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Who Are the “Parents of the Nation”? Thoughts on the Stephan Case and Section 215 of the Criminal Code

5 hours 26 min ago

By: Lisa Silver

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fri, 05/20/2016 - 11:17am

By: Lynn Anderson

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

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

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

Judicial History

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

Facts and Issue on Appeal

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

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

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

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

The Court of Appeal’s Decision

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

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

Commentary

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

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

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

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

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Pritchard v Van Nes: Imposing Liability on Perpetrator Zero of Defamatory Facebook Posts Gone Viral

Thu, 05/19/2016 - 3:46pm

By: Emily Laidlaw

PDF Version: Pritchard v Van Nes: Imposing Liability on Perpetrator Zero of Defamatory Facebook Posts Gone Viral

Case Commented On: Pritchard v Van Nes, 2016 BCSC 686

Justice Saunders of the British Columbia Supreme Court recently decided Pritchard v Van Nes, 2016 BCSC 686 (Pritchard) concerning the liability of individuals not only for their Facebook posts, but how their “friends” react to these posts, whether through comments, sharing or otherwise distributing the post. This case asks: if you start the fight, are you liable for the pile-on? The analysis of the Court could have significant repercussions concerning the uneasy balance between the right to reputation and freedom of expression, arguably tipping the balance in favour of reputation in stark departure from recent Supreme Court of Canada cases on defamation (see Crookes v Newton, 2011 SCC 47, Grant v Torstar Corp., 2009 SCC 61, WIC Radio Ltd. v Simpson, 2008 SCC 40).

Facts

Pritchard involves a claim for nuisance and defamation, although this post will only focus on the defamation aspect of the claim. The plaintiff obtained default judgment in June, 2014, and the reasons for judgment here concern the plaintiff’s application for a permanent injunction, assessment of damages and special costs.

Pritchard and Van Nes are neighbours in Abbotsford and have the kind of neighbourly relationship we all fear. Their dispute dates back to 2011 when the Van Nes family installed a fish pond with a waterfall in their backyard. The plaintiff testified that the noise from the fish pond was loud, making sleep difficult for him and his wife. The plaintiff complained to the defendant and this sparked the deterioration in their relationship. Several other incidents were reported – the defendant dog defecating in the plaintiff’s yard, loud parties, blocked driveways – all of which is more relevant to the nuisance claim than defamation, but it certainly contextualises the tension that led to the Facebook posts by the defendant.

On June 9, 2014, the defendant posted a picture on Facebook of the plaintiff’s backyard with the following message:

Some of you who know me well know I’ve had a neighbour videotaping me and my family in the backyard over the summers…. Under the guise of keeping record of our dog…

Now that we have friends living with us with their 4 kids including young daughters we think it’s borderline obsessive and not normal adult behavior…

Not to mention a red flag because Doug works for the Abbotsford school district on top of it all!!!!

The mirrors are a minor thing… It was the videotaping as well as his request to the city of Abbotsford to force us to move our play centre out of the covenanted forest area and closer to his property line that really, really made me feel as though this man may have a more serious problem. (para 22)

There was no video camera (para 23) and the mirror referred to wasn’t for spying on the defendant, but rather was a feng shui ornament (para 19). The Court accepted the plaintiff’s evidence that he never made a complaint to the municipality about the swing set (para 20). The defendant’s post prompted 48 comments by 36 friends and 9 further comments by the defendant (para 23). The comments, including those of the defendant, referred to Mr. Pritchard as “a ‘pedo’, ‘creeper’, ‘nutter’, freak’, ‘scumbag’, ‘peeper’ and a ‘douchebag’” (para 24). Mr. Pritchard’s name, occupation and work were all identifiable in the conversation (para 73). This was, in effect, a conversation implying that the plaintiff was a paedophile and unfit to teach, which defamatory meaning Justice Saunders accepted (para 74). The defendant described her post and comments as “venting” (para 41), but the audience of her venting was sizeable. She actively conversed with 36 friends, which would have been visible to her 2059 friends (para 75), and further visible to the countless other friends of friends that see the posts their friends react to (thanks to the new Facebook upgrade from “liking” to “reacting” in 2016). The defendant also set her privacy settings to public so anyone could see the comments posted about the plaintiff. The Facebook post was up for 27.5 hours before the plaintiff deleted it (para 31), but continued to be on timelines through friends who had liked or commented on the post (para 32).

Mr. Pritchard is a Middle School music teacher. One “friend” of the defendant, Rick Parks, posted a suggestion that the defendant send the picture to the plaintiff’s principal, and advised that he had shared the defendant’s post on his timeline (para 25). Mr. Parks later sent an email to the principal with an email attachment of the image and amongst the allegations made against the plaintiff, commented “I think you have a very small window of opportunity before someone begins to publicly declare that your school has a potential paedophile as a staff member. They are not going to care about his reasons – they care that kids may be in danger.” (para 26).

The injury to Mr. Pritchard’s reputation has been palpable (paras 33-38). Before these posts he was an active member of his workplace and community, working in an extra-curricular capacity with students in concert bands, and by all accounts growing the school music program significantly (para 10). After the Facebook post, Mr. Pritchard no longer enjoys teaching, withdrew from school programs, guards his interactions with students and dreads any public performances. His employment opportunities elsewhere are now limited. One student was removed from his music programs, while a few neighbours have made comments, such as “I thought I knew Doug, but I guess I didn’t know the other side of him” and “You know, your husband could get fired” (para 37).

That the original post by the defendant was defamatory is straight-forward. This blog post will not focus on those aspects of the judgment. Rather, it is the Court’s analysis of the concept of publication in order to impose liability on the defendant for the posts and shares of her “friends” that requires unpicking. This is particularly pressing as the sting of the libel in this case is something all too familiar online – the sting isn’t just what the defendant posted, but what all her friends posted, some just cruel, some defamatory in their own right. It was a virtual lynching and unfortunately the parameters of defamation law fit uneasily with such a scenario. This case highlights the need for more comprehensive defamation reform (stay tuned for the work of the Ontario Law Reform Commission).

Issues

The Court analysed two separate, but related issues concerning publication. First, whether the defendant is liable for re-publication of the defamatory post (and comments) through her “friends” sharing the post, her friends of friends seeing the post in their timeline, and for Mr. Parks’ letter to the principal. Second, whether the defendant is liable for any of the defamatory comments by her “friends” in response to her post.

The Meaning of Publication

Publication is central to defamation law. In order for a comment to be defamatory it must be published, meaning it must be communicated to at least one person other than the plaintiff. It is clear that the defendant published her own posts about the plaintiff. What is less clear is whether she published the defamatory comments of her “friends” commenting on her post, sharing it and otherwise disseminating it in the wide platform that is Facebook.

Publication must be deliberate in the sense that they have to “knowingly be involved in the process of publishing the relevant words” (see Crookes para 21 drawing from Bunt v Tilley, [2006] 3 All ER 336 (QB)). Thus, those that play a “passive instrumental role” (Bunt at para 23) are not liable. What is passive? Under UK case law, on which most Canadian defamation cases refer, once you become aware of the defamatory content (actual or constructive knowledge), and have the power to remove the content from circulation and fail to do so, you are interpreted as liable for the continued publication of the work. You weren’t originally a publisher, but you become a publisher for the continued circulation (see Carter v BC Federation of Foster Parents Association, 2005 BCCA 398). This is the concept of knowledge and control that underpins the common law governing publication. A seminal case is Byrne v Deane, [1937] 1 KB 818 where a defamatory notice was posted on a golf club notice board. The club directors were aware of the notice and failed to remove it amounting to publication of the notice.

This indirect involvement in the publication process is what absolves innocent disseminators of liability for publication. This defence protects vendors, librarians, agents etc. from liability for publishing the defamatory content as long as they did not know, nor had no reason to suspect, that the publication was defamatory. In the UK, this defence has been codified in s. 1 of the Defamation Act 1996 (and the new website operators defence in s. 5 of the Defamation Act 2013). In the internet context, this aspect of defamation law has increasingly been used (and strained) to address the liability of online intermediaries: online service providers, such as Facebook, Twitter and Reddit, internet service providers (ISPs) and search engines (mainly Google) for content that, while they make available in some way, they did not create. A case like Pritchard raises a more complicated question about the liability of individuals who are both the content creators in posting defamatory content, and hosts or facilitators of defamatory posts of others. The case law that has developed to address online intermediaries is helpful, but does not seamlessly apply to this context.

In the background are the liability frameworks that have been created in Europe and the USA to provide safe harbours from liability for online intermediaries. This concept of passivity underpins both frameworks. Under the EU’s E-Commerce Directive 2000/31/EC, three categories of information service providers are created: mere conduits, caches or hosts. The risks of losing the safe harbour are greatest for hosts of content. Similar to the common law governing publication, if the host knows or is aware it is hosting unlawful content it is obligated to remove or disable access within a reasonable period of time. The USA, in contrast, has codified broad immunity for intermediaries under s. 230 of the Communications Decency Act, 47 USC.

Republication is another issue. Generally, an individual is not liable for republication of their defamatory words by a third party. There are exceptions. The focus is on whether the original publisher had responsibility over the republication in the sense of whether they had control over the republication, authorised it or participated in it. Relevant here is that a defendant may be liable for republication where “the repetition was the natural and probable result of his or her publication” (Pritchard at para 73). This imports foreseeability to the determination of responsibility for republication: if a reasonable person would have expected that the defamatory comment would be republished, then the defendant is liable for the republication (see Brown on Defamation (looseleaf), 7.5(4)). What is a social networking site like Facebook to a concept such as republication? The space has the social informality of pub talk with the permanence of print. And things go viral, like the post at issue in Pritchard, although in the grand scheme of things this post did no go viral the way other cases of shame and abuse have (think Zoe Quinn and Anita Sarkeesian). In those cases the attacks were worldwide rather than local, although some of the most damaging harm to reputation occurs at a local level, as experienced by Pritchard.

Republication

The Court in Pritchard held that the defendant implicitly authorised republication of the defamatory post (including comments) via sharing of the post by others, visibility of the post by non-friends, and publication of the letter by Mr. Parks to the plaintiff’s principal. I suggest two analytical flaws in the Court’s reasoning. First, the Court found implicit authorisation in the sheer fact that the defendant used Facebook:

In my view the nature of Facebook as a social media platform and its structure mean that anyone posting remarks to a page must appreciate that some degree of dissemination at least, and possibly widespread dissemination, may follow. This is particularly true in the case of the defendant, who had no privacy settings in place and who had more than 2,000 “friends”. The defendant must be taken to have implicitly authorized the republication of her posts. (para 83)

By using Facebook, therefore, any post by an individual puts them at risk for liability for what their friends do with it. There is some logic to this argument, particularly to address the problem of the type of mob attacks were are seeing online; an individual takes the risk by using Facebook and posting the defamatory content and should be held responsible for any republication that results. Support for this approach is the principle that an individual is liable for any republications that are a natural and probable result of the original publication, which is arguably the case for any posts on social media. The concern is the unpredictable nature of this. It might be foreseeable that someone might share your post as that is a staple of Facebook interactions, but it is arguably unforeseeable that someone would do anything else with it.

More troubling is the liability imposed on the defendant for the republications by Mr. Parks, because it imposes a duty to speak up. The Court concluded that the Mr. Park’s comment that he had shared the post on his page and suggestion “why don’t we let the world know” (para 88) affixed the defendant with knowledge that Mr. Parks intended to republish the post. The defendant’s failure to speak up – her silence– led the Court to conclude that she authorized any republication by Mr. Parks, including the email he sent to the principal. Liability for failure to take positive steps is a component of publication in defamation law, albeit a narrow one, and it is dependent on knowledge and control, but it is rarely if ever invoked to impose an obligation to speak. There are potentially limiting factors in the judgment – the fact that the defendant had no privacy settings, and 2000+ friends.

More generally in tort law, liability for a failure to act is only imposed in exceptional circumstances, and for good reason. It is a difficult duty to fulfil. In this case we have the benefit of hindsight – Mr. Parks did act by sending the email to the principal – but for users of social media and the hyperbole and jest involved, it won’t always be clear. This is important, because at what point did the interaction crystallize to a duty to act? Or to be specific, a duty here to “warn Mr. Park’s not to take measures on his own” (para 90). What if he had said “let’s shame him” or made a comment that was borderline joking, such as “we need to bring back the scarlet letter for this guy”. This also requires a peculiar form of action, namely imposed speech. Would the defendant replying “No, no, no, don’t do anything, I’m just venting” have been sufficient to remove liability? What if her comment was not convincing? What timeline is considered reasonable to expect a reply? It is one thing to impose liability for a failure to act to, for example, remove the defamatory content (as seen with intermediary liability). It is another to impose liability for a failure to speak up – this imposes a speech requirement with specific content characteristics. The latter duty would be difficult to fulfil.

Liability for “Friends’” Comments

The Court then analysed whether the defendant should be liable for the comments posted by her “friends” on her Facebook post. As the Court noted, this is an “emerging legal issue in Canadian law.” (para 91) I suggest that the Court erred in its interpretation of the law and in its application. Of particular concern is the Court’s imposition of liability on the defendant on the basis that she ought to have known her friends would post defamatory comments.

The Law

The Court drew, in particular, from the reasons of Deschamps J., concurring in the result, in Crookes, concerning liability for sharing hyperlinks that contain defamatory content. The majority in Crookes created a bright-line rule, wherein only where the act of sharing the hyperlink repeats the defamation is it publication. The simple act of sharing a hyperlink, without more, is not publication. This was rooted in an analysis of the importance of the internet to freedom of expression and the critical role of hyperlinking to its use. The dissenting judgment argued against the bright-line rule, suggesting rather, that in some instances, where there was endorsement or adoption of the defamation, it is publication. Deschamps J., rather, argued that hyperlinking should not be excluded from the publication rule, arguing that there might be publication if an individual “makes defamatory information readily available to a third party in a comprehensible form” (Crookes at para 59 discussed in Pritchard at para 94). If a case departs from the majority in Crookes, I suggest the dissenting judgment is preferable as the concept of readily available is too woolly to be of practical guidance.

The internet law cases relied on by Deschamps J. concern intermediary liability – liability imposed on the hosts of a website or platform on which a third party made the defamatory comments. The cases, in assessing knowledge and control ask such questions as follows. Was the defendant notified of the defamatory content? Did the defendant have control over the defamatory content such that they could have and should have removed it? Typically, this might involve the host of an online forum who is notified a user posted defamatory comments and fails to remove it. This is a complicated area of the law, namely because it is not so simple to impose liability post-notification for failure to act. When is notice deemed sufficient? How detailed does this notice need to be? Is actual notice required or does constructive notice count? When is the party deemed to know about the defamatory comment? Is it upon notice alone, or does the party need to have evidence of unlawfulness before action is required? What if there is conflicting evidence? There is some unease going down this road, because it forces the party into a quasi-judicial capacity, assessing the merits of a defamatory claim and then making a decision with powerful results: the information remains accessible or is removed from circulation. This directly implicates the right to receive and impart information. Europe has wrestled with these issues for over fifteen years, while Canada is in a nascent stage of development, although caselaw suggests a similar approach is emerging but inconsistent in its application (see Carter and Crookes; but see Baglow v Smith, 2015 ONSC 1175). The complications of these issues were smoothed out in the analysis in Pritchard by failing to engage with the more difficult aspects.

The Court’s error is in what it frames as the ‘passive instrument test’ (para 107). Passivity is best understood as the instrument through which deliberateness is relevant: one must show a deliberate act in making the content available, and the more passive the activity the harder it is to find deliberateness. One way that deliberateness is found is through notice – once a party knows it is making available content that is defamatory, and it has the power to remove it, it can be found to be deliberately choosing to continue publishing it. As to the passivity, the Court cites the case of Weaver v Corcoran, 2015 BCSC 165 (paras 102-104), a case that involved, in part, whether the National Post should be liable for posts by its readers in the comments section. The Court noted the passive role played by the the newspaper concerning the comments section, and the unrealistic expectation that it would pre-approve every comment before posting. Since the newspaper removed the offending comments they were not publishers. If they had failed to remove the comments, the Court would have concluded the National Post was liable for continued publication of the defamation: “[o]nce the offensive comments were brought to the attention of the defendants, however, if immediate action is not taken to deal with these comments, the defendants would be considered publishers as at that date.” (para 104 citing Weaver).

Another way that passivity is assessed is through the activity. Some activities are too passive for there to be liability. Most of the UK case law considers, or is influenced, by the categories created in the the E-Commerce Directive, discussed above, wherein a safe harbor is provided, at varying levels of protection, depending on whether the activity is of a mere conduit, cache or host. For example, the Court considered the case of search engines, a complicated and developing area of the law. Not all of what Google does in relation to its search function is passive. It depends on the activity. Is the complaint regarding the auto-complete function? Search snippets? Links to articles in its search results? Most are automated, but what are Google’s obligations once it is notified of a problem? In Metropolitan International Schools v Google, [2009] EWHC 1765 (QB) discussed by the Court in Pritchard (para 106). Eady J. investigated the liability of Google for the snippets that are returned in search results. Eady concluded, amongst other things, that a search engine is not a publisher at common law, whether before or after notification of a defamation claim and is not analogous to a website or ISP, the search engine having no input over search terms entered and the process of publication being automated. The peculiarity of search engines bears repeating. It invites an aspect of automation that is different than the situation here, and in fact, is different from ISPs and hosts. Automation goes to passivity, but is not as helpful for a case such as Pritchard, and these differences, I suggest, should have been more carefully teased-out in the analysis.

The Court summarized the law as follows:

In summary then, from the forgoing law it is apparent that Carter, Weaver, and Niemela, consistent with Deschamps J.’s reasons in Crookes, provide support for there being a test for establishing liability for third party defamatory material with three elements: 1) actual knowledge of the defamatory material posted by the third party, 2) a deliberate act that can include inaction in the face of actual knowledge, and 3) power and control over the defamatory content. After meeting these elements, it may be said that a defendant has adopted the third party defamatory material as their own. (para 108)

I suggest this confuses the test. Many of the cases considering publication in the digital age have involved intermediaries rather than the case here, where the defendant kick-started a defamatory conversation. This makes such intermediaries analogous to editors and publishers of newspapers, for example, who would be liable for a publication but would not necessarily know of the defamatory content. This is different than individual interactions. In fact, this difference was noted in the oft cited Bunt, but has been insufficiently teased out in Canadian jurisprudence:

Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process. (para 23)

Three things should be clarified: passivity, knowledge and control. All of this goes to the question of whether the defendant has deliberately published the defamation. Rather, I suggest the test is:

  1. Did the defendant know, or should have known, of the existence of the defamatory content?
  2. Was there a request to remove the material, or did the defendant’s behaviour otherwise show consent or approval of the continued publication?
  3. Did the defendant have control over the content? If so, did the defendant fail to remove the content within a reasonable period of time?

This test applies uneasily to the circumstances of this case, as seen in the reasoning of the Court, because there was no request to remove the content as seen in most cases involving hosts online. Rather, it is more the question of whether the defendant, upon knowledge of the defamatory posts by her friends, approved their continued publication. The Court concluded:

I find as a matter of fact that Ms. Van Nes acquired knowledge of the defamatory comments of her “friends”, if not as they were being made, then at least very shortly thereafter. She had control of her Facebook page. She failed to act by way of deleting those comments, or deleting the posts as a whole, within a reasonable time – a “reasonable time”, given the gravity of the defamatory remarks and the ease with which deletion could be accomplished, being immediately. She is liable to the plaintiff on that basis. (para 109)

What is knowledge in such a situation? When did the defendant know that her friends were posting defamatory comments? What is immediately, especially in circumstances where knowledge isn’t tied to notice?

Ought to Know Test

The most troubling aspect of the reasoning in Pritchard is the liability imposed on the defendant, because she should have anticipated what was going to happen. This rubs close to making the defendant responsible for starting the pile-on. The Court stated:

Furthermore, I would find that in the circumstances of this case there ought not to be a legal requirement for a defendant in the position of Ms. Van Nes having actual knowledge of the existence of defamatory comments by her “friends” as a precondition to liability. The circumstances were such that she ought to have anticipated such posts would be made. I come to this conclusion for two reasons: the nature or structure of a social medium platform, and the content of Ms. Van Nes’ contribution to the posts. (para 110)

It is concerning to the constitutional value of freedom of expression to suggest that liability should be imposed, because you failed to anticipate a conversation would go south, even more so in defamation law where most of the burden is on the defendant to refute the defamatory claim. Liability for publication attaches for just starting the conversation. While the case here is simpler in the sense that the defendant posted clearly defamatory remarks, the implications are not so simple for the muddy waters in which humans communicate. Let me elaborate.

The Court based its conclusion on two factors: the nature/structure of the social media site, and the defendant’s own posts. Part of the difficulty is the analogies drawn. The Court rightly differentiated the defendant’s behaviour from that of a search engine, host of an online forum, or in the case of Crookes, both the host and speaker on online forums, and accurately framed the defendant as having set in motion events with her post. What is insufficiently articulated in the case is what this means for the applicable law, as the defendant’s activities blur the line between intermediaries and content providers, a division that is critical in the analysis of responsibility for publication. The Court resolved it using the ought to know test, but as will be discussed, this is insufficient to the task of balancing the values of free speech and reputation, and does not resolve the intermediary/content provider distinction. The Court’s analysis on this point, although lengthy, is worth repeating.

[111] A user of a Facebook page is not in the same position as the defendant Newton in Crookes, the defendant Federation in Carter, or the respondent Google Inc. in Niemala. Those parties were only passively providing a platform or links to defamatory material. In the present case the entity in the analogous position would be Facebook, Inc., the owner of the software that creates the pages and the servers on which the content is stored. The user hosting a page of a social medium such as Facebook, on the other hand, is providing a forum for engagement with a circle of individuals who may share some degree of mutual familiarity. As noted above, the social nature of the medium is such that posts about concerns personal to the user may reasonably be expected to be discussed by “friends”.

[112] What these factors entail is that once she initiated events through having made an inflammatory post concerning a matter of personal concern, Ms. Van Nes ought reasonably to have expected her “friends” to make sympathetic replies. The “friends”’ comments were not unprovoked reactions; they were part of a conversation. And then, when they did comment, Ms. Van Nes – far from being the passive provider of an instrument for comment – continued as an active participant through making replies, prompting further comment. Those replies added fuel to the fire, compounding the chances of yet more defamatory comments being made.

[113] In other words, I would find that the nature of the medium, and the content of Ms. Van Nes’ initial posts, created a reasonable expectation of further defamatory statements being made. Even if it were the case that all she had meant to do was “vent”, I would find that she had a positive obligation to actively monitor and control posted comments. Her failure to do so allowed what may have only started off as thoughtless “venting” to snowball, and to become perceived as a call to action – offers of participation in confrontations and interventions, and recommendations of active steps being taken to shame the plaintiff publically – with devastating consequences. This fact pattern, in my view, is distinguishable from situations involving purely passive providers. The defendant ought to share in responsibility for the defamatory comments posted by third parties, from the time those comments were made, regardless of whether or when she actually became aware of them.

I suggest that online conversations do not work the way the Court suggests in Pritchard, at least without significant risk of liability for participants. Let me give an example. Let’s say I am a journalist and I post a story that is provocative, designed to stir conversation in the comment section. There is an important social role here, but there is a risk under the analysis in Pritchard, that by starting the conversation you should have known that posts would be made. You are liable on this ought to know basis. As another example, what if I post a vent on Facebook about, for example, the birth of my child and my unhappiness with the care I received at the hospital. I might post it in a tempered tone, but children and birth being a hot button issue, friends post vicious, defamatory posts about the hospital alleging all sorts of behaviour, made up statistics on injuries to the child, etc. What about if the topic is religion? Schooling? Politicians? So much would be out-of-bounds to even begin to discuss out of fear of liability because a court deems you liable not for a failure to remove the content upon notice (the traditional test), but because you should have known.

The Court notes a similar New Zealand case that rejected the type of liability imposed here (Wishart v Murray, 2013 NZHC 540, at para 114 of Pritchard]. The Court of Appeal in Wishart was rightly concerned, among other things, that the ought to know test was too uncertain in the way it would be applied, (see Pritchard para 116), and that imposing liability was inconsistent with the intentional nature of the tort. The Court in Pritchard, in rejecting Wishart, stated that foreseeability already exists in tort law concerning republication and therefore ”the integrity of defamation as a separate tort” (para 117) is not harmed by extending it to the issue of third party comments. This does not logically follow. Defamation law is an intentional tort, and the suggested extension of the law to include foreseeability regarding third party comments blows open the liability framework rather than develops it incrementally as the Court suggests it has done. Foreseeability as to republication is limited to a repeat of the specific defamation in question and in effect holds the defendant liable for the spread of the information in predictable ways. Foreseeability as to what third parties might themselves say is wholly unpredictable and the chilling effects more evident.

Conclusion

The assault on Pritchard’s reputation was brutal and the case against Van Nes for her comments was relatively clear. However, in an effort to provide compensation for the whole of the attack on his reputation, given only Van Nes was sued, led to concerning implications for the balance between free speech and reputation in cases going forward. Rather, it indicates we have a lot of work to do to reform defamation law. In particular, this case highlights three areas where we need work. The law governing third party liability needs to be developed and clarified (including the law governing publication, and the differences between intermediaries and content providers). Further, one of the limitations in this case is the fact that only Van Nes was sued, and in fact, the case against most of the commentators would have been difficult to succeed (save Mr. Parks). This raises one of the more fundamental problems of defamation in the digital age –lawsuits are complicated and cumbersome. What is needed is more small-scale private dispute resolution, which would have more cheaply and easily addressed the issues without bending the law to achieve a just result.

One final aspect that should be examined more broadly is this kind of mob attack. I suggest the Court was correct to look at the social media space as a whole (structure, distribution, and publication) and the nature of the defamatory conversation (because it in effect was a conversation with posts and comments and shares), but the analytical framework is under-developed. We do have a real problem with mobs online and this stretches beyond defamation law to privacy, harassment, revenge pornography, and other abuse and bullying. In my work I have sought to interrogate the nature of this mob to address the kind of law reform needed to tackle the serious harm suffered by the victims. However, this requires a larger wholesale reform of the law.

In an ideal world the Plaintiff would have been in a position to successfully sue the defendant, Mr. Parks, and any of the other individuals who posted defamatory content of their own on the defendant’s comments section. However, this is not realistic. Litigation would be costly, defendants often difficult to trace (although not in this case), and damages minimal. In 2012, Lord McAlpine, a former politician in the Thatcher government, was falsely linked with with a Newsnight story alleging sexual abuse by a Conservative politician. The rumour that he was a paedophile spread on Twitter via thousands of posts. McAlpine successfully sued some of the more prominent Twitterers with a large number of followers (see here and here), and offered to settle with any individual who had less than 500 followers if they made a donation to a charity (see here). However, most people aren’t McAlpine. And in the teaching profession, an accusation like paedophilia “sticks to you like tar” to use Monica Lewinsky’s recent expression for the shaming she endured all those years ago. Further, this still misses the viral nature of online republication, and the ease and passivity with which individuals re-share or see the comments of friends of friends on their timeline. The Court elected to impose liability on the one who started it. The problem is that this stretches defamation law beyond its logical structure.

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Stewart Estate: Finalizing The Judgment Roll and Costs

Thu, 05/19/2016 - 3:46pm

By: Nigel Bankes

PDF Version: Stewart Estate: Finalizing the Judgment Roll and Costs

Decisions commented on: Stewart Estate v TAQA North Ltd, 2016 ABCA 143 and Stewart Estate v TAQA North Ltd, 2016 ABCA 144

The Court of Appeal handed down its main decision in Stewart Estate v TAQA North Ltd, 2015 ABCA 357 (hereafter the main decision) in November 2015. In my post on the main decision I suggested that “while Stewart Estate is certainly a significant decision (which grapples with important issues including, the standard of review applicable to lease interpretation questions, the rules surrounding the termination of oil and gas leases and the question of remedies for wrongful production), it is ultimately a disappointing decision because, in the end, with three separate judgments, this three person panel of the Court agrees on very little.”

We now have two further decisions from the panel of the Court that heard the case, one decision settling the judgement roll (hereafter the judgment roll decision) and the second dealing with the costs award (the costs decision). The judgment roll decision expressly describes itself (at para 1) as providing supplementary reasons to the main decision. This post not does provide a systematic account of either of these decisions but it does aim to identify where these decisions have added to the reasoning in the main decision or have provided dicta that may be of interest beyond this case.

The Judgment Roll Decision

The first significant issue concerns the liability of a party (Esprit) who was in receipt of gross overriding royalty (GORR) payments. There are potentially two issues here. First, under what circumstances, if at all, is a payee of a GORR a tortfeasor vis-à-vis the lessor of the expired lease, and second, if the GORR payee is a tortfeasor and therefore liable, what, if any, is the liability of the payor (Bonavista in this case) to the lessors for those royalty payments. The majority in the main decision had concluded that Esprit was liable. I was critical of that decision in my post – or at least critical of how the majority reached that decision. In any event, the main outstanding issue with respect to the judgement roll was Bonavista’s liability. Bonavista evidently took the positon that the lessors could have judgement against Esprit for the royalty share but that it (Bonavista) had no default liability as a joint tortfeasor in relation to that royalty gas. In its judgement roll decision the Court corrected Bonavista and ruled that Bonavista was indeed jointly and severally liable for the royalty gas (at paras 5 –15). That seems entirely appropriate: the party that engages in the wrongful severance is still a tortfeasor in relation to all of the gas that is severed even if it does pay a portion of the proceeds of sale for some of the gas to a third party.

As an aside, while it seems self-evident that Esprit’s liability is liability in tort, the Court in the Costs Decision (at para 42) apparently has a different view concluding that Esprit’s “liability lay in the law of personal property (a person cannot acquire a better title than that of the person from whom it received the chattel), not in the law of torts.” There are two problems with this passage. First, Esprit didn’t receive the chattel, it did not take in kind (but purchasers of commingled gas streams beware!) Second, there is no such thing as liability in personal property just as there is no such thing as liability in real property. The fact of the matter is that we routinely use real and personal property torts to vindicate property rights. When I sue for the return of personal property I sue in detinue, I don’t bring “an action in personal property” and if I just want damages I sue in conversion but again I don’t sue “in personal property” whatever that might mean. I don’t think that this terminological difference makes any difference to the Court’s conclusion on the costs point but it is hardly a helpful way to describe the difference in the legal positions of the lessees and Esprit.

There was actually a third issue in relation to Esprit’s liability and that was the period for which it was liable. Here Esprit wanted to exploit the dissonances in the various judgements in the main decision. Esprit took the position that since it was Justice O’Ferrall (Justice McDonald concurring, and Justice Rowbotham dissenting) who established Esprit’s liability then it must be Justice O’Ferrall’s judgement that must also establish the duration of Esprit’s liability. Justice O’Ferrall was of the view that the lessees’ liability ran from the date that they were served with the Statement of Claim (Judgement Roll decision at para 18) or notice to vacate (September 2005, main judgement at para 432). However, the majority judgement on the timing\limitation issues was authored by Justice Rowbotham (Justice McDonald concurring) and that judgement established that the lessees’ liability was governed only by the general limitations rules and thus extended back two years prior to the issuance of the Statement of Claim (August 2005) (i.e. a longer period of liability than that found by Justice O’Ferrall).

The Court makes surprisingly heavy weather of all of this. Again, given the premise, if the basis of Esprit’s liability is that it is repeating the conversion committed by Bonavista then its liability must be coextensive with Bonavista’s (unless it can take the benefit of a different limitation period and there is no suggestion of that here). Here is what the Court had to say (at paras 19 – 20):

[19]           The views of the majority with respect to the date from which the appellants are entitled to a remedy govern. Given those views, it would be illogical and unfair to require Bonavista to account for the production it received while not requiring the overriding royalty recipient (Esprit/Pengrowth) to account for the value of the production Bonavista paid to it during that same period.

[20]           In the result, this Court orders that the commencement date for disgorgement of the value of the royalty volumes be the same for both the lessee, Bonavista, and the royalty holder, Esprit/Pengrowth.

There was one other timing\limitations issue to address and that related to the liability of Coastal. Coastal seems to have argued (at paras 23 – 26) that it could not be liable for the full 2 years allowed by the Limitations Act, RSA 2000, c. L-12 because it benefited from an extended leave and licence argument (see main decision per Justice Rowbotham at paras 184 – 195 but concluding that the leave and licence was revoked as of December 2005) and was not actually served with the statement of claim until June 2006.

The difficulty with this argument is that as of August or September 2005 the majority judgement on this point is no longer found as between Justices Rowbotham and McDonald but as between Justices O’Ferrall and McDonald. The Court confirms this at para 26 of the judgement roll decision where the text seems to suggest that all are now agreed that there could be no leave and licence as of September 2005 when Coastal’s predecessor in title, Unocal, was served along with the other lessees. The only reason that Coastal was not served earlier was that it was not at that time on title (at para 26):

Coastal’s predecessor, Unocal, from whom it acquired its interest, was served with the Statement of Claim in the Fall of 2005. Unocal was served because Coastal failed to register its interest on title. There is simply no basis on which to suggest that the Irwin Group consented to Coastal’s continued receipt of the natural gas revenues attributable to the north 43 acres of the NE 1/4 of Section 25 after Unocal was served with the Statement of Claim and Notice to Vacate. That Unocal was served in the Fall of 2005 ends the matter; but the fact that Coastal was advised by Chevron (on behalf of Unocal) of the litigation by letter dated December 19, 2005 makes the argument completely untenable.

While there might be an issue about which party had the primary liability (Unocal or Coastal) there would seem to be little doubt that this stream of gas (apportioned to the NE quarter) was being tortiously produced and without leave or licence and that Unocal or Coastal must be liable as of the fall of 2005. How that liability would be allocated as between Unocal and Coastal might turn as between them on the terms of the purchase and sale agreement. Certainly Coastal cannot have any direct tortious liability for any period prior to acquiring an interest in the property (registered or unregistered); at most it can have a liability to indemnify its vendor but that must turn on the terms of the contract between Unocal and Coastal and is really of no concern to the lessors. I would also have thought that Coastal cannot have direct joint and several liability for gas produced before it came on the scene. The Court did apply that logic to Esprit noting that it had no joint and several liability for non-royalty gas. There are suggestions (see above and in the Costs Decision (at para 22) that Coastal’s knowledge is somehow relevant to its liability, or for back-dating its liability. This might be relevant if Coastal were taking over Union (see the parallel position in the Costs Decision noting that Bonavista purchased the shares of Triquest and was therefore in the same position as Triquest) but it should not be relevant to its tortious liability if Coastal is simply purchasing these particular assets.

The Costs Decision

I claim no expertise whatsoever in relation to matters of costs but the following issues in the costs decision seem to me to be of more general significance.

First, the Court of Appeal decided that this was a case in which it was appropriate for it to determine costs at both trial and on appeal even though the trial judge still had the trial costs under reserve. In other words, the Court of Appeal did not have the benefit of the trial judge’s opinion\decision on costs.

Second, the Court rejected outright the respondents’ argument to the effect that each side should bear its own costs given that it was a leading case that would benefit (Costs Decision at para 3) “oil industry participants”. The Court gave no reason for its peremptory rejection of this submission (at para 11) (other than it was contrary to the general rule that costs follow the cause) but obviously whatever benefit this decision might offer in terms of clarifying the law (a doubtful proposition to this point as suggested in my post on the main decision) would clearly accrue more to the repeat players (i.e. the lessees) more than the individual lessors.

Third, both parties made completely self-serving (and therefore contradictory) arguments in relation to costs at different times. Thus, the lessees post-trial sought enhanced costs and post-appeal submitted (in the alternative) that ordinary costs should prevail; the lessors presented a mirror image with the result that the Court observed (at para 15) that “Given these contradictions, we give little weight to the parties’ post-trial justifications for costs.”

Fourth and with respect to “multipliers of column 5 tariffs” the decision contains an appendix providing a summary statement of “multiplier cases” from the Alberta Courts which will no doubt prove useful to counsel in subsequent cases. The Court also provided this summary of relevant considerations (at paras 25 – 26).

[25]           An appendix of cases that have discussed multipliers is attached. To summarize, Alberta courts have typically awarded a multiplier of the tariffs in Column 5 in three circumstances: when the complexity of the action warrants it, when the amount in dispute significantly exceeds the $1.5 million threshold for Column 5 or when the conduct of one of the parties warranted a multiplier. However, generally, courts also rely upon the other considerations set out in Rule 10.33 in determining whether a multiplier should be applied. There is nothing in the cases surveyed to suggest that the analysis for applying a multiplier differs in an oil and gas context.

[26]           Since a costs award is ultimately at the discretion of the judge, there is little in the way of a uniform basis upon which a multiplier is awarded or declined. It is highly dependent on the unique facts and circumstances of each case. However, a general principle arising from the case law is that the discretion to grant costs must be exercised judicially, and in line with the factors in Rule 10.33. Additionally, in actions where the amount in dispute greatly exceeds Column 5, there is a general recognition that Schedule C is deficient, and that a multiplier may be applied. However, courts are careful to avoid awarding a multiplier that would result in the over-indemnification of a successful party.

In this case the Court awarded a two times multiplier (at para 28).

Fifth, the Court concluded that Esprit deserved special treatment in relation to its cost liability because of its position as a royalty owner rather than a working interest owner. As suggested above in the context of the judgement roll decision the reasons given are rather surprising. Here is the full text (at para 42) alluded to above in the “aside”:

Esprit’s situation is different from those of the other respondents in that it was merely the recipient of a portion of the value of the natural gas wrongfully produced by the working-interest owners. Its liability lay in the law of personal property (a person cannot acquire better title to a chattel than that of the person from whom it received the chattel), not in the law of torts. Esprit also argued that costs against it ought to be pro rated to the judgment obtained against it. On that basis, we have determined Esprit’s liability for costs as follows: trial costs are $45,000 and appeal costs are $5,000. This assessment of costs also reflects a reduction in the cost we might otherwise have ordered for the fact that Esprit was successful in arguing that it was not jointly and severally liable for the wrongful production by the working-interest owners. As a consequence, Esprit’s liability for costs shall be deducted from the total amount of costs awarded.

Finally, and as part of a discussion under the heading of “trial related offers” the Court had this to say about an argument from Bonavista and Coastal to the effect that absent a notice to vacate the property they were under an obligation to keep producing. The Court had no time for that argument commenting as follows (at paras 46 – 47):

In making that argument, Bonavista and Coastal misunderstood the effect of the pooling which was required in order to constitute a legal production spacing unit. Bonavista and Esprit, like the other lessees, had no right to produce as soon as any one of the lessors withdrew their consent to continued production. If one lease in a pooled production spacing unit is terminated, the remaining leases do not necessarily terminate; but production must cease. The remedy of owners of tracts who wish their hydrocarbons produced in the face of a tract owner who does not wish them produced is to apply to the energy regulator for a compulsory pooling order. Their remedy is not to continue producing the well.

[47]           Bonavista and Coastal also argue the fact they were compelled to defend their leases in the absence of a Notice to Vacate by their putative lessors (there being a dispute as to who their lessors were) ought to be a factor in reducing or eliminating cost awards against them. Their argument, once again, was that they were obliged to continue producing. This argument is not persuasive. If Bonavista (through its operator, Nexen) had ceased production, its lessors could have no complaint. There is no obligation upon the lessee under a natural gas lease to produce the leased substances. Leaving the lessors’ molecules in the ground is not actionable. It might cause a lessee to lose its lease. But there would be no requirement on the lessee to account to its lessor for not producing. However, producing molecules which one has no right to produce (which is the situation as soon as one owner of a tract in a pool properly withdraws his or her consent to production) triggers the obligation to account to the owner for that production.

I continue to hope that the Supreme Court of Canada will grant leave to appeal the main decision. Perhaps it will be easier for that Court to make that determination now that it has a judgment roll.

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Pritchard v Van Nes: Imposing Liability on Perpetrator Zero of Defamatory Facebook Posts Gone Viral

Wed, 05/18/2016 - 12:30pm

By: Emily Laidlaw

PDF Version: Pritchard v Van Nes: Imposing Liability on Perpetrator Zero of Defamatory Facebook Posts Gone Viral

Case Commented On: Pritchard v Van Nes, 2016 BCSC 686

Justice Saunders of the British Columbia Supreme Court recently decided Pritchard v Van Nes, 2016 BCSC 686 (Pritchard) concerning the liability of individuals not only for their Facebook posts, but how their “friends” react to these posts, whether through comments, sharing or otherwise distributing the post. This case asks: if you start the fight, are you liable for the pile-on? The analysis of the Court could have significant repercussions concerning the uneasy balance between the right to reputation and freedom of expression, arguably tipping the balance in favour of reputation in stark departure from recent Supreme Court of Canada cases on defamation (see Crookes v Newton, 2011 SCC 47, Grant v Torstar Corp., 2009 SCC 61, WIC Radio Ltd. v Simpson, 2008 SCC 40).

Facts

Pritchard involves a claim for nuisance and defamation, although this post will only focus on the defamation aspect of the claim. The plaintiff obtained default judgment in June, 2014, and the reasons for judgment here concern the plaintiff’s application for a permanent injunction, assessment of damages and special costs.

Pritchard and Van Nes are neighbours in Abbotsford and have the kind of neighbourly relationship we all fear. Their dispute dates back to 2011 when the Van Nes family installed a fish pond with a waterfall in their backyard. The plaintiff testified that the noise from the fish pond was loud, making sleep difficult for him and his wife. The plaintiff complained to the defendant and this sparked the deterioration in their relationship. Several other incidents were reported – the defendant dog defecating in the plaintiff’s yard, loud parties, blocked driveways – all of which is more relevant to the nuisance claim than defamation, but it certainly contextualises the tension that led to the Facebook posts by the defendant.

On June 9, 2014, the defendant posted a picture on Facebook of the plaintiff’s backyard with the following message:

Some of you who know me well know I’ve had a neighbour videotaping me and my family in the backyard over the summers…. Under the guise of keeping record of our dog…

Now that we have friends living with us with their 4 kids including young daughters we think it’s borderline obsessive and not normal adult behavior…

Not to mention a red flag because Doug works for the Abbotsford school district on top of it all!!!!

The mirrors are a minor thing… It was the videotaping as well as his request to the city of Abbotsford to force us to move our play centre out of the covenanted forest area and closer to his property line that really, really made me feel as though this man may have a more serious problem. (para 22)

There was no video camera (para 23) and the mirror referred to wasn’t for spying on the defendant, but rather was a feng shui ornament (para 19). The Court accepted the plaintiff’s evidence that he never made a complaint to the municipality about the swing set (para 20). The defendant’s post prompted 48 comments by 36 friends and 9 further comments by the defendant (para 23). The comments, including those of the defendant, referred to Mr. Pritchard as “a ‘pedo’, ‘creeper’, ‘nutter’, freak’, ‘scumbag’, ‘peeper’ and a ‘douchebag’” (para 24). Mr. Pritchard’s name, occupation and work were all identifiable in the conversation (para 73). This was, in effect, a conversation implying that the plaintiff was a paedophile and unfit to teach, which defamatory meaning Justice Saunders accepted (para 74). The defendant described her post and comments as “venting” (para 41), but the audience of her venting was sizeable. She actively conversed with 36 friends, which would have been visible to her 2059 friends (para 75), and further visible to the countless other friends of friends that see the posts their friends react to (thanks to the new Facebook upgrade from “liking” to “reacting” in 2016). The defendant also set her privacy settings to public so anyone could see the comments posted about the plaintiff. The Facebook post was up for 27.5 hours before the plaintiff deleted it (para 31), but continued to be on timelines through friends who had liked or commented on the post (para 32).

Mr. Pritchard is a Middle School music teacher. One “friend” of the defendant, Rick Parks, posted a suggestion that the defendant send the picture to the plaintiff’s principal, and advised that he had shared the defendant’s post on his timeline (para 25). Mr. Parks later sent an email to the principal with an email attachment of the image and amongst the allegations made against the plaintiff, commented “I think you have a very small window of opportunity before someone begins to publicly declare that your school has a potential paedophile as a staff member. They are not going to care about his reasons – they care that kids may be in danger.” (para 26).

The injury to Mr. Pritchard’s reputation has been palpable (paras 33-38). Before these posts he was an active member of his workplace and community, working in an extra-curricular capacity with students in concert bands, and by all accounts growing the school music program significantly (para 10). After the Facebook post, Mr. Pritchard no longer enjoys teaching, withdrew from school programs, guards his interactions with students and dreads any public performances. His employment opportunities elsewhere are now limited. One student was removed from his music programs, while a few neighbours have made comments, such as “I thought I knew Doug, but I guess I didn’t know the other side of him” and “You know, your husband could get fired” (para 37).

That the original post by the defendant was defamatory is straight-forward. This blog post will not focus on those aspects of the judgment. Rather, it is the Court’s analysis of the concept of publication in order to impose liability on the defendant for the posts and shares of her “friends” that requires unpicking. This is particularly pressing as the sting of the libel in this case is something all too familiar online – the sting isn’t just what the defendant posted, but what all her friends posted, some just cruel, some defamatory in their own right. It was a virtual lynching and unfortunately the parameters of defamation law fit uneasily with such a scenario. This case highlights the need for more comprehensive defamation reform (stay tuned for the work of the Ontario Law Reform Commission).

Issues

The Court analysed two separate, but related issues concerning publication. First, whether the defendant is liable for re-publication of the defamatory post (and comments) through her “friends” sharing the post, her friends of friends seeing the post in their timeline, and for Mr. Parks’ letter to the principal. Second, whether the defendant is liable for any of the defamatory comments by her “friends” in response to her post.

The Meaning of Publication

Publication is central to defamation law. In order for a comment to be defamatory it must be published, meaning it must be communicated to at least one person other than the plaintiff. It is clear that the defendant published her own posts about the plaintiff. What is less clear is whether she published the defamatory comments of her “friends” commenting on her post, sharing it and otherwise disseminating it in the wide platform that is Facebook.

Publication must be deliberate in the sense that they have to “knowingly be involved in the process of publishing the relevant words” (see Crookes para 21 drawing from Bunt v Tilley, [2006] 3 All ER 336 (QB)). Thus, those that play a “passive instrumental role” (Bunt at para 23) are not liable. What is passive? Under UK case law, on which most Canadian defamation cases refer, once you become aware of the defamatory content (actual or constructive knowledge), and have the power to remove the content from circulation and fail to do so, you are interpreted as liable for the continued publication of the work. You weren’t originally a publisher, but you become a publisher for the continued circulation (see Carter v BC Federation of Foster Parents Association, 2005 BCCA 398). This is the concept of knowledge and control that underpins the common law governing publication. A seminal case is Byrne v Deane, [1937] 1 KB 818 where a defamatory notice was posted on a golf club notice board. The club directors were aware of the notice and failed to remove it amounting to publication of the notice.

This indirect involvement in the publication process is what absolves innocent disseminators of liability for publication. This defence protects vendors, librarians, agents etc. from liability for publishing the defamatory content as long as they did not know, nor had no reason to suspect, that the publication was defamatory. In the UK, this defence has been codified in s. 1 of the Defamation Act 1996 (and the new website operators defence in s. 5 of the Defamation Act 2013). In the internet context, this aspect of defamation law has increasingly been used (and strained) to address the liability of online intermediaries: online service providers, such as Facebook, Twitter and Reddit, internet service providers (ISPs) and search engines (mainly Google) for content that, while they make available in some way, they did not create. A case like Pritchard raises a more complicated question about the liability of individuals who are both the content creators in posting defamatory content, and hosts or facilitators of defamatory posts of others. The case law that has developed to address online intermediaries is helpful, but does not seamlessly apply to this context.

In the background are the liability frameworks that have been created in Europe and the USA to provide safe harbours from liability for online intermediaries. This concept of passivity underpins both frameworks. Under the EU’s E-Commerce Directive 2000/31/EC, three categories of information service providers are created: mere conduits, caches or hosts. The risks of losing the safe harbour are greatest for hosts of content. Similar to the common law governing publication, if the host knows or is aware it is hosting unlawful content it is obligated to remove or disable access within a reasonable period of time. The USA, in contrast, has codified broad immunity for intermediaries under s. 230 of the Communications Decency Act, 47 USC.

Republication is another issue. Generally, an individual is not liable for republication of their defamatory words by a third party. There are exceptions. The focus is on whether the original publisher had responsibility over the republication in the sense of whether they had control over the republication, authorised it or participated in it. Relevant here is that a defendant may be liable for republication where “the repetition was the natural and probable result of his or her publication” (Pritchard at para 73). This imports foreseeability to the determination of responsibility for republication: if a reasonable person would have expected that the defamatory comment would be republished, then the defendant is liable for the republication (see Brown on Defamation (looseleaf), 7.5(4)). What is a social networking site like Facebook to a concept such as republication? The space has the social informality of pub talk with the permanence of print. And things go viral, like the post at issue in Pritchard, although in the grand scheme of things this post did no go viral the way other cases of shame and abuse have (think Zoe Quinn and Anita Sarkeesian). In those cases the attacks were worldwide rather than local, although some of the most damaging harm to reputation occurs at a local level, as experienced by Pritchard.

Republication

The Court in Pritchard held that the defendant implicitly authorised republication of the defamatory post (including comments) via sharing of the post by others, visibility of the post by non-friends, and publication of the letter by Mr. Parks to the plaintiff’s principal. I suggest two analytical flaws in the Court’s reasoning. First, the Court found implicit authorisation in the sheer fact that the defendant used Facebook:

In my view the nature of Facebook as a social media platform and its structure mean that anyone posting remarks to a page must appreciate that some degree of dissemination at least, and possibly widespread dissemination, may follow. This is particularly true in the case of the defendant, who had no privacy settings in place and who had more than 2,000 “friends”. The defendant must be taken to have implicitly authorized the republication of her posts. (para 83)

By using Facebook, therefore, any post by an individual puts them at risk for liability for what their friends do with it. There is some logic to this argument, particularly to address the problem of the type of mob attacks were are seeing online; an individual takes the risk by using Facebook and posting the defamatory content and should be held responsible for any republication that results. Support for this approach is the principle that an individual is liable for any republications that are a natural and probable result of the original publication, which is arguably the case for any posts on social media. The concern is the unpredictable nature of this. It might be foreseeable that someone might share your post as that is a staple of Facebook interactions, but it is arguably unforeseeable that someone would do anything else with it.

More troubling is the liability imposed on the defendant for the republications by Mr. Parks, because it imposes a duty to speak up. The Court concluded that the Mr. Park’s comment that he had shared the post on his page and suggestion “why don’t we let the world know” (para 88) affixed the defendant with knowledge that Mr. Parks intended to republish the post. The defendant’s failure to speak up – her silence– led the Court to conclude that she authorized any republication by Mr. Parks, including the email he sent to the principal. Liability for failure to take positive steps is a component of publication in defamation law, albeit a narrow one, and it is dependent on knowledge and control, but it is rarely if ever invoked to impose an obligation to speak. There are potentially limiting factors in the judgment – the fact that the defendant had no privacy settings, and 2000+ friends.

More generally in tort law, liability for a failure to act is only imposed in exceptional circumstances, and for good reason. It is a difficult duty to fulfil. In this case we have the benefit of hindsight – Mr. Parks did act by sending the email to the principal – but for users of social media and the hyperbole and jest involved, it won’t always be clear. This is important, because at what point did the interaction crystallize to a duty to act? Or to be specific, a duty here to “warn Mr. Park’s not to take measures on his own” (para 90). What if he had said “let’s shame him” or made a comment that was borderline joking, such as “we need to bring back the scarlet letter for this guy”. This also requires a peculiar form of action, namely imposed speech. Would the defendant replying “No, no, no, don’t do anything, I’m just venting” have been sufficient to remove liability? What if her comment was not convincing? What timeline is considered reasonable to expect a reply? It is one thing to impose liability for a failure to act to, for example, remove the defamatory content (as seen with intermediary liability). It is another to impose liability for a failure to speak up – this imposes a speech requirement with specific content characteristics. The latter duty would be difficult to fulfil.

Liability for “Friends’” Comments

The Court then analysed whether the defendant should be liable for the comments posted by her “friends” on her Facebook post. As the Court noted, this is an “emerging legal issue in Canadian law.” (para 91) I suggest that the Court erred in its interpretation of the law and in its application. Of particular concern is the Court’s imposition of liability on the defendant on the basis that she ought to have known her friends would post defamatory comments.

The Law

The Court drew, in particular, from the reasons of Deschamps J., concurring in the result, in Crookes, concerning liability for sharing hyperlinks that contain defamatory content. The majority in Crookes created a bright-line rule, wherein only where the act of sharing the hyperlink repeats the defamation is it publication. The simple act of sharing a hyperlink, without more, is not publication. This was rooted in an analysis of the importance of the internet to freedom of expression and the critical role of hyperlinking to its use. The dissenting judgment argued against the bright-line rule, suggesting rather, that in some instances, where there was endorsement or adoption of the defamation, it is publication. Deschamps J., rather, argued that hyperlinking should not be excluded from the publication rule, arguing that there might be publication if an individual “makes defamatory information readily available to a third party in a comprehensible form” (Crookes at para 59 discussed in Pritchard at para 94). If a case departs from the majority in Crookes, I suggest the dissenting judgment is preferable as the concept of readily available is too woolly to be of practical guidance.

The internet law cases relied on by Deschamps J. concern intermediary liability – liability imposed on the hosts of a website or platform on which a third party made the defamatory comments. The cases, in assessing knowledge and control ask such questions as follows. Was the defendant notified of the defamatory content? Did the defendant have control over the defamatory content such that they could have and should have removed it? Typically, this might involve the host of an online forum who is notified a user posted defamatory comments and fails to remove it. This is a complicated area of the law, namely because it is not so simple to impose liability post-notification for failure to act. When is notice deemed sufficient? How detailed does this notice need to be? Is actual notice required or does constructive notice count? When is the party deemed to know about the defamatory comment? Is it upon notice alone, or does the party need to have evidence of unlawfulness before action is required? What if there is conflicting evidence? There is some unease going down this road, because it forces the party into a quasi-judicial capacity, assessing the merits of a defamatory claim and then making a decision with powerful results: the information remains accessible or is removed from circulation. This directly implicates the right to receive and impart information. Europe has wrestled with these issues for over fifteen years, while Canada is in a nascent stage of development, although caselaw suggests a similar approach is emerging but inconsistent in its application (see Carter and Crookes; but see Baglow v Smith, 2015 ONSC 1175). The complications of these issues were smoothed out in the analysis in Pritchard by failing to engage with the more difficult aspects.

The Court’s error is in what it frames as the ‘passive instrument test’ (para 107). Passivity is best understood as the instrument through which deliberateness is relevant: one must show a deliberate act in making the content available, and the more passive the activity the harder it is to find deliberateness. One way that deliberateness is found is through notice – once a party knows it is making available content that is defamatory, and it has the power to remove it, it can be found to be deliberately choosing to continue publishing it. As to the passivity, the Court cites the case of Weaver v Corcoran, 2015 BCSC 165 (paras 102-104), a case that involved, in part, whether the National Post should be liable for posts by its readers in the comments section. The Court noted the passive role played by the the newspaper concerning the comments section, and the unrealistic expectation that it would pre-approve every comment before posting. Since the newspaper removed the offending comments they were not publishers. If they had failed to remove the comments, the Court would have concluded the National Post was liable for continued publication of the defamation: “[o]nce the offensive comments were brought to the attention of the defendants, however, if immediate action is not taken to deal with these comments, the defendants would be considered publishers as at that date.” (para 104 citing Weaver).

Another way that passivity is assessed is through the activity. Some activities are too passive for there to be liability. Most of the UK case law considers, or is influenced, by the categories created in the the E-Commerce Directive, discussed above, wherein a safe harbor is provided, at varying levels of protection, depending on whether the activity is of a mere conduit, cache or host. For example, the Court considered the case of search engines, a complicated and developing area of the law. Not all of what Google does in relation to its search function is passive. It depends on the activity. Is the complaint regarding the auto-complete function? Search snippets? Links to articles in its search results? Most are automated, but what are Google’s obligations once it is notified of a problem? In Metropolitan International Schools v Google, [2009] EWHC 1765 (QB) discussed by the Court in Pritchard (para 106). Eady J. investigated the liability of Google for the snippets that are returned in search results. Eady concluded, amongst other things, that a search engine is not a publisher at common law, whether before or after notification of a defamation claim and is not analogous to a website or ISP, the search engine having no input over search terms entered and the process of publication being automated. The peculiarity of search engines bears repeating. It invites an aspect of automation that is different than the situation here, and in fact, is different from ISPs and hosts. Automation goes to passivity, but is not as helpful for a case such as Pritchard, and these differences, I suggest, should have been more carefully teased-out in the analysis.

The Court summarized the law as follows:

In summary then, from the forgoing law it is apparent that Carter, Weaver, and Niemela, consistent with Deschamps J.’s reasons in Crookes, provide support for there being a test for establishing liability for third party defamatory material with three elements: 1) actual knowledge of the defamatory material posted by the third party, 2) a deliberate act that can include inaction in the face of actual knowledge, and 3) power and control over the defamatory content. After meeting these elements, it may be said that a defendant has adopted the third party defamatory material as their own. (para 108)

I suggest this confuses the test. Many of the cases considering publication in the digital age have involved intermediaries rather than the case here, where the defendant kick-started a defamatory conversation. This makes such intermediaries analogous to editors and publishers of newspapers, for example, who would be liable for a publication but would not necessarily know of the defamatory content. This is different than individual interactions. In fact, this difference was noted in the oft cited Bunt, but has been insufficiently teased out in Canadian jurisprudence:

Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process. (para 23)

Three things should be clarified: passivity, knowledge and control. All of this goes to the question of whether the defendant has deliberately published the defamation. Rather, I suggest the test is:

  1. Did the defendant know, or should have known, of the existence of the defamatory content?
  2. Was there a request to remove the material, or did the defendant’s behaviour otherwise show consent or approval of the continued publication?
  3. Did the defendant have control over the content? If so, did the defendant fail to remove the content within a reasonable period of time?

This test applies uneasily to the circumstances of this case, as seen in the reasoning of the Court, because there was no request to remove the content as seen in most cases involving hosts online. Rather, it is more the question of whether the defendant, upon knowledge of the defamatory posts by her friends, approved their continued publication. The Court concluded:

I find as a matter of fact that Ms. Van Nes acquired knowledge of the defamatory comments of her “friends”, if not as they were being made, then at least very shortly thereafter. She had control of her Facebook page. She failed to act by way of deleting those comments, or deleting the posts as a whole, within a reasonable time – a “reasonable time”, given the gravity of the defamatory remarks and the ease with which deletion could be accomplished, being immediately. She is liable to the plaintiff on that basis. (para 109)

What is knowledge in such a situation? When did the defendant know that her friends were posting defamatory comments? What is immediately, especially in circumstances where knowledge isn’t tied to notice?

Ought to Know Test

The most troubling aspect of the reasoning in Pritchard is the liability imposed on the defendant, because she should have anticipated what was going to happen. This rubs close to making the defendant responsible for starting the pile-on. The Court stated:

Furthermore, I would find that in the circumstances of this case there ought not to be a legal requirement for a defendant in the position of Ms. Van Nes having actual knowledge of the existence of defamatory comments by her “friends” as a precondition to liability. The circumstances were such that she ought to have anticipated such posts would be made. I come to this conclusion for two reasons: the nature or structure of a social medium platform, and the content of Ms. Van Nes’ contribution to the posts. (para 110)

It is concerning to the constitutional value of freedom of expression to suggest that liability should be imposed, because you failed to anticipate a conversation would go south, even more so in defamation law where most of the burden is on the defendant to refute the defamatory claim. Liability for publication attaches for just starting the conversation. While the case here is simpler in the sense that the defendant posted clearly defamatory remarks, the implications are not so simple for the muddy waters in which humans communicate. Let me elaborate.

The Court based its conclusion on two factors: the nature/structure of the social media site, and the defendant’s own posts. Part of the difficulty is the analogies drawn. The Court rightly differentiated the defendant’s behaviour from that of a search engine, host of an online forum, or in the case of Crookes, both the host and speaker on online forums, and accurately framed the defendant as having set in motion events with her post. What is insufficiently articulated in the case is what this means for the applicable law, as the defendant’s activities blur the line between intermediaries and content providers, a division that is critical in the analysis of responsibility for publication. The Court resolved it using the ought to know test, but as will be discussed, this is insufficient to the task of balancing the values of free speech and reputation, and does not resolve the intermediary/content provider distinction. The Court’s analysis on this point, although lengthy, is worth repeating.

[111] A user of a Facebook page is not in the same position as the defendant Newton in Crookes, the defendant Federation in Carter, or the respondent Google Inc. in Niemala. Those parties were only passively providing a platform or links to defamatory material. In the present case the entity in the analogous position would be Facebook, Inc., the owner of the software that creates the pages and the servers on which the content is stored. The user hosting a page of a social medium such as Facebook, on the other hand, is providing a forum for engagement with a circle of individuals who may share some degree of mutual familiarity. As noted above, the social nature of the medium is such that posts about concerns personal to the user may reasonably be expected to be discussed by “friends”.

[112] What these factors entail is that once she initiated events through having made an inflammatory post concerning a matter of personal concern, Ms. Van Nes ought reasonably to have expected her “friends” to make sympathetic replies. The “friends”’ comments were not unprovoked reactions; they were part of a conversation. And then, when they did comment, Ms. Van Nes – far from being the passive provider of an instrument for comment – continued as an active participant through making replies, prompting further comment. Those replies added fuel to the fire, compounding the chances of yet more defamatory comments being made.

[113] In other words, I would find that the nature of the medium, and the content of Ms. Van Nes’ initial posts, created a reasonable expectation of further defamatory statements being made. Even if it were the case that all she had meant to do was “vent”, I would find that she had a positive obligation to actively monitor and control posted comments. Her failure to do so allowed what may have only started off as thoughtless “venting” to snowball, and to become perceived as a call to action – offers of participation in confrontations and interventions, and recommendations of active steps being taken to shame the plaintiff publically – with devastating consequences. This fact pattern, in my view, is distinguishable from situations involving purely passive providers. The defendant ought to share in responsibility for the defamatory comments posted by third parties, from the time those comments were made, regardless of whether or when she actually became aware of them.

I suggest that online conversations do not work the way the Court suggests in Pritchard, at least without significant risk of liability for participants. Let me give an example. Let’s say I am a journalist and I post a story that is provocative, designed to stir conversation in the comment section. There is an important social role here, but there is a risk under the analysis in Pritchard, that by starting the conversation you should have known that posts would be made. You are liable on this ought to know basis. As another example, what if I post a vent on Facebook about, for example, the birth of my child and my unhappiness with the care I received at the hospital. I might post it in a tempered tone, but children and birth being a hot button issue, friends post vicious, defamatory posts about the hospital alleging all sorts of behaviour, made up statistics on injuries to the child, etc. What about if the topic is religion? Schooling? Politicians? So much would be out-of-bounds to even begin to discuss out of fear of liability because a court deems you liable not for a failure to remove the content upon notice (the traditional test), but because you should have known.

The Court notes a similar New Zealand case that rejected the type of liability imposed here (Wishart v Murray, 2013 NZHC 540, at para 114 of Pritchard]. The Court of Appeal in Wishart was rightly concerned, among other things, that the ought to know test was too uncertain in the way it would be applied, (see Pritchard para 116), and that imposing liability was inconsistent with the intentional nature of the tort. The Court in Pritchard, in rejecting Wishart, stated that foreseeability already exists in tort law concerning republication and therefore ”the integrity of defamation as a separate tort” (para 117) is not harmed by extending it to the issue of third party comments. This does not logically follow. Defamation law is an intentional tort, and the suggested extension of the law to include foreseeability regarding third party comments blows open the liability framework rather than develops it incrementally as the Court suggests it has done. Foreseeability as to republication is limited to a repeat of the specific defamation in question and in effect holds the defendant liable for the spread of the information in predictable ways. Foreseeability as to what third parties might themselves say is wholly unpredictable and the chilling effects more evident.

Conclusion

The assault on Pritchard’s reputation was brutal and the case against Van Nes for her comments was relatively clear. However, in an effort to provide compensation for the whole of the attack on his reputation, given only Van Nes was sued, led to concerning implications for the balance between free speech and reputation in cases going forward. Rather, it indicates we have a lot of work to do to reform defamation law. In particular, this case highlights three areas where we need work. The law governing third party liability needs to be developed and clarified (including the law governing publication, and the differences between intermediaries and content providers). Further, one of the limitations in this case is the fact that only Van Nes was sued, and in fact, the case against most of the commentators would have been difficult to succeed (save Mr. Parks). This raises one of the more fundamental problems of defamation in the digital age –lawsuits are complicated and cumbersome. What is needed is more small-scale private dispute resolution, which would have more cheaply and easily addressed the issues without bending the law to achieve a just result.

One final aspect that should be examined more broadly is this kind of mob attack. I suggest the Court was correct to look at the social media space as a whole (structure, distribution, and publication) and the nature of the defamatory conversation (because it in effect was a conversation with posts and comments and shares), but the analytical framework is under-developed. We do have a real problem with mobs online and this stretches beyond defamation law to privacy, harassment, revenge pornography, and other abuse and bullying. In my work I have sought to interrogate the nature of this mob to address the kind of law reform needed to tackle the serious harm suffered by the victims. However, this requires a larger wholesale reform of the law.

In an ideal world the Plaintiff would have been in a position to successfully sue the defendant, Mr. Parks, and any of the other individuals who posted defamatory content of their own on the defendant’s comments section. However, this is not realistic. Litigation would be costly, defendants often difficult to trace (although not in this case), and damages minimal. In 2012, Lord McAlpine, a former politician in the Thatcher government, was falsely linked with with a Newsnight story alleging sexual abuse by a Conservative politician. The rumour that he was a paedophile spread on Twitter via thousands of posts. McAlpine successfully sued some of the more prominent Twitterers with a large number of followers (see here and here), and offered to settle with any individual who had less than 500 followers if they made a donation to a charity (see here). However, most people aren’t McAlpine. And in the teaching profession, an accusation like paedophilia “sticks to you like tar” to use Monica Lewinsky’s recent expression for the shaming she endured all those years ago. Further, this still misses the viral nature of online republication, and the ease and passivity with which individuals re-share or see the comments of friends of friends on their timeline. The Court elected to impose liability on the one who started it. The problem is that this stretches defamation law beyond its logical structure.

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Stewart Estate: Finalizing The Judgment Roll and Costs

Tue, 05/17/2016 - 10:00am

By: Nigel Bankes

PDF Version: Stewart Estate: Finalizing the Judgment Roll and Costs

Decisions commented on: Stewart Estate v TAQA North Ltd, 2016 ABCA 143 and Stewart Estate v TAQA North Ltd, 2016 ABCA 144

The Court of Appeal handed down its main decision in Stewart Estate v TAQA North Ltd, 2015 ABCA 357 (hereafter the main decision) in November 2015. In my post on the main decision I suggested that “while Stewart Estate is certainly a significant decision (which grapples with important issues including, the standard of review applicable to lease interpretation questions, the rules surrounding the termination of oil and gas leases and the question of remedies for wrongful production), it is ultimately a disappointing decision because, in the end, with three separate judgments, this three person panel of the Court agrees on very little.”

We now have two further decisions from the panel of the Court that heard the case, one decision settling the judgement roll (hereafter the judgment roll decision) and the second dealing with the costs award (the costs decision). The judgment roll decision expressly describes itself (at para 1) as providing supplementary reasons to the main decision. This post not does provide a systematic account of either of these decisions but it does aim to identify where these decisions have added to the reasoning in the main decision or have provided dicta that may be of interest beyond this case.

The Judgment Roll Decision

The first significant issue concerns the liability of a party (Esprit) who was in receipt of gross overriding royalty (GORR) payments. There are potentially two issues here. First, under what circumstances, if at all, is a payee of a GORR a tortfeasor vis-à-vis the lessor of the expired lease, and second, if the GORR payee is a tortfeasor and therefore liable, what, if any, is the liability of the payor (Bonavista in this case) to the lessors for those royalty payments. The majority in the main decision had concluded that Esprit was liable. I was critical of that decision in my post – or at least critical of how the majority reached that decision. In any event, the main outstanding issue with respect to the judgement roll was Bonavista’s liability. Bonavista evidently took the positon that the lessors could have judgement against Esprit for the royalty share but that it (Bonavista) had no default liability as a joint tortfeasor in relation to that royalty gas. In its judgement roll decision the Court corrected Bonavista and ruled that Bonavista was indeed jointly and severally liable for the royalty gas (at paras 5 –15). That seems entirely appropriate: the party that engages in the wrongful severance is still a tortfeasor in relation to all of the gas that is severed even if it does pay a portion of the proceeds of sale for some of the gas to a third party.

As an aside, while it seems self-evident that Esprit’s liability is liability in tort, the Court in the Costs Decision (at para 42) apparently has a different view concluding that Esprit’s “liability lay in the law of personal property (a person cannot acquire a better title than that of the person from whom it received the chattel), not in the law of torts.” There are two problems with this passage. First, Esprit didn’t receive the chattel, it did not take in kind (but purchasers of commingled gas streams beware!) Second, there is no such thing as liability in personal property just as there is no such thing as liability in real property. The fact of the matter is that we routinely use real and personal property torts to vindicate property rights. When I sue for the return of personal property I sue in detinue, I don’t bring “an action in personal property” and if I just want damages I sue in conversion but again I don’t sue “in personal property” whatever that might mean. I don’t think that this terminological difference makes any difference to the Court’s conclusion on the costs point but it is hardly a helpful way to describe the difference in the legal positions of the lessees and Esprit.

There was actually a third issue in relation to Esprit’s liability and that was the period for which it was liable. Here Esprit wanted to exploit the dissonances in the various judgements in the main decision. Esprit took the position that since it was Justice O’Ferrall (Justice McDonald concurring, and Justice Rowbotham dissenting) who established Esprit’s liability then it must be Justice O’Ferrall’s judgement that must also establish the duration of Esprit’s liability. Justice O’Ferrall was of the view that the lessees’ liability ran from the date that they were served with the Statement of Claim (Judgement Roll decision at para 18) or notice to vacate (September 2005, main judgement at para 432). However, the majority judgement on the timing\limitation issues was authored by Justice Rowbotham (Justice McDonald concurring) and that judgement established that the lessees’ liability was governed only by the general limitations rules and thus extended back two years prior to the issuance of the Statement of Claim (August 2005) (i.e. a longer period of liability than that found by Justice O’Ferrall).

The Court makes surprisingly heavy weather of all of this. Again, given the premise, if the basis of Esprit’s liability is that it is repeating the conversion committed by Bonavista then its liability must be coextensive with Bonavista’s (unless it can take the benefit of a different limitation period and there is no suggestion of that here). Here is what the Court had to say (at paras 19 – 20):

[19]           The views of the majority with respect to the date from which the appellants are entitled to a remedy govern. Given those views, it would be illogical and unfair to require Bonavista to account for the production it received while not requiring the overriding royalty recipient (Esprit/Pengrowth) to account for the value of the production Bonavista paid to it during that same period.

[20]           In the result, this Court orders that the commencement date for disgorgement of the value of the royalty volumes be the same for both the lessee, Bonavista, and the royalty holder, Esprit/Pengrowth.

There was one other timing\limitations issue to address and that related to the liability of Coastal. Coastal seems to have argued (at paras 23 – 26) that it could not be liable for the full 2 years allowed by the Limitations Act, RSA 2000, c. L-12 because it benefited from an extended leave and licence argument (see main decision per Justice Rowbotham at paras 184 – 195 but concluding that the leave and licence was revoked as of December 2005) and was not actually served with the statement of claim until June 2006.

The difficulty with this argument is that as of August or September 2005 the majority judgement on this point is no longer found as between Justices Rowbotham and McDonald but as between Justices O’Ferrall and McDonald. The Court confirms this at para 26 of the judgement roll decision where the text seems to suggest that all are now agreed that there could be no leave and licence as of September 2005 when Coastal’s predecessor in title, Unocal, was served along with the other lessees. The only reason that Coastal was not served earlier was that it was not at that time on title (at para 26):

Coastal’s predecessor, Unocal, from whom it acquired its interest, was served with the Statement of Claim in the Fall of 2005. Unocal was served because Coastal failed to register its interest on title. There is simply no basis on which to suggest that the Irwin Group consented to Coastal’s continued receipt of the natural gas revenues attributable to the north 43 acres of the NE 1/4 of Section 25 after Unocal was served with the Statement of Claim and Notice to Vacate. That Unocal was served in the Fall of 2005 ends the matter; but the fact that Coastal was advised by Chevron (on behalf of Unocal) of the litigation by letter dated December 19, 2005 makes the argument completely untenable.

While there might be an issue about which party had the primary liability (Unocal or Coastal) there would seem to be little doubt that this stream of gas (apportioned to the NE quarter) was being tortiously produced and without leave or licence and that Unocal or Coastal must be liable as of the fall of 2005. How that liability would be allocated as between Unocal and Coastal might turn as between them on the terms of the purchase and sale agreement. Certainly Coastal cannot have any direct tortious liability for any period prior to acquiring an interest in the property (registered or unregistered); at most it can have a liability to indemnify its vendor but that must turn on the terms of the contract between Unocal and Coastal and is really of no concern to the lessors. I would also have thought that Coastal cannot have direct joint and several liability for gas produced before it came on the scene. The Court did apply that logic to Esprit noting that it had no joint and several liability for non-royalty gas. There are suggestions (see above and in the Costs Decision (at para 22) that Coastal’s knowledge is somehow relevant to its liability, or for back-dating its liability. This might be relevant if Coastal were taking over Union (see the parallel position in the Costs Decision noting that Bonavista purchased the shares of Triquest and was therefore in the same position as Triquest) but it should not be relevant to its tortious liability if Coastal is simply purchasing these particular assets.

The Costs Decision

I claim no expertise whatsoever in relation to matters of costs but the following issues in the costs decision seem to me to be of more general significance.

First, the Court of Appeal decided that this was a case in which it was appropriate for it to determine costs at both trial and on appeal even though the trial judge still had the trial costs under reserve. In other words, the Court of Appeal did not have the benefit of the trial judge’s opinion\decision on costs.

Second, the Court rejected outright the respondents’ argument to the effect that each side should bear its own costs given that it was a leading case that would benefit (Costs Decision at para 3) “oil industry participants”. The Court gave no reason for its peremptory rejection of this submission (at para 11) (other than it was contrary to the general rule that costs follow the cause) but obviously whatever benefit this decision might offer in terms of clarifying the law (a doubtful proposition to this point as suggested in my post on the main decision) would clearly accrue more to the repeat players (i.e. the lessees) more than the individual lessors.

Third, both parties made completely self-serving (and therefore contradictory) arguments in relation to costs at different times. Thus, the lessees post-trial sought enhanced costs and post-appeal submitted (in the alternative) that ordinary costs should prevail; the lessors presented a mirror image with the result that the Court observed (at para 15) that “Given these contradictions, we give little weight to the parties’ post-trial justifications for costs.”

Fourth and with respect to “multipliers of column 5 tariffs” the decision contains an appendix providing a summary statement of “multiplier cases” from the Alberta Courts which will no doubt prove useful to counsel in subsequent cases. The Court also provided this summary of relevant considerations (at paras 25 – 26).

[25]           An appendix of cases that have discussed multipliers is attached. To summarize, Alberta courts have typically awarded a multiplier of the tariffs in Column 5 in three circumstances: when the complexity of the action warrants it, when the amount in dispute significantly exceeds the $1.5 million threshold for Column 5 or when the conduct of one of the parties warranted a multiplier. However, generally, courts also rely upon the other considerations set out in Rule 10.33 in determining whether a multiplier should be applied. There is nothing in the cases surveyed to suggest that the analysis for applying a multiplier differs in an oil and gas context.

[26]           Since a costs award is ultimately at the discretion of the judge, there is little in the way of a uniform basis upon which a multiplier is awarded or declined. It is highly dependent on the unique facts and circumstances of each case. However, a general principle arising from the case law is that the discretion to grant costs must be exercised judicially, and in line with the factors in Rule 10.33. Additionally, in actions where the amount in dispute greatly exceeds Column 5, there is a general recognition that Schedule C is deficient, and that a multiplier may be applied. However, courts are careful to avoid awarding a multiplier that would result in the over-indemnification of a successful party.

In this case the Court awarded a two times multiplier (at para 28).

Fifth, the Court concluded that Esprit deserved special treatment in relation to its cost liability because of its position as a royalty owner rather than a working interest owner. As suggested above in the context of the judgement roll decision the reasons given are rather surprising. Here is the full text (at para 42) alluded to above in the “aside”:

Esprit’s situation is different from those of the other respondents in that it was merely the recipient of a portion of the value of the natural gas wrongfully produced by the working-interest owners. Its liability lay in the law of personal property (a person cannot acquire better title to a chattel than that of the person from whom it received the chattel), not in the law of torts. Esprit also argued that costs against it ought to be pro rated to the judgment obtained against it. On that basis, we have determined Esprit’s liability for costs as follows: trial costs are $45,000 and appeal costs are $5,000. This assessment of costs also reflects a reduction in the cost we might otherwise have ordered for the fact that Esprit was successful in arguing that it was not jointly and severally liable for the wrongful production by the working-interest owners. As a consequence, Esprit’s liability for costs shall be deducted from the total amount of costs awarded.

Finally, and as part of a discussion under the heading of “trial related offers” the Court had this to say about an argument from Bonavista and Coastal to the effect that absent a notice to vacate the property they were under an obligation to keep producing. The Court had no time for that argument commenting as follows (at paras 46 – 47):

In making that argument, Bonavista and Coastal misunderstood the effect of the pooling which was required in order to constitute a legal production spacing unit. Bonavista and Esprit, like the other lessees, had no right to produce as soon as any one of the lessors withdrew their consent to continued production. If one lease in a pooled production spacing unit is terminated, the remaining leases do not necessarily terminate; but production must cease. The remedy of owners of tracts who wish their hydrocarbons produced in the face of a tract owner who does not wish them produced is to apply to the energy regulator for a compulsory pooling order. Their remedy is not to continue producing the well.

[47]           Bonavista and Coastal also argue the fact they were compelled to defend their leases in the absence of a Notice to Vacate by their putative lessors (there being a dispute as to who their lessors were) ought to be a factor in reducing or eliminating cost awards against them. Their argument, once again, was that they were obliged to continue producing. This argument is not persuasive. If Bonavista (through its operator, Nexen) had ceased production, its lessors could have no complaint. There is no obligation upon the lessee under a natural gas lease to produce the leased substances. Leaving the lessors’ molecules in the ground is not actionable. It might cause a lessee to lose its lease. But there would be no requirement on the lessee to account to its lessor for not producing. However, producing molecules which one has no right to produce (which is the situation as soon as one owner of a tract in a pool properly withdraws his or her consent to production) triggers the obligation to account to the owner for that production.

I continue to hope that the Supreme Court of Canada will grant leave to appeal the main decision. Perhaps it will be easier for that Court to make that determination now that it has a judgment roll.

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When Three Rights Make a Wrong?

Fri, 05/13/2016 - 10:31am

By: Erin Sheley

PDF Version: When Three Rights Make a Wrong?

Case commented on: R v Oakes, 2016 ABCA 90

R v Oakes raised the specter always haunting the edges of criminal procedure: what happens when a procedurally fair trial turns out, after the fact, to have produced an unfair conviction?

Connie Oakes was convicted of the second-degree murder of Casey Armstrong, primarily based on the testimony of her alleged co-conspirator Wendy Scott. Scott, who is cognitively delayed and has an IQ of 50, told police that she had seen Oakes kill Armstrong with a knife in the bathroom of his trailer. Scott herself pled guilty to second-degree murder for her own involvement in the crime, after confessing during the course of numerous uncounseled interrogations between June 2011 and January 2012 (at para 4). Prior to implicating Oakes, Scott had accused three other individuals of the act, testifying at trial that she had lied on those three occasions (at para 16). Scott’s testimony was the centerpiece of the Crown’s case against Oakes in the absence of physical evidence linking her to the crime scene and given that a neighbor’s description of a suspect leaving the scene more closely resembled one of the other individuals Scott had originally implicated (at paras 15-18).

During the course of the trial, the Crown made much of Scott’s own guilty plea as evidence of her credibility. During closing summations the prosecutor noted “She did not receive a deal from the Crown in exchange for testimony. As she put it, she manned up to her responsibilities. She said repeatedly, I am trying to deal with what I have to deal with.” (at para 27). The problem is that, subsequent to Oakes’ conviction, the court presiding over Scott’s case overturned her conviction because the facts presented when she entered her plea did not support it (at para 2). The issues for the Court in Oakes’ appeal, then, were whether, in light of Scott’s recantation and reversal, a miscarriage of justice would result if Oakes’ conviction were allowed to stand and, if the appeal were allowed, what the remedy should be.

The question of whether a miscarriage of justice has occurred is governed by Section 686(1) of the Criminal Code, R.S.C. 1985, c.C-46, which contains flexible language stating that a court of appeal “may” allow the appeal “on any ground” where the court is of the opinion that there was a miscarriage of justice. In Oakes, ABCA made it clear that the question would turn not only on the evidence presented at trial but on the subsequent evidence of Scott’s recantation and the judicial rejection of her plea. In considering whether such a miscarriage had occurred, the Court cited four considerations—none of which, interestingly, revealed error by either the trial court or the Crown, but which collectively, in light of new information, nonetheless painted the picture of injustice.

The first factor was the weakness of Scott’s trial testimony and the general case against the accused. Given the obvious concerns about Scott’s reliability and inconsistencies, her testimony was governed by R v Vetrovec, [1982] 1 SCR 811. In that case the Supreme Court of Canada held that, instead of the traditional, formalistic rule governing all accomplice testimony, trial courts should warn juries of reliance on the testimony of “unsavoury” witnesses in the absence of independent confirmatory evidence (at para 18). The Court noted that the trial court had mentioned the neighbor’s testimony as to the two women outside the victim’s trailer, as well as Scott’s relatively accurate description of the bathroom that had been the crime scene (at para 19). Yet, as mentioned above, the testimony of the neighbor was both vague, and even more probative as to the identity of another suspect, and the crime scene description did nothing to confirm that Oakes, specifically, was the killer (at paras 19-21).

The Court also cited the police tactics involved in obtaining Scott’s confession as relevant to the weakness of her testimony (at para 23). The police relied upon the legality of tactics for misleading suspects, such as bringing in a phony surveillance tape and implying DNA had been recovered on the scene (at para 23). The Court noted that the police should not be criticized for those tactics, but that such tactics were nonetheless relevant to the frailty of Scott’s testimony (at para 24).

As a second factor, the Court considered the Crown’s representations that Scott’s reliability was supported by her own confession and guilty plea (at para 26). The Court concluded that, although the Crown had done nothing wrong in emphasizing Scott’s plea, nonetheless the “jury may well not have been able to get to a guilty verdict without the ‘finding of guilt’ by another judge in relation to Ms. Scott”—a finding which, of course, no longer stands (at para 28). (It should be noted that in dissent Justice McDonald noted that it is not at all clear whether the jury found Scott’s testimony more or less credible due to her conviction, pointing out that Oakes’ trial counsel repeatedly referenced her status as a confessed criminal as cutting against her credibility (at para 66).

Third, the Court considered the potential curative effect of the trial court’s Vetrovec warnings, which invited the jury to approach potentially self-interested accomplice liability with caution and to look for evidence from a source unconnected to Scott to confirm the truth of her testimony (at para 32). The Court in no way faulted the trial court’s jury instructions, but made the somewhat chilling observation that “on occasion words simply do not exist with which a trial judge can adequately offset the risk the jury may misapprehend evidence” (at para 33). Furthermore, the Court considered that the trial court could not have known that, according to Scott’s trial judge, she should perhaps never have been convicted as an accomplice in the first place (at para 33).

Finally, the Court considered the limited role that appellate review ought to play with respect to findings of credibility (at para 35). Our entire system of justice turns, of course, on the gatekeeping function of trial judges and juries in evaluating the evidence in their court rooms. The “common sense” human intuition required to make credibility determinations cannot be deployed easily by appellate courts, and for that reason those courts observe a significant deference to trial fact finders on issues turning on witness credibility. The court concluded, however, that the issue was not so much the jury’s evaluation of Scott’s credibility, but the new evidence of the setting-aside of Scott’s conviction and the resulting impact it might have had on the jury’s assessment (at para 38).

For these reasons, the Court held that Oakes’ appeal must be allowed. It remained to be determined, however, whether the new evidence of Scott’s recantation should be admitted on the appeal and whether, in fact, the result of allowing the appeal should be a new trial or a directed verdict of not guilty. As to the first question, the Court was governed by R v Palmer, [1980] 1 SCR 759, which held that the admission of fresh evidence on appeal required that: 1.) the evidence not have been adducible at trial through due diligence; 2.) relevant; 3.) credible, and 4.) if believed could reasonably have affected the result at trial (at para 41). With those prongs easily met in this case (the first mostly due, of course, to the fact that Scott’s conviction had not in fact been overturned at the time of trial), the court turned to the question of remedy.

Oakes’ counsel urged that the upshot of the admission of the new evidence was that Oakes should receive a directed verdict of not guilty. The Court considered this argument under the general rule that a new trial should be the remedy “unless no properly instructed trier of fact could reasonably have convicted the accused” in light of all of the evidence, old and new (at para 50). The Court declined to conclude that the jury was acting unreasonably in convicting Oakes in light of the evidence actually led at her trial, and further found that, even if a jury were aware of the new information concerning Scott, it would not be unreasonable for it to do anything but acquit (at para 56). As the Court put it “Whether by the date of a future trial Ms. Scott has again been convicted of Mr. Armstrong’s murder, acquitted of it, or her charges remain pending but unresolved, that fact can be presented to the jury, which can then address Ms. Scott’s credibility…” (at para 56). In other words, the Court recognized the miscarriage of justice in the original trial, but deferred to the importance of the factfinder’s role in assessing credibility at the trial level.

Subsequent to the Court’s holding, the Crown stayed the charges against Oakes, who has been in prison for over two years. In an interview with the CBC, available here, Oakes, who is Cree, attributed her conviction to systemic racism in the Medicine Hat justice system, but reaffirmed her longstanding belief that she would eventually be set free. The darker view of Oakes’ case is that, even when procedural protections work exactly the way they’re supposed to, the asymmetry of power between the accused and the state will always open up the possibility of innocent people spending their lives in prison. Here Scott, an intellectually and economically disadvantaged woman with no advice of counsel beyond one phone call, confessed and implicated Oakes after four months of questioning. The stakes of the plea bargains that resolve so many of our criminal trials can create incentives for the factually innocent to confess to obtain lighter sentences. These risks are even higher in cases where good legal advice is unavailable, and where false accusations against other parties will increase the value of the deal offered. Cases like Oakes force us to examine the series of events that can lead to bad outcomes, many of which inevitably relate to a general lack of systemic resources for the defence of the accused.

While the status quo is not good enough on the front end, however, Oakes at least offers the silver lining of a glimpse at appellate review functioning appropriately. In R v Stolar, [1988] 1 SCR 480, the Supreme Court gave clear guidance for when fresh evidence should be admitted on appeal: where it has sufficient weight or probative force that if accepted by the trier of fact it might have altered the result at trial (at para 492). While we do not yet have a Supreme Court case explicating the operation of Stolar on miscarriage of justice applications under s. 686(1)(a)(iii), with Oakes the ABCA has joined the British Columbia and Ontario Courts of Appeal in affirming that allowing appeals from conviction on the basis of fresh evidence ought be done under this section of the CCC.

While this may seem like a formalistic technicality or, at the very least, an obvious conclusion, it is a critically important procedural path for courts to agree upon. In the United States, commentators still debate whether the 1993 Supreme Court case of Herrera v Collins, 506 U.S. 390, stands for the proposition that actual innocence is an insufficient ground to mount a habeas corpus challenge to a conviction under the cruel and unusual punishment clause of the Eighth Amendment. While the majority opinion held that it did not state a ground for habeas relief, language in a concurring opinion joined by two members of the majority suggested that the evidence against the accused did not support his claim of actual innocence. Thus, it appears a majority of that Court would have found an appeal based on actual innocence constitutionally required, though the case has been cited by some for the proposition that only claims of procedural error provide grounds for appellate reversal.

In short, the appellate procedural clarity provided by the Oakes case and its counterparts in other provinces is a welcome boon for substantive justice. The problem, of course, is that most cases do not proceed to the level of appellate review, or benefit from the media attention Oakes’ case generated. Clear procedures for evaluating potential innocence on the back end cannot make up for systemic injustice on the front. The Oakes holding may be most significant to the extent that it makes this point clear.

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When Three Rights Make a Wrong?

Fri, 05/13/2016 - 10:00am

By: Erin Sheley

PDF Version: When Three Rights Make a Wrong?

Case commented on: R v Oakes, 2016 ABCA 90

R v Oakes raised the specter always haunting the edges of criminal procedure: what happens when a procedurally fair trial turns out, after the fact, to have produced an unfair conviction?

Connie Oakes was convicted of the second-degree murder of Casey Armstrong, primarily based on the testimony of her alleged co-conspirator Wendy Scott. Scott, who is cognitively delayed and has an IQ of 50, told police that she had seen Oakes kill Armstrong with a knife in the bathroom of his trailer. Scott herself pled guilty to second-degree murder for her own involvement in the crime, after confessing during the course of numerous uncounseled interrogations between June 2011 and January 2012 (at para 4). Prior to implicating Oakes, Scott had accused three other individuals of the act, testifying at trial that she had lied on those three occasions (at para 16). Scott’s testimony was the centerpiece of the Crown’s case against Oakes in the absence of physical evidence linking her to the crime scene and given that a neighbor’s description of a suspect leaving the scene more closely resembled one of the other individuals Scott had originally implicated (at paras 15-18).

During the course of the trial, the Crown made much of Scott’s own guilty plea as evidence of her credibility. During closing summations the prosecutor noted “She did not receive a deal from the Crown in exchange for testimony. As she put it, she manned up to her responsibilities. She said repeatedly, I am trying to deal with what I have to deal with.” (at para 27). The problem is that, subsequent to Oakes’ conviction, the court presiding over Scott’s case overturned her conviction because the facts presented when she entered her plea did not support it (at para 2). The issues for the Court in Oakes’ appeal, then, were whether, in light of Scott’s recantation and reversal, a miscarriage of justice would result if Oakes’ conviction were allowed to stand and, if the appeal were allowed, what the remedy should be.

The question of whether a miscarriage of justice has occurred is governed by Section 686(1) of the Criminal Code, R.S.C. 1985, c.C-46, which contains flexible language stating that a court of appeal “may” allow the appeal “on any ground” where the court is of the opinion that there was a miscarriage of justice. In Oakes, ABCA made it clear that the question would turn not only on the evidence presented at trial but on the subsequent evidence of Scott’s recantation and the judicial rejection of her plea. In considering whether such a miscarriage had occurred, the Court cited four considerations—none of which, interestingly, revealed error by either the trial court or the Crown, but which collectively, in light of new information, nonetheless painted the picture of injustice.

The first factor was the weakness of Scott’s trial testimony and the general case against the accused. Given the obvious concerns about Scott’s reliability and inconsistencies, her testimony was governed by R v Vetrovec, [1982] 1 SCR 811. In that case the Supreme Court of Canada held that, instead of the traditional, formalistic rule governing all accomplice testimony, trial courts should warn juries of reliance on the testimony of “unsavoury” witnesses in the absence of independent confirmatory evidence (at para 18). The Court noted that the trial court had mentioned the neighbor’s testimony as to the two women outside the victim’s trailer, as well as Scott’s relatively accurate description of the bathroom that had been the crime scene (at para 19). Yet, as mentioned above, the testimony of the neighbor was both vague, and even more probative as to the identity of another suspect, and the crime scene description did nothing to confirm that Oakes, specifically, was the killer (at paras 19-21).

The Court also cited the police tactics involved in obtaining Scott’s confession as relevant to the weakness of her testimony (at para 23). The police relied upon the legality of tactics for misleading suspects, such as bringing in a phony surveillance tape and implying DNA had been recovered on the scene (at para 23). The Court noted that the police should not be criticized for those tactics, but that such tactics were nonetheless relevant to the frailty of Scott’s testimony (at para 24).

As a second factor, the Court considered the Crown’s representations that Scott’s reliability was supported by her own confession and guilty plea (at para 26). The Court concluded that, although the Crown had done nothing wrong in emphasizing Scott’s plea, nonetheless the “jury may well not have been able to get to a guilty verdict without the ‘finding of guilt’ by another judge in relation to Ms. Scott”—a finding which, of course, no longer stands (at para 28). (It should be noted that in dissent Justice McDonald noted that it is not at all clear whether the jury found Scott’s testimony more or less credible due to her conviction, pointing out that Oakes’ trial counsel repeatedly referenced her status as a confessed criminal as cutting against her credibility (at para 66).

Third, the Court considered the potential curative effect of the trial court’s Vetrovec warnings, which invited the jury to approach potentially self-interested accomplice liability with caution and to look for evidence from a source unconnected to Scott to confirm the truth of her testimony (at para 32). The Court in no way faulted the trial court’s jury instructions, but made the somewhat chilling observation that “on occasion words simply do not exist with which a trial judge can adequately offset the risk the jury may misapprehend evidence” (at para 33). Furthermore, the Court considered that the trial court could not have known that, according to Scott’s trial judge, she should perhaps never have been convicted as an accomplice in the first place (at para 33).

Finally, the Court considered the limited role that appellate review ought to play with respect to findings of credibility (at para 35). Our entire system of justice turns, of course, on the gatekeeping function of trial judges and juries in evaluating the evidence in their court rooms. The “common sense” human intuition required to make credibility determinations cannot be deployed easily by appellate courts, and for that reason those courts observe a significant deference to trial fact finders on issues turning on witness credibility. The court concluded, however, that the issue was not so much the jury’s evaluation of Scott’s credibility, but the new evidence of the setting-aside of Scott’s conviction and the resulting impact it might have had on the jury’s assessment (at para 38).

For these reasons, the Court held that Oakes’ appeal must be allowed. It remained to be determined, however, whether the new evidence of Scott’s recantation should be admitted on the appeal and whether, in fact, the result of allowing the appeal should be a new trial or a directed verdict of not guilty. As to the first question, the Court was governed by R v Palmer, [1980] 1 SCR 759, which held that the admission of fresh evidence on appeal required that: 1.) the evidence not have been adducible at trial through due diligence; 2.) relevant; 3.) credible, and 4.) if believed could reasonably have affected the result at trial (at para 41). With those prongs easily met in this case (the first mostly due, of course, to the fact that Scott’s conviction had not in fact been overturned at the time of trial), the court turned to the question of remedy.

Oakes’ counsel urged that the upshot of the admission of the new evidence was that Oakes should receive a directed verdict of not guilty. The Court considered this argument under the general rule that a new trial should be the remedy “unless no properly instructed trier of fact could reasonably have convicted the accused” in light of all of the evidence, old and new (at para 50). The Court declined to conclude that the jury was acting unreasonably in convicting Oakes in light of the evidence actually led at her trial, and further found that, even if a jury were aware of the new information concerning Scott, it would not be unreasonable for it to do anything but acquit (at para 56). As the Court put it “Whether by the date of a future trial Ms. Scott has again been convicted of Mr. Armstrong’s murder, acquitted of it, or her charges remain pending but unresolved, that fact can be presented to the jury, which can then address Ms. Scott’s credibility…” (at para 56). In other words, the Court recognized the miscarriage of justice in the original trial, but deferred to the importance of the factfinder’s role in assessing credibility at the trial level.

Subsequent to the Court’s holding, the Crown stayed the charges against Oakes, who has been in prison for over two years. In an interview with the CBC, available here, Oakes, who is Cree, attributed her conviction to systemic racism in the Medicine Hat justice system, but reaffirmed her longstanding belief that she would eventually be set free. The darker view of Oakes’ case is that, even when procedural protections work exactly the way they’re supposed to, the asymmetry of power between the accused and the state will always open up the possibility of innocent people spending their lives in prison. Here Scott, an intellectually and economically disadvantaged woman with no advice of counsel beyond one phone call, confessed and implicated Oakes after four months of questioning. The stakes of the plea bargains that resolve so many of our criminal trials can create incentives for the factually innocent to confess to obtain lighter sentences. These risks are even higher in cases where good legal advice is unavailable, and where false accusations against other parties will increase the value of the deal offered. Cases like Oakes force us to examine the series of events that can lead to bad outcomes, many of which inevitably relate to a general lack of systemic resources for the defence of the accused.

While the status quo is not good enough on the front end, however, Oakes at least offers the silver lining of a glimpse at appellate review functioning appropriately. In R v Stolar, [1988] 1 SCR 480, the Supreme Court gave clear guidance for when fresh evidence should be admitted on appeal: where it has sufficient weight or probative force that if accepted by the trier of fact it might have altered the result at trial (at para 492). While we do not yet have a Supreme Court case explicating the operation of Stolar on miscarriage of justice applications under s. 686(1)(a)(iii), with Oakes the ABCA has joined the British Columbia and Ontario Courts of Appeal in affirming that allowing appeals from conviction on the basis of fresh evidence ought be done under this section of the CCC.

While this may seem like a formalistic technicality or, at the very least, an obvious conclusion, it is a critically important procedural path for courts to agree upon. In the United States, commentators still debate whether the 1993 Supreme Court case of Herrera v Collins, 506 U.S. 390, stands for the proposition that actual innocence is an insufficient ground to mount a habeas corpus challenge to a conviction under the cruel and unusual punishment clause of the Eighth Amendment. While the majority opinion held that it did not state a ground for habeas relief, language in a concurring opinion joined by two members of the majority suggested that the evidence against the accused did not support his claim of actual innocence. Thus, it appears a majority of that Court would have found an appeal based on actual innocence constitutionally required, though the case has been cited by some for the proposition that only claims of procedural error provide grounds for appellate reversal.

In short, the appellate procedural clarity provided by the Oakes case and its counterparts in other provinces is a welcome boon for substantive justice. The problem, of course, is that most cases do not proceed to the level of appellate review, or benefit from the media attention Oakes’ case generated. Clear procedures for evaluating potential innocence on the back end cannot make up for systemic injustice on the front. The Oakes holding may be most significant to the extent that it makes this point clear.

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The Annex VII Tribunal in The ""Enrica Lexie” Incident Makes New Provisional ...

Thu, 05/12/2016 - 10:03am

By: Nigel Bankes

PDF Version:The Annex VII Tribunal in The “Enrica Lexie” Incident Makes New Provisional Measures Order

Decision commented on: Annex VII Arbitral Tribunal, Order on Prescription of Provisional Measures in the “Enrica Lexie” Incident, Registry of the Permanent Court of Arbitration, 29 April 2016

The “Enrica Lexie” incident has already been the subject of an earlier post here in relation to the provisional measures order made by the International Tribunal for the Law of the Sea (ITLOS) pending the establishment of the Annex VII Tribunal in the matter. The facts of the matter and the unusual nature of ITLOS’s jurisdiction in cases of this sort are canvassed in that earlier post. The characterization of the dispute as summarized by the Annex Tribunal VII is as follows (at para 5):

According to Italy, the Parties’ dispute arises from an incident approximately 20.5 nautical miles off the coast of India involving the “MV Enrica Lexie”, an oil tanker flying the Italian flag, and India’s subsequent exercise of criminal jurisdiction over the vessel and two Italian marines from the Italian Navy, Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, in respect of that incident. According to India, the “incident” in question concerns the killing of two Indian fishermen, on board an Indian vessel named the “St. Antony”, and the subsequent exercise of jurisdiction by India. It is alleged that the fishermen were killed by the two Italian marines stationed on the “Enrica Lexie”.

The Annex VII tribunal was constituted by September 30, 2015 and comprises Professor Francesco Francioni appointed by Italy, Judge Patibandla Chandrasekhara Rao appointed by India, and, in default of agreement between the parties, Judge Jin-Hyun Paik, Judge Patrick Robinson as arbitrators, and Judge Vladimir Golitsyn, President of the Arbitral Tribunal, all appointed by the President of ITLOS pursuant to Annex VII, Article 3, subparagraphs (d) and (e) of the Law of the Sea Convention (LOSC). It is not without interest that this means that three of the five arbitrators are also sitting members of ITLOS (Chandrasekhara Rao, Paik and Golitsyn) and all three participated in the ITLOS provisional measures order. Judge Robinson is a member of the International Court of Justice.

It will be recalled that following the docking of the Enrica Lexie at the port of Kochi in India, Indian authorities arrested Sergeants Latorre and Girone and charged them with murder. The two marines were subsequently released on bail on terms set by the Supreme Court of India. The bail conditions for Sergeant Latorre were later relaxed for medical reasons and he was allowed to return to India (but still subject to bail conditions). Sergeant Girone remains in India on bail conditions that allow him to live at the residence of Italy’s Ambassador to India and require reporting weekly to the authorities.

In this provisional measures application Italy asked the Tribunal (at para 25) to order that:

India shall take such measures as are necessary to relax the bail conditions on Sergeant Girone in order to enable him to return to Italy under the responsibility of the Italian authorities, pending the final determination of the Annex VII Tribunal

It bears mentioning (as the Tribunal itself emphasises at para 75) that this was a considerably more restrained request for provisional measures than Italy had submitted before ITLOS, at which time Italy simply requested that ITLOS order “that restrictions on the liberty, security and movement of the Marines be immediately lifted to enable Sergeant Girone to travel to and remain in Italy”. ITLOS’s actual Order was considerably narrower and was largely aimed at preserving each party’s position by ordering each party to suspend any ongoing proceedings and to refrain from initiating any new ones pending any decision by the Annex VII arbitral tribunal.

Prima facie jurisdiction

Article 290 governs the authority of an Annex VII tribunal to make an order of provisional measures. In order to make such an order the tribunal must consider that it has prima facie jurisdiction. ITLOS had satisfied itself as to that test and in this application neither party contested that issue. Indeed, counsel for India, while reserving the right to contest jurisdiction on the merits, indicated (at para 51) that “India does not intend to second guess or seek to modify the Law of the Sea Tribunal’s conclusions on these matters.” In light of this the Tribunal (at para 54) had little difficulty in satisfying itself that it had prima facie jurisdiction.

Article 290 – paragraph 1 or 2?

The Parties disagreed as to whether Italy’s request was a request for provisional measures under paragraph 1 or 2 of Article 290. Paragraph 2 deals with the modification or revocation of provisional measures and suggests that measures might only be revoked or modified if the circumstances justifying them have changed or ceased to exist. India argued that the application was an application under this paragraph and that nothing had changed.

The Tribunal however took the view that there was an important distinction to be made between a provisional measures order under paragraph 1 and a provisional measures order made under paragraph 5 by ITLOS, pending establishment of the ad hoc Annex VII tribunal. Thus (at para 72), “The object and purpose of Article 290, paragraph 1, is to enable a tribunal to prescribe any provisional measures that it considers appropriate to preserve the respective rights of the parties to a dispute pending the final decision, without being limited by a prior decision of ITLOS pursuant to Article 290, paragraph 5, of the Convention.” As such, Italy’s request should be treated as a new request rather than a request to modify the Order made by ITLOS. In reaching this conclusion the Tribunal claimed to be following the Annex VII Tribunal’s Order in The MOX Plant Case (Ireland v United Kingdom), Order No 3, 24 June 2003 at para 39 where that Tribunal indicated that it was dealing with the first such request by Ireland to the tribunal. No doubt it was also easier to take that position here (and notwithstanding the final sentence of Article 290(5)) because ITLOS’ order, as noted above, did not actually deal with the bail conditions of the two sergeants. The present application was much more focused and modest, and, as the Tribunal notes (at para 75) “It is evident from the focus on Sergeant Girone’s bail conditions that Italy is prepared to accept that, should he be allowed to return to Italy, he will remain under the jurisdiction of the courts of India. The requested measures are intended to change the physical location of Sergeant Girone’s bail without prejudice to the authority of India’s courts.”

Urgency

Article 290 only refers to urgency in paragraph 5 which leads to the question of whether urgency is also a condition precedent to making a provisional measures order under paragraph 1, and, if so, what does urgency mean or require? Here the Tribunal followed both the jurisprudence of ITLOS (Ghana/Côte d’Ivoire) and the jurisprudence of the ICJ (Costa Rica v Nicaragua [2011] ICJ Rep 1) concluding (at para 89) that “a showing of urgency in some form is inherent in provisional measures proceedings.” What does that involve? The Tribunal answered as follows: “Generally, urgency is linked to the criterion of preservation of the respective rights of the parties to the dispute in order to avert a real and imminent risk that irreparable prejudice may be caused to the rights at issue, pending the final decision on the merits pursuant to Article 290, paragraph 1, of the Convention.”

The rights of the respective parties

Italy’s claimed rights are essentially the right to exercise exclusive jurisdiction over the Enrica Lexie incident and a claim of immunity with respect to its officials and agents. India’s claimed right is a right to exercise criminal jurisdiction over the two sergeants which entails the proposition that they should be available to the Indian judicial system should India prevail. Which claim will prevail is the matter to be determined on the merits. The task of the Tribunal at this stage is evidently to ensure no irreparable prejudice to either State’s conceptualization of the legal position.

In the end the Tribunal agreed to give Italy a modified form of the relief that it sought on the condition of its renewed solemn undertaking that it would comply with any award of the Annex VII Tribunal requiring the return of the marines to India.

I think that the Tribunal gives three interrelated reasons for acceding to Italy’s request. The first is that (at para 103) pending determination of the legal position on the merits there is some ongoing prejudice to Italy’s positon insofar as Sergeant Girone remains “under India’s authority alone”. The second reason that the Tribunal gives (at para 104; see also para 119) are “considerations of humanity” – namely the separation of Sergeant Girone from his family including children. Third, since the ITLOS Order had suspended all legal proceedings in the matter, there was (at para 107) “no legal interest in Sergeant Girone’s physical presence in India.” India’s legal interests could be protected by the terms of a solemn undertaking.

Due Process

Italy also sought to justify its request for an order relaxing Sergeant’s Girone’s bail conditions on the basis of an alleged breach of due process and specifically a breach of Articles 9(2) and 14(1) of the International Covenant on Civil and Political Rights. In response the Tribunal emphasised that provisional measures are forward looking and thus, to the extent possible, the Tribunal (at para 118) “should avoid engaging with questions of wrongfulness of past conduct” and that it was not necessary to do so here.

The Order, the Dispostif

The Tribunal made the following order prescribing provisional measures:

  1. a) Italy and India shall cooperate, including in proceedings before the Supreme Court of India, to achieve a relaxation of the bail conditions of Sergeant Girone so as to give effect to the concept of considerations of humanity, so that Sergeant Girone, while remaining under the authority of the Supreme Court of India, may return to Italy during the present Annex VII arbitration.
  1. b) The Arbitral Tribunal confirms Italy’s obligation to return Sergeant Girone to India in case the Arbitral Tribunal finds that India has jurisdiction over him in respect of the “Enrica Lexie” incident.
  1. c) The Arbitral Tribunal decides that Italy and India each shall report to the Arbitral Tribunal on compliance with these provisional measures, and authorizes the President to seek information from the Parties if no such report is submitted within three months from the date of this Order and thereafter as he may consider appropriate.

Observations / Conclusions

  1. This decision demonstrates that there is potentially a complex interaction between the provisional measures order of ITLOS pending constitution of the Annex VII tribunal and the provisional measures order(s) of that tribunal once constituted. In some cases a party may indeed ask the Annex VII tribunal to revisit the terms of the ITLOS Order as Article 290(5) contemplates in which case paragraph 2 might well require that the Tribunal satisfy itself that the relevant “circumstances have changed or ceased to exist”. Alternatively, a party to the arbitration may seek a new Order as was the case here in which case paragraph 2 is inapplicable. The original ITLOS Order continues (and the Tribunal relies upon its continuance insofar as it preserves the interests of both States) but the Tribunal adds three additional measures (quoted above).
  1. The Order (and especially paragraph (a)), is framed in terms which are very deferential to India’s jurisdiction and in particular deferential to the authority of the judicial branch. Thus, paragraph (a) is framed as an obligation of conduct rather than an obligation of result. It requires that the parties cooperate in making an application but it does not dictate the result that must flow from that application. It is also framed in terms that protect India’s view of the matter and is rather more protective of that view than the terms of the order that Italy actually sought.
  1. While the Tribunal refers to “considerations of humanity” it is hard to see precisely what role these considerations play in justifying the Order when considered in light of the Tribunal’s own conceptualization of the purpose of a provisional measures order. ITLOS has referred to “considerations of humanity” on a number of occasions, most notably in its prompt release jurisprudence (see e.g. The “Juno Trader Case” (Saint Vincent and the Grenadines v Guinea Bissau), Application for Prompt Release, Judgment, at para 77 and in its assessment of the proportionality of enforcement measures (see M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines Guinea), Judgment, at para 155 and operative paragraph 183(9)). ITLOS also referred to considerations of humanity in its provisional measures order in this case (at para 133). It is easy to see how considerations of humanity are used in the first two categories of cases since ITLOS is engaged in a balancing exercise and such considerations are evidently relevant to the balance and to the interpretation of the reasonableness of the actions of the coastal State. It is more difficult to see precisely what role they play in a provisional measures order which, as the Tribunal observes, is intended to preserve the legal rights of the parties to the dispute. It is not clear that considerations of humanity have any interpretive role to play in this context, and if they cannot be used in that manner in what other way are they relevant? Are they an independent source of authority? This would seem unlikely insofar as a Part XV tribunal’s jurisdiction is limited to disputes concerning the interpretation or application of LOSC. In any event it might be considered that the Tribunal’s first reason for acceding to Italy’s request is reason enough to support the order.
  1. The Tribunal’s treatment of Italy’s due process argument is measured but inconclusive. If the argument is pursued on the merits the Tribunal will have to rule as to its jurisdiction to consider the matter and on this there seems to be something of a difference in views as between Part XV Tribunals. Most recently both the Arctic Sunrise and South China Seas Tribunals have ruled that they have no jurisdiction to consider a claim of breach of a treaty outside the context of LOSC but that they will take into account other treaty obligations as part of interpreting LOSC obligations: see Arctic Sunrise (Merits) at paras 188 – 198 and South China Seas (Jurisdiction and Admissibility) at para 282. On the other hand ITLOS seemed to take a broader view of its jurisdiction in Saiga No 2 (see reference above) as did the Annex VII Tribunal in Guyana v Suriname (at para 423).

This blog is also cross-posted on the website of K.G Jebsen Centre for the Law of the Sea

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A National Code of Conduct?

Wed, 05/11/2016 - 10:23am

PDF Version: A National Code of Conduct?

Document Commented On: The Federation of Law Societies of Canada’s Model Code of Professional Conduct

I like the Federation of Law Societies’ Model Code of Conduct. It’s not perfect.   But it represents the culmination of considerable effort and reflection by intelligent and thoughtful lawyers. It provides meaningful guidance on a number of issues that lawyers face, particularly in relation to conflicts of interest. It provides a vehicle for national discussion and for work on emerging issues and on areas requiring reform.   The Federation has done some truly great things with the Code, such as having a Standing Committee to update and revise the Code on an ongoing basis, and creating an interactive website where the provisions of the Federation’s Code can be cross-referenced with similar provisions applicable in every Canadian province.

But here is what I do not like. I do not like the extent to which provincial law societies have simultaneously adopted the Federation’s Model Code and undermined its ability to create national standards governing lawyer behaviour.

What do I mean by that? I do not mean that law societies have acted improperly or in bad faith. What I mean is that benchers, staff and volunteers at law societies – including me! – have put their own beliefs on how provisions in codes of conduct should be expressed ahead of the maintenance of a national approach. And they have done so at a cost that outweighs the benefits.

Most of the provincial codes of conduct contain variances from the Federation’s Code.   Some of those variances are useful – providing greater clarity around issues on which the Federation is silent (e.g., AB Rule 2.02(3) which speaks to when a lawyer ought to obtain instructions, or Ontario Sections 3.2-7.1-7.3 which clarify lawyer obligations in relation to client dishonesty). But other variations are unnecessary, unhelpful or both.

Consider these examples:

In Alberta, the Code of Conduct uses a different numbering scheme than that of the Federation’s Model Code. The numbers of the rules do not match, and Alberta does not number its commentaries. This difference has no evident advantages, and some costs; a lawyer from Alberta who knows her own code cannot look up provisions in another provincial Code simply by number. Plus the Federation’s numbering is better – not numbering the commentaries is just annoying, particularly when you are trying to have a conversation with someone else about a particular commentary. Why do it?

In Ontario, in a number of places where the Federation Code uses the word “must”, the Law Society of Upper Canada uses the word “shall”. For example, the Federation Code says “A lawyer at all times must hold in strict confidence all information…”; the Law Society of Upper Canada Code says “A lawyer at all times shall hold in strict confidence all information…”. This difference is worse than annoying. In ordinary usage must and shall mean the same thing– setting out something you have to do (and check out this argument for must over shall). But a lawyer comparing the codes now has to worry that the different usage in Ontario means something. So the difference is at once both inconsequential (they mean the same thing) and troubling (it makes a reader worry that they don’t actually mean the same thing). Why make being an ethical lawyer harder for no benefit or apparent reason?

The final example is with respect to the obligations of lawyers who end up in possession of inculpatory evidence of a crime. In 2014 the Federation amended the Model Code to address this issue, and the risk evidenced by the experiences of the lawyer for Paul Bernardo, who was charged with obstruction of justice after failing to provide the Crown with videotapes showing his client sexual assaulting a number of victims (R v Murray, [2000] OJ No 2182, 48 OR (3d) 544 (ON SCJ)). The Federation Code provides in Rule 5.1-2A that “A lawyer must not counsel or participate in the concealment, destruction or alteration of incriminating physical evidence or otherwise act so as to obstruct or attempt to obstruct the course of justice,” and then adds a number of commentaries clarifying and addressing some of the complexities that can arise for a lawyer who receives such evidence.

The Federation’s amendment was adopted in Alberta, Manitoba, Saskatchewan and the Yukon. Ontario adopted the rule and commentary, but amended the commentary so that it suggests that the lawyer consider retaining independent counsel and is more open-ended about the role to be played by that counsel. Newfoundland and Nova Scotia incorporated the Federation’s commentaries, but not the governing rule, stating instead that a lawyer should apply to a court if uncertain who is “the proper person to receive a client’s property”. British Columbia’s code remains silent on the issue.

Presumably lawyers at the law societies in Nova Scotia and Newfoundland disagreed with the Federation’s governing rule. In Ontario they thought the rule could be improved by amending how it is drafted. In BC they may have disagreed even more strongly, or may just not have concluded their process (perhaps because it’s contentious).

I can understand disagreement and slow processes. But here’s the thing: lawyers who mishandle physical evidence risk criminal prosecution. The Federation’s approach may not be perfect – it may not even be very good, objectively speaking (although it looks fine to me). But it reflects the considered and thoughtful opinion of people who know a lot about lawyers’ ethical obligations. It provides clarity on a significant issue with a great deal at stake for the lawyer and the client. Differences have costs as well as benefits – it’s not enough that a change makes the code better, it has to make it better enough that it warrants the cost to consensus and clarity (does Ontario’s change really make any difference to what a lawyer would do? Both codes recognize a role for independent counsel.). The Federation’s opinion may not be the only defensible one available, but it is defensible, it’s helpful on an issue where a great deal is at stake, changes to it have a real cost, and it’s certainly better than nothing at all.

I get where the provincial law societies are coming from in not simply “going along” with the Federation’s Code. I certainly advocated for significant variations from the Federation’s approach to the Law Society of Alberta. But I think I was wrong, and I think they are wrong too. Get involved with the Federation’s Standing Committee. Participate actively in the process for creating and amending the Model Code. Ensure that one province does not dictate the outcome. As a participant in the process, be open to new ideas or other ways of doing things – try to write the right rule not simply to get your jurisdiction’s rules adopted nationally. Get enough people from your law society involved early on so that useful changes are nationally adopted (I do think the Ontario language is better – it would be nice if the Federation Code incorporated it). But once the Federation has agreed upon a rule, adopt it unless there is some tangible, regional specific difference that prevents doing so; adopt an attitude of deference to Federation decision-making. And if you are going to have a difference in rule or approach, explain what it means – what difference it makes for lawyers in your jurisdiction relative to lawyers elsewhere.

And Alberta and Ontario: change your numbering and replace shall with must. Please – just do that, for everyone’s sake.

This post originally appeared on Slaw.

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Court of Queen’s Bench Strikes Prohibition on Pharmacy Inducements in Alberta

Tue, 05/10/2016 - 3:22pm

By: Shaun Fluker

PDF Version: Court of Queen’s Bench Strikes Prohibition on Pharmacy Inducements in Alberta

Case Commented On: Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 232

In late March I wrote a post commenting on the difficult application of a standard of review analysis to a vires determination of subordinate legislation – see Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation? The decision before me then was Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 138, wherein Mr. Justice V.O. Ouellette selected the standard of correctness to assess the vires of a prohibition enacted as subordinate legislation by the Alberta College of Pharmacists (“College”). This comment now looks at the substantive decision issued April 22 by Justice Ouellette ruling that the prohibition is ultra vires the College. I think there are some doctrinal problems with the reasoning in this judgment which I explain below, and I conclude this comment by shining some light on the fact that the successful party – Sobeys – is a large and powerful national grocery retailer in Canada who appears to convince the Court that this matter is more about consumers than patients. 

The Inducement Prohibition

In April 2014 the College voted to amend its Code of Ethics and Standards of Practice for Pharmacists and Pharmacy Technicians to prohibit pharmacists from providing inducements – such as loyalty program points or other forms of consumer purchase rewards like Air Miles – to a patient for the acquisition of a prescription drug or a service from them. The College provides a description of the inducement issue and its rationale for the prohibition here. My previous comment did not explore the details of this issue because the decision under review was simply on standard of review, but given we are now into the substance of the dispute between the parties I am going to dig into this a bit more.

The College regulates pharmacists in Alberta through a registration requirement set out in Part 2 of the Health Professions Act, RSA 2000, c H-7. Like many other regulated professions, the registration requirement facilitates the ability of the College to oversee and monitor the provision of pharmacy services as well as establish and enforce competency and conduct requirements on pharmacists. These requirements include having post-secondary education in pharmacy, passing the national qualifying exams and a provincial jurisprudence exam, continued professional development, and adhering to conduct rules, patient care and confidentiality laws, standards of practice, and a code of ethics. While at one time the role of the pharmacist was primarily the dispensing of prescription drugs, in recent years that role has expanded to include patient care services such as the development of medication plans and providing information on how to take prescribed drugs.

The matter of inducements at pharmacies in Alberta has been an issue for the College for some time now, and the expanding role of pharmacists in patient care led the College to enact the prohibition into the Code of Ethics and Standards of Practice. The College published its rationale for the prohibition in a document entitled Inducements for Drugs and Professional Services: A Basis for a Prohibition (see here). My reading of this document suggests the primary reason for the prohibition is the ability of inducements to influence decisions made by patients on prescription drugs. The economic benefits provided by inducements – the desire to accumulate points or air miles for example – is thought to be improperly influencing decisions made by patients on their drug therapy and systemically interfering with and/or disrupting the pharmacist-patient relationship. The College provides more detail and many examples of these problems in the published rationale, but perhaps the summary statement is sufficient:

The patient-pharmacist relationship needs to be rooted in integrity and trust. Patients should select their pharmacist based on the pharmacist’s knowledge and quality of care, not based on inducements. Patients and pharmacists should be able to make health decisions free from competing economic and psychological influences. (Inducements for Drugs and Professional Services: A Basis for a Prohibition at 13)

The College thus added the following provisions to the Code of Ethics and the Standards of Practice to implement the inducement prohibition:

Code of Ethics

13 Do not enter into any arrangement with a patient where I provide an inducement to the patient that is conditional on the patient obtaining a drug or professional service from me.

Standards of Practice

1.18 A regulated member must not offer or provide or be party to the offering or provision of an inducement to a patient where the inducement is offered or provided on the condition that the patient obtains: (a) a drug product, or (b) a professional service from the regulated member or licensed pharmacy.

Are the Inducement Prohibitions lawful?

The authority of the College to enact the Code of Ethics and Standards of Practice governing pharmacists is provided by section 133(1) of the Health Professions Act, RSA 2000, c H-7. The text in this section suggests the Legislature contemplated these enactments would constitute subordinate legislation – in other words that these provisions constitute enforceable rules with penal consequences if not followed, as opposed to merely internal guidance to pharmacists. Hallmarks of this intention include the requirement on the College to allow pharmacists and the Minister to review and comment on proposed provisions, as well as to publish the Code and Standards of Practice. These process provisions largely replicate the substance of the Regulations Act, RSA 2000, c R-14. The text of section 133 is as follows:

133(1)  A council may, in accordance with procedures set out in the bylaws, develop and propose the adoption of a code of ethics and standards of practice for a regulated profession and may develop and propose amendments to an adopted code of ethics or standards of practice.

(2)  The college must provide, for review and comment, a copy of a proposed code of ethics and proposed standards of practice and proposed amendments to

(a)    its regulated members,
(b)    the Minister, and
(c)    any other persons the council considers necessary.

(3)  A council may adopt a code of ethics and standards of practice and may adopt amendments to a code of ethics or standards of practice after it has reviewed and considered the comments received from a review described in subsection (2).

(4)  The Regulations Act does not apply to a code of ethics or to standards of practice adopted or amended under this section.

(5)  The college must ensure that copies of the code of ethics and standards of practice adopted under subsection (3) are readily available to the public and regulated members, and the copies may be distributed in the manner directed by the council.

The test for determining the vires or lawfulness of subordinate legislation was recently consolidated and set out by the Supreme Court of Canada in Katz Group Canada Inc. v Ontario (Health and Long?Term Care), 2013 SCC 64 at paras 24-28. The test is largely about assessing whether the subordinate legislation is consistent with the objective or purpose of its enabling statute. Consistency is important because the entity that enacts subordinate legislation is doing so with delegated legal authority provided by the Legislature. The guiding principle is that a delegate – such as the College in this case – only has the legal authority granted to it by the Legislature, and so the test for vires examines whether the delegate stayed within the grant of authority in its enabling statute. If not, the enactment must be struck as unlawful.

The steps or considerations set out by Katz which guide the review on the vires of subordinate legislation are as follows: (1) is the impugned regulation consistent with the objective of its parent statute – in order to demonstrate invalidity a person must establish that the regulation is not consistent with such objective or that it addresses a matter which is not set out in the regulation-making provision of the parent statute; (2) if there are conditions to be met in the enactment of subordinate legislation – for example a notice and comment process – have these conditions been met; (3) there is a presumption of validity such that the onus or burden is on the challenger to demonstrate that the regulation is ultra vires – so where possible a regulation will be read in a ‘broad and purposive’ manner to be consistent with its parent statute; (4) the inquiry into the vires of a regulation does not involve assessing the policy merits of the regulation, nor does the reviewing court assess whether the regulation will successfully meet its objective (Katz at paras 24-27).

Justice Ouellette sets out the Katz test at paragraphs 9-14 of this decision. The reason for this lengthy dissertation of the test is that Justice Ouellette distinguishes Katz somewhat from this case. In particular, Justice Ouellette observes that in Katz the Supreme Court assessed the vires of regulations enacted by the Ontario Legislature itself under a statute with a targeted policy direction. For Justice Ouellette, this case is distinct from Katz in that the delegate here is the College and it is purporting to exercise delegated authority under a statute – the Health Professions Act – with a general or broader purpose.

This distinguishing of Katz is the first doctrinal problem with this judgment. While it is true that the form of subordinate legislation and the enacting body in Katz is different, I don’t see how this difference necessarily means that the Katz principles don’t apply just the same. As I see it, Justice Ouellette goes down this distinguishing path in order to depart somewhat from the deference called for in Katz. But I think what he really wants to say is that the principles governing a vires review of subordinate legislation should be different depending on what entity purports to enact the legislation. Where it is a legislature – such as in Katz – the review is very deferential, but where it is a statutory entity such as a tribunal or the College, the review is less deferential. The problem for Justice Ouellette is that Katz does not expressly support this. As I noted in my previous post on this case, it would have been nice had the Supreme Court of Canada more carefully situated its reasoning in Katz within the broader context of administrative law and confirmed whether the Katz principles applied likewise to subordinate legislation enacted by delegates of the Legislature.

The second doctrinal problem with this judgment is the manner in which Justice Ouellette goes about deciphering the purpose or objective of the Health Professions Act. Justice Ouellette remarks that it is unfortunate there is no preamble or recital to the legislation that provides its objective (at para 17), however my understanding is that the legislative drafting policy of the Alberta Legislature is to avoid using such preambles in order to ensure the objective or purpose of a statute is gleaned from the enactment as a whole. So in the absence of a provision that expressly states an objective, Justice Ouellette cites extensively from the Hansard record of the debate in the Legislature when the Health Professions Act was in the legislative process in 1998 and 1999 (at paras 18-25).

It wasn’t too long ago when Canadian courts balked at admitting evidence of legislative debates and speeches as an aid to interpreting the purpose of legislation. In its 1993 R v Morgentaler, [1993] 3 SCR 463 decision the Supreme Court of Canada acknowledged that this exclusionary rule had been relaxed, and in its leading authority on statutory interpretation – Rizzo v Rizzo Shoes, [1998] 1 SCR 27 – the Supreme Court confirmed that such debates have a limited role in the interpretation of legislation: “Although the frailties of Hansard evidence are many, this Court has recognized that it can play a limited role in the interpretation of legislation.” (Rizzo Shoes at para 35).

The concern with using legislative debate as an aide to interpreting legislation is that individual members of the legislature do not speak for the legislature as a whole and often their speech is heavily laden with a partisan slant. The demise of the exclusionary rule does not mean these concerns are no longer present, but rather such concerns are still given effect by limiting the weight attached to these debates in the interpretation process. As Ruth Sullivan summarizes in Sullivan on the Construction of Statutes, 6th ed (Lexis Nexis, 2014) at 681:

It appears to be now well-established that legislative history materials are admissible if they are relevant and reliable and these materials may be relied on for any purpose. However, they must not be given inappropriate weight. The current focus has thus shifted from admissibility to identifying the factors that make these materials more or less reliable and determine the weight they should receive. Although the exclusionary rule is no longer relevant, the concerns which led the courts initially to exclude legislative history and later to admit it first as external context, then as direct evidence of purpose and finally as direct evidence of legislative intent remain relevant in determining reliability and weight.

Justice Ouellette’s review of the legislative discussion in Hansard culminates with the following articulation of the purpose of the Health Professions Act:

Therefore, the legislature clearly intended the HPA to provide the framework necessary to ensure that all health professionals be competent and accountable to the public. Further, the legislature clearly intended that the HPA would require the role of the regulatory colleges to be separate from economic functions. Section 3(2) of the HPA, which deals with the issue of professional fees, is clearly indicative of the fact that economic related issues are not one of the contemplated roles of the colleges under the HPA. This is in the sense that HPA, s 3(2) specifically excluded professional fees (an economic function) from their roles. This is further supported by the parallel, stated purpose of the Pharmacy and Drug Act, which is directed at the economic control of costs. (at para 26, emphasis added)

I find it curious that Justice Ouellette comes to this conclusion that the statute so clearly separates economic issues from all others, without even mentioning section 3(1) of the Act, which expressly provides for the role of the College to govern and regulate the conduct of pharmacists.

The essence of Justice Ouellette’s ruling is that the College enacted economic regulation with its inducement prohibitions because such prohibitions are directed, solely it seems, at the issue of pricing and the commercial operation of business. Given the aforementioned conclusion on the purpose of the Health Professions Act and the exclusion of economic regulation, Justice Ouellette seems to have little if any trouble ruling that the inducement prohibitions are ultra vires the College based on a Katz analysis (at paras 27-42).

Justice Ouellette uses the word ‘clearly’ in 10 instances when describing either the purpose of the Health Professions Act or the inducement prohibitions (at paras 18, 22, 24, 26, 27, 28, 30, 56), as if there could hardly be any doubt as to the vires question here. But how clear is this case really? Granted there is no doubt the inducement prohibition would have some economic impact on certain pharmacies (more on that below), but is the prohibition really targeted at price competition? The one document which significantly differs with Justice Ouellette’s economic reading is the College’s own rationale for the prohibition, entitled Inducements for Drugs and Professional Services: A Basis for a Prohibition, summarized above. It is very noteworthy to me that there is just a single reference to this document in Justice Ouellette’s ruling (at para 6), and no substantive discussion of its content. I find it hard to understand how the purpose of the inducement prohibitions can be deciphered without any reference to the College’s own articulation of its rationale.

Patient or Consumer?

There is a dualism at work in this case, specifically whether the person who approaches the pharmacy counter is a patient or a consumer. The College views the inducement prohibitions as a measure that governs the conduct of a pharmacist to help ensure the decisions made at the counter by the patient are based on healthcare alone. Justice Ouellette’s reasoning views the inducement prohibitions as a measure that restricts the liberty of a pharmacist to compete for the consumer’s purchases at the counter. As Justice Ouellette states at para 40: “The College’s legislative action amounts to controlling the way commercial entities operate and compete amongst themselves in terms of prices offered to consumers and costs.” The consumer trumps the patient in this case.

I can’t help but conclude by noting that the successful party here is Sobeys – a large and powerful national grocery retailer in Canada who is quoted as being delighted with Justice Ouellette’s ruling. That same media release quotes a Sobeys spokesperson as stating: “Encouraging competition and making prescriptions and pharmacy services more affordable has been at the core of our challenge of the Alberta College of Pharmacists.” One can read this as an assertion of consumer interests over the regulatory functions of the College. The law sides with the powerful in this case. And while the ruling is based on some statutory interpretation, with respect it seems to me that that interpretation is only a partial job. In any case, it has long been a knock against statutory interpretation that it can be a results-orientated exercise. This decision seems very susceptible to the critical legal studies adage that law is politics, and doctrinal analysis simply serves to mask the politics in legal reasoning.

My ultimate point is that this case could just as easily have been decided in favour of the College had the dualism been flipped and the patient trumped the consumer. Indeed on very similar law and facts, the British Columbia Court of Appeal recently upheld as lawful inducement prohibitions enacted by the College of Pharmacists in British Columbia, deciding against Sobeys in Sobeys West v College of Pharmacists of British Columbia, 2016 BCCA 41.

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Excluding Mere Intimate Relationships: The Alberta Court of Appeal Interprets the Protection ...

Tue, 05/10/2016 - 3:22pm

By: Jennifer Koshan

PDF Version: Excluding Mere Intimate Relationships: The Alberta Court of Appeal Interprets the Protection Against Family Violence Act

Case Commented On: Lenz v Sculptoreanu, 2016 ABCA 111 (CanLII)

The Protection Against Family Violence Act, RSA 2000, c P-27 (PAFVA) allows “family members” to obtain emergency protection orders (EPOs) on an ex parte basis, in circumstances where “family violence” has occurred, the claimant “has reason to believe that the respondent will continue or resume carrying out family violence”, and “by reason of seriousness or urgency, the order should be granted to provide for the immediate protection of the claimant and other family members who reside with the claimant” (section 2). In the context of intimate relationships, “family member” is defined to mean “persons who are or have been married to one another, who are or have been adult interdependent partners of one another or who are residing or have resided together in an intimate relationship.” Family member also includes those who are “parents of one or more children, regardless of their marital status or whether they have lived together at any time” (section 1(1)(d)).

In Lenz v Sculptoreanu, 2016 ABCA 111 (CanLII), the Alberta Court of Appeal (Justices Rowbotham, Wakeling and Schutz) made a “comprehensive consideration of the language used in the legislation, the scheme of the legislation, and its objects”, and concluded that this definition does not include persons who have been involved in an intimate relationship without residing together and do not fall within the definition of “adult interdependent partner” in the Adult Interdependent Relationships Act, SA 2002, c A-4.5(at para 4).

Facts and Issue on Appeal

Tia Maria Lenz was the recipient of an EPO, but she did not appear at the Court of Queen’s Bench hearing to consider confirmation of the EPO under section 3 of the PAFVA nor at the appeal. The Court of Appeal therefore based its decision on the evidence of the appellant, Amon Sculptoreanu. According to his evidence, he and Lenz were in a non-exclusive dating relationship for about 3 years, from 2012 to 2015. They have no children together, maintained separate residences during their relationship, and did not live together apart from some overnight stays. When the relationship first began, Lenz was married to another man, with whom she resided for the first 6 to 8 months of her relationship with Sculptoreanu. She eventually moved in with her sister. Lenz and Sculptoreanu each worked and individually supported themselves and they did not share expenses or bank accounts. Their relationship broke down in June 2015 because of Sculptoreanu’s relationships with other women. Lenz contacted the RCMP alleging that Sculptoreanu made threats against her and her property. A Justice of the Peace granted an ex parte EPO against Sculptoreanu under the PAFVA, which was confirmed by Mr. Justice G.A. Verville of the Court of Queen’s Bench on July 15, 2015, for one year. Sculptoreanu’s appeal to the Alberta Court of Appeal raised the issue of whether the EPO was improperly granted and confirmed because he was not a “family member” to Lenz.

The Court of Appeal’s Decision

After noting that the interpretation of a statute is reviewable on the standard of correctness (at para 13), the Court of Appeal set out the definition of “family member” from the PAFVA (noted above), and the definition of “relationship of interdependence” from the Adult Interdependent Relationships Act:

1(1) In this Act, . . .

(f)  “relationship of interdependence” means a relationship outside marriage in which any 2 persons

(i)   share one another’s lives,

(ii)   are emotionally committed to one another, and

(iii)  function as an economic and domestic unit.

Under the section 3 of the Adult Interdependent Relationships Act, a person is the “adult interdependent partner” of another person if, inter alia, “the person has lived with the other person in a relationship of interdependence for a continuous period of not less than 3 years.” Moreover, under section 5(2), “A married person cannot become an adult interdependent partner while living with his or her spouse.”

Turning to the interpretation of these provisions, the Court noted that “Words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of [the Legislature]”” (at para 16, citing Re Rizzo & Rizzo Shoes Ltd, 1998 CanLII 837 (SCC), [1998] 1 SCR 27 at para 21). Finding that the term “adult interdependent partner” was intended to have the same meaning under the PAFVA as it has under the Adult Interdependent Relationships Act, the Court held that the evidence did not establish that the parties met the definition – they did not “function as an economic and domestic unit” for a continuous period of more than 3 years (see the factors in section 1(2) of the Adult Interdependent Relationships Act), and Lenz was simultaneously living with her spouse for part of that period, contrary to section 5(2) (at paras 18-19).

As for the definition of “family member” in the PAFVA, the Court indicated that in its view, “A plain reading of … the definition suggests that being in an intimate adult relationship with someone without also “residing” together during that relationship, is insufficient for qualification as “family members”” (at para 21). “Residing” is not defined in the PAFVA, but dictionary definitions establish that “reside” means “To dwell permanently or continuously: have a settled abode for a time: have one’s residence or domicile” (Webster’s Third New International Dictionary of the English Language, Unabridged) or to “have one’s home, dwell permanently” (Canadian Oxford Dictionary, 2d ed) (at para 23). Neither does the PAFVA define “intimate relationship”, but the Court indicated that for the purposes of the Act it could be taken to mean a sexual relationship (at para 24, citing ND v WS, 2000 ABQB 313 (CanLII) at para 20). The Court also cited Siwiec v Hlewka, 2005 ABQB 684 (CanLII) for the point that “The Legislature intended EPOs to be an extraordinary remedy reserved for situations of imminent familial domestic violence” (at para 28), noting that persons in dating relationships had access to common law restraining orders in appropriate circumstances (at para 26).

In conclusion, the Court of Appeal stated that the PAFVA:

was designed and intended to address one subset of abusive relationships – violence among prescribed family members – whereas common law restraining orders are available for broader forms of abusive relationships. The Act is a specially designed instrument that seriously abridges the liberty of persons, and its application should be restricted to its intended familial context (at para 30).

The appeal was therefore allowed and the EPO was revoked. The Court emphasized that in doing so, “we make no findings as to whether the facts of this case merited some form of protection order”, and “expressly do not find that Ms. Lenz acted in a frivolous or vexatious manner” contrary to section 13 of the PAFVA (at para 39). It declined to make an order for costs, noting its agreement with the decision of Justice C.M. Jones in Denis v Palmer, 2016 ABQB 54 (CanLII), that “it is not reasonable for this Court to use its discretion to order costs to effect such a penalty where the Legislature has not, to date, seen fit to do so.” (at para 42). Furthermore:

The objectives of the Act are set out in its preamble and are to prevent family violence and protect vulnerable victims by providing an immediate period of safety in their own home. These objectives are pressing in our society and outweigh other considerations relating to costs, including the appellant’s success on appeal.

We do not consider it appropriate to create any impediment which would cause vulnerable victims to avoid seeking an EPO when they are at immediate risk of family violence, merely for fear that they may later have to pay adverse costs (at paras 45-46).

Commentary

To begin with the Court’s decision on costs, it is a welcome affirmation of Justice Jones’ ruling in Denis v Palmer, which I blogged on here. If the Legislature does see fit to review this matter, I trust that it will keep in mind the objectives of the PAFVA and the importance of not creating barriers to its use.

As for the Court’s interpretation of “family member”, this is not an unreasonable reading of the PAFVA. In fact, in a report I wrote with colleagues reviewing the PAFVA in 2005, we recommended that the Act be amended to explicitly include “intimate and family relationships where the parties have not resided together” (see Leslie Tutty, Jennifer Koshan, Deborah Jesso, & Kendra Nixon, Alberta’s Protection Against Family Violence Act: A summative evaluation (Calgary: RESOLVE Alberta, 2005) at 31). This recommendation was based on a comparison of the PAFVA with similar legislation in other jurisdictions, feedback we received from stakeholder interviews, and statistics on the high rate of violence in these relationships. Although a number of our other recommendations were adopted and resulted in amendments to the PAFVA (e.g. on the definition of “family violence”), the definition of “family member” was not broadened as we recommended. More recently, a similar recommendation to extend the PAFVA to include dating relationships was made in Lana Wells et al, How Public Policy and Legislation Can Support the Prevention of Domestic Violence in Alberta (Calgary: Shift: The Project to End Domestic Violence, 2012) at 39 (disclosure: I was part of the peer review panel for this report).

The PAFVA’s narrow focus on “family members” differs from civil protection legislation in some other provinces and territories. Manitoba’s Domestic Violence and Stalking Act, CCSM c D93, defines “domestic violence” to include acts or omissions committed by persons in dating relationships, whether or not they have ever lived together (section 2(1))(d)). Nunavut’s Family Abuse Intervention Act, SNu 2006, c 18, covers violence in “intimate relationships”, which are defined to include relationships “between two persons, whether or not they have ever lived together, who are or were dating each other, and whose lives are or were enmeshed to the extent that the actions of one affect or affected the actions or life of the other” (section 2(3)). In other provinces, civil protection legislation continues to be restricted to intimate relationships where the parties have resided together (see e.g. British Columbia’s Family Law Act, SBC 2011, c 25, Part 9 — Protection from Family Violence, which applies to “family members” (section 1); Saskatchewan’s Victims of Domestic Violence Act, SS 1994, c V-6.02 and Nova Scotia’s Domestic Violence Intervention Act, SNS 2001, c 29, which apply to “cohabitants”).

The Court of Appeal noted that persons who are in intimate relationships but do not reside together can apply for common law restraining orders where they are not covered by the protection order legislation in their jurisdiction; they also may apply for peace bonds under the Criminal Code, RSC 1985, c C-46, section 810. These remedies are often much more challenging to obtain, however. It was the barriers to seeking other remedies that led to Alberta and some other provinces and territories to enact civil protection order legislation allowing for ex parte EPO applications, which can be brought by persons other than the victims in some circumstances (see e.g. Alberta Law Reform Institute, Domestic Abuse: Toward An Effective Legal Response (ALRI, 1995)). Although the Court of Appeal opined that this kind of legislation “seriously abridges the liberty of persons” subject to civil protection orders, it should also be noted that these orders must be reviewed by a higher court within a certain period of time, and can be revoked where inappropriately made in the first instance (see e.g. PAFVA section 3). This type of scheme was upheld as a reasonable limit on respondents’ liberty under the Charter in Baril v Obelnicki, 2007 MBCA 40 (CanLII)).

Alberta’s ruling New Democrats have shown a willingness to extend protections for victims of intimate violence, for example in the recent Residential Tenancies (Safer Spaces for Victims of Domestic Violence) Amendment Act, 2015 (and see ABlawg commentary on that Bill here). In light of the Court of Appeal’s decision in Lenz v Sculptoreanu, it is time for the government to re-consider whether it should amend the PAFVA to include intimate relationships where the parties have not resided together.

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Expiration of Confidentiality also gives Boards the Liberty to Copy and Distribute

Tue, 05/10/2016 - 3:22pm

By: Nigel Bankes

PDF Version: Expiration of Confidentiality also gives Boards the Liberty to Copy and Distribute

Case Commented On: Geophysical Services Incorporated v Encana Corporation, 2016 ABQB 230

This decision involves rights to seismic data. Under Canadian law (and here specifically the rules established for federal lands in the north and the east coast offshore) seismic data filed with government is treated as privileged or confidential for a period of years. The principal issue in this case was the question of what rules apply once that protection comes to an end. Is it open season or do the creators of the seismic data retain some rights and in particular their copyright entitlements? In her decision Justice Kristine Eidsvik has decided that it is open season.

The decision is part of complex case-managed litigation commenced by Geophysical Services Inc (GSI) in 25 actions against the National Energy Board (NEB), the Canada-Newfoundland Offshore Petroleum Board (CNOPB) (the Boards) and numerous oil and gas companies, seismic companies and companies providing copying services. GSI claims that copyright subsists in seismic data and that its copyright protection survives the confidentiality period. Furthermore, it claims that access to the seismic information after the loss of confidentiality is governed by the Access to Information Act, RSC 1985, c A-1 (AIA) and that there is no open season on access or copying.

Chief Justice Wittman as the case management judge set down two preliminary issues for the parties to address: (1) does copyright subsist in seismic data, and (2) what is the effect of the regulatory regime (i.e. the term limited protection of confidentiality referred to above) on any rights that GSI might claim? This judgement addresses those two issues. GSI also maintains other claims based on contract, unjust enrichment and breach of confidence but those issues are not the subject of this judgement.

Justice Eidsvik concluded that seismic data is protected by copyright. This seems correct to me and I offer no further comment. On the second issue, Justice Eidsvik held that once the confidentiality period is over, not only does GSI as the owner of the data lose the quality of confidentiality but it also loses all of the rights that it has under the Copyright Act, RSC 1985, c C- 42 as owner of the copyright in that data. Thus, the Boards are free to allow others not only to have access to this data but to make copies of it. Furthermore, access is not governed by the AIA. Justice Eidsvik reaches these conclusions in two steps. The first step is to hold that the statutory regime allowed disclosure at the end of the confidentiality period and that there must also be a liberty to copy and a liberty to facilitate copying by others. The second step is to conclude that any resulting conflict between the protection offered by the Copyright Act and the implied liberty to copy must be resolved in favour of the more specific regime which in this case was the regulatory regime rather than the Copyright Act. Neither could the plaintiffs secure additional protection from the AIA regime. That regime could have no application during the legislated period of privilege because the AIA regime is fundamentally concerned with enhancing access to information (at para 275). While the AIA regime might have some application during any longer discretionary extension of the confidentiality period (again to enhance access), it could have no application to protect the release of information after the expiration of this longer discretionary period (see paras 275 – 281). I think that Justice Eidsvik is correct on the AIA regime point and thus will have no further comment on that here but I have serious misgivings about her conclusions in relation to two issues: (1) her conclusion that the liberty to disclose includes the liberty to copy and to facilitate copying by others, and (2) her decision to resolve the resulting conflict between the regulatory regime and the Copyright Act by treating the Copyright Act as inapplicable to the creators of seismic data. This post will focus on those two issues. I will begin by describing the applicable regulatory regime and then address these two issues.

The Regulatory Regime

As noted above, this case deals with the regulatory regime for protecting seismic data in relation to federal lands in the north and federal lands on the east coast subject to the so-called Accord regime. The two regimes are essentially the same and to keep this simple I, like Justice Eidsvik, will focus on the northern regime. The current northern regime is based on two statutes – the Canada Petroleum Resources Act, RSC 1985, c 36 (2nd supp) (CPRA) and the Canada Oil and Gas Operations Act, RSC 1985, c O-7 (COGOA). Justice Eidsvik’s judgement also deals with the historical evolution of these two statutes but not much seems to turn on that except for several references to a provision in the CPRA (s.111) which was designed to protect the Crown from any claims to compensation when old permit rights were rolled over into rights under the new regime, whether the Liberal’s National Energy Program regime represented by the infamous or (famous depending on one’s perspective) Bill C-48, the Canada Oil and Gas Act (COGA) with its Crown Share provisions, or the Conservative version – the current CPRA (which repealed and replaced COGA). More on that provision and its relevance below.

Of the two statutes (i.e. the CPRA and COGOA) it is the CPRA that it is crucial here. The principal significance of COGOA, the regulatory statute (or as Justice Eidsvik prefers, the “operations statute”) is that COGOA requires Board approval for seismic programs (see Hamlet of Clyde River et al. v. Petroleum Geo-Services Inc. (PGS) et al, 2015 FCA 179) and the regulations under COGOA (the Canada Oil and Gas Geophysical Regulations, SOR/96-117) require operators to submit seismic data to the Board as part of their reporting requirements. The confidentiality and disclosure provisions however are in the CPRA. Section 101 (headed “Disclosure of Information”) provides, so far as is relevant here, as follows:

Privileged information or documentation

(2) Subject to this section, information or documentation is privileged if it is provided for the purposes of this Act or the Canada Oil and Gas Operations Act, … or any regulation made under either Act … whether or not the information or documentation is required to be provided.

Information that may be disclosed

(7) Subsection (2) does not apply in respect of the following classes of information or documentation obtained as a result of carrying on a work or activity that is authorized under the Canada Oil and Gas Operations Act, namely, information or documentation in respect of …

(d) geological work or geophysical work performed on or in relation to any frontier lands,…

(ii) in any other case, after the expiration of five years following the date of completion of the work;…

While this provision creates a statutory privilege or confidentiality period of five years, it appears that as a matter of practice (at paras 192 – 195) the NEB (and its predecessor regulators under the CPRA) have consistently applied an administrative policy of not releasing non-exclusive seismic data (the speculative or “spec” seismic at issue here) for an additional ten years (i.e. 15 years in total). The Newfoundland Board has applied a policy (at paras 206 – 208) of an additional five years (i.e. 10 years in total). After this, other persons have been able to view, print (copy) or borrow the seismic information.

What are the implications of the expiration of the period of privilege?

One would have thought that a party that wanted to copy or authorize the copying of seismic material deposited with the Board at the end of the privilege period (whether as established by statute or as extended by policy) would have to show two things. First, that the necessary implication of the loss of privilege is that the information may be disclosed, and second, that disclosure (or more precisely the loss of privilege) must also allow copying. The first proposition does seem to follow from the statutory juxtaposition of privilege and disclosure (in the heading of, and marginal notes for, the section) and Justice Eidsvik so held (at paras 214 – 215). The second hurdle is much more challenging but Justice Eidsvik has little difficulty in finding that it too can be met. Her reasons are as follows (at paras 252 – 253):

I agree that s 101(7) does not explicitly say that the information deposited with Board may be “copied”. I am also cognisant that s 100 of the CPRA grants the Governor-in-Council authority to make Regulations, including to prescribe fees for making copies or certified copies.

Nonetheless, I agree with the Defendants that s 101 read in its entirety does not make sense unless it is interpreted to mean that permission to disclose without consent after the expiry of the 5 year period, or under the conditions found in s 101(6) must include the ability to copy the information. In effect, permission to access and copy the information is part of the right to disclose.

I think that this is an unnecessarily broad interpretation of the section which confounds the different qualities of the rights (and liberties) associated with the data. The creator of the data has copyright in that data. Copyright is a form of property. It is true that as a creature of statute this particular form of property is hedged around with all sorts of limitations (e.g. duration and fair dealing) but it is still a form of property. Under s.3 of the Copyright Act, the rights of the creator of data in which copyright subsists are “… the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever … or, if the work is unpublished, to publish the work or any substantial part thereof … and to authorize any such acts.”

Copyright does not protect confidentiality, but the creator of the data can, as a matter of common law, maintain the confidentiality of that data provided that it takes the necessary steps to do so (e.g. by not sharing it broadly and by imposing non-disclosure obligations upon those with whom the data is shared). This data when deposited with the Board is both confidential and protected by copyright. All that subsections 101(2) and (7) speak to is the quality of confidentiality. All that subsection (7) speaks to is the compulsory loss of confidentiality (subject to any contractual obligations pertaining thereto). In Hohfeldian terms there is now a liberty of access where there was formerly a duty not to provide access. Nobody commits a wrong after the expiration of the statutory period by allowing access. But there is no change in the duty not to copy or to the duty not to facilitate illegal copying by others after the expiration of the statutory period. It is a huge leap to suggest that the legislature has also dealt with the property issues en passant. Justice Eidsvik seems to deal with this argument (the vested rights argument) as part of her more general discussion (at paras 234 – 237) of the implications of loss of privilege (i.e. disclosure) and does not do so specifically in the context of concluding that disclosure allows copying. Furthermore, in her discussion of the vested rights argument she refers (at paras 236 – 237 and see also at para 243) to the no-compensation rule of s.111(2) of the CPRA and the predecessor provision in COGOA. Section 111 provides in full as follows:

Replacement of rights

111 (1) Subject to section 110 and subsections 112(2) and 114(4) and (5), the interests provided for under this Act replace all petroleum rights or prospects thereof acquired or vested in relation to frontier lands prior to the coming into force of this section.

No compensation

(2) No party shall have any right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any servant or agent thereof for any acquired, vested or future right or entitlement or any prospect thereof that is replaced or otherwise affected by this Act, or for any duty or liability imposed on that party by this Act.

Once one looks at this provision in its full context (rather than just subsection (2) in isolation), including its heading, it is, with respect, crystal clear that it is not concerned with the risk to government that might flow as a result of any interference with the rights of creators of seismic data through the operation of s.101(7). Rather, s. 111 was intended to deal with the risk that the government felt it faced insofar as it was requiring old permittees to roll over their rights into new forms of rights – exploration agreements (COGA) or licences (CPRA) under the new legislation. The title to s.111 makes this clear as does subsection 1.

Regime Conflict

Having decided that the liberty to disclose included the liberty to copy and the liberty to facilitate copying by others, Justice Eidsvik then had to deal with the conflict between the implied liberty to copy and the express duty not to copy a creator’s work without consent under the terms of the Copyright Act. Justice Eidsvik begins her discussion of this issue by referring to Justice Rothstein’s majority judgement in Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, [2012] 3 SCR 489, 2012 SCC 68. Justice Eidsvik then suggests that each of these two regimes is concerned to balance the same types of interests (at para 298). Parliament hit on one balance in the Copyright Act and another in the CPRA – the difference is (at para 296) “a few decades of protection”. It would lead to absurdity, concludes Justice Eidsvik, if the longer periods of protection under the Copyright Act could frustrate Parliament’s decision to establish a more limited regime under the CPRA. Accordingly, the conflict should be resolved by preferring the more specific regime (at para 304):

Accordingly with respect to the disclosure provisions, the specific legislated authority in the Regulatory Regime that allows disclosure and copying, as described above prevails over the general rights afforded to GSI in the Copyright Act. The CPRA creates a separate oil and gas regulatory regime wherein the creation and disclosure of exploration data on Canadian territory is strictly regulated and, in my view, not subject to the provisions of the Copyright Act to the extent that they conflict.

I think, with respect, that there are several weaknesses in this chain of reasoning. The test for conflict (and Justice Eidsvik acknowledges this) is narrowly defined and not readily assumed. Justice Rothstein in Re Broadcasting, drawing on earlier authority, puts it this way (at para 41): “For the purposes of statutory interpretation, conflict is defined narrowly … overlapping provisions will be given effect according to their terms, unless they ‘cannot stand together’ (Toronto Railway Co. v. Paget (1909), 42 S.C.R. 488, at p. 499 per Anglin J.” The presumption then is that both laws will be given effect to. Justice Rothstein puts the presumption as follows (at paras 37 and 61):

Parliament is presumed to intend “harmony, coherence, and consistency between statutes dealing with the same subject matter” (R. v. Ulybel Enterprises Ltd., 2001 SCC 56 (CanLII), [2001] 2 S.C.R. 867, at para. 52; Sullivan, at pp. 325-26)…

… the presumption of coherence between related Acts of Parliament requires avoiding an interpretation of a provision that would introduce conflict into the statutory scheme.

It is not enough that the statutes deal with the same subject matter, it is only if there is an “unavoidable conflict” which arises “when two pieces of legislation are directly contradictory or where their concurrent application would lead to unreasonable or absurd results.” (Justice Rothstein (and it is his emphasis) relying on Lévis (City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14 (CanLII), [2007] 1 SCR 59 per Bastarache J., writing for the majority and in turn relying on (P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000)).

If we apply these ideas to the supposed conflict between the CPRA regime and the Copyright Act it is far from obvious that there is an irremediable conflict. First, it is not clear that the statutes actually deal with the same subject matter. The Copyright Act is a property statute. The CPRA is an oil and gas statute and its s.101 is concerned with confidentiality and with disclosure. The Copyright Act is not a disclosure statute and has nothing whatsoever to say about confidentiality. Second, even were we to admit that the statutes are concerned with the same subject matter, there is no direct contradiction. Justice Eidsvik creates the contradiction by reading the liberty to copy into the CPRA’s disclosure regime whereas in my view she should have preferred a reading that avoided conflict and allowed each regime to cover its specialized interest. Third, “absurdity” is subjective. There is nothing inherently absurd in saying that we should have one rule for disclosure (confidentiality) and one rule for copying (property). This doesn’t make copying impossible; it simply means that until the expiration of the term of copyright the erstwhile copier will have to pay the creator for the privilege – but at least the copier will know, by virtue of disclosure, what it wants to copy!

In addition to ruling that the Copyright Act is inapplicable to the extent of any conflict (at para 304), Justice Eidsvik also endorses in the alternative (and perhaps logically this alternative argument should come first since it is another way of avoiding conflict) a way in which the two regimes may be reconciled and that is through the mechanism of a compulsory licensing scheme under the Copyright Act. There is perhaps even a suggestion of an implied licence (see at paras 311 – 317) which Justice Eidsvik disposes of by saying that GSI clearly never consented to release and certainly never consented to the copying of its data. As for a compulsory licensing scheme, Justice Eidsvik offers very little in the way of reasoning to support her conclusion other than to draw an analogy (at para 310) to the compulsory licensing regime for the music and broadcast business and then simply to assert, at the end of her judgement (at para 318), that “… in the alternative [to inapplicability based on a theory of conflict] the Regulatory Regime created a compulsory licensing scheme through which the Boards have the authority to copy, and as a result they are not infringing the Copyright Act when they do so.” The difficulties with this assertion and the comparisons with licensing regime for broadcasting music are two-fold. First, the scheme in the Copyright Act for the music and broadcast business (ss. 53 et seq) is a real licensing scheme. It is an exception within the Act itself. Second, the CPRA simply does not contain a compulsory licensing scheme. It does not expressly address data copying and it certainly does not create an express compulsory licensing scheme that makes lawful what would otherwise be unlawful (the definition of a license). The claim that the CPRA establishes a compulsory licensing scheme is nothing more than an unsupported assertion.

Conclusion

In conclusion, creators of seismic data and especially the creators of “spec” seismic data will typically wish to preserve the confidentiality of that data in order to recover their costs from persons who wish to acquire this data. They may do so to some extent by way of contract but they will be required to file that data with government regulators. At some point in time, the relevant statutes prescribe that the data must be made available to the public. At that point in time the creator loses its right to confidentiality but that is all that the creator loses. The creator has other entitlements including rights under the Copyright Act. These rights are property rights and as such are conceptually distinct from the right to confidentiality. It is not necessary to erase these property rights in order give sense to the CPRA’s disclosure regime. Or, if government takes the view that it is, then by all means let it do so explicitly rather than by sleight of hand. That is to say (and taking some liberties with para 297 of Justice Eidsvik’s reasons and Justice Pitney’s judgment in International News Service v Associated Press, 248 US 211 (1918)), if those who wish to get seismic data for free consider that it is a misguided policy to extend the protections of the Copyright Act to the creators of seismic data for the full duration of the copyright term, then they should make that political case – “it is not for this Court to change the intent of Parliament, unfair as it may be to” those who would wish to reap where they have not sown.

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Comparing the Views of Alberta Judges and Lawyers with Those in the Rest of Canada on Selected ...

Tue, 05/10/2016 - 3:22pm

By: Lorne Bertrand

PDF Version: Comparing the Views of Alberta Judges and Lawyers with Those in the Rest of Canada on Selected Family Law Issues

Report Commented On: Canadian Research Institute for Law and the Family, Comparing the Views of Judges and Lawyers Practicing in Alberta and in the Rest of Canada on Selected Issues in Family Law: Parenting, Self-represented Litigants and Mediation (2016)

The Canadian Research Institute for Law and the Family recently released a report that compares the views of Alberta judges and family law lawyers with legal professionals in the rest of Canada on parenting after separation, self-represented litigants, access to justice, and mediation. The report, written by John-Paul Boyd and myself, presents the findings of a survey conducted at the 2014 National Family Law Program in Whistler, B.C., and provides recommendations in several areas including:

  • the language used in the Divorce Act, RSC 1985, c 3 (2nd Supp), with respect to the care of children;
  • the provision of unbundled legal services to promote access to justice;
  • the use of mandatory mediation where at least one party is self-represented;
  • the provision of limited legal services in family law matters by paralegals; and
  • the use of standardized questionnaires by lawyers screening for family violence.

The report notes some striking differences between the views and experiences of Alberta practitioners and those from elsewhere in Canada.

Shared Custody and Shared Parenting

With respect to the resolution of parenting disputes after separation, fewer of the family law cases of respondents from Alberta resulted in a form of shared custody, defined as the equal or near-equal distribution of children’s time between separated parents, compared to the cases of respondents from the rest of Canada. Although almost the same proportion of Alberta respondents and respondents from the rest of Canada said that the number of their cases resulting in shared custody has increased substantially or increased somewhat in the last five years, respondents from Alberta were more likely than respondents from the rest of Canada to say that the number had increased somewhat or stayed the same, and the proportion of respondents from the rest of Canada who said that the number increased substantially was about a third greater than the proportion of Alberta respondents. These results may be a function of Alberta’s generally more conservative political and social values but are more likely a consequence of the geographic separation of parents owing to lengthy periods of site-based work in the oil patch or the interprovincial relocation of separated parents to take work in the province, making shared custody arrangements difficult if not impossible to implement.

However, Alberta respondents also reported a substantially higher rate of cases resulting in shared parenting, defined as the equal or near-equal distribution of decision-making between separated parents, than respondents from the rest of Canada. The difference in the views of Albertans may result from the child-centred nature of the province’s Family Law Act, SA 2003, c F-4.5, and its presumption that parents are the guardians of their children, during their relationship and after its dissolution. This presumption of guardianship and the general reluctance of the courts to remove guardianship or a right of access from a parent may explain the lower rate of cases resulting in limited contact or no contact between the child and a parent reported by Alberta respondents compared to those from the rest of Canada.

Amending the Divorce Act

Although a significant majority of all respondents were in favour of amending the Divorce Act to change the language used to describe the post-separation care of children from “custody” and “access” to alternative terminology such as “parental responsibilities” and “parenting time,” a slightly larger proportion of respondents from Alberta supported the proposed amendment than respondents from the rest of Canada. The higher rate of support may stem from the existing use of such alternative terminology by Alberta’s Family Law Act and either an established preference for such language or a preference toward eliminating the dissonance between federal and provincial terminology.

A significant majority of all respondents were opposed to amending the Divorce Act to create a presumption of shared custody, and the proportion of Alberta respondents opposed to such an amendment was only slightly lower than respondents from the rest of Canada. The views of Alberta respondents regarding a presumption of shared custody may reflect a positive view of the presumption of parental guardianship in Alberta’s Family Law Act or a reaction to the conflict suggested by Albertans’ comparatively higher rate of court involvement in family law matters and their higher divorce rate.

Interestingly, the comments provided by respondents from Alberta both in support of and opposed to such an amendment tended to concern conflict and power imbalances between parents or tended to be neither child- nor parent-centred, while the comments of respondents from the rest of Canada tended to concern the best interests of children.

Self-Represented Litigants and Dispute Resolution

Findings from the survey indicated that over three-quarters of all respondents thought that there are more self-represented litigants now than there were three years ago, with lawyers and judges from Alberta being even more likely to report this than legal professionals from the rest of Canada. Further, while a substantial majority of all respondents said that added challenges arise in cases involving a self-represented litigant, Albertans were more likely to say that these challenges always or usually arise than respondents from the rest of Canada. These challenges are frequently related to litigants’ lack of familiarity with the applicable legislation, the rules of court and court processes and the law of evidence. Alberta judges and lawyers also said that settlement is much less likely in cases involving at least one self-represented litigant than respondents from the rest of Canada.

More than one-half of all respondents thought that self-represented litigants obtain outcomes that are worse than litigants with legal representation with respect to child support, spousal support and the division of property. When asked what might improve self-represented litigants’ use of the court system and promote settlement of their cases, the most common measures supported by respondents was a requirement that self-represented litigants attend an information session on the law and court processes and providing these litigants with plain language guides to court and trial processes. Respondents from Alberta were more than twice as likely to support mandatory mediation when at least one party is self-represented than were respondents from the rest of Canada.

Lawyers from Alberta were slightly more likely to report that they provide services on an unbundled basis than were lawyers from the rest of Canada; they were also more likely to say that they were aware of other lawyers providing these services. The most common unbundled service that lawyers reported providing was legal advice. The availability of legal services on an unbundled basis could be a more affordable alternative for self-represented litigants than full representation, and could serve to promote case settlement by ensuring that these litigants have the benefit of some legal advice.

Another mechanism that might serve to provide self-represented litigants with some measure of legal assistance is the use of licensed paralegals to provide limited legal services in certain family law disputes. A slightly higher proportion of respondents from Alberta supported the provision of legal services by paralegals than did respondents from the rest of Canada.

Lawyers from Alberta were considerably less likely to say that they always screen for family violence when referring a case to mediation than were lawyers from the rest of Canada, and a higher proportion of lawyers in Alberta who do screen for family violence reported that they do not use a standardized screening device. The proportion of cases referred to mediation that do not result in a settlement was higher in the rest of Canada than in Alberta.

Conclusion

The views of Alberta legal professionals on important current issues in family law favour change and improving access to justice to a greater degree than those of their counterparts in the rest of Canada and are surprisingly at odds with Alberta’s generally conservative social values. Respondents from Alberta strongly support reforming the language of the federal Divorce Act on the care of children after separation, and are more likely to support the provision of limited scope legal services by lawyers, the use of paralegals to provide limited legal services, and the use of mandatory mediation when one or more parties to a family law dispute are not represented by lawyers. Finally, not only are lawyers in Alberta less likely to screen for family violence than lawyers in the rest of Canada, they are also less likely to use a standardized tool when they do screen for violence.

Based on these and other findings, we recommend that:

  • the federal government consider amending the language used by the Divorce Act to describe the post-separation care of children;
  • awareness of unbundled legal services be improved among the bar and general public;
  • a pilot program be implemented to evaluate the provision of legal services in family matters by paralegals;
  • the provincial government consider implementing legislation allowing a party to trigger a course of mandatory mediation when one or more parties to a family law dispute are self-represented; and,

educational efforts be made to raise the awareness among members of the Alberta bar of benefits of screening for family violence and the availability of standardized instruments for that purpose.

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Extractive Sector Transparency Measures Act: Reporting Without Context Will Subvert ...

Tue, 05/10/2016 - 3:22pm

By: Emily Stanhope

PDF Version: Extractive Sector Transparency Measures Act: Reporting Without Context Will Subvert Reconciliation Efforts

Legislation Commented On: Extractive Sector Transparency Measures Act, SC 2014, c 39, s 376

Canada’s new Extractive Sector Transparency Measures Act (ESTMA), which came into force on June 1, 2015, requires companies engaged in the commercial development of oil, gas or minerals to publically report certain payments made to governments in Canada and abroad. Notably, in February of this year, Natural Resources Canada (NRCan) released an information sheet responding to long-standing concerns surrounding ESTMA and payments to Indigenous governments.

There has been significant dialogue around whether Indigenous governments should be included as “payees” under ESTMA (see Open Canada here). Regardless of one’s opinion on that broader issue, this post argues that reporting the quantum of funds paid to Canadian Aboriginal governments through confidential impact and benefit agreements (IBA), without providing essential context, is folly. In other words, the contents of IBAs should be publicly disclosed in full or remain entirely confidential.

The History of Indigenous “Payees” Under ESTMA

Section 2 of ESTMA contemplates Indigenous governments as “payees” and, therefore, resource companies will be obligated to disclose reportable payments made to these payees. However, Section 29 of the Act includes a two-year deferral period during which time payments made to Canadian Aboriginal governments need not be reported (although payments made to Indigenous governments abroad must now be reported). Already, one year of this hiatus has elapsed.

In 2014, the Standing Senate Committee on Energy, the Environment and Natural Resources noted that: “NRCan and Justice Canada officials said this deferral period arose as a result of concerns expressed by Aboriginal governments, industry and some provinces about how the Act will affect impact benefit agreements. In many cases, these agreements are confidential and therefore stakeholders need to work out how information will be reported.”

Now, NRCan’s information sheet responds directly to this issue:

Are extractive companies required to disclose impact and benefit agreements?

No. Extractive companies are not required to disclose impact and benefit agreements (IBA). The Act requires extractive companies to report certain types of payments of $100,000 or more made in relation to the commercial development of oil, gas or minerals. Some of these reportable payments might be included in IBAs (emphasis added).

That is to say there is no obligation to disclose IBAs in their entirety but qualifying payments made pursuant to an IBA must still be reported.

Why IBAs Are Negotiated

Mandating the public reporting of only select portions of IBAs is ill-advised because of its unintended negative consequences.

To understand the full implications of this proposed practice, it is essential to consider the nature of payments made by resource extraction companies to Aboriginal governments through IBAs. Payments made to Aboriginal governments under IBAs serve two purposes: to provide compensation and benefits. Compensation is owed to an Aboriginal government by a project proponent for any interference the project may have with their Aboriginal or treaty rights. Common examples of interferences include damages to the environment or loss of quiet enjoyment of traditional lands, impact on wildlife, and socio-economic impacts on members and the community. Alternatively, the provision of benefits refers to a sharing of wealth of the resources that are being extracted from traditional lands.

Simply put, parties negotiate IBAs to ensure compensation for interference with Aboriginal and treaty rights and a fair share of the benefits flowing from resources extracted from their lands.

Why Portions of Confidential IBAs Cannot be Severed and Made Public

As such, IBA negotiations are inherently a “give-and-take” process in which a party may compromise on an important issue in order to gain a favourable overall outcome. Therefore, severing and reporting only limited elements of IBAs fails to provide the necessary context for this “give-and-take” process.

If only select portions of IBAs are reportable, the broader public receives an incomplete, and therefore, flawed understanding of the issues negotiated by the parties. For example, reporting merely the total quantum paid to an Aboriginal government on a particular project without casting this transfer in the context of the infringement of an Aboriginal or treaty right is misleading.

In fact, Aboriginal communities highlighted this exact concern when they were invited to comment on the proposed legislation in 2015: “Concerns were also expressed that the information disclosed could be misinterpreted, taken out of context or somehow used against Aboriginal communities.”

Conclusion and Final Considerations

If ESTMA serves to inform non-Aboriginal Canadians of moneys paid by resource extraction companies to Aboriginal governments and does so without context, then this could result in the perpetuation of inaccurate and prejudicial stereotypes of Aboriginal communities. In turn, this may result in continued disengagement from indigenous perspectives and hamper Canada’s broader objective of reconciliation.

Finally, including only certain elements of IBAs as reportable payments may, perversely, provide an incentive to creatively administer funds under IBAs to subvert this reporting. This would result in the formation of IBAs that do not optimally fulfill their stated purposes: to compensate and provide benefits.

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Occupier’s Liability Arises at the Garage Party

Tue, 05/10/2016 - 3:22pm

By: Shaun Fluker

PDF Version: Occupier’s Liability Arises at the Garage Party

Case Commented On: Motta v Clark, 2016 ABQB 211

This recent judgment written by Mr. Justice R.J. Hall caught my attention because the facts are a scenario with which I am familiar and I suspect other readers are as well: The impromptu garage party hosted by a neighbour. While some of us actually park vehicles in our garage, others turn their garage into a very comfortable social venue fully equipped with a state-of-the-art sound system, stocked beer and wine fridge, humidor, gas heating, and possibly even lounge chairs. In these households, the garage takes on the persona of a “man-cave”, where neighbours and friends get together for small talk in the surroundings of golf clubs, hockey nets, skis, bikes, tires, wrenches, air compressors, camping gear, dogs and a table saw. On the odd festive occasion, the garage becomes a sort of time vortex where you step in during the early evening and the next thing you remember is walking out the next morning. Motta v Clark tells the story of such a garage party gone wrong, and provides a word of caution for those who host such parties. It also reads like a tragedy of sorts, with the downfall of a friendship being played out in cross-examination before Justice Hall at the Court of Queen’s Bench.

The story begins innocuously enough, and the facts are set out in the initial paragraphs of Justice Hall’s decision (at paras 1 to 10):

The plaintiff Mr. Motta and the male defendant, Mr. Clark were good friends. Mr. Clark had invited Mr. Motta to come to the Clarks’ house on the upcoming Saturday to celebrate Mr. Clark’s birthday. However, on Friday night Mr. Clark texted Mr. Motta to say the party would not be happening on Saturday but invited Mr. Motta to come to the Clarks’ garage and socialize that night instead.

Mr. Clark had five beers in his garage before Mr. Motta got there. Mr. Motta had 6 beers at his home before he walked to a strip mall nearby, picked up a case of beer and walked over to the Clarks’ garage at the Clarks’ home. This amount of beer drinking was not unusual to either of the men. Neither says the beer affected him, and neither says the other was intoxicated. Given that evidence I attribute no causal relation between the beer drinking and the events that later occurred.

Mr. Motta had visited Mr. Clark in his garage on many occasions to drink beer and socialize. When any of the participants needed to urinate, they did so in the backyard. Hence there was usually no need for anyone to enter the house.

However, on this occasion after Mr. Motta had arrived and had a beer, he felt in need of a bowel movement. He asked Mr. Clark if he could use a bathroom in the house. Mr. Clark, at the time was on the phone listening to birthday congratulations from a friend. He interrupted his call to tell Mr. Motta he was welcome to enter the house and use a bathroom, and he suggested using the upstairs bathroom.

About one week before these events, Mr. Clark had noted that the light outside the back door to the house was acting up. There were two bulbs attached to a motion detector device, but the device was not working correctly and the light was staying on in the day time. Mr. Clark didn’t like the wasted electricity, and so he had commenced the practice of turning off that outside light fixture by use of the switch inside the back door. Indeed, when Mr. Motta approached the back door the switch to the outside light was off, and so the light did not come on to illuminate either the outside, or the inside landing. There were no lights on inside the house.

Mr. Motta opened the screen door, then opened the back door which swung inwards and to his right. He could not see inside the house or on the landing.

He took a step into the house, then reached his right hand across his body to feel for the light switch on the wall to the left of the doorway. He swiped his hand up and down as he reached in but could not feel the light switch. He felt a box on the wall, which proved on later inspection, to be a box for keys that was above the light switch for which he was searching.

Mr. Motta says that he then stepped further into the house and to his left with his right foot.

Where he went to put his foot down there was no landing; the stairwell to the basement was immediately left of the entrance through which he had entered. Mr. Motta fell down the stairs in the dark and injured his wrist and arms in the fall.

The set up of the inside landing was such that, as one entered through the doorway from the outside, there was a strip to the left of the doorway approximately 4 inches wide, then the landing dropped off to the first stair, the stairwell being a left turn from entering the landing. Mr. Motta could not see this in the dark.

The parties agreed on the extent of damages suffered by Mr. Motta, but came before the Court for a determination of liability.

Liability in this case was governed by the Occupiers’ Liability Act, RSA 2000, c O-4. In particular, section 5 of the Act establishes the legal duty of an occupier of premises to ensure the premises are reasonably safe for visitors. The Act defines ‘occupier’ in section 1 as a person who has physical possession of the premises or control over the premises, and there doesn’t appear to be any doubt that this includes the owner(s). The Alberta Court of Appeal set out and interpreted the test for occupiers’ liability in Wood v Ward, 2009 ABCA 325 (at paras 6-7):

The Duty of an Occupier

The Act provides as follows:

5. An occupier of premises owes a duty to every visitor on the occupier’s premises to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or is permitted by law to be there.

The effect of the Act is to modify the duty of care owed by the occupier to a visitor at common law. At common law the occupier only had a duty to protect the visitor from unusual dangers of which he was aware or ought to have been aware, and he could discharge his duty by warning of the unusual danger. As the Court stated in Preston v. Canadian Legion Kingsway Branch (1981), 1981 ABCA 105 (CanLII), 123 D.L.R. (3d) 645, 29 A.R. 532 (C.A.) at p. 536:

This change is most marked because it does away with the old common law position that an occupier was only liable for unusual dangers of which he was aware or ought to have been aware. Under the old law the occupier could escape liability by giving notice. Now, the occupier has to make the premises reasonably safe. That does not absolve the visitor of his duty to take reasonable care but does place an affirmative duty on each and every occupier to make the premises reasonably safe.

If a risk of injury to a visitor is reasonably foreseeable, the occupier will owe a duty of care to prevent visitors from being injured. Under s. 5 the occupier must take reasonable care, which is the ordinary common law standard in tort, meaning that the occupier must keep the premises reasonably safe.

It does not follow that the occupier is automatically liable for any injury suffered as a result of a foreseeable risk. Foreseeability of the risk creates a duty to the visitor, but it is still necessary to show negligence on the part of the occupier to impose liability. The Act does not intend to create no fault liability. Further, the fact that the risk is foreseeable by the occupier, or that the occupier is negligent in failing to protect the visitor from the risk, does not mean that the visitor has no duty to have regard for his own safety. A duty or negligence by the occupier does not foreclose contributory negligence on the part of the visitor: Preston at p. 536; Lorenz v Ed?Mon Developments Ltd. (1991), 1991 ABCA 82 (CanLII), 118 A.R. 201, 79 Alta. L.R. (2d) 193 (C.A.) at p. 194. It follows that the duty of the occupier is not only to protect the reasonably diligent visitor, but also to be aware that some visitors might themselves be careless, that is, contributorily negligent. The occupier’s duty ends only when either the risk on the premises or the conduct of the visitor becomes reasonably unforeseeable.

Essentially then, the owner of premises has a statutory duty to prevent visitors from suffering reasonably foreseeable injury while on the premises, even if that visitor fails to exercise ordinary diligence or is otherwise careless. As the Court of Appeal states in Wood, the occupier’s duty ends only when either the risk on the premises or the conduct of the visitor becomes reasonably unforeseeable. For more on occupier’s liability on ABlawg see David Laidlaw’s 2012 discussion in the context of urban gardens here.

In this case Justice Hall concluded that Mr. Clark owed Mr. Motta a duty of care because it was reasonably foreseeable that someone who left the garage and entered the house in the dark would be unable to find the light switch and may fall down the stairs, and that he was negligent in directing Mr. Motta to the unlit doorway and exposed staircase without taking steps to either ensure the lights were on or otherwise accompany Mr. Motta to help him navigate the entrance to the house (at paras 21 to 31). However, Justice Hall also found on the evidence that Mr. Motta contributed to his injuries, by failing to use the flashlight on his phone or otherwise failing to seek assistance to find the light switch knowing the staircase was nearby (at paras 32 – 37). Justice Hall thus ruled that Mr. Motta was contributorily negligent pursuant to section 15 of the Occupiers’ Liability Act and the Contributory Negligence Act, RSA 2000, c C-27, and he apportioned the liability for Mr. Motta’s injuries as 2/3 to Mr. Clark and 1/3 to Mr. Motta.

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Alberta Human Rights Act Applies to Condominium Corporations

Tue, 05/10/2016 - 3:22pm

By: Jennifer Koshan

PDF Version: Alberta Human Rights Act Applies to Condominium Corporations

Case Commented On: Condominium Corporation No 052 0580 v Alberta (Human Rights Commission), 2016 ABQB 183 (CanLII)

A few years ago I wrote a post arguing that the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA), applies to the relationship between condominium owners and their condominium corporations. The Alberta Court of Queen’s Bench was recently faced with a case where it had to address that issue directly. In Condominium Corporation No 052 0580 v Alberta (Human Rights Commission), 2016 ABQB 183 (CanLII), Justice Robert A. Graesser held that the AHRA does indeed apply to condominium corporations. This post will explain his reasons for decision, and comment on a remark he made about the lack of authoritativeness of blog posts as secondary sources.

This case arose when Condominium Corporation No 052 0580 (the Corporation) brought an application for judicial review challenging the jurisdiction of the Alberta Human Rights Commission to investigate a human rights complaint by one of its owners. The underlying dispute involved Dennis Goldsack, the owner of a condominium unit in Tradition at Southbrook, Edmonton, who was confined to a wheelchair and had been assigned a parking stall closest to the building’s elevators. The Corporation’s Board decided to repurpose that stall for bicycle parking and storage, and reassigned Goldsack a parking stall that was further from the elevators and narrower. After failed negotiations with the Corporation, Goldsack brought a human rights complaint against it under section 4 of the AHRA. This section prohibits discrimination on the ground of physical disability (as well as other grounds) in the provision of “goods, services, accommodation or facilities that are customarily available to the public”.

In its judicial review application, the Corporation argued that the Alberta Human Rights Commission lacked jurisdiction to investigate Goldsack’s complaint, based on its contention that section 4 of the AHRA does not apply to condominium corporations and their owners. In response, the Commission argued that Justice Graesser should not hear the Corporation’s application for judicial review on the merits, as the decision of the Commission to proceed to an investigation was a matter of “screening and administration, not of adjudication” (at para 36, citing Halifax v NS (Human Rights Commission), 2012 SCC 10 (CanLII)). It also argued that the Corporation should have proceeded by way of an application for prohibition rather than judicial review (at para 50). Justice Graesser decided to hear the Corporation’s jurisdictional challenge on the merits, finding that resolution of this issue would be economical and expedient (at paras 51-57). The standard of review of the Commission’s decision to investigate was found to be reasonableness (at para 39).

On the merits, Justice Graesser examined Ganser v Rosewood Estates Condominium Corporation, 2002 AHRC 2 (CanLII), a decision of the Alberta Human Rights Tribunal finding that the previous version of AHRA section 4 did apply to condominium corporations. In Ganser, Tribunal member Deborah Prowse relied on the leading case involving services customarily available to the public, University of British Columbia v Berg, 1993 CanLII 89 (SCC), [1993] 2 SCR 353, in which the analogous section in British Columbia’s human rights legislation was interpreted broadly so as to include the provision of services to particular subsets of the general public. According to Berg, “every service has its own public”, and Prowse applied Berg to hold that Alberta’s human rights legislation applies to condominium corporations offering services such as parking to condominium owners (2016 ABQB 183 at para 14).

Condominium Corporation No 052 0580 argued that Ganser was not binding and should not be followed (at para 15). It also argued that the applicability of the AHRA to condominium corporations had been decided in the negative in other decisions of the Court of Queen’s Bench: Condominium Plan No 931 0520 (Owners) v Smith, 1999 ABQB 119 (CanLII) and Condominium Plan No 991 0225 v Davis, 2013 ABQB 49 (CanLII) (at para 30).

Justice Graesser noted that the Davis decision relied on Smith, which in turn relied on a Supreme Court case, Gay Alliance v Vancouver Sun, [1979] 2 SCR 435, which had been “effectively overturned” by Berg (at para 61). I made the same point in my post on the Davis decision. I also noted that, in any event, Davis did not directly consider the applicability of the AHRA to condominium corporations, and Smith involved a complaint based on age, which is not a protected ground under the AHRA in the area of services customarily available to the public.

Justice Graesser also referenced several cases from British Columbia cited by the Commission, where the courts “have had no difficulty” with the applicability of human rights legislation similar to Alberta’s to condominium corporations (at para 65). Moreover, the Supreme Court of Canada applied Quebec’s human rights legislation to a condominium corporation without comment in Syndicat Northcrest v Amselem, 2004 SCC 47 (CanLII).

Condominium Corporation No 052 0580 also made an interpretive argument for why section 4 of the AHRA should not apply to condominium corporations. It argued that because section 5 of the AHRA provides specific protection against discrimination for tenants of commercial and self-contained dwelling units, section 4 of the AHRA “inferentially excludes residents who are property owners” (at para 23). To hold otherwise, argued the Corporation, would create a redundancy in the AHRA, because residential tenants would fall under both sections 4 and 5. Justice Graesser found that there was “nothing inconsistent with providing express remedies for tenants” in section 5, which was “intended to deal with landlords refusing to rent premises to people on the basis of their personal characteristics”, and at the same time, interpreting section 4 broadly enough to include landlords and condominium corporations (at paras 84-5).

Another argument by the Corporation was that the Condominium Property Act, RSA 2000, c C-22, section 67, provides a “complete code” for complaints by condominium owners against their corporations in circumstances of “oppressive conduct” by the latter (at para 68). However, the Corporation did not provide any precedents where that section had been used “to address human rights-prohibited discrimination” (at para 69). Section 67 requires the commencement of an action in the Court of Queen’s Bench, which Justice Graesser noted is “a difficult and expensive process” before a body that does not have specialized expertise in human rights (at para 72). He found that there was likely concurrent jurisdiction under both the AHRA and Condominium Property Act, as the latter did not oust the jurisdiction of the Commission (at paras 74-5).

Lastly, the Corporation argued that condominium corporations are owed deference as democratically elected boards, and that they are unique given their decision making and bylaw making powers in relation to condominium owners. In support of this argument, the Corporation cited a blog post by Calgary lawyer, Richard I. John, Condominium Complexes are Private: A Defense Against the creeping expansion of the Alberta Human Rights Commission (at para 79; see that post here). Justice Graesser indicated that he was “doubtful that self-published blogs should be considered as authorities for court purposes” (at para 80). In any event, he rejected the substance of John’s blog post, finding that it ran contrary to the broad scope given to human rights legislation by the courts. In a helpful statement of why we need human rights legislation, Justice Graesser also found that no deference was owed to condominium corporations, as “the tyranny of the majority does not withstand unlawful discrimination” (at para 86).

I believe that Justice Graesser’s decision is correct – in fact I argued in favour of this interpretation of the AHRA in my post on the Davis case, and Richard John’s blog post was published as a response to my comments on Davis. And while I disagree with John’s analysis, I also disagree with Justice Graesser’s suggestion that blog posts “should [not] be considered as authorities for court purposes.” It may be that Justice Graesser was only expressing doubt about the persuasiveness of “self-published blogs”, in which case ABlawg and similar law school blogs could be distinguished as institutional publications. It bears mention that ABlawg posts have been cited in a number of judicial decisions – see for example the references to Jonnette Watson Hamilton’s posts on the Residential Tenancy Dispute Resolution Service in Abougouche v Miller, 2015 ABQB 724 (CanLII) and Hewitt v Barlow, 2016 ABQB 81 (CanLII). However, Université de Montréal Professor Paul Daly’s blog, Administrative Law Matters, could be dismissed as “self-published” because it is the work of a single law professor, and yet it is an award-winning blog that should be seen as a valuable resource for courts and other decision makers in the challenging area of administrative law.

As Coordinator of ABlawg I may be biased, but I believe that it is important to recognize that law blogs provide accessible commentary on law and policy that is available much more expeditiously than case comments in traditional law review format. Courts and other legal decision-makers are not bound to follow the analysis in blog posts any more than they are bound to follow traditional case comments or academic analyses, but it would be unwise in my view for these decision-makers to ignore the rich source of commentary and analysis provided by law blogs.

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When Should Judicial Discretion Trump Expert Testimony?

Tue, 05/10/2016 - 3:22pm

By: Erin Sheley

PDF Version: When Should Judicial Discretion Trump Expert Testimony?

Case Commented On: R v Clark, 2016 ABCA 72 (CanLII)

In Regina v Clark the Alberta Court of Appeal reinforced the principle that trial courts should enjoy broad discretion in making evidentiary decisions. On the other side of the scale in this particular case was the great problem of ensuring the accuracy of witness identifications when they are the primary basis for conviction. In the United States at least, 70% of exonerations obtained through DNA evidence occurred in cases involving eyewitness misidentifications (see data collected by the Innocence Project, available here).

Clark involved a trial by judge of a bank robbery case. During the crime the suspect had partially obscured his face with a hood and a hat pulled down over most of his features (at paras 3-4). At trial, the Crown relied on the testimony of three eyewitnesses, and in particular that of one woman who had stood about 5-6 feet away from him at the bank counter and glanced at him several times during the robbery at para 54). Several other witnesses identified a photograph of the robber taken from the security camera as an individual who went by the street name “Lips,” a name by which the accused had identified himself to a police officer prior to the robbery (at para 51).

The defense sought to lead testimony by a Dr. Reid, an expert in the construction and administration of photo lineups (at para 38). Dr. Reid proposed to testify to the general unreliability of photo line-ups (and in particular the lack of correlation between the confidence of a witness in their identification and actual accuracy) (at para 39). He also proposed to testify to various aspects of the photo lineups in question which he believed made them less likely to be accurate. Specifically:

  • The lineups were suspect-based, rather than description-based.
  • The lineups included other people taken from the immediate community, making it more likely that a witness might recognize someone they knew and, thus, that the number of genuine suspects would be reduced.
  • The photos showed more of the suspect’s face than the witnesses had actually seen in real life due to his disguise.
  • The police officer administering the line-up left the witness alone with the pictures for a time and then drew her attention, upon his return, to a particular photo.
  • The lineups occurred several months after the robbery itself (at paras 40-43).

In excluding Dr. Reid’s testimony, the trial court emphasized that it was unnecessary to resort to expert testimony for the purposes of reinforcing the frailties of eyewitness testimony (at para 48). In his reasons for judgment the trial judge noted that he had been a lawyer for 37 years prior to coming to the bench and that he had “conducted many civil and criminal trials as well as complex regulatory hearings, many of which involved the extensive use of technical and scientific experts who gave opinion evidence clearly outside the knowledge base of the decision makers involved” (at para 48). The judge also noted that since becoming a judge he had taken a number of National Judicial Institute courses dealing with the assessment of witnesses and the types of evidence allowed in criminal cases (at para 48).

The accused raised four issues on appeal:

  1. Whether the trial judge erred in failing to admit the evidence of Dr. Reid
  2. Whether the trial judge failed to apply the correct legal test to the issue of eyewitness identification
  3. Whether the trial judge reversed the burden of proof, requiring the defence to demonstrate a lack of link between the appellant and the crime
  4. Whether the trial judge failed to apply the proper legal standard for a circumstantial case, resulting in an unreasonable verdict

The Court of Appeals dismissed the accused’s arguments in fairly abbreviated reasons. Referring to the rule in R v Seaboyer, [1991] 2 SCR 177, that probative evidence should be admitted unless an exclusion can be justified on some ground, the Court concluded that “once the trial judge reasonably concludes that the admissibility threshold is not met, he is entitled to refuse to admit the evidence” (at para 65). In holding that the trial judge had not erred in excluding the evidence of Dr. Reid, the Court repeatedly emphasized the “gatekeeping” function of trial courts, which “deserves deference absent prejudicial error” (at para 67).

The Court addresses the second and third issues at once, holding that nothing in the trial judge’s reasons demonstrate that he had reversed the burden of proof as to the issue of identification, but only that none of the evidence raised a reasonable doubt in his mind as to the appellant’s guilt (at para 72). In coming to this conclusion the Court noted that the trial judge was “alive to the frailties of identification evidence” and had in fact taken these problems into account in evaluating whether the Crown had proven its case beyond a reasonable doubt (at para 71).

On the final point, the Court states that the test for the unreasonableness of a verdict is whether “the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered” (at para 75, citing R v Biniaris [2000] 1 SCR 381). It holds that in this case the trial court’s conclusion that the Crown had proved its case beyond a reasonable doubt was reasonable because, in fact, it was “the only reasonable inference on the totality of the evidence” (at para 76, emphasis added).

A couple of observations flow from the Court’s reasons in this case. The first is that Clark provides a particularly striking example of the general disinclination of appellate courts to interfere with trial courts’ prerogatives in balancing the probative value of potential evidence against other reasons for exclusion, such as redundancy and waste of time (both factors which appeared to motivate the trial judge in this case). In describing the trial judge as a “gatekeeper” the Court alludes to certain systemic characteristics that drive this discretion. The trial court has the best view of the facts of an individual case, and—to the extent that the justice system would not have the bandwidth to function at all if it attempted to process ALL proffered probative evidence—the trial court must be empowered to make game time decisions without overly invasive appellate review.

The second observation relates to the trial court’s function as factfinder. In discussing the first issue on appeal, the Court noted that “appellate courts have consistently held that this type of evidence is unnecessary because it is clearly within the knowledge of judges and properly instructed jurors” (at para 66). While the reference to properly instructed jurors is obiter, it nonetheless suggests that the outcome of the case would have been the same regardless of whether it had been a jury deciding the case instead of a judge with many years of experience and training. This begs the question: can we in fact rely on jury instructions to drive home the scientific context in which they must understand evidence?

This problem arose in R v D.(D.), [2000] 2 SCR 275, in which the Supreme Court of Canada held that expert evidence is not admissible to counter the argument that a complainant’s delay in reporting sexual assault is evidence of fabrication. Because the trial court must instruct the jury as a matter of law that it cannot infer fabrication from the complainant’s delay, the Court held that expert testimony on the matter is therefore unnecessary. The dissent in that case, authored by Justice McLachlin, argued that such evidence should be considered on a case-by-case basis because the jury might in fact need assistance to understand psychological facts that go beyond immediate experience. The dissent’s concerns in that case—that jury instructions may inadequately substitute for expert explanation of such phenomena—apply equally in cases of eyewitness identifications. When an untrained jury is faced with a witness who expresses certainty as to identification, we cannot be certain what weight they might give it, even under circumstances that might warrant caution. R v Clark, like R v D.(D.) is a vote of confidence not only in trial judges acting appropriately as gatekeepers, but in juries understanding and fully taking to heart the often labyrinthine instructions they are given. Whether such confidence is warranted may be a question that requires more empirical research to answer properly. In the meantime, it seems clear that courts are willing to treat a trial judge’s occupational familiarity with certain specialized areas of knowledge such as the psychology of sexual assault and the risks of misidentification as adequate substitutes for a jury’s. These assumptions should give us pause.

The failed prosecution of Jian Ghomeshi provides a particularly striking example of where expert evidence might have assisted even a judge as trier-of-fact. In his reasons for judgment Justice Horkins noted the understandable limitations on the complainants’ memories of long-ago assaults, but at other moments questioned them about details as precise as the orientation of the accused’s hands around their neck (see discussion of the evidence and critiques of trial court’s reasons in R v Ghomeshi by Joshua Sealy-Harrington). Furthermore he made a number of factually inaccurate statements about the ease with which a sexual assault complainant may navigate the criminal justice system, and the facility she should have in assessing the relevance of particular aspects of a traumatic event in the course of reporting it. Despite the training and experience judges bring to bear on these questions, the Ghomeshi case illustrates how lack of expert testimony can result in at least partially uninformed credibility determinations.

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Mastery or Misogyny? The Ghomeshi Judgment and Sexual Assault Reform

Tue, 05/10/2016 - 3:22pm

By: Joshua Sealy-Harrington

PDF Version: Mastery or Misogyny? The Ghomeshi Judgment and Sexual Assault Reform

Case Commented On: R v Ghomeshi, 2016 ONCJ 155

On March 24, 2016, Justice Horkins of the Ontario Court of Justice acquitted Jian Ghomeshi of five criminal charges: four counts of sexual assault and one count of overcoming resistance to sexual assault by choking. The judgment, like the original controversy surrounding his CBC dismissal and related sexual assault allegations, has polarized Canadian discourse on sexual assault – with reviews of Justice Horkins’ reasons ranging from a “total masterclass in misogynist, arrogant windbaggery” to a “masterful job of analyzing the evidence, identifying the weaknesses in the prosecution’s case and coming to the right decision.”

It is undeniable that the Canadian administration of sexual assault law must be improved. But, in pursuing that improvement, it is critical to isolate where this administration truly fails, and how best to address those failures in a manner that properly balances the interests of the accused and victims of sexual assault. The Ghomeshi judgment, which contains both strengths and weaknesses, provides a unique opportunity to deconstruct our administration of sexual assault laws, note its flaws (and strengths), and begin developing a constructive strategy moving forward. This balanced approach is most likely to manifest in targeted reforms that will actually enhance the administration of justice and provide greater protection and support to victims of sexual assault.

The Evidence and Judgment

Justice Horkins’ judgment depended “entirely on an assessment of the credibility and the reliability” of the three complainants: Lucy DeCoutere, and two complainants shielded from identification with initials LR and SD (see paras 1-4 and 11). Specifically, the judgment turned on various inconsistencies throughout the complainants’ description of events in police interviews, examinations in-chief, cross-examinations, and media interviews. On this basis, Justice Horkins held that “[t]he evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception” (at para 138), and accordingly, acquitted Mr. Ghomeshi of all charges.

This post comprehensively summarizes the evidentiary inconsistencies that Justice Horkins relied on in reaching his judgment. I provide this comprehensive summary because understanding how the Court reached its judgment is integral to critiquing it in an informed and thoughtful way, and in a way that can actually bring about change to our criminal justice system.

I also comprehensively summarize these evidentiary inconsistencies because some responses to the Ghomeshi verdict pay inadequate attention to the actual judgment and the evidence it relied upon. I spoke with many people who wanted Mr. Ghomeshi convicted because, in essence, “everyone knows he did it.” But surely a conviction based solely on reputation, and without resort to evidence, would be unjust. And surely social justice advocates, with their awareness of how things like “reputation” are subject to myriad societal inequalities, could not advocate for a system of criminal justice that relies on such biased considerations. Leaving aside whether Mr. Ghomeshi’s poor reputation was well earned, a criminal justice system that convicts (or acquits) based on reputation is an unjust system. Indeed, as Defence Counsel Marie Henein alluded to in a recent interview (at 3:00-3:59), good reputation (i.e. presumed credibility) of priests and police officers has been at the foundation of some of the most egregious injustices in history.

With the above in mind, I now turn to a review of the evidence in this case.

LR: Evidence and Judgment

The first complainant, LR, testified during examination in-chief to two separate sexual assaults:

  1. an assault in December 2002, in Mr. Ghomeshi’s car, where Mr. Ghomeshi suddenly and aggressively pulled LR’s hair (at paras 16-17; the “Car Assault”); and
  1. an assault in January 2003, at Mr. Ghomeshi’s home, where he suddenly pulled her hair, punched her head several times, and pulled her to her knees (at para 21; the “Home Assault”).

Justice Horkins viewed LR’s evidence in-chief as “[seemingly] rational and balanced” (at para 44). However, Justice Horkins identified multiple inconsistencies that ultimately led to his conclusion that LR was “a witness willing to withhold relevant information from the police, from the Crown and from the Court”, who “deliberately breached her oath to tell the truth”, and whose “value as a reliable witness [was] diminished accordingly” (at para 44).

Specifically, the inconsistencies on which Justice Horkins relied with respect to LR were:

  LR’s Initial Claim Contradiction(s) LR’s Explanation Kissing During Car Assault LR testified that the Car Assault occurred during kissing (para 26) LR described during media interviews that the Car Assault occurred “out of the blue” i.e. not while kissing (para 26)

 

LR in her police report, initially described the hair pulling and kissing as separate, but near the end described them as intertwined (para 26) LR explained that during her media interviews she was “unsure of the sequencing of events and “therefore […] didn’t put it in” (para 27) Hair Extensions Following her police interview, LR told the police that she was wearing hair extensions during the Car Assault (para 28) During cross-examination, LR claimed she was not wearing hair extensions (para 28) LR explained that she genuinely reversed this memory following her email to the police (para 28) Disclosing Reversal of Memory Re Hair Extensions to the Police Initially during cross-examination, LR claimed that she disclosed to the police her reversed memory about wearing hair extensions during the Car Assault (para 29) Later during cross-examination, LR conceded that she did not disclose this reversed memory to the police (para 29) No explanation for this inconsistency was identified in the judgment (paras 28-29) Car Window Head Smash During four initial accounts to the police and media, LR never claimed that Mr. Ghomeshi smashed her head into his car window (para 30) Following her police interview, LR told the police that Mr. Ghomeshi smashed her head into the window during the Car Assault (para 30)

 

During cross-examination, LR reverted to the version of the Car Assault with no head smash (para 30) LR explained that, during her police interview, she was “throwing thoughts” at the investigators (para 31) Demonstrating Car Window Head Smash in Police Video During cross-examination, LR denied demonstrating in her police video that her hair was pulled back towards the seat of the car, rather than towards the window (para 32) During, cross-examination, the police video was played, and Justice Horkins held that it clearly showed LR demonstrating how her hair was pulled back towards the seat of the car (para 32) LR explained that during the police interview she was “high on nerves” (para 32) “Thrown” or “Pulled” to Ground during Home Assault LR told the Toronto Star and CBC TV that she was “pulled” down to the ground during the Home Assault (para 33) LR told CBC Radio that she was “thrown” down to the ground during the Home Assault (para 33)

 

LR told the police that the events were “blurry” and that she did not know how she got to the ground (para 33) LR explained that being “thrown” or “pulled” to the ground are the same (para 33) Kissing During Home Assault During her police interview, LR did not describe kissing as part of the assault (para 34) At trial, LR described kissing Mr. Ghomeshi on the couch and while standing around the time of the Home Assault (para 34) No explanation for this inconsistency was identified in the judgment (para 34) Yoga Pose Before Home Assault During her examination in-chief, LR did not mention doing a yoga pose just before the Home Assault (para 34) During cross-examination, LR was reminded that she did a yoga pose and that she had previously disclosed that it bothered Mr. Ghomeshi (para 34) No explanation for this inconsistency was identified in the judgment (para 34) The Make of Mr. Ghomeshi’s Car During her examination in-chief, LR testified that Mr. Ghomeshi’s car was a yellow Volkswagen Beetle, a “clear” memory that was a “significant factor” in her impression of Mr. Ghomeshi at the time of the assault (para 35) Justice Horkins found as a fact that Mr. Ghomeshi did not acquire this Volkswagen Beetle until seven months after the assault (para 35) No explanation for this inconsistency was identified in the judgment (paras 35-36) Contacting Mr. Ghomeshi and Watching his Show Post-Assault During examination in-chief, LR testified that after the Home Assault: (1) she never had further contact with Mr. Ghomeshi and (2) every time she heard Mr. Ghomeshi on TV or the radio, she had to turn it off because the sight and sound of him made her relive the trauma of the assault (para 37) LR sent Mr. Ghomeshi a flirtatious email a year after the Home Assault, saying it was “good to see [him] again”, that “[his] show is still great”, and providing him with her contact information as an invitation for his reply (para 38)

 

LR sent an email to Mr. Ghomeshi 18 months after the Home Assault, saying “I’ve been watching you” (a reference to watching his show) and attaching a photo of her in a bikini (para 39) LR explained that these emails were part of a plan to “bait” Mr. Ghomeshi into contacting her so that she could confront him about the assaults (para 41)

Lucy DeCoutere: Evidence and Judgment

The second complainant, Ms. DeCoutere, testified during examination in-chief that, in July 2003 at Mr. Ghomeshi’s home, he put his hand on her throat, pushed her forcefully against the wall, choked her, and slapped her in the face (at para 48).

However, after cross-examination, Justice Horkins considered Ms. DeCoutere’s evidence unreliable because she suppressed evidence and maintained deceptions under oath. In particular, Justice Horkins sought to make clear his basis for finding Ms. DeCoutere’s evidence unreliable:

Let me emphasize strongly, it is the suppression of evidence and the deceptions maintained under oath that drive my concerns with the reliability of this witness, not necessarily her undetermined motivations for doing do. It is difficult to have trust in a witness who engages in the selective withholding [of] relevant information (at para 94).

Specifically, the inconsistencies on which Justice Horkins relied with respect to Ms. DeCoutere were the following:

  Ms. DeCoutere’s Initial Claim Contradiction(s) Ms. DeCoutere’s Explanation Late Disclosure of Kissing Around Time of Assault During Ms. DeCoutere’s police interview and 19 reported media interviews she never mentioned that Mr. Ghomeshi attempted to kiss her on their walk to his house, that they kissed on the couch after the assault, or that they kissed goodnight when she left his house that evening (para 58). This was despite being directly asked by a detective what happened between the assault and her departure from his home and responding that “nothing stuck” (para 59) Just prior to being called as a witness, Ms. DeCoutere met with the Crown and police and revealed that Mr. Ghomeshi attempted to kiss her on their walk to his house, that they kissed on the couch after the assault, and that they kissed goodnight when she left his house that evening (paras 56 and 58) Ms. DeCoutere explained that she disclosed this information late because she did not understand its “importance” or “impact” until just prior to being called as a witness (paras 57 and 59)

 

Ms. DeCoutere denied being aware that the previous witness, LR, had been confronted with embarrassing emails from 2004 (para 57) Selective Disclosure of Details Around Time of Assault Ms. DeCoutere reported specific details from her date with Mr. Ghomeshi, including his restaurant order and details about his home (para 61) Ms. DeCoutere did not report, until just prior to her being called as a witness, the details related to kissing and cuddling with Mr. Ghomeshi (para 61) Ms. DeCoutere explained that she left out intimate details from their date in the interest of brevity and succinctness (para 61) Mr. Ghomeshi’s Unappealing Suggestion Ms. DeCoutere repeatedly stated that Mr. Ghomeshi’s suggestion about lying down together and listening to music was creepy, cheesy or otherwise unappealing (para 61) Five days after the assault, Ms. DeCoutere wrote Mr. Ghomeshi a “love letter” reading: “What on earth could be better than lying with you, listening to music and having peace?” (para 62) No explanation for this inconsistency was identified in the judgment (para 62) Recounting Specific Order of Events Surrounding Assault During a Toronto Star interview, Ms. DeCoutere described how Mr. Ghomeshi first choked her, and then slapped her (para 63) A few days after the Toronto Star interview, Ms. DeCoutere told police that her recollection of the events surrounding the assault was “all jumbled” and that she could not recall the order of events (para 63)

 

When she spoke to CTV, Ms. DeCoutere was unsure about the order (para 63)

 

At trial, Ms. DeCoutere described a “specific sequence of events”: a push, two slaps, a pause, and then another slap (para 63) Ms. DeCoutere acknowledged during cross-examination that she provided multiple different versions of the order of events (para 63) Ongoing Relationship with Mr. Ghomeshi Ms. DeCoutere told police that, after the assault, she only saw Mr. Ghomeshi “in passing” and that she “didn’t pursue any kind of relationship with him” (para 66) Just before being called as a witness, Ms. DeCoutere swore another police statement describing how she (1) sent Mr. Ghomeshi “thank you flowers” days after the assault (paras 69 and 80); (2) spent considerable time with Mr. Ghomeshi in Banff in 2004, including multiple suggestive emails seeking to spend more time with him (paras 69 and 75-76); and (3) exchanged additional suggestive correspondence with him, including emails proposing further sexual activity and a “love letter” reading: “I love your hands” (paras 69 and 82-85) Ms. DeCoutere explained that she disclosed this information late because she thought it was of no importance (para 70) and because it was her “first chance” to do so (para 74)

 

Ms. DeCoutere explained that her ongoing relationship with Mr. Ghomeshi (including her specific reference to loving his hands) was a means of normalizing the situation and “flattening the negative” (paras 72, 80, 82, and 85-86) No Intimacy In Days Following Assault Ms. DeCoutere testified that, despite seeing Mr. Ghomeshi for the remainder of the weekend of the assault, she “kept her distance and certainly did not do anything intimate with him” (para 72) During cross-examination, Ms. DeCoutere was confronted with a photograph of her and Mr. Ghomeshi cuddling affectionately in the park the day after the assault (para 72) No explanation for this inconsistency was identified in the judgment (para 62)

In addition to Ms. DeCoutere’s evidence, one of her close friends, Ms. Dunworth, gave a sworn statement to police in November 2015 providing that Ms. DeCoutere told her about the assault ten years ago (at para 95). This evidence was tendered for the “limited use” of rebutting the claim that Ms. DeCoutere recently fabricated her complaint. Justice Horkins accepted that the evidence offset the inference that the complaint was fabricated in 2014, but noted that it did not offset the inference that the complaint may have been fabricated earlier and found it to be “of little assistance with respect to the general veracity of Ms. DeCoutere’s evidence at trial” (at paras 98-99).

SD: Evidence and Judgment

Lastly, SD testified during examination in-chief that in July or August 2003, while “making out” on a secluded park bench, Mr. Ghomeshi squeezed her neck forcefully enough to cause discomfort and interfere with her ability to breathe (at paras 101, 103).

However, after cross-examination, Justice Horkins held that SD’s evidence was unreliable because she was “playing chicken” with the justice system by telling only half the truth “for as long as she thought she might get away with it” (at para 118).

Specifically, the inconsistencies on which Justice Horkins relied with respect to SD were:

  SD’s Initial Claim Contradiction(s) SD’s Explanation Discussion of Assault Details with Ms. DeCoutere SD initially testified that she and Ms. DeCoutere never discussed the details of her experience before her police interview (para 107) During cross-examination, SD admitted to discussing with Ms. DeCoutere details of her experience before her police interview (para 107) No explanation for this inconsistency was identified in the judgment (para 107) Post-Assault Contact with Mr. Ghomeshi In her initial interviews, SD said that, after the assault, she “always kept her distance” and went out a couple times with Mr. Ghomeshi but only in public (para 112) At trial, SD admitted to bringing Mr. Ghomeshi to her home for sexual activity after being assaulted (para 113)

 

More than six months after the assault, SD sent an email to Mr. Ghomeshi asking him if he “[s]till want[ed] to grab that drink sometime?” (para 116) SD admitted that her earlier comments were a deliberate lie and an intentional misrepresentation of her brief relationship with Mr. Ghomeshi (para 113) Motivation Behind Late Disclosure of Post-Assault Contact with Mr. Ghomeshi SD initially explained that she did not disclose post-assault contact with Mr. Ghomeshi because she did not think it was important and was not specifically asked about it (para 115) When pressed on her explanation, SD acknowledged that she left out information regarding post-assault contact with Mr. Ghomeshi because it did not fit “the pattern” (para 115)

 

When pressed further, SD explained that she did not think that what had happened between them (“[messing] around” and a “hand job”) qualified as “sex” (para 115)

 

SD only made this late disclosure on the eve of being called as a witness and after the first two witnesses had given evidence and both been confronted with their own non-disclosures (paras 117-118) SD explained that she did not think it was important to disclose post-assault intimate contact and that she wasn’t “specifically” asked about it (para 115)

 

SD explained that she hid this information because this was her “first kick at the can” and she did not know how to “navigate” this sort of proceeding (para 119)

In addition to the above inconsistencies, Justice Horkins had additional concerns with SD’s evidence.

First, Justice Horkins considered SD’s evidence lacking in sufficient precision as illustrated by a portion of her examination during which she could not recall whether Mr. Ghomeshi’s hands were open or closed and the precise number of seconds his hands were around her neck (at para 106).

Second, Justice Horkins held that the evidence demonstrated “possible collusion” between SD and Ms. DeCoutere, who exchanged approximately 5000 messages between October 2014 and September 2015 describing themselves as a “team”, discussing witnesses, court dates, and meetings with the prosecution, and displaying significant animosity towards Mr. Ghomeshi and an “extreme dedication to bringing [him] down” (see paras 107-110).

Commentary

As discussed earlier, Justice Horkins’ judgment has deeply polarized Canadian discourse on sexual assault, receiving both warm praise and vitriolic criticism.

However, in my view, neither approach is optimal for deconstructing the judgment with a view to improving the Canadian administration of sexual assault law. Rather, a careful consideration of the judgment’s strengths and weaknesses permits the most comprehensive analysis of the genuine mistakes made by Justice Horkins (and others), and how best to avoid those mistakes in future cases.

We need to address the problems that pervade the Canadian administration of sexual assault law, and those problems must be understood before they can be solved.

Strengths of the Judgment

There are four strengths in Justice Horkins’ judgment:

  1. the outcome, which, in my view, properly relied on material inconsistencies to find a reasonable doubt;
  1. the repeated statements by Justice Horkins against the need for credible sexual assault victims to behave in a stereotypical manner (though he occasionally relies on such stereotypes at portions of his reasons);
  1. the recognition by Justice Horkins that limitations on memory are understandable, particularly in historical sexual assault claims (though he is occasionally too strict with his expectations on the complainants’ memories); and
  1. Justice Horkins statement that his finding of a reasonable doubt is not equivalent to positively finding that these complainants were never assaulted.

First, the outcome was, in my view, the correct legal conclusion reached in response to many material inconsistencies uncovered during the cross-examination of each complainant (a view echoed consistently in commentary from the legal profession; see here, here, here, here, and here). In particular, LR’s unqualified testimony that she never contacted Mr. Ghomeshi post-assault and avoided watching his show (at para 38) despite contacting him twice and both times alluding to watching his show (at paras 38-39), Ms. DeCoutere’s claim that she only saw Mr. Ghomeshi “in passing” and that she “didn’t pursue any kind of relationship with him” (see para 66) despite spending considerable time with Mr. Ghomeshi post-assault in Banff (at paras 69 and 75-76) and pursuing a relationship with him in multiple messages (at paras 69 and 82-85), and SD’s admission that her testimony of “always [keeping] her distance” and limiting her future encounters with Mr. Ghomeshi to public settings was an intentional misrepresentation of her brief relationship with Mr. Ghomeshi (at para 113) show material inconsistencies in the evidence of the complainants that reasonably undermine their credibility. This is in addition to the fact that the second and third complainants only disclosed certain information after the directly preceding witnesses had their reliability undermined on cross-examination by being confronted with evidence contradicting their initial testimony (see paras 56-57 and 111). In my view, Justice Horkins reasonably interpreted these late disclosures of evidence as the second and third complainants withholding information (regardless of motivation) until they realized it would likely come out during cross-examination (at paras 79 and 117), a legitimate basis for diminished credibility.

Some have argued that this line of reasoning stereotypes sexual assault victims and misunderstands the complexities of trauma and how victims of sexual assault may act in ways counter to societal expectations. I completely agree that it is critical to avoid stereotypical expectations on women when assessing sexual assault complaints, and have written previously about the often outrageous expectations placed on victims of sexual assault. But Justice Horkins (primarily) doubted the credibility of these complainants because they withheld information about their post-assault relationships with Mr. Ghomeshi, not because their post-assault relationships intrinsically undermined their credibility. In my view, these criticisms largely misunderstand the core basis of Justice Horkins’ reasons.

To be clear, I do not think that every inconsistency canvassed by Justice Horkins was material, and I do not think that everything that Justice Horkins highlighted supported the judgment. But, based on the record, there were, in my view, sufficient inconsistencies to support a reasonable doubt.

Second, Justice Horkins repeatedly asserted the importance of not imposing stereotypical assumptions on how a sexual assault victim should respond to abuse (though, as I discuss below, such assumptions still appear occasionally in his reasons).

In particular, Justice Horkins writes that “[t]he expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models” (at para 43); “the Court must guard against assuming that seemingly odd reactive behaviour of a complainant necessarily indicates fabrication (at para 86); and “Courts must guard against applying false stereotypes concerning the expected conduct of complainants” (at para 135).

Indeed, Justice Horkins expressly rejects one of the most notorious rape myths – that credible sexual assault complainants will immediately report their assaults. He writes:

The law is clear: there should be no presumptive adverse inference arising when a complainant in a sexual assault case fails to come forward at the time of the events. Each complainant articulated her own very valid reasons for not coming forward at the time of the events. The law also recognizes that there should be nothing presumptively suspect in incremental disclosure of sexual assaults or abuse (at para 126).

These are all welcome comments from the Court on assessing the credibility of sexual assault complainants, which stand in stark contrast to the extensive reliance on rape myths and overt victim blaming found in previous judicial rulings. I am very sympathetic to critiquing the more subtle ways in which a judgment can problematically assess a sexual assault complaint (indeed, I provide such a critique below). But I am also concerned by commentary that characterizes the Ghomeshi judgment as “painfully misogynistic”, because conflating it with the other far more troubling judgments linked above fails to surgically identify its actual weaknesses in a manner that can translate into genuine reform.

Third, Justice Horkins explains how, with historical sexual assault claims, the Court should not be concerned about a complainant’s ability to recall every minor detail surrounding the assault (though, again, as I discuss below, such concerns occasionally appear in his reasons).

In particular, Justice Horkins writes that “[a]n inability to recall the sequence of such a traumatic event from over a decade ago is not very surprising and in most instances, it would be of little concern” (at para 64) and “[t]he courts recognize that trials of long past events can raise particular challenges due to the passage of time. Memories tend to fade, and time tends to erode the quality and availability of evidence” (at para 125). This, too, is welcome commentary from the Court.

Fourth, Justice Horkins clearly distinguishes reasonable doubt from positively finding that these assaults never occurred. Specifically, he writes:

My conclusion that the evidence in this case raises a reasonable doubt is not the same as deciding in any positive way that these events never happened. At the end of this trial a reasonable doubt exists because it is impossible to determine, with any acceptable degree of certainty or comfort, what is true and what is false (at para 140).

In other words, Justice Horkins declines the harder position that these complainants lied about being assaulted and adopts the softer position that, due to their inconsistencies, the veracity of their claims of assault is not beyond reasonable doubt – a reasonable conclusion based on the record before him, and a conclusion that carefully delineates the dishonesty he is actually identifying in his reasons.

In sum, Justice Horkins’ judgment reached what I consider to be the correct decision based on the record before him, and, in the course of his reasons, made some positive observations on how the Court should assess sexual assault complaints.

Weaknesses of the Judgment

That being said, Justice Horkins’ judgment also contained a number of dimensions worthy of criticism, including:

  1. his reliance on stereotypical assumptions regarding the behaviour of sexual assault victims (despite his claim of not relying on such assumptions);
  1. his reliance on unreasonable standards of memory for sexual assault victims (despite his claim of being understanding to such limitations, particularly in historical sexual assault claims); and
  1. most alarmingly, his view that navigating the criminal justice system is “really quite simple”.

First, Justice Horkins, despite claiming to appreciate the need to avoid stereotyping sexual assault complainants, applied certain stereotypes to the complainants’ conduct in this case. Indeed, immediately after denouncing the use of stereotypes in assessing complainant credibility, Justice Horkins then applied those very stereotypes to LR:

The expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models. Having said that, I have no hesitation in saying that the behaviour of this complainant is, at the very least, odd (at para 43).

This passage is contained in the section of Justice Horkins’ reasons titled “The Flirtatious Emails”, and the “odd” (i.e. non-stereotypical) behaviour he is presumably referring to is LR flirting with Mr. Ghomeshi and sending him suggestive emails after her assault. It is undeniable that Justice Horkins’ description of this behaviour as “odd” is rooted in the stereotype that credible sexual assault victims avoid their abuser at all costs after an assault (even though the contrary has been consistently documented in the context of sexual abuse, and even though such an expectation surely imposes absurd expectations on women assaulted by their ongoing partners (see here and here).

Justice Horkins similarly applied these stereotypes to Ms. DeCoutere. After quoting a passage from a sexually suggestive email she sent to Mr. Ghomeshi “within twenty-four hours” of her assault, Justice Horkins writes: “[t]here is not a trace of animosity, regret or offence taken, in that message” (para 84). This is despite the fact the Ms. DeCoutere repeatedly sought to explain how her post-assault conduct with Mr. Ghomeshi was rooted in a desire to “flatten the negative” i.e. cope with the trauma of her assault (at paras 72, 82, and 86), another well-documented phenomena in cases of sexual abuse.

Most problematically, and with respect to all three complainants, Justice Horkins wrote the following:

Each complainant in this case engaged in conduct regarding Mr. Ghomeshi, after the fact, which seems out of harmony with the assaultive behaviour ascribed to him. In many instances, their conduct and comments were even inconsistent with the level of animus exhibited by each of them, both at the time and then years later. In a case that is entirely dependent on the reliability of their evidence standing alone, these are factors that cause me considerable difficult when asked to accept their evidence at full value (at para 136; emphasis added).

In other words, Justice Horkins admits that the failure of these victims to fall within a stereotypical narrative of abuse directly contributed to their diminished credibility.

Justice Horkins claims to have reached his judgment on the basis of material inconsistencies throughout the complainants’ testimony (at para 138), but the above references clearly illustrate that his reasons were influenced by the extent to which the significant post-assault contact between the complainants and Mr. Ghomeshi did not fit the stereotypical narrative of abuse that he expected. This is a significant deficiency in Justice Horkins’ reasons, and a rape myth that continues to illegitimately undermine the credibility of sexual assault victims. Justice Horkins was critical of SD for not being forthcoming about details regarding her post-assault contact with Mr. Ghomeshi because she was worried it did not fit “the pattern” of abuse one might expect (see para 115). With comments like this from Justice Horkins, one can see why.

Second, Justice Horkins, despite claiming to be sensitive to the legitimate limitations on memory with historical sexual assault claims, at times demanded an unreasonable standard of precision of the complainants.

In particular, he viewed the following paragraph as purportedly illustrative of the insufficient precision in SD’s account of her assault (at para 106):

He had his hand – it was sort of – it was sort of his hands were on my shoulders, kind of on my arms here, and then it was – and then I felt his teeth and then his hands around my neck. … It was rough but – yeah, it was rough.

Q: Were his hands open, were they closed?

A: It’s really hard for me to say, but it was just – I just felt his hands around my neck, all around my neck. … And I – I think I tried to – I tried to get out of it and then his hand was on my mouth, sort of smothering me.

Q: Okay. I’m going to go back. So the hands were around your neck. How long were they around your neck?

A: Seconds. A few seconds. Ten seconds. I don’t even – I don’t – it’s hard to know. It’s hard to know.

Q: And did his hands around your neck cause you any difficulties breathing?

A: Yes.

In my view, demanding that a victim recount the specific orientation of her abuser’s hands and whether she was choked for three or ten seconds imposes an unrealistic burden on sexual assault complainants. Sexual assault is a deeply traumatic experience. How an individual copes with that experience may vary widely, and that coping may fragment and jumble details of the assault (see here and here). I am not saying that sexual assault complainants can forget every aspect of their assault because they were traumatized, and still be seen as reliable witnesses. But the threshold imposed by Justice Horkins displayed in the paragraph above is, in my view, too strenuous. To be frank, if I was asked for such details during a cross-examination about a sexual encounter from the previous night (let alone a non-consensual sexual encounter ten years prior), I would genuinely struggle to remember those details with the clarity demanded by Justice Horkins here. Sex is a fluid, complex, and occasionally unpredictable experience, and those factors are only exacerbated in the context of abuse. We cannot demand actuarial precision from sexual assault victims.

Third, and most alarmingly, Justice Horkins claimed that it is “really quite simple” for sexual assault victims to navigate the criminal justice system (at para 119). This is empirically false, and a shocking pronouncement by the Court. Many have thoroughly explored the immense complexities in navigating the criminal justice system, particularly for sexual assault complainants, and so there is no need for me to reinvent the wheel here. Needless to say, there are few (if any) tasks more complex than occupying the role of complainant in a sexual assault trial, and a characterization by the judiciary that this role is “really quite simple” is both unnecessarily insensitive to victims of sexual assault and factually incorrect. Indeed, this very case illustrates that one of the biggest barriers for sexual assault complainants (simply reporting the assault in the first place) was experienced by these complainants (see paras 23 and 54).

Similarly, Justice Horkins repeatedly criticizes the complainants’ ability to assess relevance in the context of their own sexual assault trials. For example, Justice Horkins writes:

It is difficult for me to believe that someone who was choked as part of a sexual assault, would consider kissing sessions with the assailant both before and after the assault not worth mentioning when reporting the matter to the police. I can understand being reluctant to mention it, but I do not understand her thinking that it was not relevant (at para 60).

Even more surprisingly, Justice Horkins writes:

Another item in the new disclosure statement was the information that Ms. DeCoutere sent flowers to Mr. Ghomeshi following the Canada Day weekend in Toronto […] whether or not this behaviour should be considered unusual or not, this was very clearly relevant and material information in the context of a sexual assault allegation (at para 80; emphasis added).

The irony in these statements is that these “kissing sessions” and exchanges of flowers (or, similarly, a “yoga pose”; see para 34) are not relevant. Sexual assault is sexual touching without consent. And such an assault remains an assault whether or not consensual touching, yoga, or flowers surround it. The only reason these facts were (purportedly) relevant was because they were disclosed late, but they do not actually factor into the legal assessment of consent, which, arguably, explains why these facts were not disclosed in the first place. The nuances surrounding these facts and their relevance are complex enough for trained lawyers. Indeed, my own practice features frequent arguments between lawyers over the propriety of questions asked of witnesses on the basis of relevance. To view this analysis as “simple” for sexual assault complainants is unreasonable, especially when one of the complainants admits to you that, in her understanding, sexual assault only occurs when you are “beaten to pieces […] broken and raped” (at para 54), clearly reflecting how (understandable) misconceptions about the legal definition of sexual assault by non-lawyers can be significant.

The further irony in Justice Horkins’ above statements is that Justice Horkins’ reasons ultimately vindicated SD’s apprehension with full disclosure. Justice Horkins held that SD should have simply told “the whole truth”, and yet that whole truth – that she had been sexually intimate with Mr. Ghomeshi after her assault – was presumably the basis on which Justice Horkins ruled that her behaviour was “out of harmony with the assaultive behaviour ascribed to [Mr. Ghomeshi]”. SD’s concern that this disclosure would undermine her credibility for falling outside “the pattern” one would expect of a sexual assault victim was, accordingly, justified. Furthermore, the post-assault sexual activity between SD and Mr. Ghomeshi could be seen as protected by the rape shield provisions of the Criminal Code, such that its relevance was subject to determination at trial, not for SD to assess beforehand.

In sum, despite reaching what I consider to be the correct conclusion, Justice Horkins’ reasons contain multiple deficiencies that illustrate where reform efforts should be focussed.

Conclusion

An appreciation of the above strengths and weaknesses in the Ghomeshi judgment must be the starting point for our discussion on improving the Canadian administration of sexual assault laws.

Our pursuit of reforms must not resort to simplistic misrepresentations about alleged weaknesses in the current system. As Ms. Henein recently observed, our discourse surrounding sexual assault cannot be reduced to interpreting any conviction as “supporting” victims of sexual assault and any acquittal as “betraying” them (at 2:36-3:00), especially when such a reduction reveals the sexist double standard that characterizes Ms. Henein’s place atop the criminal defence bar – a space in which women face myriad barriers – as a “betrayal” of women rather than as a significant feminist accomplishment.

Instead, our pursuit of reforms must distill the issues plaguing the current system and how to correct for them. And, to be clear, it is a “system” that we are seeking to reform. Ms. Henein is one of the most accomplished criminal defence lawyers in the country, an advocate few if any criminal accused have access to. Certain proposed reforms – like displacing the burden of proof or compelling an accused person to testify against themselves to assist the state in making its case – must be considered not in the context of Mr. Ghomeshi and his outstanding counsel (which represents a tiny minority of cases) but in the context of the myriad accused who have far fewer resources and against whom significant injustice may occur. Indeed, those simultaneously decrying the conviction of Steven Avery and the acquittal of Mr. Ghomeshi should pay close attention to how foundational reforms to our criminal justice system transcend the class, race, and gender of the accused.

In light of the above, how do the Ghomeshi judgment’s weaknesses inform us of what reforms are needed?

First, Justice Horkins’ occasional reliance on stereotypes and unreasonable standards for the complainants’ memories indicate that broader use of judicial education and expert evidence may assist in improving the judicial process surrounding sexual assault. For example, Justice Horkins’ reliance on stereotypes in this case may have been corrected with the addition of expert testimony explaining how victims often respond to sexual abuse.

Second, the performance of these complainants on cross-examination suggests that greater support and resources must be provided to sexual assault complainants throughout the criminal process: reporting to police, initial legal consultation, through trial, and being briefed about the overall process. Indeed, in Ms. Henein’s view, the “one suggestion” for improving the administration of sexual assault is an increase in resources (at 11:16-12:51), though she felt the complainants in this case were properly resourced. Similarly, the complainants’ own descriptions for why they did not report their assaults earlier (see paras 23 and 54) and their descriptions of the Court process itself reflect the need for greater support and resources for victims of sexual assault.

In the aftermath of the Ghomeshi judgment, many formal reforms have been proposed that relate to providing greater support and resources to victims of sexual assault:

  1. Professor Alice Woolley recommends clarifying the role of the Crown in sexual assault prosecutions to provide greater guidance to sexual assault victims;
  1. David Butt (counsel to one of the complainants in this case) recommends providing a system in which complainants have greater control over the legal process that resolves their complaints; and
  1. Naomi Sayers and Samantha Peters recommend the creation of courts dedicated to exclusively hearing sexual assault cases.

All of these recommendations should be thoughtfully considered and further explored.

In addition to the above formal reforms, the desire to provide greater support to victims has translated, on social media, into the viral hashtag #WeBelieveSurvivors. And, subject to certain qualifications, I think this movement to show greater emotional support to victims of sexual assault is a positive informal reform, and one that may contribute to meaningful improvements in the administration of sexual assault laws. #WeBelieveSurvivors isn’t (or, at least, shouldn’t be) about disposing with sexual assault trials, in the same way #BlackLivesMatter isn’t about diminishing the value of white lives. These movements, rather, are about deconstructing silent hierarchies that exist in our society and perpetuate tangible harm on marginalized communities. For that reason, I’m proud to say I believe survivors. Not because false complaints are impossible, but because that belief counteracts oppression mediated through a society which presumptively distrusts women in a forum where that trust is all they can rely on to seek justice.

Indeed, as Professor Mathen writes:

[T]he interest in and the empathy demonstrated for the complainants must be harnessed into greater resources for those who are sexually violated, better legal education, and tools to wage the necessary fight against sexual assault as a social and cultural, not just legal, problem.

Mr. Ghomeshi’s legal journey is not over. He will be back in trial this June on a separate charge of sexual assault. Hopefully, following the judgment in that second case, commentary will be more balanced, and in turn, more constructive in its proposals for reform. Even better, maybe we will see some of the above reforms in action at trial.

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Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation?

Tue, 05/10/2016 - 3:22pm

By: Shaun Fluker

PDF Version: Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation?

Case Commented On: Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 138

The substance of the dispute in this decision is whether a prohibition enacted by the Alberta College of Pharmacists is lawful. Specifically, in April 2014 the College voted to amend its Code of Ethics to prohibit pharmacists from providing inducements – such as loyalty program points or other forms of consumer purchase rewards – to a patient for the acquisition of a drug or a service from them. The College provides a description of the inducement issue and its rationale for the prohibition here. Sobeys challenges the lawfulness of this prohibition, and thus seeks judicial review. It seems that the standard of review to be applied in this case became a significant issue in the hearing, and this decision by the Honourable Mr. Justice V.O. Ouellette is the Court’s reasons for selecting correctness – notwithstanding that both Sobeys and the College had agreed the standard should be reasonableness. The decision illustrates, or perhaps exposes, some uncertainty in the application of administrative law principles to legislative acts by delegates of the Legislature, and unfortunately I am not sure the reasoning provided by Justice Ouellette is helpful in resolving this uncertainty.

The authority of the College to enact a Code of Ethics governing pharmacists is provided by section 133(1) of the Health Professions Act, RSA 2000, c H-7. The text in this section suggests the Legislature contemplated that this Code, or at least some provisions of it, would constitute subordinate legislation – in other words that these provisions constitute law as opposed to internal guidance to pharmacists. Hallmarks of this intention include the requirement on the College to allow pharmacists and the Minister to review and comment on proposed provisions, as well to as publish the Code. These process provisions largely replicate the substance of the Regulations Act, RSA 2000, c R-14, which section 133(4) of the Health Professions Act states is not applicable to the Code enactments.

So we should start this analysis from the premise that the enactment of inducement prohibitions in the Code is a legislative act by a delegate of the Legislature. This starting point is crucial because, as such, it brings this judicial review on the lawfulness of the inducement prohibitions under the principles enunciated by the Supreme Court of Canada in Katz Group Canada Inc. v. Ontario (Health and Long?Term Care), 2013 SCC 64 at paras 24 – 28. These principles guide the review on the vires of subordinate legislation, and involve the following considerations: (1) is the impugned regulation consistent with the objective of its parent statute – in order to demonstrate invalidity a person must establish that the regulation is not consistent with such objective or that it addresses a matter which is not set out in the regulation-making provision of the parent statute; (2) there is a presumption of validity such that the onus or burden is on the challenger to demonstrate that the regulation is ultra vires – so where possible a regulation will be read in a ‘broad and purposive’ manner to be consistent with its parent statute; (3) the inquiry into the vires of a regulation does not involve assessing the policy merits of the regulation, nor does the reviewing court assess whether the regulation will successfully meet its objective.

The College no doubt argued that the Katz principles should be followed in this review. However Justice Ouellette distinguishes Katz. This exchange is captured in paragraph 32 of the decision as follows:

It is therefore the College’s position that the actions of the College in adopting the Inducement Prohibitions should be subjected to the analysis under the Katz principles. In that regard, it is important to determine exactly what Katz stands for. In my view, Katz stands for the principle that where the review is one of vires, then a guide has been provided as to how the application of the correctness review standard should proceed. Katz is not a case dealing with the selection of the applicable standard of review for vires challenges. Rather, it outlined the analytical framework for application when conducting substantive or merit inquiry in relation to vires challenges of administrative legislation. (emphasis is mine)

Since Justice Ouellette is focused here on the issue of selecting the standard of review, he distinguishes Katz.

But there must have been some confusion on this point during the hearing – it isn’t entirely clear why the selection of a standard of review is directly at issue in this case and deserving of such a lengthy dissertation.  And moreover, it seems to me that Katz is directly applicable to this case, as the substantive dispute is the vires of subordinate legislation – the inducement prohibition in the Code – which is very much the issue addressed in Katz. How this Court ended up focusing entirely on the Dunsmuir principles to select the standard of review is a mystery to me. Indeed it is noteworthy that the Supreme Court of Canada makes no reference to Dunsmuir in its 2013 Katz decision. Moreover, while we might read Katz as applying a ‘correctness’ standard on a vires determination, such a reading does need to grapple with the presumption of validity cited in Katz which seems to incorporate some aspects of deference as well. Justice Ouellette makes no reference to this in his distinguishing of Katz.

I think the application of the Dunsmuir principles to the issue concerning the vires of subordinate legislation has produced something of a jurisprudential mess here – a mess perhaps foreshadowed by the need for Justice Ouellette to coin the term ‘administrative legislation’. I’m not sure exactly what that phrase refers to. I think what is meant is ‘subordinate legislation’ – being legislation enacted by a delegate of the Legislature, with the delegate here being the College under authority given by the Health Professions Act.

Justice Ouellette goes on to apply the Dunsmuir principles on standard of review and concludes the standard to apply here is correctness on the basis that (1) the question of whether the inducement prohibitions in the Code are ultra vires the College is a jurisdictional question (at paras 37 – 40) as per Dunsmuir, and (2) the question of what constitutes the ‘public interest’ under the Health Professions Act is a question of law that is both central to the legal system as a whole and outside the College’s area of specialization (at paras 41 – 57) and thus also attracts correctness under Dunsmuir. With respect, I don’t think either of these grounds are proper applications of the Dunsmuir principles on selecting the standard of review.

Briefly put, a true question of jurisdiction is one which requires the College to ask whether it has the legal authority to embark on the line of inquiry posed by the question. It is difficult to see why the College needs to ask itself this sort of question in relation to inducement prohibitions that seek to ensure licensed pharmacists make healthcare decisions based on the medical needs of the patient. The Health Professions Act seems full of provisions that give the College power to make these sorts of determinations.

But the reasoning in ground (2) is probably the more difficult aspect of this decision. To begin with, the reference to ‘public interest’ in the Health Professions Act considered by Justice Ouellette is set out in the overall purpose section which states the College must carry out its activities in a manner that protects and serves the public interest (section 3(1)(a)). This is the statutory hook used by Justice Ouellette to conclude that this case raises a question of law that is of general importance to the legal system as a whole and outside the specialization of the College. Justice Ouellette provides an explanation for this in paragraphs 41 to 57, and I will let readers view it for themselves. I will simply state that this reasoning does not accord comfortably with the principles of judicial deference espoused in Dunsmuir.

I remember being disappointed in 2013 that the Supreme Court of Canada did not more carefully situate its reasoning in Katz within the broader context of administrative law. Katz deals with the vires of a regulation enacted by the Ontario legislature, and it would have been nice for clarity had the Supreme Court confirmed whether its Katz principles applied likewise to subordinate legislation enacted by delegates of the legislation – possibly adding another exception to the presumption of deference in judicial review. Such guidance may have proven useful in this case.

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