.

The Green Paper seemed to indicate that the government does not view a serious issue with the listing of terrorist entities (at 48). Canada can continue to risk an unconstitutional finding by the courts and rely on the listing to streamline prosecutions and strengthen other Acts outside of the Criminal Code, but including the “terrorist group” term in the “Financing of Terrorism” provision leaves this area of the Code at greater risk in an area already fraught with failure. In the present era when Canada is under scrutiny for unnecessarily curtaining civil liberties under Bill C-51, continued commitment to the listing of entities will likely create ongoing criticisms of the government in addition to the prosecutorial issues.

To ensure a better chance of success with prosecutions, the unconstitutional elements of section 83.03(b) should be removed. However, simply removing the term “terrorist group” from this one section does not address the ramifications a wrongfully listed group would face once their name has been tarnished by the listing, and does not adequately protect Charter rights elsewhere.

We expect that the government will be very hesitant to remove the listing of terrorist entities, but there is nothing in our current jurisprudence that shows we should keep the listing, especially within the terrorism financing provisions. In the Thamabaithurai terrorist financing case, the funds were going to a listed entity, but Thambaithurai plead guilty – there was no streamlining of the prosecution and likely the Tamil Tigers would have been admitted in the Agreed Statement of Facts as a terrorist group if that was a required element. Similarly, in Khawaja, the prosecutor did not rely on the listed entity option either. Certainly, it cannot be argued that it is a high burden on the Crown to prove that established terrorist groups are actually terrorist groups. And logically, most of the financial dealings will be with third parties that are unlisted as it was in Thambaithurai with the World Tamil Organization. Generally, in all of the 26 terrorism prosecutions to date in Canada, only six have relied on listings (Forcese & Roach, “Yesterday’s Law” at 8). This means that the listings are used rarely and do not provide a great strength to our prosecution service from an efficiency standpoint, and the prosecutors are relying on a low threshold of proof to prove their case which is contrary to our rule of law and constitution. There is not a strong argument for keeping the listings and a very worrisome constitutional question to answer if reliance continues.

Section 83.02 of the Criminal Code

Section 83.02 includes a higher mens rea requirement of specific intent in the chapeau of the provision, which increases the burden on the Crown:

83.02 Every one who, directly or indirectly, wilfully and without lawful justification or excuse, provides or collects property intending that it be used or knowing that it will be used, in whole or in part, in order to carry out…

This includes two mens rea or mental element components – that the accused “willfully” provided the property and that the accused knew it was to be used for a terrorist activity, etc. The issue of knowing how the property would be used (also found in sections 83.03 and 83.04) has been identified in American jurisprudence as an obstacle to prosecuting terrorism financing provisions. There have been cases in the United States where courts have interpreted statutory language that is very similar to ours to mean that the provision of property had to be given with a specific intent to facilitate a terrorist activity (i.e. “in order to carry out”). It has been recommended by scholars on the subject that the language be amended so that “the government is not required to prove that the defendant intended to further the aims of a foreign terrorist organization by the provision of material support” (see Jimmy Gurule, Unfunding Terror: The Legal Response to the Financing of Global Terrorism (Massachusetts: Edward Elgar Publishing, Inc, 2008) at 387). This does not mean that terrorism financing must be a strict liability offense, but restructuring the language to ensure courts do not interpret a higher level of intent than what the legislature really intends to be the threshold.

If it is easier to prove the mens rea element of the offense, it is more likely that we will be able to bring more successful prosecutions to court. It could also strengthen the bargaining power of the police and investigative bodies when disrupting financing activities, even if they are not seeking a prosecution, since the risk of a successful prosecution will be greater. Further, the mens rea component is different and of a higher level in section 83.02 than the following two sections, meaning that it would be foolish to charge under section 83.02 where the burden is greater on the prosecutor. There seems to be no reason to create this distinction. The provisions should thus be drafted to be more consistent in the mens rea component.

Section 83.03 of the Criminal Code

The final issue with the current terrorist financing provisions is the duplicity surrounding three supposedly discrete offenses. Besides the difference in mens rea between sections 83.02 and 83.03, these provisions would seem to capture the same criminal activity (notwithstanding the inverse of “provide” and “collect” between the two sections). Consider you are a terrorist and have property available for use for your terrorist cell. Should the Crown proceed under section 83.03, which is collecting/providing property, or under section 83.04, which is using/possessing property? We assume they will not proceed under 83.02 due to the higher mens rea burden, but likely it would be difficult and confusing and require judicial acrobatics to determine whether or not the activity is captured by the criminal offense of providing or using the property. Consideration should also be made as to whether you could convict someone under both provisions for likely the same activity and whether this would an issue of “double jeopardy”, contrary to section 11 of the Charter. The confusion and redundancy of these provisions do not help prosecutions. Certainly there is a counter argument here that these provisions capture discrete activities, but the fact that it is questionable provides doubt and confusion in an area already fraught with prosecutorial hurdles. Clarity surrounding these charges is required so that prosecutions can be clear and linear.

These provisions should be re-drafted to maximize the likelihood of prosecutorial success.

Recommendations

The Standing Committee on Finance, under the previous Conservative government, released a review of Terrorist Financing in Canada and Abroad: Needed Federal Actions in June 2015. That committee review yielded 15 recommendations. In coordination with our above analysis, we would recommend that the new Liberal government consider many of these recommendations. Particularly, we find it important to continue working on strengthening the terrorism financing prosecutorial process from investigation to conviction, acknowledging that terrorism financing is a serious concern in our society. Further to the recommendations provided, we believe it is essential to create new criminal provisions which give police the ability to lay charges against individuals who have been investigated and disclosed by FINTRAC. Key to success is a full review by government of FINTRAC’s service to assist them in making disclosures which can be prosecuted, removing the unconstitutional listing of entities, creating a consolidated terrorism financing provision which has a reasonable level of mens rea to capture the offense, is consistent in its use of language and is constitutional. An effective anti-terrorism financing regime requires an ability to enforce laws and collect and share real-time intelligence evidence (see Anne L. Clunan, “US and International Responses to Terrorist Financing” in Jeanne K. Girald and Harold A. Trinkunas eds, Terrorism Financing and State Responses (California: Stanford University Press, 2007) at 261). This is something for Canada to strive for in creating new laws to combat terrorism financing but certainly not where we stand today.

This post may be cited as: Hayleigh Cudmore, Elliot Holzman, Andrea Mannell & Sarah Miller “Anti-Terrorism Law Reform: Required Changes to the Terrorism Financing Provisions” (12 December, 2016), online: ABlawg,
http://ablawg.ca/wp-content/uploads/2016/12/Blog_Terrorist_Financing.pdf

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Acting Out of Order: The Need for Real Time Oversight of CSIS Judicial Warrants

Mon, 12/19/2016 - 10:00am

By: Navreet Bal, Tim Horon, Tiana Knight, Ryan Shudra, and Jessie Sunner 

PDF Version: Acting Out of Order: The Need for Real Time Oversight of CSIS Judicial Warrants

Provisions Commented On: Sections 12 to 12.2 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23

Editor’s Note: This is the second in a series of three posts on Reviewing Canada’s National Security Framework.

A recent Federal Court ruling, which has been referred to in the media as the “Metadata Case”, has renewed questions about the secrecy of judicial warrants granted to the Canadian Security Intelligence Service (CSIS) as well as CSIS’s duty of candour to the Court (see In the Matter of an Application by [REDACTED] for Warrants Pursuant to Sections 12 and 21 of the Canadian Security Intelligence Act, RSC 1985, c C-23 and In the Presence of the Attorney General and Amici and In the Matter of [REDACTED] Threat-Related Activities,(2016) FC 1105). This post will discuss the specific difference between review and oversight in Canadian national security law, provide an overview of recent Federal Court decisions related to CSIS judicial warrants, and look to future options related to CSIS judicial warrants.

In this post, we suggest that a robust system of real-time operational oversight is needed throughout Canada’s national security agencies, including CSIS, in order to improve the coordination and effectiveness of these agencies and to ensure the protection of citizens’ civil liberties. Particularly, we will be focusing on the oversight needed in the CSIS judicial warrant architecture. We propose the return of the Office of the Inspector General – which was eliminated in 2012 – that would act as an active, expert, and full-time oversight body over CSIS and handle real time oversight of judicial warrants. We also suggest the introduction of a special advocate regime within the judicial warrant process to act for the targets of CSIS warrants.

Distinction between “Review” and “Oversight

The terms “review” and “oversight” are often used interchangeably in the context of Canadian national security. However, these terms refer to two fundamentally different processes. Review is a retroactive check by an independent body on whether the agency in question carried out its functions in accordance with the law. Oversight is real-time operational control providing coordination of security and intelligence services. Canada has traditionally focused on review with agencies like the Security Intelligence Review Committee (SIRC) to provide after the fact review of intelligence activities.

Background of CSIS Judicial Warrants

Canada’s primary intelligence service, CSIS, is empowered under s 12 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23 (the CSIS Act), to “collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada….” Under s 21 of the CSIS Act, CSIS may seek a warrant from the Federal Court where it “believes, on reasonable grounds, that a warrant under this section is required to enable the Service to investigate a threat to the security of Canada.”

CSIS warrants are adjudicated in secret, with only the governmental body being represented. The target of the warrant will not only likely never know that they were the target of such a warrant, but they will also have no one advocating for their rights or for any limitations to authorized breaches of their privacy. Due to the secret nature of this process, there is not much known about the manner in which CSIS warrants operate.

Bill C-51, the Anti-terrorism Act, 2015, introduced an additional provision to the CSIS Act, s 12.1(3), which allows the authorization of Charter breaches by obtaining a judicial warrant. The section provides as follows:

The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant issued under section 21.1.

This power is unprecedented because no other government body has ever been granted powers to obtain pre-authorization to infringe upon the privacy and Charter rights of citizens.

The issue in the Metadata Case stemmed from “third party information” that CSIS had been collecting relating to individuals who were currently under investigation. The judgement defines “third party information” as “information unrelated to the threat”, and noted that such information “is frequently collected through the operation of warrants” (Metadata Case at para 31). This information was stored at the Operational Data Analysis Centre (ODAC), however the Court was not informed of this storage (at paras 11, 12). This situation was reported by SIRC in its 2014-15 Report and brought about strong comments from Justice Noël about the duty of candour CSIS owes to the Court (Metadata Case at paras 86-108). In the case of Re: X (In the Matter of an application by [REDACTED] for a warrant pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23; And In the Matter of [REDACTED], 2013 FC 1275 (Can LII) at para 118), Justice Mosely also had strong words for CSIS and their duty to the Court.

Why We Need Oversight of Judicial Warrants

It is of the utmost importance to have accountability of government organizations, and this extends to oversight for the judicial warrants that CSIS seeks. As observed in the above example, CSIS has been known to act beyond the exact specifications of their warrants by taking and retaining information that is outside the scope of what was granted to them through the warrant. Also, CSIS does not have a pristine record with respect to candour with the courts and sharing of information with SIRC.

These incidents have resulted in some criticism from both the SIRC and the courts. Implementing strong oversight mechanisms within the judicial warrant system may bring this process onto firmer grounds. One of the key issues with the judicial warrant process is its secretive nature and the tendency for CSIS to keep much of its information confidential in the interest of protecting national security information. By implementing an oversight system with unfettered access to all CSIS activities, CSIS could not only be held accountable, but there would be a better understanding of how to keep them from breaching the subsequent warrant. Having oversight would help make the system much more honest, effective, and efficient and would allow the Canadian public, other intelligence agencies, and the courts to have more confidence and trust in CSIS itself and in our intelligence organizations as a whole. This would allow CSIS to operate with less suspicion, thereby enabling them to focus more on intelligence gathering and action instead of needing to justify their every move.

Looking Forward

As noted above, under s 12.1(3) of the CSIS Act, CSIS may contravene Charter rights in taking measures to reduce threats to the security of Canada where they obtain a warrant allowing them to do so. Under s 12.1(1) of the Act, there must be reasonable grounds to believe that “a particular activity constitutes a threat to the security of Canada”; if that threshold is met, then CSIS may take measures to reduce the threat either inside or outside of Canada. These actions are limited to those that are reasonable and proportional for the circumstances (CSIS Act, s 12.1(2)). Additionally, CSIS may not cause intentional death or bodily harm, willfully attempt to obstruct justice or violate the sexual integrity of the target of the threat disruption (CSIS Act, s 12.2).

The portion of Bill C51 adding s 12.1(3) to the CSIS Act attracted much attention in regards to the potential uses of this provision and the dangers of pre-authorizing Charter-breaching activities. While SIRC has stated that general “threat disruptions” have occurred (see SIRC Annual Report 2015-2016: Maintaining Momentum at 9), there have not been any warrant applications of this kind since the legislation’s assent in June of 2015.

The Metadata Case is an example of a successful SIRC review. However, the cost of using only a review body is that SIRC is always looking at the previous conduct of CSIS. In terms of time periods, SIRC may be looking at incidents from one week ago to one year ago, but always after the event has taken place. In the Metadata Case, it was shown that CSIS was able to collect metadata for a period of time before SIRC became aware of the unauthorized retention of data. Once the warrant is issued, the only mechanism currently in place to ensure the actions of CSIS are compliant with the warrant is SIRC, and they did not find the breech immediately but after this data had already been collected. When looking specifically at “threat disruption powers”, the warrants associated with Charter infringing activities have the potential to be problematic. This can be explored through the use of the example the government provided in the 2016 National Security Green Paper, Our Security, Our Rights (at 22):

CSIS identifies a website that has videos supporting terrorist groups and promoting extremism. The website is posted outside of Canada and contains videos on how to make explosives. CSIS applies for a threat reduction warrant through the Federal Court to modify the content related to making explosives on the website. CSIS would then “replace some of the terrorism related details with misinformation that will make the devices fail.”

Certain questions arise from this hypothetical, such as: how specific will the modifications be? Will other aspects of the website be modified? Are contingencies in place if the individuals of interest discover the changes? Once the warrant is issued then the next opportunity to evaluate the operation would be through SIRC’s annual review of CSIS activities. This would be the best case scenario in that SIRC catches the breach, as any organization with limited resources could potentially miss something during review. While the use of threat disruption through judicial warrants hasn’t yet occurred, there remain important considerations given the recent Federal Court decisions discussed above. Future warrant applications may require a form of oversight to ensure that throughout the intelligence gathering process, CSIS maintains compliance.

Recommendations

SIRC has proven to be an effective review body when judged in light of the limitations of its resources and access to information. And yet, SIRC has raised concerns in recent annual reports that they encountered significant delays and problems with respect to documentation provision by CSIS (see SIRC Annual Report 2013-2014: Lifting the Shroud of Secrecy at 19). In the most recent report to the Minister, SIRC noted that the lack of a clear process for seeking legal opinions within CSIS “can create scenarios where legal clarity on certain matters is jeopardized.” (see SIRC Annual Report 2015-2016: Maintaining Momentum under Findings).

The Office of the Inspector General served as a full time watchdog that provided an “early warning system” to point out issues to the Minister in an expedited manner (see “Axing CSIS watchdog ‘huge loss,’ says former inspector general”, CBC News). The previous government scrapped the position in 2012 as part of an omnibus budget implementation bill (see Craig Forcese, Fewer Eyes On The Spies: Going Backwards On Accountability). The budget for the staff of eight only amounted to about $1 million. Compared to the potential layer of oversight this Office could provide, that is a bargain to the taxpayer – as Forcese argues, consider that the Arar Commission cost over $20 million (plus a $10 million settlement with Mr. Arar).

The reintroduction of the Inspector General’s office would certainly result in an infusion of oversight with an immediate impact. There was very little evidence to suggest that the role of the Inspector General was redundant with SIRC’s functions. The reintroduction of the Inspector General provides an opportunity to have an active, expert, and full-time oversight body that could handle real time oversight of judicial warrants. Not only could the Office of the Inspector General facilitate this potentially complex procedure, they could also serve as an ongoing oversight mechanism to preclude another Metadata fiasco, for example.

In addition to the reintroduction of the Inspector General model, it is also necessary to provide a greater system of checks and balances within the overall process of granting judicial warrants. As mentioned earlier, the current regime of granting judicial warrants is carried out in secret court hearings, where no counsel is provided to advocate for the rights of the individual target against whom the judicial warrant is being sought. In order to address the issues with the current process, a special advocate regime, similar to the one provided for by section 85 of the Immigration and Refugee Protection Act, SC 2001, c 27 should be adopted.

A special advocate regime should be adopted in order to give the individual against whom the judicial warrant is being sought, a voice through an advocate protecting their rights in the secret hearing process. This is a very important element because unlike in a criminal process, where the accused has the opportunity to go to trial and challenge the infringement of their freedoms directly, during the judicial warrant process the individual in question is unaware of their freedoms being infringed. Thus, the special advocate regime would provide that much needed voice and opportunity to challenge the infringement of the rights and freedoms of an individual who is not even aware that such a situation is taking place. This regime would also give CSIS a form of legitimate pushback during secret hearings in order to test the strength of their evidence and determine whether there is enough information to obtain a warrant against the individual in question. This barrier to obtaining a judicial warrant may also be just enough to require CSIS to think twice about the necessity of using measures that require obtaining a judicial warrant due to the pushback they will receive. Instead, they may become more inclined to consider alternative measures that can stand to achieve their intended goal without unnecessarily infringing an individual’s rights and also avoiding a potentially lengthy and unsuccessful secret hearing process. In cases where oversight or review of CSIS behavior may fall short, this potential hurdle to the process of obtaining a judicial warrant may help provide yet another interim safeguard against unauthorized or abusive use of power by CSIS.

The current government’s proposed creation of the National Security and Intelligence Committee of Parliamentarians (NSICOP) in Bill C-22 would neither conflict with the reintroduction of the Office of the Inspector General nor with the proposed special advocate regime during the judicial warrant process. NSICOP’s mandate will be to provide oversight of all 17 federal agencies involved in security issues and to give elected officials more access into the world of national security. The Inspector General fulfills the real-time operational oversight role needed in CSIS and could effectively liaise with the NSICOP to ensure an objective flow of specifically CSIS related information. In addition, the special advocate regime would be a precursory tool, which only stands to add to the oversight powers of NSICOP. Therefore, these suggestions would work in conjunction with NSICOP’s mandate to oversee the patchwork of Canadian national security organizations, specifically in dealings with CSIS.

Conclusion

Bill C-51 gave CSIS unprecedented powers. With great power comes great responsibility. Thus, it is now more important than ever to ensure that we have effective oversight mechanisms embedded within our national security framework so that we do not risk civil liberties in the name of national security or any other interest for that matter. If we are giving an agency the power to circumvent fundamental civil liberties, including even those protected by the Charter, then we need to make sure that CSIS does not overstep. We also need to make sure that whoever we task with this oversight role has the experience, skills, access, and power necessary to intervene and stop any acts that may violate citizens’ rights or may not actually be in the best interests of Canada’s national security. The proposed return of the Office of the Inspector General and the introduction of a special advocate regime in the judicial warrant process could help provide this salient oversight function needed to counter emerging threats to Canada while maintaining overall public confidence in not only CSIS, but all of our national security organizations.

This post may be cited as: Navreet Bal, Tim Horon, Tiana Knight, Ryan Shudra, & Jessie Sunner “Acting Out of Order: The Need for Real Time Oversight of CSIS Judicial Warrants” (19 December, 2016), online:
ABlawg, http://ablawg.ca/wp-content/uploads/2016/12/Blog_CSIS_Warrants.pdf

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ABlawg’s Clawbie Nominations for 2016

Fri, 12/16/2016 - 10:30am

PDF Version: ABlawg’s Clawbie Nominations for 2016

Like many of our colleagues at law schools across the country, this year the University of Calgary Faculty of Law has been working towards developing our response to the Calls to Action of Canada’s Truth and Reconciliation Commission. In the spirit of the Commission’s significant work, our nominations for the Clawbies this year are law blogs that have made us think deeply and creatively about reconciliation:

We encourage our readers to submit your nominations for the Clawbies by following the instructions here.

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ABlawg’s Year in Review, 2016

Fri, 12/16/2016 - 10:00am

PDF Version: ABlawg’s Year in Review, 2016

ABlawg is pleased to provide this compilation of highlights from 2016, consisting of some statistics and synthesis of our bloggers’ contributions in substantive areas of law this past year.

The Numbers

ABlawg has published one hundred and fifty (150) posts so far in 2016, with more to come before we take our annual holiday hiatus. The post that generated the most hits this year was Nigel Bankes’ The Termination of Power Purchase Arrangements in Alberta: What is the Legal Position and What are the Implications of Termination?, with 6071 views overall, showing the appetite for informed public policy discussions in Alberta. The runners-up were three posts on the Ghomeshi trial: Joshua Sealy-Harrington’s Mastery or Misogyny? The Ghomeshi Judgment and Sexual Assault Reform, with 5178 views overall, Jennifer Koshan’s Reflections on Week One of the Ghomeshi Trial, with 3798 views overall, and Alice Woolley’s What Ought Crown Counsel to do in Prosecuting Sexual Assault Charges? Some Post-Ghomeshi Reflections, with 2827 views overall. “Mastery or Misogyny” also established a new record for daily hits to ABlawg, with 2989 views of our site the day it was posted.

The post that spurred the most comments in 2016 was Martin Olszynski’s Northern Gateway: Federal Court of Appeal Applies Wrong CEAA Provisions and Unwittingly Affirms Regressiveness of 2012 Budget Bills. This post led to an intense debate on the proper interpretation of the Canadian Environmental Assessment Act, 2012, with Martin’s position being recently adopted by both the appellant and respondent before the Supreme Court of Canada, as discussed in his most recent comment on that post.

Topical Contributions

Administrative Law

Alberta was the source of at least two important judgments from the Supreme Court of Canada in administrative law during 2016. The Supreme Court reversed the Alberta Court of Appeal in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd,  2016 SCC 47 (Can LII), a case involving property tax assessment in Alberta. Shaun Fluker’s post The Supreme Court of Canada (By a Slim Majority) Confirms the Presumption of Deference in Alberta explores what the Court’s 5:4 split reveals for the presumption of deference which has dominated substantive judicial review since the Court’s 2008 decision in Dunsmuir. Alice Woolley’s The Dangers of Inconsistency (and Consistency) in Supreme Court Jurisprudence examines the Supreme Court’s decision in Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 (CanLII), a case involving solicitor-client privilege to refuse the production of documents under freedom of information legislation, and comments on the Court’s recent struggle for coherency in its standard of review jurisprudence. Shaun’s post Does Judicial Review Apply to Decisions Made by Religious Groups? suggests the Supreme Court may soon be returning to Alberta if it grants leave to appeal in Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII), where the Court of Appeal purported to extend the scope of judicial review to decisions made by non-statutory entities who are not exercising powers sourced in legislation.

Criminal Law

As noted in our post commemorating the National Day of Remembrance and Action on Violence Against Women on December 6, ABlawg published several posts this year dealing with gender-based violence. We are also in the midst of a series of posts on Bill C-51, the Anti-terrorism Act, in which Michael Nesbitt and his students in the Criminal Law & Policy Lab: Terrorism Law & Reform report on their submissions to the federal government’s review of Bill C-51 (see here, here and here). Erin Sheley posted on a range of criminal law topics, from the sex offender registry to animal cruelty law to jury trials. And Lisa Silver wrote a series of posts exploring what it means to be “modern” in our approach to criminal law, including commentary on the Supreme Court’s decisions in R v DLW (involving the Criminal Code’s bestiality provisions; see also Joshua Sealy-Harrington and Evan Choate’s post on that case here); R v Villaroman (involving the assessment of circumstantial evidence); and R v Anthony-Cook (involving joint sentencing submissions and the community’s sense of justice.

Constitutional / Human Rights Law

ABlawg published a number of posts in 2016 on the constitutional right to assisted dying, from Elliot Holzman’s post considering the Supreme Court’s decision granting the federal government more time to amend the Criminal Code in Carter II, to Jennifer Koshan’s posts on interim applications for judicial authorization of constitutional exemptions (here and here), and a comment on Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying).

We also published a number of posts dealing with freedom of expression issues, with Emily Laidlaw examining defamatory Facebook posts; Hasna Shireen considering publication bans and privacy rights, Ola Malik, Jeff Watson and Holly Wong writing about municipal regulation of hate speech, and Linda McKay-Panos exploring the application of protest rights here and here.

Natural Resources, Energy and Environmental Law

This proved to be an important and busy year in the electricity sector in Alberta. Nigel Bankes’ popular backgrounder on The Termination of Power Purchase Arrangements (PPAs) was followed up with his post on the Attorney General’s application for a declaration of invalidity with respect to the “more unprofitable” language of the so-called “Enron amendment”. November brought a flurry of changes in energy policy and energy markets which Nigel followed with posts on Bill 27, The Renewable Electricity Act, the proposal to add a capacity market to Alberta’s energy-only market, and some PPA arbitrations.

Climate change was also an area that attracted a great deal of attention from the courts and the legislatures this year. Sharon Mascher posted on the Federal Court of Appeal’s Syncrude v Canada decision (which demonstrated just how far the federal government can go with the criminal law power to regulate greenhouse gases), and Nigel Bankes provided detailed analysis of the new oil sands emissions legislation.

Martin Olszynski and Sharon Mascher joined forces to tackle the complex legal issues raised in Gitxaala Nation v Canada, 2016 FCA 187 (CanLII), dealing with the Northern Gateway pipeline approval. In his post, noted above, Martin analyzed the Federal Court of Appeal’s approach to the Canadian Environmental Assessment Act, 2012 an approach which led to the substantive challenges brought against the Joint Review Panel’s report, and consequently the Cabinet’s determination, being dismissed. Sharon’s post focused on the Federal Court of Appeal’s reasoning in the Gitxaala decision relating to the duty to consult. This aspect of the decision is of lasting significance as it provides substantive guidance on what meaningful consultation with Aboriginal people looks like.

Private Law

Evar Oshionebo contributed two posts on developments at the Alberta Court of Appeal on contract law (see here and here), and Nickie Nikolaou and Jonnette Watson Hamilton wrote several posts on property law, involving issues from adverse possession to restrictive covenants to matrimonial property rights. Nigel Bankes contributed several posts on oil and gas contracts and leases, including posts on royalty agreements, rights of first refusal, knock-for-knock mutual indemnity provisions, and a post (with LLM student Heather Lilles) on a case dealing with the gap between law and practice in an oil and gas joint venture subject to the CAPL Operating procedure. Nigel also contributed to the debate on two Queen’s Bench decisions (both of which are under appeal): the Redwater decision (dealing with the constitutionality of the AER licensee liability program (LLR)) and the GSI decision (dealing the issue of intellectual property in seismic data). The Faculty of Law also welcomed new faculty member and blogger Rudi Tscherning this year, who wrote his first post in the area of private international law on international child abduction under the Hague Convention.

Residential Tenancies

This year was an important one for residential tenancy law reform in Alberta. Jonnette Watson Hamilton wrote a series of posts on deficiencies in the Residential Tenancies Dispute Resolution Service that worked to the disadvantage of tenants, starting just before the new year with Setting Aside Residential Tenancy Dispute Resolution Service Orders for Problems with Service: It Can’t Be Done, and continuing in early 2016 with For Shame: An Obvious and Fundamental Breach of Natural Justice by the Residential Tenancies Dispute Resolution Service (RTDRS) and Don’t Think Twice: The Residential Tenancies Dispute Resolution Board’s Power to Correct for Procedural Unfairness. The “For Shame” post was cited by Master Robertson in Hewitt v Barlow, 2016 ABQB 81 (CanLII). The posts also formed the basis of the inaugural project of the law school’s Public Interest Law Clinic: advocating for access to justice and procedural fairness for tenants in Alberta by suggesting needed changes to the government in April. Subsequently the government’s Legislative Review Committee decided to review the Residential Tenancy Dispute Resolution Service Regulation and the Public Interest Law Clinic participated in the consultation process in the fall of 2016.

Student Contributions

In addition to the residential tenancies work of the Public Interest Law Clinic and the Bill C-51 posts from students in the Criminal Law & Policy Lab, Clinic and other students blogged on issues related to access to justice (see here, here, here, and here), prisoners’ rights (see here and here), and environmental law matters (see here and here). Other students contributed to ABlawg this year on work they performed as research assistants for various faculty members: Stephen Armstrong and Kristin Barham reported on their research with Anna-Maria Hubert on the right to science (here and here), and Kyle Gardiner posted on his work with Jonnette Watson Hamilton, Jennifer Koshan, and Saul Templeton on tax and equality here.

In sum, this was another productive year for ABlawg. Thanks to our readers for following us!

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Curtailing Free Expression: A Barbaric Cultural Practice? A Critical Comment on Section 83.221 of the Criminal Code

Thu, 12/15/2016 - 10:30am

By: Kiran Fatima, Meagan Potier, Jordan Szoo and Stephen Armstrong

PDF Version: Curtailing Free Expression: A Barbaric Cultural Practice? A Critical Comment on Section 83.221 of the Criminal Code

Provision Commented On: Section 83.221 of the Criminal Code, RSC 1985, c C-46

Bill C-51, the Anti-terrorism Act, 2015, sailed through Parliament and received Royal Assent on the 18th of June, 2015, amidst much political debate. One of the more controversial provisions was a new advocating terrorism offence contained in what is now s 83.221 of the Criminal Code, RSC 1985, c C-46. The provision criminalizes knowingly advocating the commission of terrorism offences in general and being reckless as to whether such offences are actually carried out. This post will address the political dynamics and constitutional issues with respect to the new advocating offence and make suggestions for how the Government of Canada should move forward.

Interestingly, our group was divided on the best approach to addressing the issues with respect to the provision. Meagan and Jordan were in favour of repeal, whereas Stephen and Kiran favoured amending the provision. We present the case for both repeal and amendment below and leave it to the reader to reach their own conclusions.

The text of the provision is as follows:

83.221 (1) Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general — other than an offence under this section — while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed, as a result of such communication, is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.

“Terrorism offence” is defined in s 2 of the Criminal Code as:

(a) an offence under any of sections 83.02 to 83.04 or 83.18 to 83.23,
(b) an indictable offence under this or any other Act of Parliament committed for the benefit of, at the direction of or in association with a terrorist group,
(c) an indictable offence under this or any other Act of Parliament where the act or omission constituting the offence also constitutes a terrorist activity, or
(d) a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a), (b) or (c).

The Politics of the Thing

There are important political considerations that make the repeal or the reform of the advocating offence both legally important and politically smart. The current administration has recently asked for an in-depth review of the Criminal Code with a particular focus on new counter-terrorism legislation:

We are moving forward on our commitment to repeal the problematic elements of former Bill C-51, the Anti-terrorism Act, 2015. Input from Canadians on this Act, and more broadly on Canada’s national security framework, will help inform the development of laws and policies in this important area. Our goal is to ensure the safety of Canadians, while protecting our rights and freedoms.

(See Public Safety Canada, Government of Canada launches public consultation on national security)

From a political perspective, dealing with this provision speaks to Prime Minister Trudeau’s publically announced objectives. In his Mandate Letter to the Minister of Public Safety and Emergency Preparedness and his Mandate Letter to the Minister of Justice and Attorney General, Prime Minister Trudeau wrote that a top priority for the Minister would be to:

work to repeal, […] the problematic elements of Bill C-51 and introduce new legislation that strengthens accountability with respect to national security and better balances collective security with rights and freedoms.

The Prime Minister may not specifically address the advocating offence, but he draws attention to “overly broad provisions”, a category within which s. 83.221 might easily fall. The advantages of repealing or reforming this provision are that it would clearly show that the government has listened to and taken seriously the feedback expected to be received through public consultation. It will also show the willingness of the government to make significant changes to legislation without sacrificing any of the important national security interests that brought about Bill C-51 in the first place. As before, and even since the creation of this provision, law enforcement will be able to continue to charge people under other provisions of the Criminal Code that have been successfully tested in constitutional challenges, as we discuss later.

Constitutional Issues

While the advocating offence potentially creates issues with respect to the principles of fundamental justice under s 7 and freedom of religion under s 2(a), we will focus on whether the offence unjustifiably violates freedom of expression under s 2(b) of the Charter. We conclude that it does.

Violence and Freedom of Expression

Freedom of expression protects all non-violent activity intended to convey meaning (see Irwin Toy v Quebec (Attorney General), [1989] 1 SCR 927, 1989 CanLII 87 (SCC) at paras 42-43 and 54). Violence and threats of violence are excluded from the scope of s 2(b), because violence subverts the values underpinning freedom of expression, namely truth-seeking, self-fulfillment and political discourse (see R v Khawaja, 2012 SCC 69 (CanLII) at para 71). The actus reus of the advocating offence is communicating statements which advocate or promote the commission of terrorism offences in general. This is inherently expressive. The question is whether advocating terrorism offences in general constitutes violence or threats of violence such that the expression is excluded from the scope of s 2(b).

In R v Khawaja, the Supreme Court of Canada held that counselling, conspiracy, and being an accessory in respect of a terrorist activity is violent expression excluded from the scope of s. 2(b) (at para 71). Counselling violence is not far enough removed from violence itself to be included in the scope of free expression. However, counselling a terrorist activity is much different than advocating in general the commission of a terrorism offence.

The advocating offence criminalizes expression which can be multiple levels removed from the underlying violence of a terrorist act. For example, a terrorism offence includes counselling the commission of an indictable offence which also constitutes a terrorist activity. A terrorist activity includes counselling or threatening to commit a violent terrorist act (see Criminal Code, s 83.01(1), “terrorist activity”). The advocating offence therefore criminalizes advocating in general that a second person counsel a third person to attempt a violent act. The person criminalized is several steps removed from actual violence. Multiple such examples can be dreamt up (see Craig Forcese and Kent Roach, False Security: The Radicalization of Canadian Anti-Terrorism (Toronto: Irwin Law, 2015) at 331).

Further, a mens rea of mere recklessness as to whether a terrorism offence is actually carried out as a result of the statement means the speaker does not need to intend for any violence to occur. Additionally, the phrase “in general” is meant to cover a statement which counsels the commission of an offence, but is unspecific as to exactly what type of violent act should be committed, or is unspecific as to the who, when or where of the offence (see Government of Canada, Our Security, Our Rights: National Security Green Paper, 2016 at 42; Department of Justice Canada, Criminalizing the Advocacy or Promotion of Terrorism Offences in General). This lack of specificity and intention further distances the expression caught by the provision from violence.

Expression that is so far removed from actual violence is unlikely to be excluded from the protected scope of free expression, because that kind of expression borders on being merely upsetting or undesirable speech instead of truly violent expression. Even speech that exposes people to hatred is constitutionally protected expression (see R v Keegstra, [1990] 3 SCR 697, 1990 CanLII 24 (SCC); Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 (CanLII)). To conclude, the advocating offence criminalizes non-violent expression. This is clearly caught within the purpose and/or effect of the provision and therefore prima facie infringes freedom of expression and must be justified under s 1 of the Charter.

A Reasonable Limit?

Without conceding the issues of vagueness, rational connection or minimal impairment, this section will focus on whether the advocating offence strikes a proportionate balance between its deleterious and salutary effects, as required by R v Oakes, [1986] 1 SCR 103, 1986 CanLII 46 (SCC).

The advocating offence is a recent addition to the pre-existing Criminal Code framework addressing various kinds of violent speech. As such, the proportionality inquiry is properly aimed at the marginal benefit of this new offence as against its deleterious impact on individuals and society (see generally the majority’s approach in R v KRJ, 2016 SCC 31 (CanLII)). The advocating offence addresses a gap in the criminal law by going after people who incite terrorist violence, but cleverly parse their words to avoid penal liability (see Green Paper at 42). However, beyond articulating the existence of a gap in the law, the government has not put forward any compelling reason for why the gap ought to be closed. Evidence must be put forward as to the pressing need to close the gap. Unless and until this occurs, the marginal benefit of the provision is merely speculative.

The criminalization of non-violent expression that is not even intended to encourage violence is antithetical to the very idea of a free and democratic society. The breadth of speech covered by the advocating offence has the ability to significantly hinder free-wheeling debate on public issues, especially on matters of foreign policy, religious belief and injustice. To the extent that this is the case, the values underpinning free expression – political discourse, human flourishing, and truth-seeking – are undermined. The deleterious effects on society are substantial.

As the law presently stands, we are of the view that the deleterious effects of the advocating offence far outweigh its salutary ones. The offence is unconstitutional.

The Case for Repeal

In its current form, the advocating offence is counter-productive due to its chilling effect on free expression. It undermines the effectiveness of counter-radicalization efforts by pushing radicalized individuals monitored and subject to these programs underground. In addition, if those convicted of this offense are jailed, further radicalization of a person who falls on the outskirts of this provision could easily occur in a prison setting (see Forcese and Roach, False Security at 348).

The type of speech prohibited by s 83.221 is encompassed by existing provisions. Hate propaganda is already prohibited under s 319(2) of the Criminal Code and s 319(2) survived Charter challenge in Keegstra. Section 83.18 of the Code was challenged in Khawaja, and the Supreme Court in 2012 found that the provision targeted acts or threats of violence, or acts connected with violence, which were not protected by s 2(b). Sections 83.18, 319(2), 264.1 (uttering threats) as well as s 83.19 (facilitating a terrorist activity), and others, could all theoretically be applied to the same type of speech captured by the advocating offence, and most of these provisions are tried and true. The case for keeping the advocating provision is difficult bearing in mind that the benefits are speculative and the harm to freedom of expression is quite clear.

Further to this argument, the use of this kind of provision could be directly counter-productive to Canada’s stated counter violent extremism strategy (CVE). There is clearly a “need for a demand-reduction strategy: a holistic and evidence-based multidisciplinary approach towards CVE. Unfortunately, the new and unnecessary speech offence in Bill C-51 could be a barrier to such a strategy.” (Forcese and Roach, False Security at 357) Empirical data shows that the internet radicalization this provision was aimed at is often a ‘primer’ to radicalization as opposed to a method of radicalization in itself. Radicalization more often occurs in situations where the ‘radicalizer’ is a close friend or personal relation of the ‘radicalizee’; these people are unlikely to be stopped by a provision such as this one (Craig Forcese and Kent Roach “Criminalizing Terrorist Babble: Canada’s Dubious New Terrorist Speech Crime” (2015) 53 Alta L Review 35 at 43).

Further, jailing people who have been ‘primed’ as opposed to truly radicalized can lead to further radicalization in the highly emotionally charged and societally isolated prison environment. In speaking to the goal of this type of provision, it might be better to use less intrusive methods to deal with online material, such as working with private industry to make offending material harder to find for the average person, which allows for monitoring and collecting of data which might then be used to incite further criminal prosecution or quash terrorist plots (“Criminalizing Terrorist Babble” at 45). As Forcese and Roach explain:

…an open source electronic bread crumb trail may be the best means of unraveling conspiracies and of detecting ‘lone wolf’ terrorists in the making, and may provide both intelligence and evidence for further state action. (at 57)

The Case for an Amendment

The best way to achieve a better balance between ensuring public safety and safeguarding constitutionally protected rights is to amend the advocacy provision instead of repealing it. This provision is currently overbroad and poses potential restrictions on the freedom of expression. An amendment could clean up the constitutional problems highlighted above, while maintaining law enforcement’s ability to employ this provision.

Human rights and civil liberties groups have particularly criticized this provision for being unduly restrictive of free speech (see Amnesty International Canada, Insecurity and Human Rights: Concerns and Recommendations with Respect to Bill C-51, The Anti-Terrorism Act, 2015; British Columbia Civil Liberties Association, Submission to the Standing Committee on National Security and Defence; Canadian Civil Liberties Association, Submission to the Standing Committee on Public Safety and National Security regarding Bill C-51). This offence has value in that it addresses a gap in the criminal law relating to the general encouragement of violent terrorism offences, and it has a deterring and denunciatory effect on the promotion of terrorist views. Nevertheless, these public criticisms have merit and should form the basis for amendments.

There are three main elements of this provision that are problematic (1) Advocating or promoting; (2) Terrorism offences in general; and (3) Recklessness.

There is an important difference between simply advocating or promoting something that may be harmful, and actually inciting a harmful result. We believe that the latter should be criminalized and the former remain protected under our constitutional freedom of expression. To criminalize mere advocacy or promotion would be problematic because of its chilling effects on speech, especially for media reporting. The media has a professional responsibility to inform the public about terrorist threats and activities (see Toby Mendel, Organization for Security and Co-operation in Europe, Legal Analysis of the Proposed Bill C-51, the Canadian Anti-terrorism Act, 2015 at 2). However, such forms of reporting could be viewed as “advocating or promoting” depending on how one might view it. Therefore, the provision should be narrowed to incitements of terrorism only; otherwise there is a real risk that individuals not associated with terrorism may be captured under this provision.

Terrorism offences are already defined in the Criminal Code as being fairly narrow, but adding the phrase “in general” creates great uncertainty for how this provision will be interpreted. It is unclear as to why legislators included this phrase or what impact they intended for it to have. One can only surmise that the phrase “in general” would capture a wider array of expression than prior existing terrorist provisions. There is a concern that this broader scope will drive more extremist dialogue underground, which will make it more difficult for the Canadian Security Intelligence Service (CSIS) and the Communications Security Establishment (CSE) to monitor such dialogue and identify developing threats. Additionally, CVE community outreach initiatives that engage local leaders involve a free-ranging discussion of radical views (Forcese and Roach, False Security at 341-342). This broad interpretation of the provision could potentially criminalize such discussion and undermine these preventative measures. Given these problems, we propose that the phrase “in general” be removed from s 83.221.

Recklessness is a very low mens rea requirement for an indictable offence such as this. Again, given the severity of punishment, this will create a wide chilling effect for speech. Moreover, it captures people who may indirectly contribute to the activities of a terrorist group or activity, regardless of whether any terrorist activity had been carried out. Therefore, recklessness risks criminalizing expression that is multiple levels removed from actual violence. The previous example about media reporting could fall into the category of recklessly advocating or promoting terrorism, which is surely something the government does not want to capture. Therefore, only direct and intentional incitements of terrorism should be included in the provision, not recklessness.

As it stands, s 83.221 is very unlikely to survive constitutional challenge unless amendments are made to it. Legislators cannot rely on law enforcement to properly interpret and employ these provisions if the plain word meanings are not clarified. Another way to further clarify and amend this provision could be to enumerate statutory defences similar to those found in s 318(3) on hate propaganda (see Green Paper at 45).

Based on all of these recommendations, the amended provision would read as follows:

Every person who, by communicating statements, knowingly incites the commission of terrorism offences — other than an offence under this section — while knowing that any of those offences will be committed as a result of such communication, is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.

Conclusion

In conclusion, this post has laid out the case for either repealing or amending the advocating offence in s 83.221 of the Criminal Code. The constitutional and political issues have been considered, and what should be clear in reading this analysis is that something must be done in order to address the problematic nature of the advocating provision.

This post may be cited as: Kiran Fatima, Meagan Poitier, Jordan Szoo & Stephen Armstrong “Curtailing Free Expression: A Barbaric Cultural Practice? A Critical Comment on Section 83.221 of the Criminal Code” (15 December, 2016), online:
ABlawg,
http://ablawg.ca/wp-content/uploads/2016/12/Blog_Criminal_Code_s83.221.pdf

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Reviewing Canada’s National Security Framework

Thu, 12/15/2016 - 10:00am

By: Michael Nesbitt

PDF Version: Reviewing Canada’s National Security Framework

This term, the University of Calgary, Faculty of Law offered for the first time a new Criminal Law & Policy Lab: Terrorism Law & Reform. The idea behind the course was, in part, to follow along with the Government of Canada’s “National Security Framework” public consultations and consider the legal, political and social issues that arose in real-time. (For more background on the Government’s public consultations and its relationship to the course, see my earlier ABlawg post).

Students were split into three groups and asked to negotiate, amongst themselves, three different areas that they thought were of the most importance to Canada’s national security framework review. Put another way, the students chose the three topics that they agreed were most ripe for review and consideration by the government. (For an overview of the course and its broader purpose, see here).

By the end of term, students were asked to produce ABlawg posts on their findings and recommendations on these three topics. The students also submitted research memoranda to the government as part of its public consultations. Today, we release the first of these three posts, Curtailing Free Expression: A Barbaric Cultural Practice? A Critical Comment on Section 83.221 of the Criminal Code.

I would like to stress the importance of the students’ hard work. These are topics that our students – young, well-informed, and passionate about the law and policy – thought most meritorious of review by the government. As the next generation of lawyers in Canada, but also just the next generation, it is vital that their voices be heard. For it is these students who will live with the consequences of our national security decisions for years to come, even while they will largely be shut out of the political and bureaucratic processes by which the decisions are made. It is for this reason that the government’s public consultations are so important and should be commended, and likewise why it is important to listen to and take seriously the opinions of our students expressed in these posts.

The students and I are pleased that through ABlawg, we can put these important interests out into the ether and contribute to the discussion on national security in Canada – a discussion that is in desperate need of more (and younger) participants. We hope you enjoy and engage!

This post may be cited as: Michael Nesbitt “Reviewing Canada’s National Security Framework” (15 December, 2016), online: ABlawg,
http://ablawg.ca/wp-content/uploads/2016/12/Blog_MN_BillC51_Intro.pdf

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Freedom of Expression Versus Privacy Rights: Stay of Enforcement of an Interim Mandatory Injunction in the Context of Publication Bans

Wed, 12/14/2016 - 10:00am

By: Hasna Shireen

PDF Version: Freedom of Expression Versus Privacy Rights: Stay of Enforcement of an Interim Mandatory Injunction in the Context of Publication Bans

Case Commented On: R v Canadian Broadcasting Corporation, 2016 ABCA 372 (CanLII)

In two previous ABlawg posts (see here and here), I commented on the decisions in R v Canadian Broadcasting Corporation, 2016 ABQB 204, overturned 2016 ABCA 326 (CanLII), in which Alberta courts dealt with the issue of whether the Canadian Broadcasting Corporation (CBC) should be able to retain identifying information about a youthful homicide victim on its website. A majority of the Court of Appeal granted the Crown’s application for a mandatory injunction banning the continued publication of this material. In a follow-up decision, Mr. Justice Berger granted a Stay of Enforcement of the majority judgment pending an application for leave to appeal to the Supreme Court of Canada (see R v Canadian Broadcasting Corporation, 2016 ABCA 372 (CanLII) at para 14).

Procedural History

The Crown requested a publication ban and the Chambers Judge ordered a mandatory ban under s 486.4(2.2) of the Criminal Code, RSC 1985, c C-46 respecting the identity of the youthful victim. However, prior to the non-publication order being made, the CBC had posted articles to its website disclosing the identity of the young victim. The CBC declined to remove the historical postings though they agreed not to make any further postings. The Crown brought an application for contempt and for removal of the historical postings, and then brought an application for an interim mandatory injunction requiring the immediate removal of the historical postings.

The Court of Queen’s Bench of Alberta in R v Canadian Broadcasting Corporation, 2016 ABQB 204 (CanLII) (CBC QB) denied the interim mandatory injunction and allowed CBC to retain past posts with identifying information of the youthful victim on its website. The Crown appealed the denial of the interim mandatory injunction, which was granted by a majority of the Court of Appeal (2016 ABCA 326 (CanLII), (CBC CA).

CBC then made an application for a stay of execution of the interim mandatory injunction. CBC relied on the test under s 65.1(2) of the Supreme Court Act, RSC 1985, c S-26, which authorises the Court appealed from to order a stay of execution before the filing and service of an application for leave to appeal to the Supreme Court. The appellate Court may exercise this power if it is satisfied that the applicant intends to apply for leave to appeal, and delay would result in a miscarriage of justice (at para 4).

CBC advised the Court that it intended to file the leave application and had instructed its legal counsel and notified the Crown of this intent. The CBC argued that without the benefit of the stay, it was required to comply with the Court of Appeal judgment and, if ultimately successful on appeal to the Supreme Court of Canada, reposting the information would expose it to criminal liability in light of the publication ban (at para 5).

The test for a stay of a non-money judgment in an application for injunctive relief is:

  1. an arguable appeal;
  2. irreparable harm is likely if the stay is refused; and
  3. the balance of convenience favours granting the stay (at para 6).

Mr. Justice Berger was swayed by the consideration that irreparable harm was established if the threshold of an arguable appeal was met. He stated that if the CBC’s appeal is successful, that would amount to an arguable denial of its freedom of expression (at para 7). He also assessed the balance of convenience threshold and decided that he favoured granting the stay if irreparable harm was established (at para 8).

The Crown argued that the integrity of the administration of justice is harmed when a mandatory non-publication order is violated (at para 10, citing CBC CA at para 50). The Crown emphasized the mandatory nature of a non-publication order and focused on the majority’s conclusion that interim measures to enforce such an order can be taken without proof of harm.

Justice Berger considered the dissenting judge’s opinion at the Court of Appeal, that when the youthful victim passed away, the non-publication order was rendered trivial and the postings caused no harm. On the other hand, the Crown relied on the majority’s declaration that the Chambers Judge erred in stating that “the policy objectives of encouraging young victims to come forward are largely not present here” (at para 11, citing CBC QB at para 54).

Justice Berger noted that the arguability of the appeal was dependent on the interpretation of the phrase “published in any document or broadcast or transmitted in any way” found in s 486.4 of the Criminal Code. He also considered the majority opinion that “while either position is arguable, it cannot be said that the Crown does not have a strong prima facie case” (at para 13, citing CBC CA at para 10). However, referring to CBC QB at para 49, he also stated that whether an appeal is arguable is a low threshold, and the CBC had raised a serious question, which on its merits was neither frivolous nor vexatious (at para 13). Based on these considerations, Justice Berger decided to grant a Stay of Enforcement.

Commentary

In my blog post on the Court of Appeal judgment in this case, I criticized the Court of Queen’s Bench decision because it gave priority to freedom of expression of the media over a deceased young victim’s privacy rights. 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. The Court of Appeal majority decided that the Chambers Judge erred in stating that “the policy objectives of encouraging young victims to come forward are largely not present here” as the young victim had died (CBC CA at para 11). The Chambers Judge seemed reluctant to acknowledge the privacy interests of the deceased victim and her family as a potential harm to the administration of justice. Ordering the CBC to remove the offending articles would prevent further victimization of this deceased child and her family. However, the recent Stay of Enforcement order by Justice Berger again favoured freedom of expression over the privacy interests of the deceased child’s family, and may discourage future victims from coming forward.

This post may be cited as: Hasna Shireen “Freedom of Expression Versus Privacy Rights: Stay of Enforcement of an Interim Mandatory Injunction in the Context of Publication Bans” (14 December, 2016), online: ABlawg, <http://ablawg.ca/wp-content/uploads/2016/12/Blog_HS_CBC_StayofEnforcement.pdf>

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Empathy in the Law: Does the Robin Camp Inquiry Committee Recommendation Encourage a “Postempathy era”?

Fri, 12/09/2016 - 10:00am

By: Alice Woolley

PDF Version: Empathy in the Law: Does the Robin Camp Inquiry Committee Recommendation Encourage a “Postempathy era”?

Matter Commented On: Canadian Judicial Council Inquiry Committee Report Regarding Justice Robin Camp

What role should empathy have in a system of laws? What does an empathetic legal system look like? In a recent article on the Robin Camp case, Brenda Cossman raised concerns about the Canadian Judicial Council Inquiry Committee recommendation that Justice Camp be removed from the bench. She raised, in particular, the concern that removing rather than educating Justice Camp facilitates a growing “post-empathy” culture:

I worry even more about the impulse to punish in light of the recent rise of a powerful backlash against any and all equality-seeking groups. We have moved into a new postempathy era, where more people are prepared to stand defiantly and unapologetically in favour of discrimination, sexism, and racism. I worry that we dismiss the possibility of education and move to punish those who are genuinely remorseful (“For Judge ‘knees together’ Camp: Education is Power”, Globe and Mail, December 1, 2016).

I am not entirely sure what Professor Cossman meant, but I think that her point is that the absence of empathy in those who seek to remove Justice Camp encourages by example the absence of empathy in those who “stand…in favour of discrimination, sexism, and racism”. Our own insufficient empathy creates and empowers the post-empathy culture, which in turn creates the very sexism and discrimination that we seek to prevent.

Not surprisingly given my role in initiating the Camp complaint, and my publicly stated support for the outcome, I disagree with Professor Cossman’s specific position on that matter. But I am nonetheless intrigued by her analysis, and I want to explore it further. Because I certainly agree with her underlying proposition: empathy matters. Indeed, I would argue that a legal system that fails to be empathetic fails to accomplish the moral function of legality and, specifically, respect for the dignity of those governed by laws. That is, it fails as law. But that then leads to the obvious follow-up: what does empathy require of law? What does empathy mean in a legal context?

The dictionary definition of empathy is the ability to understand and share the feelings of others (here). For the purposes of law, though, I think empathy requires something a bit more specific. I think it requires accounting for a person’s personal perspective on an event or experience – i.e., how they themselves experienced or perceived it – rather than considering only an external assessment of that event or experience – i.e., how it is perceived from an independent and impartial point of view. Empathy in law requires that our external assessments of a person’s behaviour consider and account for the personal perspective.

To use a non-law example, I might externally label the behaviour of a customer at a store as rude but if I consider the customer’s personal perspective, I will account for the bad day he’d had at work, the financial troubles that he can’t seem to escape from, and the fight he just had with his girlfriend. Doing so may not make the behaviour any less rude – any independent and impartial observer would judge his conduct to have been rude – but it does see and account for the full humanity of the customer, rather than reducing him only to the observation of his rudeness. And it may shift the external assessment – at least to allow for the possibility that even if what he did that day was rude, the customer is not a rude person. To be legitimate and accurate, my external assessment must account for the personal perspective of the person being judged.

In the case of Robin Camp, this sort of empathy requires considering what led him to act as he did during the Wagar trial, what experiences in his life might have explained his attitude to the complainant and the accused. It requires accounting for the ignorance or lack of education that may explain his antipathy to the law and his reliance on discredited myths and stereotypes. It also requires recognizing that Robin Camp is not only what he did during the Wagar trial. He is a human being, with a wife and a family who supported him during the proceedings, and professional colleagues who did so as well. He was said during the Inquiry Committee proceedings to have been an effective lawyer with a commitment to social justice. Empathy also requires seeing and appreciating the personal consequences to him not only of the potential removal from the bench, but from the international media storm that his conduct has generated.

The law systemically accounts for the personal perspective, most obviously in the procedures it affords to people whose conduct the law has put at issue. The information about Robin Camp in the prior paragraph arises from the testimony and evidence he presented during the CJC Inquiry Committee hearing. This is also true in criminal trials, particularly in relation to sentencing, where we systemically take into account factors that may shade or even shift how we assess or judge the person whose conduct is at issue. The system is structured to ensure that external assessments only occur after the personal context has been taken into account.

In law empathy also requires that we test accounts that other people or the state give about a person’s behaviour, particularly where those accounts are not independent or impartial. The law does not allow claims to be made about a party to a legal proceeding unless those claims can be proven in some way; it preserves respect for personal perspective by requiring that claims from outside that perspective be proven before they are treated as true. In the criminal context, we go so far as to assume that the external claims are false – that is, we presume the innocence of the accused – until those claims are established as true. Ironically enough, the cross-examination of witnesses in a criminal case, including a complainant in a sexual assault case, expresses this type of empathy. We recognize the personal perspective of an accused person by choosing not to believe accusations brought against that person until they have been properly proved, including by testing them through cross-examination.

The law requires that cross-examination be respectful and not abusive. A lawyer cannot demean or degrade a witness, because doing so would deny the personhood and dignity of a witness in order to preserve the personhood of an accused, and our system’s rules and procedures – our constitution – preclude that trade-off. But within that boundary, when a lawyer vigorously but respectfully cross-examines a witness, however difficult and even horrible that cross-examination is for the witness subject to it, she preserves the empathy necessary for the functioning of the legal system; she does not contravene or undermine it.

Empathy in law allows for the personal perspective to shift the external assessment of a person’s conduct as wrongful. We allow reasonable but mistaken belief in consent as a defence to a charge of sexual assault; the defence has an external element, in that it must be plausible when viewed from another point of view (the mistaken belief must be reasonable and the accused must have taken steps to ascertain consent). But it rests significantly on the personal perspective of the accused – because the defence necessarily contemplates that, if the conditions of the defence are satisfied, the accused may be acquitted based on his own erroneous belief. The mistaken personal belief precludes the external judgment that the accused committed sexual assault, even though the accused did in fact have unconsented to sexual contact with the victim.

There are, though, things that empathy in law does not require. Most of the time, a person’s own perspective does not alter how the law assesses the person’s behaviour. An unreasonable mistaken belief in consent, no matter how deeply held or believed, will not prevent an accused’s conviction for sexual assault. A person who deliberately and intentionally kills someone (i.e., commits murder) will not escape conviction and a life sentence because the person otherwise made positive contributions to the community, or because we can understand the weakness and jealousy that led to that event. We can read Othello or Macbeth and pity the tragic heroes because the plays reveal their personal perspectives – their weaknesses and vulnerability – but we still see them as wrongdoers. A properly functioning legal system will do the same. We empathize, but we still judge. The personal perspective has to be accounted for, and can shift the external point of view in some cases, but it does not eliminate the possibility or need for an independent and impartial external point of view.

In the case of Robin Camp, his personal perspective invites empathy and compassion, and allows for the possibility that he is more than what he did in Wagar. It is possible that with less serious misconduct a judge’s ignorance or apology would be sufficient to excuse his conduct. But on the information provided to them, the CJC Inquiry Committee could – as it did – determine that in this case, Justice Camp’s personal perspective did not alter its assessment of his conduct. It did not undo the identification of the injury to the administration of justice, to public confidence in the administration of justice, to the Wagar complainant or to the Wagar accused, which his behavior created. The question for the CJC Inquiry Committee – for the legal system – was not what consequence befits Robin Camp the man, as understood fully and with account for his humanity and personal perspective. The question was what consequence befitted the external assessment of his wrongdoing, an assessment reached after consideration of his personal perspective.

In my view, the Inquiry Committee was correct to answer that question with a recommendation for removal. Not because Robin Camp is a bad person. Not because his personal perspective is irrelevant or unworthy of consideration. It was considered. But because, independently and impartially assessed, the wrongs that his conduct created are fully and properly addressed only by that consequence. The consequence is not imposed in order to punish him, or to judge him unworthy (although of course personally it will feel that way to him). It is to preserve the administration of justice, confidence in the administration of justice, and to recognize the wrong done to the Wagar complainant, the accused, and ultimately the public. It is a hard consequence, but not a post-empathetic one.

This post was originally published on Slaw.

This post may be cited as: Alice Woolley “Empathy in the Law: Does the Robin Camp Inquiry Committee Recommendation Encourage a ‘Postempathy era’?” (9 December, 2016), online: ABlawg, http://ablawg.ca/wp-content/uploads/2016/12/Blog_AW_Empathy.pdf

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The Dangers of Inconsistency (and Consistency) in Supreme Court Jurisprudence

Wed, 12/07/2016 - 10:00am

By: Alice Woolley

PDF Version: The Dangers of Inconsistency (and Consistency) in Supreme Court Jurisprudence

Case Commented On: Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 (CanLII)

I can’t decide whether I am more excited that the Supreme Court issued a decision dealing with two legal issues of great interest to me – administrative law standard of review and statutory incursions into solicitor-client privilege – or irritated that the Court’s handling of both issues is so annoying. Because it is the end of term, and I’m as grumpy as any other professor at the end of term, I am mostly irritated. Irritated because on standard of review the Court seems literally incapable of a consistent and practical approach, while on solicitor-client privilege the Court has been so consistent that it risks fetishizing the significance of solicitor-client confidentiality to the point of jeopardizing other important legal interests.

On standard of review the Court needs to stop. It needs to stop trying to articulate and apply a set of rules for judicial deference to administrative decision-makers. It should instead let administrative judicial review be a matter of practice and the appropriate judicial attitude, one of respectful attention to any decision-maker’s reasons for a particular decision, while recognizing that judges provide a sober second thought through judicial review, particularly on matters of legal interpretation. Along with significantly shifting every decade or so, the rules identified end up being misleading at best and unhelpful at worst, failing to capture the basic and in the end relatively straightforward idea that standard of review reflects. The Court’s attempt to articulate rules governing standard of review is like a baseball coach trying to develop a set of rules for players to use when deciding whether to swing, when the appropriate advice is both simple and incapable of more precise articulation: swing at a strike; don’t swing at a ball (or, alternately, swing at a pitch you have the skill to hit, and leave the rest alone).

On solicitor-client privilege, the Supreme Court can certainly claim to have been consistent: solicitor-client privilege is generously defined and strenuously protected. On the whole, that seems to me a good thing. But this decision raises the possibility that that consistent and vigorous protection may go beyond what is necessary for protection of the privilege, and may occur at the expense of other values of importance to the legal system.

The Decision

The specific legal issue in this case was whether, pursuant to s 56(3) of the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25, (FOIPP), the Alberta Privacy Commissioner could compel the University of Calgary to produce documents over which the University claimed solicitor-client privilege, in order for the Commissioner to assess the legitimacy of that claim.

The Court unanimously dismissed the Privacy Commissioner’s appeal of the judgment of the Alberta Court of Appeal, agreeing with the Court of Appeal that the Commissioner ought not to review documents over which the University had claimed privilege. All of the judges agreed that the University had sufficiently justified its claim to privilege such that it was improper for the Privacy Commissioner to seek to review the documents pursuant to s 56(3) of FOIPP, whether or not that provision permitted it to review a public body’s claims to solicitor-client privilege (at para 70, Côté J for the majority; para 127, Cromwell J, concurring; para 137, Abella J, concurring). The Court divided, however, both on the question of the appropriate standard of review of the Privacy Commissioner’s decision and on the question of whether s 56(3) of FOIPP did in fact permit the Privacy Commissioner to review documents to assess the legitimacy of a public body’s claim of solicitor-client privilege.

Writing for the majority, Justice Côté held that FOIPP does not empower the Privacy Commissioner to require a public body to produce documents with respect to which it has claimed solicitor-client privilege (at para 2). She held that the Commissioner’s decision that it had the power to compel production was reviewable on a standard of correctness because the question was one of “central importance to the legal system as a whole” (at para 20). Solicitor-client privilege is fundamental to the legal system and has constitutional dimensions, and the assessment of “what statutory language is sufficient to authorize administrative tribunals to infringe solicitor-client privilege is a question that has potentially wide implications on other statutes” (at para 20). Specifically, determining whether the phrase “privilege of the law of evidence” in s 56(3) includes solicitor-client privilege “necessitates an inquiry into both the substantive and evidentiary qualities of the privilege” (at para 25). The Commissioner also had no special expertise with respect to privilege (at para 22).

Section 56(3) of FOIPP provides:

(3) Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection (1) or (2).

Justice Côté held that this language was not sufficient to compel production of documents claimed to be privileged. Statutes purporting to set aside privilege will be “interpreted restrictively” and the legislative intent must be “clear and unambiguous” (at para 28); an inference is not sufficient. Imposing this standard does not involve “strict construction” of FOIPP and is consistent with the “modern approach to statutory interpretation;” it simply assumes “legislative respect for fundamental values” (at para 29).

Although s 56(3) only requires production to the Commissioner, not to the party applying for information, it still “constitutes an infringement of the privilege” (at para 35), particularly because the Commissioner is “not an impartial adjudicator of the same nature as a court” (at para 36). The question is: does the statutory language allow the Privacy Commissioner to require production of documents over which a public body claims solicitor-client privilege?

Justice Côté said no: the phrase “privilege of the law of evidence” is “not sufficiently clear and precise to set aside or permit an infringement of solicitor-client privilege” (at para 37). Solicitor-client privilege is a substantive rule with quasi-constitutional status, not merely a law of evidence (at para 38). Further, the evidentiary aspect of the privilege is not engaged here; the FOIPP regime produces documents without connection to any ongoing legal proceeding (at para 42). The substantive privilege should be “as close to absolute as possible and should not be interfered with unless absolutely necessary” (at para 43).

Justice Côté also noted that the statutory context supported this position, and in particular the legislation’s reference to “legal privilege” in the provision allowing a public body to refuse to disclose privileged information – i.e., “information that is subject to any type of legal privilege, including solicitor-client privilege” (at para 52, citing FOIPP s 27). That the power of the Privacy Commissioner to require disclosure uses different language than the power of the public body to refuse production is significant, and suggests that the provisions “must be understood to have different meanings” (at para 53). Solicitor-client privilege is a legal privilege but, here, is “not clearly a ‘privilege of the law of evidence’”, with the result that a public body may refuse to disclose documents over which it claims solicitor-client privilege, and the Commissioner cannot require that they be disclosed for the Commissioner to review (at para 57). Justice Côté noted that while it was possible that under British Columbia’s parallel legislation “privilege of the law of evidence” could include solicitor-client privilege, the differing statutory contexts meant that interpretation could not be “imported into the Alberta statute with equivalent effect” (at para 65).

In his concurring reasons, Justice Cromwell rejected Justice Côté’s interpretation of s 56(3), holding that solicitor-client privilege is both a legal privilege and a privilege of the law of evidence, and that no principle of statutory interpretation requires a different approach to seeing the privilege as within both of those terms (at para 73). The legislature intended to allow the Commissioner to assess claims of solicitor-client privilege in appropriate cases; that intention can be identified from the “grammatical and ordinary meaning of the words ‘any privilege of the law of evidence’” and from contextual factors (at para 79). Solicitor-client privilege has a substantive component, but it is also an evidentiary issue, and it is the evidentiary aspect that is raised by s 56(3) (at para 81); the public body is seeking “protection from disclosure required by legal authority, a matter falling squarely within the evidentiary privilege” (at para 87). The use of the phrase “legal privilege” in the statute does not preclude the interpretation of solicitor-client privilege as a privilege of the law of evidence elsewhere in the statute; all privileges of the law of evidence are legal privileges (at para 92). The Commissioner may not share information it reviews and identifies as properly subject to privilege, but it has the power to rule over claims of privilege (at para 104). Justice Cromwell also viewed the legislative history as supporting this interpretation.

Justice Cromwell “assume[d] without deciding” that correctness review applied to the decision in this case (at para 75). Justice Abella disagreed in her concurring reasons. In her view, this case was fundamentally a matter of statutory interpretation; that it touched on an important legal question did not put make it one of the exceptional cases to which correctness review ought to apply (at para 130). Ultimately, the Privacy Commissioner was not explaining “the content of solicitor-client privilege for the whole legal system, she is being asked to apply it in the context of one provision” (at para 136); that decision is properly reviewed deferentially.

Commentary

Standard of review

The Court’s discussion of standard of review in this case, and the application of the correctness standard by the majority, should be seen in the context of the recent 5-4 split on the Court in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 (Can LII) (discussed by Shaun Fluker here, by Paul Daly here and by Leonid Sirota here). Together the two cases suggest that a part of the Court – here the majority – is uncomfortable with the presumption of reasonableness that in recent years has been granted to administrative tribunals interpreting their own statutes. Because, with all due respect to Côté J’s argument that the issue in this case relates to a matter of general importance to the legal system as a whole (solicitor-client privilege), it is hard to accept the characterization of this decision as about solicitor-client privilege, rather than about the interpretation of the Privacy Commissioner’s home statute. In her own decision, Côté J rejects the relevance of the British Columbia statute for interpreting Alberta’s, and relies significantly on inconsistent language used within the Alberta statute to justify her interpretation of the wording of s 56(3). Her decision is, for the most part, a straight up exercise in statutory interpretation.

It is true that to interpret its statute the Privacy Commissioner had to consider whether solicitor-client privilege falls within the expression “privilege of the law of evidence” as that term is employed in FOIPP s 56(3). But that decision has only as much relevance to the legal system as a whole as would any administrative decision that considers or employs legal terms used more generally in the legal system when interpreting or applying its statutory mandate. Fundamentally, the question here was the proper interpretation of s 56(3) of FOIPP. It was not “what does solicitor-client privilege mean”. That the meaning of solicitor-client privilege was relevant to the interpretation of s 56(3) of FOIPP did not make the question something other than a matter of statutory interpretation.

The decision may end up having broader significance for interpretation of statutes other than FOIPP, but that is because it is a decision of the Supreme Court of Canada, not because of the nature of the issue. A decision by the Privacy Commissioner on this question seems likely to have had few consequences for anything other than the meaning of s 56(3) of FOIPP. The broader significance – the general importance to the legal system as a whole – arises from the Supreme Court’s judgment. And surely the fact of judicial review cannot make a matter of statutory interpretation something of general significance, or every administrative decision that went to the Supreme Court would have to be reviewed on a correctness basis.

Don’t get me wrong. My point (here at least) is not to object to the use of a correctness standard in cases such as this one. My point is that doing so seems irreconcilable with the presumption of reasonableness for interpretation of a decision-maker’s home statute. At best, the Court continues to be inconsistent and unpredictable in its identification of the standard of review in specific cases and, at worst, the Court may be about to re-articulate again how the standard of review is to be identified. This judgment and Edmonton East (Capilano) suggest a Court at the brink of a major reconsideration of the issue. Further, the Court’s inconsistency and disagreement on the presumption of reasonableness exist alongside the observation that, even when the Court does consistently identify a deferential standard, how it and other courts “do deference” in any given case varies significantly (see Shaun Fluker on this point here and Paul Daly here). The Court has not truly settled on when a deferential standard ought to be applied or, when it is, what deference should look like.

And yet what does this confusion give us? Does it elucidate the fundamental tension? Does it yield insights beyond those offered by Dickson J (as he then was) back in 1979 in CUPE v New Brunswick Liquor Corporation, [1979] 2 SCR 227, 1979 CanLII 23 (SCC)? From the perspective of an administrative law dabbler and teacher like myself, the answer feels like “no, not at all”. I am literally at a loss as to how I can give my students any sort of useful understanding of administrative law when I teach it next term. And, yet, it feels like the confusion is unnecessary. Why can’t the answer be, simply, that a court should always pay attention to what an administrative decision-maker knows and the answers that it gives, but that it should do so critically, with awareness that the court also has knowledge that it should bring to bear to matters brought before it on judicial review, particularly when they involve interpretation of the law.

A court shouldn’t need a formula, a series of “factors” to consider, a set of presumptions or rules, or even a requirement that sometimes the standard of review is correctness and sometimes it is reasonableness. As a judge, just look at what you’ve been asked to consider in light of the relative knowledge of you as a judge and the administrative body as a decision-maker, always give respectful attention to the administrative body’s reasons for decision, and then decide whether the administrative body’s decision ought to stand given its statutory authority and the matter at issue in the case. If all judges did that, they’d be fine, and a lot less judicial and academic ink could be spilled in the process. Maybe sometimes courts would interfere when they shouldn’t, and maybe sometimes courts wouldn’t interfere when they should – but that happens now despite all the drama of standard of review; it’s not like we’re preventing it. And after all, appellate courts review trial judgments without so much hassle and confusion; I just do not accept that administrative law couldn’t be the same.

Now I have to acknowledge that I may be – in fact I’m likely to be – wildly off base in this suggestion. A question that the Supreme Court has struggled with for decades seems unlikely to be resolved by the end-of-term grumpy ramblings of a legal ethics professor who dabbles in administrative law. But I do believe that there is something to my basic point, which is that more of the same – more rules, formulas, factors or tests – is unlikely to fix the conundrum of standard of review. And it is certainly unlikely to make the thought of teaching administrative law next term any more palatable.

Solicitor-client privilege

On solicitor-client privilege, the Court has no such doubts or backtracking. Its approach is generally entirely consistent, Justice Cromwell’s dissent on this issue notwithstanding: solicitor-client privilege is a central aspect of the legal system and fundamental justice; it must be jealously protected and rarely interfered with; legislative incursions on solicitor-client privilege are subject to constitutional scrutiny where s 7 or s 8 of the Charter are at play (for a more fulsome discussion, see Adam Dodek’s terrific book, Solicitor-Client Privilege (Toronto: LexisNexis Canada, 2014)).

Generally speaking, I agree with the Court’s approach to solicitor-client privilege (see chapter 5 of Understanding Lawyers’ Ethics in Canada, 2d ed (Toronto: LexisNexis Canada, 2017)). But given both this case and the Court’s 2015 decision holding that money-laundering legislation was unconstitutional in part due to its effect on solicitor-client privilege (Attorney General (Canada) v Federation of Law Societies, 2015 SCC 7 (Can LII); my blog post here), I do worry whether the Court is losing perspective on what truly constitutes an interference with solicitor-client privilege and confidentiality.

In this case, what would allowing s 56(3) to apply to solicitor-client privilege actually do? It would mean that when a public body did not provide sufficient detail to support a claim to solicitor-client privilege, the Privacy Commissioner could review the documents to determine whether or not they were legitimately classified as privileged. Assuming that the Privacy Commissioner does not exercise that power unlawfully (which I think has to be assumed in assessing the law’s interpretive scope), how much of an incursion on the solicitor-client relationship would this really be? The point is not to deprive the public body of solicitor-client privilege. The point is only to require the public body to properly justify its claims to privilege, and to provide some check on abuse by a public body that claims privilege improperly or dishonestly. I confess that I find it difficult to see that mild incursion as requiring the kind of handwringing that the Court engages in here, and see the Court’s imposition of an onerous approach to statutory interpretation for a legislature to justify that sort of mild incursion on the privilege as a bit overwrought.

If s 56(3) applied to solicitor-client privilege I do not think officials of a public body would be more reluctant to confide in their lawyers. I do not think that privileged communications would improperly fall into the public domain – I am willing to assume the Privacy Commissioner will generally act lawfully. I do think that public bodies would be more careful to provide appropriate justification for privilege claims. And that, it seems to me, is an important aspect of the general legislative scheme that received insufficient attention from the majority of the Court.

In the case of privilege, the Court’s consistency has, I think, clouded its ability to see that not every incursion into the privilege is the same, and that protecting the privilege to this extent has real consequences for other legitimate concerns of the legal system. And I worry that the Court’s approach may lead to an unhealthy counter-reaction to the power this gives to lawyers and their clients to obfuscate the truth – particularly if those clients are powerful and dishonest. The University of Calgary properly justified its claim to privilege. But if another public body does not do so, the Privacy Commissioner will, presumably, have only the recourse of an application to the court to address that deficiency. That result seems unfortunate and unwarranted by the harm (if any) prevented by the Court’s approach to s 56(3).

This post may be cited as: Alice Woolley “The Dangers of Inconsistency (and Consistency) in Supreme Court Jurisprudence” (7 December, 2016), online: ABlawg, http://ablawg.ca/wp-content/uploads/2016/12/Blog_AW_PrivacyCommissioner.pdf

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Commemorating the National Day of Remembrance and Action on Violence Against Women

Tue, 12/06/2016 - 9:45am

Matter Commented on: National Day of Remembrance and Action on Violence Against Women

December 6 is the National Day of Remembrance and Action on Violence Against Women in Canada. This date marks the anniversary of the murders of fourteen women at the École Polytechnique massacre in Montreal. A memorial service is being held at the University today, and people may also wish to visit the moving sculpture by artist Teresa Posyniak, Lest We Forget, in the Faculty of Law across from the law library.

ABlawg has published several posts on gender-based violence this year, which we have gathered below. These posts analyze the treatment of gender-based violence by the courts and legislatures, in criminal, constitutional and other contexts, drawing to attention those bodies’ varying levels of understanding of and commitment to preventing violence. It is worth noting that the Inquiry Committee of the Canadian Judicial Council into the conduct of Justice Robin Camp recently stated as follows with respect to the role of judges in cases involving gender-based violence:

The Intervener Coalition submitted that, conceptually, the reasonable person “must include the perspective of survivors of sexual assault, and marginalized women generally, as they are entitled to a judiciary that rejects sexual myths and stereotypes and understands and respects equality.” We agree. A judge performs a unique role in society and his or her capacity to continue in the execution of that role cannot be judged without regard to the perspective of those who would most likely be affected by the Judge remaining in office.  That is not to say that such a perspective is the sole or the dominant one in evaluating public confidence, but it is one that should be included, and must be understood. (at para 252)

With that in mind, we encourage our readers to reflect on the various approaches to gender-based violence captured here:

Erin Sheley, The Constitutional Limits of the Sex Offender Registry

Drew Yewchuk, Myths, Stereotypes, and Credibility in Sexual Offence Trials

Stephen Armstrong, Taking Proportionality Seriously in Charter Adjudication: R v KRJ

Drew Yewchuk, Ostensible Consent: Reality and Legal Reality Case

Jennifer Koshan, Excluding Mere Intimate Relationships: The Alberta Court of Appeal Interprets the Protection Against Family Violence Act

Joshua Sealy-Harrington, Mastery or Misogyny? The Ghomeshi Judgment and Sexual Assault Reform

Alice Woolley, What Ought Crown Counsel to do in Prosecuting Sexual Assault Charges? Some Post-Ghomeshi Reflections

Jennifer Koshan, Costs Not Appropriate in Protection Against Family Violence Act Litigation

Alysia Wright, Access to Legal Services in Women’s Shelters

Jennifer Koshan, Reflections on Week One of the Ghomeshi Trial

Jennifer Koshan, Sexual Assault and Choking – Making Sense of the Legal Consequences (No subject)

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