By: Alice Woolley
PDF Version: The Problem of Judicial Arrogance
In her remarkable new book Life Sentence (Doubleday Canada, 2016), Christie Blatchford describes the Canadian judiciary as “unelected, unaccountable, entitled, expensive to maintain and remarkably smug” (at pp. 33-34). She argues that the process for judicial appointments and judicial discipline, along with the structure and conduct of an ordinary trial, create judicial arrogance. And that arrogance, even if not universal, is both systemic and common enough to corrode and undermine the pursuit of justice. She also suggests that actors in the legal system are complicit in judicial arrogance while simultaneously having considerable arrogance of their own: lawyers and judges alike deny the rationality and dignity of the “non-lawyer,” refuse to admit their own faults, and tend both to aggrandize official power and to subdue public criticism.
I wish I could disagree with Ms. Blatchford. But I can’t. I have to reluctantly concede the uncomfortable truth of her fundamental allegation: we undermine our legal system through our own arrogance, and particularly in how we create, encourage and reinforce judicial power, unaccountability and – at the end of the day – judicial conduct that can be fairly described as arrogant.
I’ll begin with the expected caveat. I don’t think all judges are arrogant. I don’t even think most judges are arrogant. Indeed, for the purposes of my argument it can be true – and may be true – that no Canadian judge is an arrogant person.
But I do think three things. I think some judges act arrogantly. I think our system both encourages and does not discourage acts of judicial arrogance. And I think acts that demonstrate judicial arrogance create injustice.
Three recent examples support my point.
The first arises from the decision of Judge Denny Thomas to convict Travis Vader of second degree murder under s. 230 of the Criminal Code, a statutory provision that has been unconstitutional for 26 years. As cogently argued by Peter Sankoff, Judge Thomas’s decision reflects poorly on Parliament for its failure to amend the Criminal Code. It may also reflect poorly on Judge Thomas’s criminal law competency.
There is, though, another way to look at it – at least potentially, depending on what emerges about how the s. 230 error came to be. Not surprisingly, the Crown did not rely on s. 230 in its written argument. Even less surprisingly, nor did the defence. The question is, then, how did s. 230 come to be so central to the decision? At least one possibility is that Judge Thomas on his own volition, without asking for further submissions from the Crown or defence on its applicability, decided to apply a different provision of the Criminal Code than those that were argued. I do not know if this is what happened. But if it did, it raises a concern beyond the error itself. It would take a particular and troubling kind of confidence for a judge in an adversarial system of justice, which relies on the evidence and argument of the parties, to think that he knew enough of the law and the facts to decide what law properly applies without either.
Judge Thomas did not need Parliament to amend the Criminal Code (although it should have). He did not need to know that s. 230 was unconstitutional. All he needed to do was consult with the parties on the key legal issue he thought arose in the case before releasing his decision. If he did not, that failure – the failure to consider the possibility that the parties may know more than you do or that they may have something useful to contribute to your decision-making process – at minimum suggests a lack of humility, and might even be described as an example of judicial arrogance. And as a lack of humility that led to injustice – the injustice of a person being convicted pursuant to an unconstitutional provision.
The second example arises from the hearing into the conduct of Justice Robin Camp. At his hearing, a significant part of Justice Camp’s explanation for his conduct was that he did not know the law on sexual assault; that he had received inadequate training; that he had conducted only one sexual assault trial prior to the Wagar case which gave rise to the complaint against him; and that, in general, “I didn’t know what I didn’t know”. Yet recall for a moment what Justice Camp has conceded was inappropriate in his conduct of the trial, and for which he has apologized: that he asked inappropriate questions of the complainant about her conduct while she was testifying, he made inappropriate personal comments to the prosecutor in response to her argument, and he fell prey to myths about sexual assault.
Given his defence and his acknowledged misconduct, consider this: Justice Camp knew that he had never studied criminal law or constitutional law at a Canadian law school. He knew that he had never practiced in those areas as a lawyer in Canada. He knew this was only his second sexual assault trial. He claimed that he had not received extensive training in the area. He also knew – he must have known – that as a judge in an adversarial trial one option open to him was to sit silently and quietly and listen to the witnesses and the lawyers, making such rulings as he was asked or required to make, and issuing a decision at the end. But Justice Camp didn’t do that. Instead he was actively interventionist, asking questions of the complainant, giving personal advice to the accused on his dealings with women in the future, and aggressively questioning the prosecutor.
This suggests that the problem is not just that Justice Camp didn’t know what he didn’t know. It was that he assumed that he knew a great deal. He assumed he knew enough to be interventionist in an adversarial proceeding – to not just be a judge, but to be an active and interventionist judge. Despite every reason to know that he was ignorant, he assumed he was one of, if not the, most knowledgeable person in the room. Justice Camp needed to know what he didn’t know. But, even more, he needed not to assume that he knew a lot. Making that kind of assumption is, I would suggest, a pretty good example of judicial arrogance. And, again, one that obviously led to injustice as evidenced by the Court of Appeal’s reversal of Mr. Wagar’s acquittal and the need for a new trial.
The third example is less extreme than the first two and is not directly linked to injustice. But it’s a problem I’ve written about before and in my view it is both troubling, and suggests the more systemic problem of a culture where conduct that looks like arrogance is permitted, and even celebrated. In the recent decision of the Supreme Court in Canada (Attorney General) v. Igloo Vikski Inc. 2016 SCC 38, the majority, in a judgment written by Justice Brown, invoked the spirit of Lord Denning to begin its decision like this:
In wintertime ice hockey is the delight of everyone. Across the country, countless players of all ages take to ice rinks and frozen ponds daily to shoot pucks at the net. Often the puck is stopped or turned aside by a goaltender blocking it with a blocker or catching it with a catcher. This is notoriously difficult business. The goaltender’s attention must remain fixed on the play, and not on off-ice matters. His or her focus must not drift to thoughts of the crowd, missed shots or taunts from opponents. And, certainly, the goaltender should strain to avoid being distracted by the question before the Court in this appeal — being whether, for customs tariff classification purposes, he or she blocks and catches the puck with a “glove, mitten or mitt”, or with an “article of plastics” (para. 1).
The argument in favour of decisions like this is they make the Court’s ruling accessible. Some have described this judgment as awesome. I’m sure it would lighten the dullness of life for law students required to read it. In my view, however, judgments like this also do something much less appealing and much more troubling – they turn a decision about the rights and interests of parties before the court into an opportunity to show off the cleverness and erudition of the judge.
Don’t get me wrong. I don’t think injustice arose from this example of judicial wit and rhetorical sprightliness. I too liked reading Lord Denning’s decisions in law school. My guess is the judge’s intentions here were well-meaning and light-hearted. But I nonetheless think it is a bad example to set. It reinforces the systemic judicial arrogance that Ms. Blatchford so vigorously skewers.
When a decision gets to the Supreme Court so much is at stake for the parties. Tens if not hundreds of thousands of dollars in legal fees. The substantive issue in the case. Sometimes their liberty. And the judge who uses that moment – where everything is at stake for the parties and nothing is at stake for him – to be clever and witty for a purpose extraneous to the decision itself has acted improperly. A judge can be clever and erudite. He can even be funny. But he should do so only where necessary to achieve justice in the matter at hand, not to entertain himself or bolster his reputation. Otherwise he has put himself and his interests in the decision and, by doing so, has contributed to a culture where arrogance, rather than humility, becomes the norm.
What follows from all of this? As I acknowledged earlier, I am not labeling all judges as arrogant. In two of the examples here the behaviour could perhaps be better described as indicating a lack of humility than as an example of arrogance. And even where a judgment or decision looks arrogant, that doesn’t mean that the judge who made it is an arrogant person. We are more than the things that we do from time to time, and our behaviour is conditioned by the expectations and culture of the roles that we play.
But I do want to say unequivocally that judicial arrogance is wrong. It is a wrong that gets committed too often and called out too little. Judges need to strive for humility – to recognize it as a virtue. Judges may be independent, but their independence exists to deliver justice to the public, not to give judges a public forum to say what they want, when they want, to whom they want. It requires, in short, humility. And in humility’s absence I cannot blame life-long observers like Ms. Blatchford from “falling out of love with the Canadian justice system (especially judges”).
This post originally appeared on Slaw and is cross-posted with permission.
This post may be cited as: Alice Woolley, “The Problem of Judicial Arrogance” (October 21, 2016), online: ABlawg, http://ablawg.ca/wp-content/uploads/2016/10/Blog_AW_Judicial_Arrogance_Oct2016.pdf
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By: Frances Woolley
PDF Version: A Supreme Folly
Matter Commented On: The Bilingual Requirement for Supreme Court of Canada Justices
Last August, Prime Minister Justin Trudeau announced that, in future, only candidates who are “functionally bilingual” in French and English will be recommended for positions on the Supreme Court of Canada. With the information released subsequent to the nomination of Malcolm Rowe to the Court, we now have some sense of what this means. At a minimum, a functionally bilingual candidate should be able to read and understand court materials in both English and French, as well as discuss legal matters with their colleagues, converse with counsel in court and understand oral submissions in both languages.
Realistically, it is hard to imagine anyone being able to understand complex legal reasoning in both official languages – and, furthermore, to demonstrate convincingly that they had the ability to do so – unless they already had some experience using both English and French in a work environment. Yet opportunities to function in both French and English are unevenly distributed across the country, raising the possibility that the new bilingualism requirements will significantly alter the pool of potential Supreme Court appointees.
To get some idea of how requiring functional bilingualism will change the face of the Supreme Court, I used the public use micro file (PUMF) of Canada’s 2006 Census to estimate just how many people use both official languages at work on a regular basis, and thereby gauge the percentage of workers who are currently functionally bilingual. Table 1 shows my estimates, based on a sample of over four hundred thousand Canadian workers between the ages of 25 and 75, of the percentage of Canadians who regularly use both official languages at work.Table 1: Percentage of Canadian residents who regularly use both French and English in the workplace, 2006, by region. Estimated percentage With 95% confidence, the true figure is No lower than No higher than Atlantic provinces 9.4% 9.0% 9.7% Quebec 30.1% 29.8% 30.4% Ontario 4.6% 4.5% 4.7% West and north 1.4% 1.3% 1.4% Number of observations: 408,436. Calculated from 2006 Census PUMF using the province (PR) and language of work (LW) variables.
The point of this table is that there are huge regional disparities in the use of Canada’s two official languages in the workplace – and hence in the opportunities to acquire and maintain functional bilingualism. Fewer than two percent of people living west of Ontario or in the territories use both English and French in the workplace on a regular basis, compared with 30 percent of people living in Quebec.
Now it could be objected that these numbers include all workers from truck drivers to taxidermists, hence are of limited relevance when thinking about the bilingualism of potential Supreme Court nominees. Unfortunately the Census public use micro file cannot used to assess directly the language capabilities of lawyers, because it does not contain sufficiently finely-grained educational and occupational information. However, it is possible identify a group of Census respondents who are, if not lawyers, at least “lawyerlike”, and find out how many of these are likely to be functionally bilingual.
“Lawyerlike” respondents to the 2006 Census are people who:
Of the 530,231 respondents between the ages of 25 and 74 in the public use census microfile, just 2,488 are “lawyerlike” in that they meet all of the above criteria. If we restrict our group to those earning $80,000 a year in 2005, just 1,228 are lawyerlike. So while the lawyerlike group encompasses other professionals, like social workers, it is selective enough that the language capabilities of this group should be broadly indicative of the functional bilingualism of the Canadian legal community.
So just how many of these lawyerlike respondents are demonstrably functionally bilingual? Table 2 gives some indication:Table 2: Percentage of “lawyerlike” respondents who regularly use both French and English in the workplace, 2006, by region. Estimated percentage With 95% confidence, the true figure is No lower than No higher than Atlantic provinces 15.6% 9.4% 21.7% Quebec 43.1% 39.3% 47.0% Ontario 13.7% 11.6% 15.8% West and north 2.1% 1.0% 3.2% Number of observations: 2,488. Calculated from 2006 Census PUMF using the province (PR) and language of work (LW) variables.
Comparing Table 2 and Table 1, what is striking is that, when we narrow down our focus of analysis to more professional, lawyerlike workers, the number of people using both English and French in the workplace rises dramatically in Quebec, from 30 percent to 43 percent of workers. It also becomes non-trivial – around 14 to 16 percent – in the Atlantic provinces and in Ontario. Yet in the West and the North, there are still only around two percent of workers reporting using both French and English regularly in the workplace – an increase of just 1/2 of one percent over the number reported in Table 1.
It could be argued that the numbers in Table 2 over-estimate the extent of bilingualism within the east-of-Manitoba legal community. The “lawyerlike” group identified above includes, for example, federal government policy and program officers, who are much more likely than the typical Canadian to have a bilingual workplace.
One way to narrow the “lawyerlike” group down, and make it more representative of potential Supreme Court nominees, is to take advantage of the fact that top-ranking legal professionals typically have relatively high earnings. Table 3 attempts to eliminate some of the non-lawyers in the “lawyerlike” group by focusing on just the functional bilingualism of lawyerlike people with market incomes (i.e. earnings plus investment income) above $80,000 a year in 2005.Table 3: Percentage of “lawyerlike” respondents earning over $80,000 annually who regularly use both French and English in the workplace, Canada, 2006, by region. Estimated percentage With 95% confidence, the true figure is No lower than No higher than Atlantic provinces 15.7% 7.1% 24.3% Quebec 57.6% 51.5% 63.7% Ontario 14.6% 11.7% 17.5% West and north 1.8% 0.4% 3.2% Number of observations: 1,228. Calculated from 2006 Census PUMF using the province (PR) and language of work (LW) variables.
With this narrower definition of “lawyerlike”, the regional differences in functional bilingualism become even more pronounced. Over half of the Quebec respondents in this more elite group of lawyerlike individuals used both French and English in the workplace regularly, compared to fewer than two percent of those in the West and the North.
An even more refined definition of “lawyerlike” individuals would include only those with market incomes above $100,000 in 2005. When I repeated the analysis for this group – comprising just 938 respondents – I obtained very similar patterns of language use to those shown in Table 3. Over half of elite lawyerlike respondents living in Quebec use both French and English in the workplace, compared to fewer than 2 percent in the western and northern parts of the country.
When Prime Minister Justin Trudeau’s government announced the new functional bilingualism requirement for Supreme Court justices, it also reiterated its commitment to nominating appointees who reflect a diversity of backgrounds and experiences. Yet it will face hard trade-offs between diversity, excellence, and bilingualism. Even if the numbers reported in Table 3 seriously underestimate the extent of functional bilingualism in Western Canada – even if there are, say, five times as many functionally bilingual lawyers as these numbers suggest – the new bilingualism requirement will eliminate around 90 percent of potential Supreme Court nominees from the West and the North. It is hard to believe that it is possible to reduce the size of the candidate pool so dramatically without compromising either excellence or diversity or both.
Achieving French-English bilingualism requires appropriate opportunities, as well as ability and effort. While linguistic abilities may be fairly evenly distributed across the country, opportunities to learn both French and English are not. A family in Trois-Rivières can provide their children with a 100 percent English-immersion experience by driving three hours to northern Vermont. For a Vancouver family, the nearest authentic French-immersion experience is a four-and-a-half-hour flight away. For people whose first language is either English or French, achieving bilingualism requires learning a second language. For the many Canadians who grew up speaking a “non-official” first language, achieving functional English-French bilingualism means mastering three languages, not two. Since visible minority, Aboriginal and immigrant Canadians are disproportionately likely to have a non-official first language, it is particularly challenging for them to achieve French-English bilingualism.
In Table 4 I show just how much external and cultural factors influence achievement of bilingualism. Because I want to widen the scope of the analysis to include issues relating to identity, I use a broader definition of bilingualism here, categorizing anyone as bilingual if they can “speak English or French well enough to conduct a conversation”. The best way of thinking about the numbers in Table 4 is as a measure of the pool of people who could, with sufficient effort, potentially become functionally bilingual. By way of contrast, the earlier tables were trying to get at the number of people who are currently functionally bilingual.Table 4: Percentage of adults aged 25 to 74 able to speak both English and French well enough to have a conversation in that language, Canada, 2006 All Quebec Rest of Canada Number of respondents All 18.7% 45.0% 10.1% 525,933 Visible minority 9.6% 46.9% 4.3% 75,061 Immigrant 12.2% 52.5% 5.8% 127,942 Aboriginal 11.8% 38.9% 8.7% 16,136 “Lawyerlike” 37.6% 72.1% 25.8% 2,488 Source: Calculated by the author from the 2006 Census public use micro file.
Unsurprisingly, immigrant, visible minority and Aboriginal Canadians are significantly less likely than the rest of the Canadian population to be bilingual in both French and English. What is perhaps more interesting, however, is the interaction between region of residence, ethnic identity, and bilingualism. In Quebec, immigrant and visible minority Canadians are actually more likely than the rest of the population to be bilingual, whereas in the Rest of Canada, the reverse is true. Fewer than one in twenty visible minority Canadians outside Quebec is capable of holding a conversation in both English and French.
I presume that the idea of a having functionally bilingual Supreme Court is to promote better and fairer decision-making: any case could be heard by any judge, thereby eliminating any systematic disparities in judgments that could arise if only certain judges heard certain types of cases. Those appearing before the Court would be free to use their language of preference, either French or English, without worrying that their case could be compromised.
Yet while, as an ideal concept, a bilingual court promotes inclusivity, the reality is elitist. Only certain people, who have had access to certain experiences throughout the course of their life, are ever likely to meet the bilingualism requirement. Yes, functional bilingualism will ideally mean that those appearing before the court have a genuine choice of language (as long as that choice is French or English). Personally I am more concerned about the choice of judges. It is cold comfort to a person appearing before a court without deep knowledge of western Canadian institutions or constraints, without visible minority or Aboriginal representation, without a single member who has a science or mathematics background, to know that their position can be imperfectly comprehended in either official language.
Guest blogger Frances Woolley is a Professor of Economics at Carleton University. She tweets @franceswoolley. This post also appeared on Worthwhile Canadian Initiative and is cross-posted with permission.
This post may be cited as: Frances Woolley , “A Supreme Folly” (October 20, 2016), on- line: ABlawg, http://ablawg.ca/wp-content/uploads/2016/10/Blog_FW_BilingualSCC_Oct2016.pdf
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By: Jennifer Koshan
PDF Version: (Currently unavailable)
Case Commented On: Brent Bish on behalf of Ian Stewart v. Elk Valley Coal Corporation, Cardinal River Operations, et al, SCC Case No 36636, leave to appeal granted from Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 (CanLII)
On Monday, the Prime Minister’s Office announced that Justice Malcolm Rowe of the Court of Appeal of Newfoundland and Labrador has been nominated to the Supreme Court of Canada. A question and answer session with Justice Rowe will take place on Tuesday October 25, 2016 at the University of Ottawa, and the PMO has invited two law students from every Canadian law school to attend. We will be blogging about the Q & A event on ABlawg, so stay tuned for that.
Provided Justice’s Rowe’s nomination is accepted, there will soon be a full slate of justices on the Supreme Court to hear this fall’s appeals. The Globe and Mail ran an interesting article a couple of weeks ago noting some of this session’s more interesting hearings. One case that was not mentioned is one that we have been watching on ABlawg – Stewart v Elk Valley Coal (see here, here and here – the case also goes by the name of Bish, the union member who filed a complaint on behalf of Stewart). Intervener facta were filed in Stewart on October 7, and there is an important set of voices missing from those arguments. On August 12, 2016, Justice Russell Brown denied intervener status to the Canadian Human Rights Commission and the Ontario Human Rights Commission, the Manitoba Human Rights Commission, the Saskatchewan Human Rights Commission and the Yukon Human Rights Commission, who had applied to intervene jointly. He granted intervener status to:
The fact that Justice Brown had been critical of human rights commissions while writing for his law school’s blog, which was revealed at the time of his appointment to the Supreme Court in 2015, should not have swayed his decision. However, because reasons typically are not given for rejecting intervener applications, we do not know the basis for Justice Brown’s decision to exclude the human rights commissions. What might the human rights commissions have added to the appeal?
The Supreme Court provides the following summary of the Stewart case:
Human Rights – Right to equality – Discrimination on the basis of mental or physical disability – Whether the correct test for establishing prima facie discrimination in the context of mental disability should be applied differently to those suffering from addiction-related disabilities – Whether there is inter-jurisdictional consistency in the application of that legal test and across factual contexts – Whether the correct test to establish the defence of justification of a discriminatory standard as a bona fide occupational requirement should be applied differently to addiction-related disabilities – Whether there is inter-jurisdictional consistency in the application of that legal test and across factual contexts – British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees Union,  3 S.C.R. 3 – Moore v. British Columbia (Education), 2012 SCC 61,  3 S.C.R. 360 – Alberta Human Rights Act, R.S.A. 2000 c. A-25.5, s. 7.
A worker was terminated from his employment with Elk Valley Coal Corporation when he tested positive for cocaine after a loader truck he was operating struck another truck. He had previously attended a training session and acknowledged his understanding of the employer’s policy of allowing workers with a dependency or addiction to seek rehabilitation without fear of termination, provided they sought assistance before an accident occurred. The worker admitted to regular use of cocaine on his days off but didn’t think he had a drug problem prior to the accident and testing. His union filed a complaint with the Alberta Human Rights Commission, claiming the worker was fired on account of his addiction disability. The tribunal concluded that while the complainant’s drug addiction was a disability protected under the legislation, there had been no prima facie discrimination. The worker was not fired because of his disability, but because he failed to stop using drugs, stop being impaired at work, and did not disclose his drug use. Alternatively, the tribunal held that the employer had shown accommodation to the point of undue hardship.
The Court of Queen’s Bench of Alberta dismissed the appeal from the decision of tribunal but disagreed with the alternative conclusion that the worker had been reasonably accommodated. A majority of the Court of Appeal of Alberta dismissed the appeal and allowed the cross-appeal.
Under section 57(2) of the Rules of the Supreme Court of Canada, SOR/2002-156, a motion for intervention shall:
(a) identify the position the person interested in the proceeding intends to take with respect to the questions on which they propose to intervene; and
(b) set out the submissions to be advanced by the person interested in the proceeding with respect to the questions on which they propose to intervene, their relevance to the proceeding and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties (emphasis added).
Given that two of the issues in the case concern the “inter-jurisdictional consistency” in the application of the key legal tests in human rights cases – the test for establishing prima facie discrimination and the test for establishing a bona fide occupational requirement – one would have thought that human rights commissions could have provided a useful perspective. The test for prima facie discrimination in particular has been the subject of much toing and froing since the 2000s, due in large part to the influence the test for discrimination under the Charter has had in human rights matters, such that considerations of stereotyping and arbitrariness have crept in (see my article on that subject here). Recent decisions of the Supreme Court in cases such as Moore v. British Columbia (Education), 2012 SCC 61 (CanLII) have not explicitly clarified the test in spite of calls to do so, leading to ongoing confusion at the lower court and tribunal levels, as exemplified in Stewart and an earlier Alberta Court of Appeal case on addiction-related disabilities, Wright v College and Association of Registered Nurses of Alberta (Appeals Committee), 2012 ABCA 267 (CanLII), leave to appeal denied, 2013 CanLII 15573 (SCC).
The Alberta Human Rights Commission, which is a respondent in Stewart, restricts its factum to the issue of standard of review. This issue is also an important one – as indicated by the Federal Court of Appeal in Canadian Human Rights Commission v. Canada (Attorney General), 2016 FCA 200 (CanLII) at para 78, there is a “sorry state of the case law and [a] lack of guidance on when decisions of human rights tribunals interpreting provisions in human rights legislation will be afforded deference” (see also here for Shaun Fluker’s post on the handling of standard of review in Stewart). As important as this issue is, Justice Brown’s decision to deny intervener status to the other commissions means that the Stewart appeal lacks their collective expertise on the inter-jurisdictional (in)consistency in the key legal tests in human rights cases.
The intervener factum of the Council of Canadians with Disabilities and the Empowerment Council focuses on the contextual application of the test for discrimination and the bona fide occupational requirement test to persons with addiction-related disabilities. It is also a very important submission, but it does not deal with inconsistencies in the actual test for prima facie discrimination.
Predictably, the factums of the employer-side interveners – The Construction Owners Association of Alberta, Construction Labour Relations – an Alberta Association, Enform Canada, the Electrical Contractors Association of Alberta, the Mining Association of Canada, the Mining Association of British Columbia, the Ontario Mining Association, the Northwest Territories and Nunavut Chamber of Mines and the Saskatchewan Mining Association (jointly); and The Ontario General Contractors Association, the Ontario Formwork Association and the Greater Toronto Sewer and Watermain Contractors Association (jointly) – support a test for discrimination that includes considerations of arbitrariness and stereotyping, contrary to the traditional approach to prima facie discrimination (see Factum of the Construction Owners Association of Alberta et al at para 7; Factum of the Ontario General Contractors Association et al at para 7). I am not saying these factums are unimportant – they highlight the challenges in balancing the interests of employees with addictions and the interests of others in the context of safety-sensitive workplaces. But these are concerns that go to whether drug and alcohol policies can be defended as bona fide occupational requirements, and should not be used to displace or subvert the proper test for discrimination.
The only intervener factum which deals with the test for discrimination is that of the United Nurses of Alberta (UNA). It supports the Appellant’s position that a majority of the Alberta Court of Appeal misstated the test for discrimination in Stewart, in part by relying on considerations of stereotyping and arbitrariness, which improperly import employer intent into the inquiry and make it impossible to prove adverse effects discrimination (at para 21). The UNA also makes a compelling argument that many cases involving addiction-related disabilities have been improperly dealt with via a disciplinary model, which treats addiction-related conduct as culpable rather than viewing it through a human rights lens (at paras 5-9). More generally, the UNA compares the approach taken in addiction-disability cases across Canada, providing some basis for the Supreme Court to consider the inconsistencies in applying the test for prima facie discrimination in this context.
This comparative approach, and the need for tribunals and courts to interpret the test for discrimination broadly and purposively regardless of the grounds in question, are surely matters on which the human rights commissions could have usefully contributed given their unique roles in the human rights system.
This post may be cited as: Jennifer Koshan, “This Fall’s Supreme Court Hearings – A Missing Voice for Human Rights” (October 19, 2016), on-line: ABlawg, http://ablawg.ca/wp-content/uploads/2016/10/Blog_JK_StewartHRC_Oct2016.pdf
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By: Erin Sheley
Case Commented On: Regina v Sanaee, 2016 ABCA 289 (CanLII)
The year 2016 has been bleak for animals in Canada. In September, Montreal passed a new city bylaw banning the adoption of new pitbulls and pitbull mixes, and imposing stringent licensing and muzzling requirements on currently-owned dogs under threat of euthanasia. (See City of Montreal Regulation 16-060). And Parliament just voted down proposed amendments in Bill C-246, the Modernizing Animal Protections Act, which would have made modest changes to federal legislation such as banning the importation of shark fins removed from living sharks and products made from dog or cat fur. But on September 28, 2016 the Alberta Court of Appeal provided some good news for animal welfare supporters.
In R v Sanaee, 2016 ABCA 289 (CanLII), the Court of Appeal considered the appeal of a dog trainer convicted of two counts of causing unnecessary pain, suffering or injury to an animal, contrary to section 445.1(1)(a) of the Criminal Code, RSC 1985, c C-46. The facts developed at trial showed that, on two occasions, Mr. Sanaee had used an electric cattle prod to discipline dogs in his care. On one occasion he had used it in the dog’s home, as part of training to curb food aggression (at para 3). After being stunned by the prod the dog “yelped and ran into the bathroom, where he stayed for 10 minutes with his tail between his legs” (at para 4). On the second occasion Mr. Sanaee was leading a community dog walk during which, according to the testimony of multiple witnesses, he used the cattle prod on a pitbull who had not been displaying any signs of violence (at para 5). In that case the dog “yelped or cringed and appeared to be in a lot of pain each time the cattle prod was used on it” (at para 5).
At trial the Crown led expert testimony from a veterinarian who gave the opinion that a cattle prod is excessively painful for use on dogs as it is made for adult cattle who are much larger and have thicker skin (at para 6). In addition, an animal behavioral consultant testified that a cattle prod is not considered an appropriate tool for dog training (at para 6). Mr. Sanaee did not present expert opinion evidence of his own. Instead he testified that he had not in fact used a cattle prod on either occasion, and that on the first occasion he had not even brought one to the dog’s residence (at para 7).
After the trial judge rejected Mr. Sanaee’s evidence and sentenced him to six months on each count, to be served concurrently, he appealed on two grounds (at para 10):
As to the first point, Mr. Sanaee argued that to show the element of “unnecessary” pain under section 445 the Crown would have needed to establish through expert testimony that the cattle prod in question “was capable of delivering a shock of ‘X amperage and that the expert ought to have been able to establish that dogs feel pain at X amperage’” (at para 14). The trial judge had stated in her reasons that she was not required to rely on expert testimony to convict Mr. Sanaee in the first place. The Court of Appeal agreed. The Court rejected Mr. Sanaee’s argument on the grounds that multiple lay witnesses testified to the physical manifestations of pain exhibited by both dogs (at para 15).
It has been established since R v Graat,  2 SCR 819,1982 CanLII 33 that lay witnesses are competent to testify to opinions based on “compendious” facts such as bodily plight or emotional state. (Graat at p 835). In that case, a police officer testified to the accused’s intoxication based on his physical observations. As Justice Dickson then observed: “I can see no reason in principle or in common sense why a lay witness should not be permitted to testify in the form of an opinion if, by doing so, he is able more accurately to express the facts he perceived.” (at p 837). Graat has come to stand for the principle that lay witnesses may, rather than simply providing a laundry list of purely physical observations, synthesize those observations into an opinion about basic emotional and physical states.
In applying the Graat rule to Sanaee, the Court of Appeal implicitly rejected a very old myth about animal suffering: namely, that animals cannot feel pain in the way that human beings can. Seventeenth-century philosopher René Descartes posited that animals lack consciousness, and that assumption gave rise to a centuries-long justification for ignoring their suffering in clinical and other settings. Until very recently, scientists who asserted that animals do feel pain like humans, based on their analogous physical responses, were told they had the burden of affirmatively proving it. See Bernard Rollin, The Unheeded Cry: Animal Consciousness, Animal Pain, and Science (New York: Oxford University Press, 1989) at p 117-118. As science journalist Stephen Budiansky argued as recently as 1998, “sentience is not sentience, and pain isn’t even pain…Our ability to have thoughts about our experiences turns emotions into something far greater and sometimes far worse than mere pain…Consciousness is a wonderful gift and a wonderful curse that…is not in the realm of the sentient experiences of other creatures.” (Budiansky, If a Lion Could Talk: Animal Intelligence and the Evolution of Consciousness (New York: Free Press, 1998) at p 193-194)
In more recent years there appears to be greater scientific support for the proposition that animals do in fact feel pain in the same manner that humans do – a fact that would seem obvious to any pet owner who has ever inadvertently stepped on their companion’s tail. While it may therefore also seem obvious that a human witness should be able to accurately report the manifestations of physical suffering in an animal, this assumption has been so controversial throughout much of the modern history of science that any judicial recognition of the fact is deeply significant. In rejecting Mr. Sanaee’s argument on this head, the Court of Appeal also rejected a Cartesian binary that has justified a great deal of cruelty to animals.
Mr. Sanaee raised his second issue for the first time on appeal (at para 17). He claimed he acted with colour of right under section 429(2) of the Criminal Code, which provides a defence to offences under sections 430-466 of the Code where the accused can show “that he acted with legal justification or excuse and colour of right.” (at para 17). The defence of colour of right generally arises in cases involving property offences – where the accused had a mistaken but genuine belief in legal permission to make use of another person’s property. Here Mr. Sanaee tried to argue that his use of the cattle prod was within the scope of permission granted by the owners of the dogs he was working with.
The Court quickly dispatched with that theory on the grounds that the appellant had failed to raise it at trial (at para 18). Indeed Mr. Sanaee had testified, not that he was given permission to use the prod, but that he had not in fact used the prod at all (at para 17). As a result, the Court held that the defence of colour of right had no air of reality, as there was no evidence on the record upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true (at para 21, citing R v Cinous, 2002 SCC 29 (CanLII),  2 SCR 29 at para 49).
While this procedural defect resolved Mr. Sanaee’s second claim as a matter of law, the Court, in obiter, made an even more significant statement about its substantive merits:
Belief by the appellant that he was entitled, in law, to inflict unnecessary pain in some circumstances does not create a “colour of right” to do so. This is a mistake of law. Further, even if a dog owner consented to or acquiesced in the use of a cattle prod, an owner cannot lawfully consent to the infliction of unnecessary pain (at para 23).
Had Mr. Sanaee raised the defence at trial, he would have had a plausible argument based on statutory interpretation. Section 429 creates the colour of right defence for the fairly small number of offences in Part XI of the Code. He could have therefore argued that Parliament explicitly intended for it to apply to each of them. But the Court rejected that reading, stating, essentially, that one cannot be said to believe in colour of right to do something inherently illegal. The belief that one has been granted such a right is therefore a mistake of law, and not a defence at all. In further stating that even actual consent by the owner would not provide a defence the court recognizes that the animal cruelty offence created by Section 445 confers protection on animals beyond their intrinsic property value to their owners. Rather, the animal itself is the beneficiary of the protection.
In just a few words of obiter, then, the Court touches on the massive controversy at the heart of animal protection legislation: can animals have rights? To avoid answering the rights question, legislators and commentators generally conceive of animal welfare laws as protecting the public morality, in the same way as vice offences. We don’t need to ask the uncomfortable question if we recognize a public moral interest in prohibiting unnecessary cruelty in our society. Yet the Court does not mention the public interest at all. It simply notes that an owner cannot waive their pet’s freedom from unnecessary pain secured by section 445 of the Code. Is this implicit recognition of a “right”? Perhaps not in the way we understand rights as immutable human freedoms secured by constitutional documents. But in the weaker sense of a legislatively conferred benefit flowing to a specific party, it certainly sounds like it.
In Sanaee, therefore, in only four short pages of reasons, the Alberta Court of Appeal drew some fairly significant conclusions about the legal and moral status of animals in Alberta. Those who seek to use the existing laws to better protect our animal companions have a significant new precedent on their side. Whether this case will prove generative remains to be seen, but it is a bright spot at an otherwise low point for animal protection.
This post may be cited as: Erin Sheley, “Dogs Getting Their Day: Alberta Court of Appeal Rejects End-runs Around Animal Cruelty Laws” (October 14, 2016), on-line: ABlawg, http://ablawg.ca/wp-content/uploads/2016/10/Blog_ES_Sanaee_Oct2016.pdf
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By: Nigel Bankes
Decision Commented On: Re Walter Energy Canada Holdings, Inc., 2016 BCSC 1746 (CanLII)
In 2002 the Supreme Court of Canada handed down its decision in Bank of Montreal v Dynex Petroleum Ltd, 2002 SCC 7 (CanLII) in which it confirmed that a gross overriding royalty (GORR) carved out of a working interest in land was capable of subsisting as an interest in land as a matter of law. Whether any particular GORR created an interest in land, or simply a contractual claim, depends upon the intentions of the parties as revealed in the language adopted by the parties to describe the GORR. There is presumably no objection to expressing this intention with words such as “the parties intend that the right and interest created by clause x of this agreement is to be an interest in land” – so long as this intention is not contradicted by other language in the agreement when construed as a whole in accordance with the usual rules on the interpretation of contracts. See, Nigel Bankes, Private Royalty Agreements: A Canadian Viewpoint, Rocky Mountain Mineral Law Institute (2003). While Dynex definitively settled the issue of principle (can a GORR as a matter of law ever be an interest in land) it still requires an analysis of the intentions of the parties in any particular case, although this should be easier to demonstrate for post-2002 agreements than for pre-2002 agreements. That said, the matter had been widely litigated during the previous 40 years, and counsel should at least have been aware, well before then, of the need to use language appropriate to creating an interest in land rather than a contractual interest – if that was indeed the intention of the parties.
The present case involved a GORR pertaining to certain coal mining licences in British Columbia. The agreement (the GRA) was executed in 2000 by WCC and three geologists, including Mr. James, in return for their assistance in identifying and acquiring the coal properties in question. The Walter Group is the successor in interest to WCC (by way of an acquisition of shares) and, as the petitioners in the case, had filed for protection under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (CCAA) (for the background see Walter Energy Canada Holdings, Inc. (Re), 2016 BCSC 107 (CanLII)). In this application, the petitioners were seeking approval of a transaction which would see the sale of the petitioners’ mining properties to Conuma Coal Resources. As part of the proposed asset purchase agreement (APA) the parties made it clear that the GRA was “an excluded contract” and that Conuma would not be assuming responsibility for it. Mr. James took the view that this was not an option which was open to the petitioners and Conuma on the basis that the GRA accorded Mr. James and the other parties interested in the GORR an interest in land which ran with the assignment of the coal licences.
The GRA provided in relevant part as follows:
A. The Company has made application for and expects to become the beneficial owner of a 100% interest in and to certain coal interests in the West Brazion, Burnt River, Wolverine and Mount Spieker properties… (the “Properties”).
B. Each of the Investors [Mr. James et al] have assisted the Company in acquiring and maintaining the Properties;
C. The Company wishes to pay a royalty to the Investors for the Investors’ contributions on the terms and conditions herein contained.
THIS AGREEMENT WITNESSES THAT in consideration of the payment by the Purchaser to the vendors of $1.00 and other good and valuable consideration, receipt of which is hereby acknowledged, the parties mutually covenant and agree as follows:
2.1 As consideration for advancing the funds, the Company will pay a royalty (the Royalty”) of one percent (1%) of the price bracket (FOBT at Port) for all product tonnes produced from the West Brazion, Mount Spieker and Wolverine coal properties on a quarterly basis to the Investors as set out in Schedule “2.1″…
3. THE COMPANY’S REPRESENTATIONS AND WARRANTIES
3.1 The Company represents and warrants to and covenants with the Investors as follows:
(c) the Company is or will be the beneficial owner of all of the coal licenses comprising the Properties (the “Coal Licenses”), free and clear of all liens, charges and claims of others and no taxes or rentals are or will be due in respect of any thereof;
4. COAL LICENSES
4.1 Upon the Coal Licenses being granted and recorded under it in the Company’s name, the Company will maintain the Coal Licenses in good standing with the mining recorder, or such other entity with jurisdiction over such matters.
4.2 In the event that any of the Coal Licenses comprising the Properties are not granted or the Company decides to cancel any applications prior to the Coal Licenses being granted, the Investors will be repaid proportionately immediately upon the funds being returned by the government.
4.3 Any forfeiture of the Coal Licenses shall be by mutual consent of the Parties to this Agreement, and such consent shall not be unreasonably withheld. In the event that the Company forfeits the Coal Licenses, the Company will assign the Coal Licenses to the Investors for a minimum period of 30 days prior to the date the forfeiture is to become effective.
8.1 This agreement may not be assigned without the written consent of all the parties, which consent shall not be unreasonably withheld.
9.1 This Agreement will enure to the benefit of and be binding upon the parties and their respective successors, heirs, executives, administrators and permitted assigns.
Justice Fitzpatrick carefully considered the main pre- and post-Dynex cases (including Vandergrift v. Coseka Resources Ltd., (1989) 67 Alta LR (2d) 17, 1989 CanLII 3163 (AB QB), St. Lawrence Petroleum Ltd. v Bailey Selburn Oil & Gas Ltd. and H.W. Bass & Sons, Inc., 1963 SCC 76 (CanLII),  SCR 482, Saskatchewan Minerals v Keyes, 1971 SCC 183 (CanLII),  SCR 703,Vanguard Petroleums Ltd. v Vermont Oil & Gas Ltd.,  2 WWR 66 (Alta. SC), 1977 CanLII 648 (AB QB), Canco Oil & Gas Ltd. v Saskatchewan,  4 WWR 316, 1991 CanLII 7788 (SK QB), Scurry-Rainbow Oil Ltd. v Galloway Estate,  4 WWR 454, 1993 CanLII 7025 (AB QB); aff’d 1994 ABCA 313 (CanLII),  1 WWR 316, and St. Andrew Goldfields Ltd. v Newmont Canada Ltd.,  OJ No 3266, 2009 CanLII 40549 (ON SC); aff’d 2011 ONCA 377, before concluding that the words used by the parties to this contract did not evidence an intention to create an interest in land but only a contractual interest. Important factors in her decision included the following (at para 67):
(a) Walter Energy is specifically stated to have “acquired” the licenses and to be the beneficial owner of them free of any “claims of others” (Recital B and clause 3.1(c));
(b) … Mr. James had no direct rights in respect of the coal licenses and he relinquished any further control in respect of them. Mr. James had no assurance that he would gain any consideration under the royalty if the Properties were never put into production;
c) clause 2.1 does not include any formal conveyancing language to, for example, “grant, assign, transfer orconvey” any rights to Mr. James in relation to the coal licenses (contra Canco, Blue Note and Scurry-Rainbow). No such words, or similar words, are used; rather, it is simply an obligation to pay the royalty;
d) with Mr. James having some control over WCC at the time, it would have been a simple matter to have included clear language to the effect that Mr. James was to be granted a royalty that would “run with the land” (seeCanco). As in Vandergrift, at p. 27, the choice of language was within his control but no such clear language was used;
e) the reference to the payment of the royalty being based on what is “produced” from the coal properties is simply the means by which the parties agreed to calculate the amount of the royalty. It is not a reference to a royaltyin the “Properties” or coal licenses: see Lawrence, Saskatchewan Minerals, Vanguard, Vandergrift and St. Andrew Goldfields. I note that the parties disagree as to whether the royalty is due upon production (i.e. once removed from the land), or upon the coal being shipped to port and priced at that time for the purposes of calculating the 1% royalty. In my view, this is not a relevant distinction as, in any event, the coal would have been severed from the lands by that time;
f) clause 4.3 of the RSA indicates that the parties did consider what rights the Investors would have in relation to the coal licenses in the future. Those rights were specifically addressed in the context of a forfeiture of the Properties … a circumstance which is not relevant here. Further, the RSA does anticipate that any assignment of the RSA by WCC would require the consent of Mr. James (clauses 8.1/9.1). However, that circumstance is not what is happening here, since no one has sought to assign the RSA, let alone without Mr. James’ consent; and
g) importantly, the RSA does not restrict the ability of Walter Energy to sell the Properties, and it also contains no obligation on the part of Walter Energy to require any purchaser of the Properties to assume its obligations under the RSA.
While this reasoning trades on all of the artificial and sometimes spurious distinctions which characterized the pre-Dynex jurisprudence, and while it is hard to believe why anybody would create a GORR that was not intended to be an interest in land, it is difficult to fault Justice Fitzpatrick’s conclusion. This is because Dynex still requires assessment of the intentions of the parties as revealed in the language used in the document and any relevant surrounding commercial circumstances, and as such this line jurisprudence, muddled and unsatisfactory as it is, continues to be relevant at this stage of the analysis.
This post may be cited as: Nigel Bankes, “Pre-Dynex Royalty Agreements Continue to Spawn Interest in Land Litigation” (October 13, 2016), on-line: ABlawg, http://ablawg.ca/wp-content/uploads/2016/10/Blog_NB_WalterEnergy_Oct2016.pdf
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By: Evaristus Oshionebo
Case Commented On: Houle v Knelsen Sand and Gravel Ltd., 2016 ABCA 247 (CanLII)
This case raises a significant legal question regarding the effect of a ‘whole agreement clause’ (also referred to as ‘entire agreement clause’) on pre-contractual misrepresentations. Put differently, does a whole agreement clause in a written contract preclude liability for misrepresentations occurring in the course of negotiating the contract?
The facts of this case are that Wapiti Gravel Supplies (Wapiti) obtained an exploration permit and a surface lease to exploit gravel on a parcel of land. Wapiti engaged Silvatech Resource Solutions (Silvatech) to assess potential gravel deposit in the land. Silvatech reported that there might be an estimated 444,850 tonnes of gravel in the land. Subsequently, Wapiti transferred its lease to the Appellants. Having obtained the lease from Wapiti the Appellants approached the Respondent regarding the gravel deposit. The Appellants furnished the Respondent with the Silvatech data. On the basis of the data the Respondent’s manager concluded that the land would yield 457,000 tonnes of gravel. The Respondent agreed to purchase the rights to the gravel deposit for the sum of $800,000 and the parties drew up and executed a formal contract. Under that contract, the purchase price of $800,000 was to be paid in installments such that the sum of $75,497.36 was payable as a deposit, followed by an initial payment of $324,502.64, and a final payment in one year of $400,000.
The contract contains a whole agreement clause which was inserted at the Appellants’ request. The clause provides as follows:
Soon after the contract was executed it became evident that the land contained a far smaller quantity of gravel than the parties expected. In fact, the Respondent was only able to extract 74,000 tonnes of gravel from the land, although it was estimated that the land might contain another 25,000 to 30,000 tonnes of gravel. However, extraction of this estimated quantity of gravel would not be economical.
On this basis the Respondent refused to make the final payment of $400,000, prompting the Appellants to sue for breach of contract. The Respondent filed a counterclaim alleging, amongst other arguments, misrepresentation regarding the quantity of gravel in the land.
The trial judge dismissed the Appellants’ claim for the unpaid $400,000, but allowed the Respondent’s counterclaim on the basis of innocent misrepresentation. The trial judge held that the Silvatech report estimating the quantity of gravel in the land was not merely an opinion but a representation of fact. Thus, the Appellants made “a positive misrepresentation” to the Respondent regarding the volume of gravel in the land (at para 10) Furthermore, relying on Queen v Cognos Inc.,  1 SCR 87, 1993 CanLII 146, the trial judge held that the whole agreement clause did not insulate the Appellants from liability for their pre-contractual misrepresentation because there was no contemporaneity between the clause and the misrepresentation. In the end, the trial judge rescinded the contract and ordered the Appellants to refund to the Respondent the amount paid for the estimated gravel, less the value of gravel actually extracted from the land by the Respondent (at para 10-11).
Decision of the Court of Appeal of Alberta
On appeal to the Court of Appeal of Alberta, the issue raised by the Appellants was whether the contract could be rescinded for innocent misrepresentation in view of the whole agreement clause. This issue raised a preliminary question as to whether the Silvatech report was a statement of fact or mere opinion.
On this preliminary question, the Court of Appeal held that the trial judge committed a palpable and overriding error by holding that the Silvatech report is a representation of “fact”. The Court of Appeal held further that:
As the trial reasons recognized, no one knew, or purported to know, how much gravel was actually in the land (see infra, para. 19). Neither the appellants, the respondent, Wapiti or Silvatech ever claimed or represented that there were in fact at least 500,000 tonnes of gravel, and it would have been reckless for any of them to do so. …. The Silvatech report can only reasonably be read as stating that, in the opinion of Silvatech and based on its professional analysis, it was more likely than not that there would be about 444,850 tons of gravel in the land. This was clearly an opinion, not a “fact”. Neither Silvatech (nor the appellants, vicariously) ever represented as a fact that there was any particular quantity of gravel present. (at para 17)
With regard to the effect of the whole agreement clause, the Court of Appeal distinguished Queen v. Cognos Inc. and held that “Cognos does not import a general requirement of temporal ‘contemporaneity’ into the interpretation of whole agreement clauses; there was no whole agreement clause in that case.” (at para 22). Furthermore, the Court of Appeal held that the whole agreement clause provided a complete defence to the Respondent’s counterclaim because it disclaimed any representation regarding the property (at para 20).
In the ensuing analysis I argue that the decision of the Court of Appeal is on firm ground in terms of its holding that the Silvatech report is a statement of opinion and its conclusion regarding the effect of the whole agreement clause.
In determining whether a statement amounts to a statement of fact, Canadian courts apply the objective standard by looking at the circumstances surrounding the making of the statement. In the instant case both parties realized at the time of negotiating the contract that the exact quantity of gravel was unknown and, in fact, the Respondent’s witnesses acknowledged at trial that some variability from the estimated quantity of gravel in the Silvatech report could be expected. Furthermore, at the time the Silvatech report was transmitted to the Respondent, both parties knew that the exact quantity of gravel in the land was a matter over which Silvatech had no control. This is a significant observation because, as John McCamus, The Law of Contracts, 2nd ed at page 338 points out, if a statement “concerns matters over which the representor obviously has no control, it is unlikely that the statement would be characterized as one of fact.” Thus, viewed objectively, the Silvatech report is not a statement of fact but a statement of opinion.
The trial judge may have relied on Silvatech’s expertise in remote sensing, digital mapping and exploration to conclude that the data estimating the gravel deposit is a statement of fact which induced the Respondent to execute the contract. To be sure, the expertise of the maker of a statement may give rise to an inference that the maker of the statement implicitly warranted that the statement is true. Thus, in Dick Bentley Productions v. Harold Smith Motors Ltd.,  1 WLR 623, a sales person’s representation that a car had done 20,000 miles since it was fitted with a new engine when in fact the car had done about 100,000 miles was held to be an implicit contractual warranty because the representor had expertise relative to the car. Apparently, the Appellants in the instant case requested that the whole agreement clause be included in the contract in order to avoid any such inference.
More significantly, the trial judge appears to have misapprehended the Supreme Court of Canada’s decision in Cognos in at least two ways. First, the trial judge assumed that Cognos is indistinguishable from the present case. However, these two cases raise significantly different issues. In Cognos, the issue was whether a clause in an employment contract allowing the termination of employment without cause precluded an employee from recovering damages for negligent misrepresentation which occurred during hiring interview, whereas the present case raises the issue of the effect of a whole agreement clause on a misrepresentation arising in the course of negotiating a contract. Thus, whether or not a whole agreement clause precludes liability for pre-contractual misrepresentation was not an issue in Cognos.
Second, in Cognos the Supreme Court of Canada did not expressly stipulate that there must be contemporaneity between a whole agreement clause and a pre-contractual misrepresentation in order for the whole agreement clause to exclude liability for the misrepresentation. Rather, the “concurrency question” addressed in Cognos is “whether there is a specific contractual duty created by an express term of the contract which is co?extensive with the common law duty of care which the representee alleges the representor has breached” (page 113). The Supreme Court of Canada summarized the “concurrency question” in Cognos thus:
Put another way, did the pre?contractual representation relied on by the plaintiff become an express term of the subsequent contract? If so, absent any overriding considerations arising from the context in which the transaction occurred, the plaintiff cannot bring a concurrent action in tort for negligent misrepresentation and is confined to whatever remedies are available under the law of contract. (page 113)
Referencing its earlier decision in BG Checo International Ltd. v British Columbia Hydro and Power Authority,  1 SCR 12, 1993 CanLII 145, the Supreme Court of Canada continued in Cognos as follows:
There lies, in my view, the fundamental difference between the present appeal and BG Checo, supra. In the latter case, the alleged pre?contractual misrepresentation had been incorporated verbatim as an express term of the subsequent contract. As such, the common law duty of care relied on by the plaintiff in its tort action was co?extensive with a duty imposed on the defendant in contract by an express term of their agreement. Thus, it was my view that the plaintiff was barred from exercising a concurrent action in tort for the alleged breach of said duty, and this view was reinforced by the commercial context in which the transaction occurred. (pages 113-14)
The Supreme Court of Canada then answered the “concurrency question” in Cognos:
In the case at bar, however, there is no such concurrency. The employment agreement signed by the appellant in March of 1983 does not contain any express contractual obligation co?extensive with the duty of care the respondent is alleged to have breached. The provisions most relevant to this appeal (clauses 13 and 14) contain contractual duties clearly different from, not co?extensive with, the common law duty invoked by the appellant in his tort action. (page 114)
The “concurrency question” in Cognos does not arise in the instant case; hence the principle in Cognos does not apply to the facts of this case.
In addition to misapprehending the decision in Cognos, the trial judge appears to have disregarded a cardinal rule of interpretation of contracts. A court must “search for an interpretation which, from the whole of the contract, would appear to promote or advance the true intent of the parties at the time of entry into the contract” (Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co.,  1 SCR 888, 1979 CanLII 10 at 901). The trial judge’s decision disregarded the express intention of the parties as encapsulated in the whole agreement clause. Through the whole agreement clause the parties expressly and intentionally allocated to the Respondent any risk regarding the quantity of gravel in the land. As observed by the Court of Appeal, “The respondent knew it was buying whatever gravel existed in a particular piece of land, and that is what it got.” (at para 22). The trial decision allowed the Respondent to circumvent or avoid the whole agreement clause and, in that sense, deprived “the parties of the certainty the whole agreement clause was intended to deliver.” (at para 20) As rightly noted by the Court of Appeal:
The point of the whole agreement clause is that the obligations of the parties will be determined in accordance with the written terms of the contract, not extraneous negotiations and discussions that have not been reduced to writing, and thus formally acknowledged by the contracting parties. (at para 23)
One further observation ought to be made. Although the whole agreement clause provides that “there is no representation, warranty, collateral agreement or condition affecting the property or this offer other than as expressed herein in writing” (at para 4), it does not refer expressly to pre-contractual representations or warranties. Hence the Respondent argued that the clause is not wide enough to cover a pre-contractual misrepresentation arising from Silvatech’s report. The Court of Appeal acknowledged the Respondent’s argument (at para 23), but the Court did not directly address the argument. Rather, it observed simply that a “whole agreement clause, like any other clause in the contract, must be interpreted in accordance with the intentions of the parties as reflected in the words used in their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract” (at para 23).
The failure of a whole agreement clause to refer expressly to pre-contractual representations does not preclude application of the clause to such representations. In Essa v Mediterranean Franchise Inc., 2016 ABQB 178 (CanLII), at para 174, for example, the Honourable Justice W.N. Renke held that the failure of a whole agreement clause “to refer expressly to negligent misrepresentations would not preclude its application to negligent misrepresentations”. Similarly, in Horizon Resource Management Ltd. v. Blaze Energy Ltd., 2013 ABCA 139 (CanLII) at para 47, the Court of Appeal of Alberta held:
The Master Well Service Contract contained an entire agreement clause. Clause 17.1 provided, “Each Service Agreement shall constitute the entire agreement between Operator and Contractor in connection with the subject matter thereof and shall supersede all prior agreements, arrangements, negotiations, representations or understandings by or between, whether written or otherwise.” Blaze submitted that the clause did not exclude liability for the tort of negligent misrepresentation, because it did not expressly address liability for tort. The trial judge concluded that entire agreement clauses need not expressly exclude liability in tort in order to exclude an action in negligence: see Carman Construction Ltd v. Canadian Pacific Railway, 1982 CanLII 52 (SCC),  1 SCR 958, 136 DLR (3d) 193 and Gainers Inc v. Pocklington Financial Corp, 2000 ABCA 151 at para 16, 255 AR 373. His conclusion was correct.
That being said, there are specific situations in which a whole agreement clause would not have the usual effect of precluding liability for pre-contractual misrepresentations. For example, a whole agreement clause does not preclude liability for intentional deceit or fraudulent misrepresentation. (See T.W.T. Enterprises Ltd. v Westgreen Developments (North) Ltd.,  3 WLR 80, 1990 CanLII 5599 (ABQB) affirmed 1992 ABCA 211 (CanLII);1052276 Alberta Ltd. v Consultant Feeds Ltd., 2007 ABPC 269 (CanLII)). Also, a whole agreement clause is inapplicable where notice of the clause was not given to the representee at the time of the contract (McCamus, at 365-368). However, deceit and fraudulent misrepresentation do not arise in the instant case and, quite obviously, the Respondent was aware of the whole agreement clause at the time of execution of the contract.
This post may be cited as: Evaristus Oshionebo, “The Effect of a ‘Whole Agreement Clause’ on Pre-Contractual Misrepresentations” (October 12, 2016), on-line: ABlawg, http://ablawg.ca/wp-content/uploads/2016/10/Blog_EO_HoulevKnelsen_Oct2016.pdf
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By: Jonnette Watson Hamilton
Case Commented On: Dove v Canada, 2016 FCA 231 (CanLII)
The Federal Court of Appeal decision in Dove v The Queen is an unusual decision dealing with Organized Pseudo-Legal Commercial Arguments (OPCA). It’s short, for one thing ? only six paragraphs in total compared to the 736 paragraph decision in Meads v Meads, 2012 ABQB 571 (CanLII), the judgment in which Associate Chief Justice John D. Rooke coined the OPCA label. He defined OPCA litigants as “persons [who] employ a collection of techniques and arguments promoted and sold by ‘gurus’ … to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals.” (at para 1). Second, it uses Noam Chomsky’s most famous sentence to help explain what is wrong with the appellants’ claims, rather than the usual words of legal censure. And third, it asserts that OPCA litigation is not a problem for the Federal Court of Appeal, in contrast to the more common judicial hand-wringing.
Although the Federal Court of Appeal decision is a scant six paragraphs long, the lower court decisions of Prothonotary Kevin R. Aalto — Dove v Canada,  FCJ No 1187, sub nom Bursey v Canada, 2015 FC 1126 (CanLII) — and Justice Douglas R. Campbell — Bursey v Canada, 2015 FC 1307 (CanLII),  FCJ No 1445 — are both available to fill in some blanks. Why two different names for this case? The Prothonotary and Federal Court dealt with five different cases brought by four different people: Wally Dove, Jason Dove, Michael Bursey, and Glenn Bursey. The five claims were consolidated in the Federal Court, and the claim of Wally Dove ? the primary spokesman for all of the plaintiffs at all levels of court ? was made the lead file. The only appeal before the Federal Court of Appeal, however, was that of Wally Dove, although the fate of all five actions was the same. All were dismissed, without leave to amend, and with costs awarded to the Crown.
The plaintiffs agreed that all five claims were essentially the same. Even though Justice Campbell in the Federal Court reproduced Mr. Dove’s “Bill in Equity” (2015 FC 1307 at para 4) and 47 of the more than 100 paragraphs in the Statement of Claim (2015 FC 1307 Appendix), it is difficult to make out the essence of the plaintiffs’ claims. Justice Campbell summarized the claims as the “belief that, by birth in Canada, a person acquires a proprietary interest in the resources of the country, under the wrongful control of Her Majesty the Queen, that founds a monetary claim which is calculable based on that person’s date of birth” (2015 FC 1307 at para 8). This is essentially one of the “Tax-related Magic Hats” identified by Meads v Meads (at para 341) as the argument that “a person can pay for their income tax via a pro-rated share of government property.” What the court actions were really about, according to Prothonotary Aalto, was the plaintiffs’ dissatisfaction with paying income tax (2015 FC 1126 at para 8).
There were other commonalities with OPCA tactics and schemes described in Meads v Meads. For example, Prothonotary Aalto noted (2015 FC 1126 at para 6; see also paragraphs 57, 62, 65, 72, 73, and 98-102 in the Statement of Claim) that their claims that the document recording the registration of their birth was a security under the Bank Act that created multimillion dollar debts in their favour was one of the “Money for Nothing Schemes” described in Meads v Meads (at paras 529-550).
All of the claims were dismissed by the Prothonotary on the Crown’s application to strike on the basis that they disclosed no reasonable cause of action. Their dismissal was upheld by the Federal Court who heard the five appeals de novo. The Federal Court of Appeal upheld the dismissal of Wally Dove’s claim on appeal, simply stating that Justice Campbell made no mistake when he concluded that the Statements of Claim had “no reasonable prospect of success” and neither did Prothonotary Aalto when he concluded that “none of the Statements of Claim raise any cause of action and are bereft of any chance of success” (at para 2).
Having dismissed the appeal in only two paragraphs, it is the rest of what the Federal Court of Appeal had to say that is most interesting.
“Colourless green ideas sleep furiously”
Prothonotary Aalto described the plaintiffs’ claims as attempts to build a cause of action “based on snippets and fragments” bound together “in pseudo-legal verbiage” (at para 2), and their “imaginary claims” as “pseudo-legal drivel” (at para 6). Justice Campbell in the Federal Court reproduced the plaintiffs’ claims and let them speak for themselves. As an example, consider paragraph 14 from Wally Dove’s claim, reproduced in the Appendix to Justice Campbell’s decision as follows:
The Federal Court of Appeal characterized the legal propositions that Wally Dove put forward as “incoherent and devoid of any legal meaning” (at para 3). Then, in a more imagination-seizing moment, the Court characterized those propositions as the legal equivalent of Noam Chomsky’s famous sentence: “Colourless green ideas sleep furiously.”
In Syntactic Structures (The Hague/Paris: Mouton, 1957) at 15, Noam Chomsky lists six sentences, of which the first two are:
(1) Colourless green ideas sleep furiously.
(2) Furiously sleep ideas green colourless.
The linguist followed this list with the point that “Sentences (1) and (2) are equally nonsensical, but any speaker of English will recognize that only the former is grammatical.” His purpose was to demonstrate the distinction between syntax and semantics.
The Federal Court of Appeal has joined what has been referred to as “a small industry” spawned by that one grammatical but nonsensical sentence, “colourless green ideas sleep furiously.” The sentence has been the source of poems and jazz song titles, and has even made it into Bartlett’s Familiar Quotations. Because tolerance for this sort of thing is high in poetry, the sentence can appear meaningful. Take for example, John Hollander’s poem, “Coiled Alizarine”, dedicated “for Noam Chomsky”, originally published in The Night Mirror (New York: Atheneum, 1971):
Curiously deep, the slumber of crimson thoughts:
While breathless, in stodgy viridian,
Colourless green ideas sleep furiously.
But I digress. The Federal Court of Appeal’s point was that Wally Dove had assembled words, phrases, and concepts which had some meaning in their original context but none whatsoever in his use of them, just as each word in Noam Chomsky’s famous sentence can be given a discrete meaning, but the sentence formed by those words is “devoid of intelligible content” (at para 3). Perhaps their analogy will make their point with the plaintiffs better than the usual words of legal censure.
“[T]he OPCA phenomenon is not a threat to the orderly administration of justice in this Court”
After all of the many claims by many courts from all provinces and levels that OPCA litigants are a major problem for the administration of justice, it is highly unusual for a court to say, as the Federal Court of Appeal does in this case, that “the OPCA phenomenon is not a threat to the orderly administration of justice in this Court at this time” (para 4). It is more usual for a court to talk about such claims “improperly clogging up the legal system to the cost and prejudice of those who would otherwise have to face and deal with them” (Fiander v Mills, 2015 NLCA 31 (CanLII) at para 40).
One might expect to see significant numbers of OPCA litigants in the Federal Court of Appeal if only because appeals from the Tax Court of Canada go directly to the Federal Court of Appeal. Justice Rooke had noted in Meads v Meads (at paras 169-170) that the first OPCA movement to appear in Canada were the “Detaxers”, litigants focused almost entirely on avoiding income tax obligations. However, Justice Rooke also noted in his 2012 decision that fewer Detaxer claims were still being made due to the failure of all such claims, no matter their form, and the prosecution of some litigants for tax evasion.
Searches for “Organized Pseudo-Legal Commercial Argument”, “OPCA”, and “Meads v Meads” in the federal courts databases in CanLII, LexisNexis Quicklaw, and WestlawNext Canada turned up only 12 decisions since 2012. Seven of those were in the Tax Court of Canada, four were in the Federal Court, and only one — this case, Dove v Canada — was in the Federal Court of Appeal. Five were decided in 2013, two in 2014, one on 2015 and four (so far) in 2016. Although written decisions found in these databases may not tell the whole story, and number of cases is a rough proxy, these numbers suggest that OPCA litigants are rare not only in the Federal Court of Appeal, but in the federal court system as a whole.
Part of the reason that OPCA litigation is not seen as a problem in the Federal Court of Appeal may be that the federal courts seem to be slow to use the OPCA label. In Dove v Canada, Pronthonotary Aalto called the plaintiffs “quintessential OPCA litigants” (2015 FC 1126 at para 1) and their causes of action “of the cloth of standard OPCA litigant claims” (at para 5). Nonetheless, he did acknowledge “Dove’s earnest belief that [those claims] amount to causes of action.” (at para 5) He awarded costs against the plaintiffs of $500 per action, a total of $2,500.
In contrast, in the Federal Court, Justice Campbell did not mention Meads v Meads or the OPCA concept. Justice Campbell did state that “Mr. Dove presented an honest commitment to, and belief in” the claims he made (2015 FC 1307 at para 4), as had the Prothonotary (2015 FC 1126 at para 5). In response to the Crown’s argument for an elevated costs award to discourage “this type of abusive litigation,” Justice Campbell stated he had “no reason to conclude that the present litigation is an abuse of process” because the plaintiffs brought their actions “on the basis of an honest belief and similar claims have not been determined by this Court” (2015 FC 1307 at para 11). The rarity of such claims in the specific court — as opposed to in prosecutions for income tax evasion in provincial courts — was therefore a factor.
And in the Federal Court of Appeal, where the Crown asked that the plaintiffs be declared to be OPCA litigants as that term is defined and used in Meads v Meads, the Court refused, saying (at para 4):
It is true that Mr. Dove’s claim shares some of the characteristics attributed to OPCA litigants, but the OPCA phenomenon is not a threat to the orderly administration of justice in the Court at this time.
According to Meads v Meads, an OPCA litigant is one who expresses “a general rejection of court and state authority…” (at para 4). Justice Rooke went on to state that OPCA litigants are unified by:
This category of litigant shares one other critical characteristic: they will only honour state, regulatory, contract, family, fiduciary, equitable, and criminal obligations if they feel like it. And typically, they don’t. (at para 4)
It would seem that what is missing from Dove v Canada is the “general rejection of court and state authority”, although there is no indication, for example, of whether the costs awards in the lower courts were paid by the plaintiffs. However, it may be difficult to conclude that anything is missing in this case from the definition of OPCA litigants in Meads v Meads because the Federal Court of Appeal ends its judgment with a warning to Wally Dove and his fellow plaintiffs. They are warned not to blame their lack of success in the federal courts “on the bad faith and corruption of the judges who hear and decide their cases and on the collusion of the lawyers who represent the Crown and the judges and prothonotaries who have heard their cases” (at para 5).
The Federal Court of Appeal went on to say that “[s]uch allegations have consequences and if Mr. Dove continues in his present vein, he will have to deal with those consequences” (at para 5). The Court specially cites Abi-Mansour v Canada (Aboriginal Affairs), 2014 FCA 272 (CanLII) at paras 9-15 for the consequences of repeated unsupported allegations of bias, characterized in that case as attacks on “one of the pillars of the judicial system” (at para 12) and as “an abuse of process” (at para 14). In addition, in Meads v Meads, Justice Rooke specifically noted that some OPCA litigants “claim judicial bias, influence, or conspiracy” (at para 292).
The only reason stated by the Federal Court of Appeal for why this litigation was not OPCA litigation was that “the OPCA phenomenon is not a threat to the orderly administration of justice in this Court” (at para 4). That reason seems to go more to quantities within one particular court, rather than to qualities, impact on parties on the other side, or prevalence in courts across Canada.
This post may be cited as: Jonnette Watson Hamilton, “The ‘Colourless Green Ideas Sleep Furiously’ Problem with Organized Pseudo-Legal Commercial Arguments” (October 11, 2016), on-line: ABlawg, http://ablawg.ca/wp-content/uploads/2016/10/Blog_JWH_Dove_Oct2016.pdf
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By: Nickie Nikolaou
Case Commented On: Lakeview Village Professional Centre Corporation v Suncor Energy Inc, 2016 ABQB 288 (CanLII)
The nature of environmental contamination often requires the bending of usual legal rules. Because contamination can take years to develop or be discovered, the application of traditional limitation periods to actions for the recovery of damages from environmental contamination could result in unfairness. It could also mean the ultimate costs of clean-up would fall to the public purse if no financially viable party is liable for the clean-up. Alberta has modified its statutory limitation periods to address this problem. Section 218 of the Environmental Protection and Enhancement Act, RSA 2000, c. E-12 (EPEA) allows a court to extend a limitation period “where the basis for the proceeding is an alleged adverse effect resulting from the alleged release of a substance into the environment.” After years on the books, this is the first case to clarify the procedure courts should follow under section 218 of the EPEA.
The plaintiff, Lakeview Village Professional Centre Corporation (Lakeview), purchased land in the Lakeview subdivision of Calgary in 1998. The land consisted of a commercial building, two parking lots and a surrounding landscaped area. At the time of purchase, Lakeview was aware that there had been a former gas station on the site. (at para 1) Gulf Oil (now Suncor Energy Inc.) had owned the lands and operated the gas station from 1969 to the mid-1980s. In May 1988, Commonwealth Business Management Ltd. (Commonwealth) had purchased the lands from Suncor.
As a condition of its offer, Lakeview had asked Commonwealth to provide information about the environmental state of the lands. By this time, the gas station was gone and the underground storage tanks had been removed. Commonwealth commissioned a Phase II Environmental Assessment Report from a professional environmental consultant who concluded that there was “no evidence of significant contamination on the subject property and no further investigation is warranted at this time.” (at para 27)
Several years later in 2013, Lakeview received an offer to purchase the lands, prompting another environmental assessment. This time, a Phase I and Phase II Environmental Assessment found hydrocarbon contamination at a level requiring remediation. Lakeview commissioned a Phase III Environmental Assessment and began remediation of the lands. This included the removal of contaminated soil and buried concrete and metal piping, and backfilling the site with clean soil. To date, Lakeview had spent over $400,000 for the remediation and further costs were likely (at para 29).
To recoup some or all of these costs, Lakeview commenced an action against former owners of the lands, including Suncor and Commonwealth. As noted by Justice Sheilah Martin, “[n]ormally, the Plaintiff’s action would be out of time under the Limitations Act, as these events occurred well past the 10-year ultimate limitation period.” (at para 3). Relying on section 218 of the EPEA, Lakeview applied for an extension.
Section 218 reads as follows:
218(1) A judge of the Court of Queen’s Bench may, on application, extend a limitation period provided by a law in force in Alberta for the commencement of a civil proceeding where the basis for the proceeding is an alleged adverse effect resulting from the alleged release of a substance into the environment.
(2) An application under subsection (1) may be made before or after the expiry of the limitation period.
(3) In considering an application under subsection (1), the judge shall consider the following factors, where information is available:
(a) when the alleged adverse effect occurred;
(b) whether the alleged adverse effect ought to have been discovered by the claimant had the claimant exercised due diligence in ascertaining the presence of the alleged adverse effect, and whether the claimant exercised such due diligence;
(c) whether extending the limitation period would prejudice the proposed defendant’s ability to maintain a defence to the claim on the merits;
(d) any other criteria the court considers to be relevant.
In reviewing Hansard evidence, Justice Martin concluded that the purpose of section 218 is to extend the period in which civil proceedings can be initiated for damages to the environment, “recognizing that harmful effects of contamination may not be evident for several years” (at para 7). The factors set out in subsection 218(3), which a judge must consider when deciding whether to extend the limitation period, were adopted so as to ensure that the system for extending limitation periods is not “open to abuse” (at para 7).
What is the Procedure for Applications under Section 218 of the EPEA?
Justice Martin began her analysis by noting that applications under section 218 of the EPEA are fairly novel. Two cases where section 218 was previously considered did not set forth details about the proper approach. In particular, she queried whether the proper procedure required the court to decide conclusively that the limitation period is or is not extended, or whether the court is to make a preliminary determination only, allowing the plaintiff to go to trial where the limitation argument might be raised again. She noted that in some cases, the plaintiff might present sufficient evidence to satisfy a court to extend the limitation period at a preliminary stage on a balance of probabilities. But in other cases, at this preliminary stage, the evidence may be underdeveloped. There may not be, for example, sufficient evidence that an adverse effect occurred, or when it occurred (at paras 13-14). Such evidence would require expert evidence which may not yet be available.
Moreover, in her view, a conclusive section 218 finding might prematurely determine an issue that is best left for trial. A finding in regard to the subsection 218(3) factors may be inevitably “intertwined with merit-based considerations” (at para 15). For example, Justice Martin noted that a court concluding that a party exercised due diligence in ascertaining an adverse effect may influence findings on the degree of liability for contamination (at para 15).
This prematurity concern, to her mind, requires a court to not necessarily conclusively decide the merits of the limitation issue in an application under section 218. At the same time, however, a plaintiff has a “legitimate interest” (at para 20) in knowing whether to spend further resources on its claim. As a compromise position, Justice Martin concluded that a plaintiff under section 218 must show “a good arguable case” (at para 18) that is grounded in some evidence for an extension of the limitation period.
Justice Martin set forth the following two-step approach for judges to use in section 218 applications:
(1) Is there sufficient evidence on the s 218 factors to grant an extension of the limitation period?
(2) If there is not enough evidence to make that determination, or if there is sufficient evidence but an issue for trial could be determined prematurely, has the claimant shown a good arguable case for an extension? If so, the claimant is entitled to an extension of the limitation period subject to a final determination of the issue at trial. (at para 19)
Should the Limitation Period Be Extended in This Case?
Applying this approach to the facts in this case, Justice Martin analyzed the factors set out in subsection 218(3) based on the information available to her. There was some information about when the alleged adverse effect had occurred, placing the contamination on a time frame from 1969 to the mid-1980s at least, and potentially as late as 2013. Justice Martin concluded that this time frame was not “so long ago that it would be unfair to allow the action to proceed against either party” (at para 40).
With respect to the factor of whether the claimant had exercised due diligence in ascertaining the presence of the alleged adverse effect, Justice Martin concluded, on a preliminary basis only, that there was enough evidence before her to conclude that Lakeview had done so. Prior to purchasing the lands, Lakeview was concerned about potential contamination from the gas station, had required Commonwealth to provide information on the environmental status of the property as a condition of the purchase, and had justifiably relied on the Phase II Report prepared by professional environmental consultants. But Justice Martin emphasized that her due diligence findings were preliminary only, and that further evidence could be adduced at trial that could change this analysis. Moreover, as she stated, the “findings on due diligence may affect the liability analysis that will eventually unfold on the merits” (at para 51).
With respect to prejudice, neither Suncor nor Commonwealth presented any evidence that an extension to the limitation period would prejudice their ability to maintain a defence on the merits (at para 52). It seems there were no other relevant criteria that Justice Martin had to take into account. She rejected an argument by Commonwealth that the scope of section 218 should be limited to parties who have caused or contributed to the contamination of the lands (at para 53). The opening words of section 218 do not support such a restrictive interpretation given that they refer to civil proceedings “where the basis for the proceeding is an alleged adverse effect resulting from the alleged release of a substance into the environment” Depending on the cause of action, this may or may not impose liability only on those who caused or contributed to the adverse effect.
Thus, based on the evidence before her, Justice Martin concluded that this was the type of case contemplated by section 218. The harmful effects of contamination were not evident for several years, due diligence was shown, and there was no prejudice to the defendants. Nonetheless, she concluded that because there were some merit-based implications on due diligence in particular, an outright extension in this case would not be appropriate. She granted Lakeview an extension of the limitation period subject to a final determination of the issue at trial (at para 56).
At first blush, Justice Martin’s conclusion that a ruling under section 218 should only be made on a preliminary basis where an issue for trial might be predetermined seems odd given the language of section 218. Section 218 certainly suggests that a judge can and perhaps should make a final determination on the limitation issue on the application.
Moreover, the single rationale she gives for her conclusion that only a preliminary ruling on Lakeview’s due diligence for the purposes of section 218 should be made is questionable. On at least two occasions, Justice Martin states that a final determination on this issue would not be appropriate “because due diligence is a consideration when determining liability under s 129 of the Act” (at para 15) and “[d]etermining the issue could be problematic if new facts emerge at trial that affect the due diligence analysis.” (at para 15) With respect, section 129 of the EPEA authorizes the director (of Alberta Environment and Parks) to issue an environmental protection order against a person who is responsible for a contaminated site (as defined in the EPEA). It does not necessarily set out the considerations that would be considered in a law suit by Lakeview in, for example, tort or contract law against the former owners of the site. Section 129 has been specifically designed to cast a broader net of potentially liable persons for purposes of government-issued environmental protection orders than might be available under a civil suit based on common law causes of action.
Still, Justice Martin’s point that a final determination on some of the factors under subsection 218(3) might predetermine aspects of the civil claim is well-founded. A more complete evidentiary picture might emerge at trial that might influence the factors listed in that subsection. Thus, her approach strikes an appropriate balance between not deciding anything and deciding too much at this stage in the proceedings. A ruling on whether the plaintiff has established a “good and arguable” case for a limitation extension gives the plaintiff the ability to proceed with the action, while at the same time recognizing that the ruling has been made without a full trial of the action.
This post may be cited as: Nickie Nikolaou, “Extending Limitation Periods for Environmental Actions” (October 6, 2016), on-line: ABlawg, http://ablawg.ca/wp-content/uploads/2016/10/Blog_NN_Lakeview_Oct2016.pdf
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By: Jennifer Koshan
PDF Version: Human Rights, the Charter, and Access to Justice
Case Commented On: Canadian Human Rights Commission v. Canada (Attorney General), 2016 FCA 200 (CanLII)
This summer, the Federal Court of Appeal upheld the ruling of the Canadian Human Rights Tribunal (CHRT) that if a claimant wishes to challenge discriminatory federal legislation, they must do so via a Charter claim rather than a human rights complaint. This post will analyze the Court’s decision, compare it to the approach taken in Alberta in cases such as Gwinner v. Alberta (Human Resources and Employment), 2002 ABQB 685 (CanLII); aff’d 2004 ABCA 210 (CanLII), and raise some concerns about the implications of the federal approach for access to justice. I will not analyze the Court’s reasons on standard of review, but it is interesting to note that following a survey of Canadian courts of appeal, the Federal Court of Appeal refers to the “sorry state of the case law and its lack of guidance on when decisions of human rights tribunals interpreting provisions in human rights legislation will be afforded deference” (Canadian Human Rights Commission v. Canada (Attorney General), 2016 FCA 200 (CanLII) at para 78). The Supreme Court has an opportunity to clarify the standard of review issue in Stewart v Elk Valley Coal Corporation, 2015 ABCA 225, leave granted 2016 CanLII 13730 (SCC), which we have blogged on here and here and which will be heard by the Court in December. In addition, this month the Canadian Human Rights Commission filed an application for leave to appeal the Federal Court of Canada decision that is the subject of this post.
The CHRT’s ruling was made in two cases that are summarized at paragraph 4 of the Federal Court of Appeal decision:
In two very thoughtful and thorough decisions, reported as 2013 CHRT 13 (CanLII) [Matson] and 2013 CHRT 21 (CanLII) [Andrews], the Tribunal determined that the complaints in the present case were direct challenges to provisions in the Indian Act and that, as such, did not allege a discriminatory practice under section 5 of the CHRA because the adoption of legislation is not a service “customarily available to the general public” within the meaning of section 5 of the CHRA. While sensitive to the merits of the complainants’ claims, the Tribunal ruled that the challenge to the impugned provisions in the Indian Act may only be brought under section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c. 11 … and therefore needs to be made to a court of law. In so deciding, the Tribunal relied on the decision in Public Service Alliance of Canada v. Canada Revenue Agency, 2012 FCA 7 (CanLII), 428 N.R. 240 [Murphy], where this Court held that the adoption of legislation is not a service customarily available to the general public within the meaning of section 5 of the CHRA. In result, the Tribunal dismissed the complaints.
The Canadian Human Rights Commission sought judicial review of these decisions at the Federal Court, supporting the Matson and Andrews complainants’ position that the CHRT did have jurisdiction to hear their challenges to the registration provisions of the Indian Act, RSC 1985, c I-5 under the Canadian Human Rights Act, RSC 1985, c H-6 (CHRA). The Federal Court dismissed the Commission’s applications in Canada (Human Rights Commission) v. Canada (Attorney General), 2015 FC 398 (CanLII), holding that the CHRT’s decisions should be reviewed on the standard of reasonableness and that its decisions were reasonable.
The underlying issue in both the Matson and Andrews complaints involved an allegation of ongoing discrimination in the Indian Act concerning entitlement to registration or “Indian status” (the Federal Court of Appeal notes (at para 9) that “many indigenous people find this terminology offensive”, but uses it because of the language of the legislation, as will I).
Prior to 1985, the Indian Act determined status on a patrilineal basis, such that Indian men who married non-Indian women were able to pass their status on to their wives and children, whereas Indian women who married non-Indian men lost their status, as did their children. These provisions were unsuccessfully challenged under the Canadian Bill of Rights in Attorney General of Canada v. Lavell,  SCR 1349, 1973 CanLII 175, but were revised in 1985 via Bill C-31 once the equality provisions in the Charter came into effect (see also Lovelace v Canada, Communication No R.6/24, UN Doc Supp No 40 (A/36/40) at 166 (1981), a decision of the UN Human Rights Committee finding that the provisions violated article 27 of the International Covenant on Civil and Political Rights, the right of ethnic minorities to enjoy their own culture in community with other members of their group).
Bill C-31 made some attempt at removing the overt discrimination in the status provisions of the Indian Act, but maintained a “second generation cut-off rule” in section 6 of the Indian Act, described as follows by the Federal Court of Appeal (at para 15):
[T]hese provisions contemplate that individuals born of only one parent with Indian status are considered to be second generation and are granted status under subsection 6(2). If they have children with a person without status, they cannot transmit Indian status to their children. Conversely, people born of two parents with Indian status are generally speaking considered to be first generation and are granted status under subsection 6(1) of the Indian Act. They can transmit Indian status to their children, irrespective of whether the other parent possesses Indian status.
The second generation cut-off rule was found to violate section 15 of the Charter in McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153 (CanLII). The federal government responded with the Gender Equity in Indian Registration Act, SC 2010, c 18 [the GEIRA], which adds section 6(1)(c.1) to the Indian Act, providing an entitlement to registration under section 6(2) for those individuals whose grandmothers lost status by marrying non-Indians before April 17, 1985. However, the McIvor decision and the GEIRA that followed it did not completely eliminate the problem of differential entitlement to status under the Indian Act. Sharon McIvor unsuccessfully sought leave to appeal the BC Court of Appeal decision to the Supreme Court (see 2009 CanLII 61383 (SCC)), and she currently has a communication (complaint) pending with the UN Human Rights Committee (see here). In May 2016, Canada asked the UNHRC to suspend consideration of McIvor’s communication to allow the government to implement a response to another constitutional challenge to the status provisions of the Indian Act in Descheneaux c. Canada (Procureur Général), 2015 QCCS 3555 (CanLII). The government’s request – which does not yet appear to have been ruled on by the UNHRC, but to which McIvor objects – states that “Canada is now exploring various opportunities and approaches for engagement with First Nations and other Indigenous groups on necessary legislative changes in response to the Descheneaux decision.”
Another case currently before the courts that challenges the Indian Act’s status policy is Gehl v Attorney-General of Canada, 2015 ONSC 3481 (CanLII). The Ontario Court of Appeal has granted leave to intervene to the Women’s Legal Education and Action Fund (LEAF) to argue that the Proof of Paternity Policy – which assumes that if a father is not listed on a birth certificate, he is non-Indian – is discriminatory. LEAF argues that “there are many reasons why an Indigenous woman would not register her child’s biological father”, including lack of funds, denial of paternity by the father, or sexual violence such as incest and rape.
It is in this complicated context that the Matson and Andrews complaints were made under the CHRA. The Matson complaint concerns three siblings who became eligible for status under section 6(2) of the Indian Act following McIvor and the enactment of the GEIRA, but whose children are ineligible because the complainants married individuals who are not eligible for Indian status. The Andrews complaint involves a man entitled to status under section 6(2) who cannot pass status on to his children; he was born after his father was “enfranchised” (i.e. lost status under the Indian Act), whereas his sister, who was born before their father was enfranchised, is eligible for registration under section 6(1)(d) of the Indian Act and can pass status on to her children.
The issue for the Federal Court of Appeal was whether these complaints fell within the scope of section 5 of the CHRA, which provides that:
5 It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
The Federal Court of Appeal Decision
After lengthy consideration, the Court of Appeal determined that the appropriate standard of review was reasonableness. That is, were the CHRT’s decisions reasonable in finding that the Matson and Andrews complaints involved direct challenges to the Indian Act, and that the adoption of legislation is not a “service customarily available to the public”?
On the first issue, the Court held that the CHRT reasonably characterized the Matson and Andrews complaints as involving direct challenges to the Indian Act. According to the Court, “The complaints seek to expand the statutory grounds for the grant of Indian status by arguing that the legislation is impermissibly under-inclusive because it makes discriminatory distinctions based on the prohibited grounds of race, national or ethnic origin, sex or family status.” (at para 93). I do not take issue with this aspect of the Court’s decision.
On the second ground, the Court held the CHRT’s decision that the adoption of legislation was not a “service customarily available to the general public” under section 5 of the CHRA was also reasonable. The Court noted that previous case law on the scope of the “services” section required proof of two elements: “first, something of benefit must be available and, second, the benefit must be held out or offered to the public or a segment of the public” (at para 95, citing Gould v. Yukon Order of Pioneers,  1 SCR 571, 1996 CanLII 231 (SCC) and Watkin v. Canada (Attorney General), 2008 FCA 170 (CanLII); see also University of British Columbia v. Berg,  2 SCR 353, 1993 CanLII 89 (SCC)). The CHRT recognized that the Indian Act could be seen to confer benefits on those who have status, including benefits related to health and education, tax exemptions, and more “intangible benefits” related to acceptance by one’s indigenous community (at paras 10, 54). LEAF points out in its factum in Gehl that the Indian Act also confers benefits related to band membership, including the ability to vote and run in band elections, and that “the ability to pass on Indian status to one’s child is a significant benefit” (at paras 4-5). The first requirement of section 5 of the CHRA was therefore met.
However, the CHRT concluded that the second element –the benefit must be held out or offered to the public (or a segment thereof) – was not met, and the Court of Appeal found that there was a reasonable basis for this conclusion. It pointed to the unique and fundamental law-making function of Parliament, and asserted that “One simply cannot equate the act of legislating with a service” such as processing a citizenship application (at para 96, citing the CHRT decision in Andrews at para 57). The CHRT had followed the 2012 decision of the Federal Court of Appeal in Murphy that the adoption of legislation is not a service customarily available to the public, and while there is federal case law to the contrary, the CHRT properly found this case law less persuasive (at paras 36 and 97, referencing Canada (Attorney General) v. Druken,  2 FCR 24, 1988 CanLII 5712 (FCA), where the respondent had admitted that the adoption of the impugned legislation was a service customarily available to the public).
The Court of Appeal also found that the CHRT’s decisions were “not at odds with the case law from the Supreme Court of Canada or other jurisdictions that recognizes that, in appropriate cases, a human rights tribunal may declare inoperative a piece of legislation that conflicts with the human rights legislation due to the primacy of the latter” (at para 98). It is here that I take issue with the Court’s decision.
In Gwinner v. Alberta (Human Resources and Employment), 2002 ABQB 685 (CanLII), Justice Sheila Greckol – who came to the bench with recognized expertise in human rights law – held that Alberta legislation, the Widow’s Pension Act, SA 1983, c W-7.5, was subject to the “services customarily available to the public” clause in this province’s human rights legislation (then section 3 of the Human Rights, Citizenship and Multiculturalism Act, RSA 1980, c H-11.7 (HRCMA)). The Widow’s Pension Act conferred benefits on certain women but excluded others on the basis of their marital status. Justice Greckol focused on the quasi-constitutional nature of human rights legislation, and the “clear … expression of supremacy” in section 1(1) of the HRCMA, which provided that “Unless it is expressly declared by an Act of the Legislature that it operates notwithstanding this Act, every law of Alberta is inoperative to the extent that it authorizes or requires the doing of anything prohibited by this Act.” (at para 73; emphasis added). Her decision that the Widow’s Pension Act was inoperative to the extent it discriminated on the basis of marital status was upheld by the Alberta Court of Appeal and leave to appeal was denied by the Supreme Court of Canada (see 2004 ABCA 210 (CanLII);  SCCA No 342).
Similarly, in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII),  1 SCR 513, a majority of the Supreme Court recognized the jurisdiction of tribunals other than human rights bodies to apply human rights legislation. Part of the rationale for this decision was the primacy of human rights legislation, codified in Ontario in section 47(2) of the Human Rights Code, RSO 1990, c H.19: “Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act” (emphasis added). In Tranchemontagne, the majority held that the Social Benefits Tribunal should not have declined to exercise its jurisdiction to apply the Human Rights Code to its own legislation, which excluded persons with addiction-related disabilities from receiving benefits.
In the Matson and Andrews cases, the CHRT found that “in those cases where legislation had been declared inoperative by reason of a conflict with human rights legislation, the Tribunal possessed jurisdiction on an alternate basis, often because the complaint stemmed from an employment relationship where the employer applied an impugned legislative provision” (at para 34; see also paras 98-99). The Federal Court of Appeal found that this was a reasonable basis for distinguishing cases such as Tranchemontagne. However, the sole basis of the complaints in Gwinner and Tranchemontagne was the legislation itself, so this basis for dismissing case law other than Murphy is not persuasive.
On the primacy argument more generally, the Federal Court of Appeal found that “there is no reason to read [section 5 of the CHRA] as providing jurisdiction to hear legislative challenges merely because in cases where the Tribunal otherwise possesses jurisdiction it may declare conflictual legislation inoperative” (at para 99). With respect, this guts the primacy of human rights legislation – tribunals should not be restricted to hearing challenges to legislation in the limited circumstances where they otherwise possesses jurisdiction.
More specific to the Indian Act context of the Matson and Andrews complaints, until 2008, section 67 of the CHRA provided that nothing in the Act “affects any provision of the Indian Act or any provision made under or pursuant to that Act”. This section was repealed in An Act to amend the Canadian Human Rights Act, SC 2008, c 30, s 1, an amendment which had been long in the making. In the Matson and Andrews cases, the Canadian Human Rights Commission argued that an interpretation of section 5 of the CHRA that did not include review of discriminatory legislation “would render … former section 67 of the CHRA virtually meaningless” (at para 43). The Tribunal rejected this argument, in part because section 67 covered collateral challenges to the Indian Act, such that its repeal was not conclusive about the CHRT’s jurisdiction to consider direct legislative challenges (at paras 43-44). The Federal Court of Appeal found this to be a reasonable conclusion.
Also relevant was the remedial jurisdiction of human rights tribunals. The Federal Court of Appeal noted that the Matson and Andrews complaints “did not merely seek to have provisions in the Indian Act declared inoperative. Rather, their complaints of under-inclusiveness are ultimately aimed at having the provisions in section 6 of the Indian Act broadened to include the complainants’ children and those who are similarly situated to them” (at para 101). The Court noted that the CHRT does not have remedial powers to declare legislation invalid or to read in excluded groups so as to cure underinclusive legislation; these are Charter remedies. In Gwinner, however, Justice Greckol also dealt with underinclusive legislation, and noted that a finding that the legislation was inoperative combined with an order to the respondent that it cease its discriminatory practices was within a tribunal’s remedial powers (Gwinner at para 77).
Lastly, the Federal Court of Appeal dealt with the Commission’s argument that allowing challenges to discriminatory legislation to proceed before human rights tribunals in appropriate cases would result in greater access to justice. It rejected this argument, noting “the lengthy delays that are all too often seen in human rights adjudications” (at para 103). While delays in the human rights system cannot be denied, there are other access to justice advantages that may apply in human rights challenges as compared to Charter challenges, including less stringent evidentiary rules and approaches to discrimination (although see here), the ability of agents to appear on behalf of claimants (see e.g. the work of Pro Bono Students Canada), and the supportive role of human rights commissions in tribunal hearings in many jurisdictions.
Although the context of the Matson and Andrews complaints are admittedly complex and arise in the midst of a number of Charter challenges to the same provisions, I believe a blanket rule that discriminatory legislation cannot be directly challenged in human rights proceedings is contrary to the wording of human rights legislation and previous case law, and has serious access to justice consequences for claimants. To close with the words of the Supreme Court in Tranchemontagne, human rights legislation “must be recognized as being the law of the people… Accordingly, it must not only be given expansive meaning, but also offered accessible application.” (at para 33). Hopefully the Supreme Court will grant leave to appeal in Canadian Human Rights Commission v. Canada (Attorney General) and affirm that principle by recognizing the jurisdiction of human rights tribunals to hear challenges to discriminatory legislation.
This post may be cited as: Jennifer Koshan, “Human Rights, the Charter, and Access to Justice ” (Sept 29, 2016), on-line: ABlawg, http://ablawg.ca/wp-content/uploads/2016/09/Blog_JK_Matson_Andrews_Sept2016.pdf
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By: Martin Olszynski
PDF Version: Fisheries Act Review Should Be Evidence-Based
Matter Commented On: Standing Committee on Fisheries and Oceans Review of the Fisheries Protection Provisions (section 35) of the Fisheries Act R.S.C. 1985 c. F-14.
Consistent with the Prime Minister’s mandate letter to the Minister of Fisheries and Oceans and the Liberal government’s announcement this past summer of a broad review of the federal environmental and regulatory regime, the Standing Committee on Fisheries and Oceans (FOPO) is about to begin its review of the changes to the habitat protection provisions of the Fisheries Act introduced by the previous Conservative government back in 2012. I have previously blogged about those changes here and here, and eventually wrote an article about them. What follows is a letter that I recently sent to FOPO with respect to the scope of its review, urging it to ensure that it has the evidentiary foundation necessary to make its review meaningful.
Re: Fisheries Act Review – “Serious Harm to Fish” and Associated Provisions
I am writing you today with a view towards your review of the Fisheries Act and specifically the changes to section 35 (protection of fish and fish habitat) introduced in 2012. I write to urge you to request that Fisheries and Oceans Canada (DFO) gather the relevant data and information necessary to ensure that the Committee has the proper evidentiary foundation to conduct a meaningful review. More specifically, I am referring to data and information with respect to compliance with section 35 of the Fisheries Act, including compliance with section 35 authorizations, as well as information with respect to the overall status of fish habitat in Canada.
Such studies have previously been carried out by DFO employees in the past. Perhaps one of the best known is J. T. Quigley, D. J. Harper, “Effectiveness of Fish Habitat Compensation in Canada in Achieving No Net Loss” (2006) Environ. Manage. 37 at 351. In this paper, the authors assessed the effectiveness of habitat compensation requirements in section 35 authorizations for a number of projects in Western Canada. In the course of my research, I have also come across the following piece from Alberta assessing the effectiveness of trenchless watercourse crossings: Nugent, S. 2011. “A review of trenchless watercourse crossings in Alberta with respect to species at risk” Can. Manuscr. Rep. Fish. Aquat. Sci. 2947: vi + 69 p. These are but two examples of the kind of research I propose further below.
During the limited (by design) Parliamentary debates surrounding Bill C-38 and C-45, critics of the then-existing fish habitat protection provisions argued that such laws were too onerous and/or unnecessary. My own research shows that, by the time of the 2012 amendments, DFO had already gone to great lengths to reduce the regulatory burden on proponents. What is missing, however, is an objective and rigorous assessment of what this regulatory regime has – and has not – accomplished over the years (referring now to both the current and previous regime) in terms of the protection and management of fish habitat.
In my view, this requires an assessment of
(i) a random selection of individual projects that entered the authorization regime in the past decade or so (25 – 30 projects could suffice, drawn proportionally from DFO’s various regions);
(ii) a random assessment of the status of fish habitat in various watersheds or sub-watersheds across Canada. As part of this second assessment, DFO officials would no doubt come across various works in or near water that did not enter the section 35 authorization regime, or perhaps were subject to DFO’s “Operational Statements” or “Letters of Advice”. The state of these works and their impacts (or not) on fish habitat should also be assessed as a part of this exercise.
Here in Alberta there are several individuals and organizations that have conducted such assessments at the watershed and sub-watershed scale who I suspect would be inclined to share their expertise if requested to do so. The Committee may also be aware of the innovative watershed reports recently completed by WWF Canada. These reports rely on various databases to provide an assessment of the health of, and threats to, Canada’s watersheds. Although the authors admit to struggling with data gaps in some instances, their assessment suggests that effective fish habitat protection laws are in fact necessary to stem the tide of continued watershed degradation, especially in urban areas and areas of significant resource development (e.g. the Peace-Athabasca Region). Below is a screenshot to give you some sense of this potentially transformative tool:
Of course, none of this would predetermine the outcome of the Committee’s work. Nor would negative results (e.g. that fish habitat is in fact deteriorating in some regions) necessarily require reverting to the previous regime. There is a wealth of innovation in environmental regulatory theory that should be considered in crafting an effective and efficient regime suited for the challenges of the 21st century. But it seems clear to me that the Committee, and Canadians more generally, would benefit greatly from having some common understanding of the extent of the problem. I am confident that if you request such information and analysis now, it could be completed within 2 months – well within the time frame set out for the Committee to do its work.
Thank you for your time in considering this matter. I will conclude by urging you to request that DFO collaborate on this project with one or more outside institutions, e.g. an academic or research institution of some kind. There are many outstanding fisheries biologists in Canada whose involvement would bolster the credibility, objectivity, and transparency of the exercise, bearing in mind always that restoring trust in Canada’s regulatory processes is one of the primary motivators for this review.
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By: Rudiger Tscherning
Case Commented On: Balev v Baggott, 2016 ONCA 680 (CanLII)
The issues arising from international family disputes involving the non-consensual relocation of children abroad is perhaps one of the more difficult areas of private international law, in that the mechanical aspects of the conflict of laws (as set out in the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 19 ILM 1501) interact with the more personal aspects of international family life.
This post will examine the issue of international child abduction under the Hague Convention regime from the perspective of ‘time-limited consent’, namely whether the ‘habitual residence’ of a child can unilaterally be changed during a time-limited consent period when one parent wrongfully removes or retains a child in another contracting state.
As the Ontario Court of Appeal in Balev v Bagott, 2016 ONCA 680 (CanLII) recalled, applications pursuant to the Hague Convention do not determine custody or decide on what would be in the best interest of the child. The Hague Convention mechanism solely involves an adjudication on whether a child has been ‘wrongfully removed or retained’ in a contracting state within the scope of Art. 3 and Art. 12 of the Convention. If the answer is yes, and no exception contemplated by the Convention is applicable, the child must be returned to the place of his or her habitual residence. The mechanism therefore hinges on a determination of the child’s habitual residence immediately before the removal or retention.
The important term of ‘habitual residence’ is not defined in the Hague Convention. In 2004, the Ontario Court of Appeal set out a four-pronged test in Korutowska-Wooff v Wooff,2004 CanLII 5548 (ON CA).. The question of habitual residence is a question of fact, decided on all the circumstances; habitual residence is the place where the person resides for an appreciable period of time with a ‘settled intention’ a settled intention or purpose is an intent to stay in a place whether temporarily or permanently for a particular purpose; and a child’s habitual residence is tied to that of the child’s custodian(s) (Korutowska-Wooff,at para 8).
The Convention establishes a presumption in favour of ordering the summary return of the child, designed to restore the status quo ante by way of a ‘prompt return’ of the child to the place of his or her habitual residence (see for example, VW v DS,  2 SCR 108 (CanLII), at para 36). The mechanism is subject to four discretionary exceptions: a time limitation; lack of custody rights or acquiescence in the removal or retention of a parent; grave risk of physical or psychological harm to the child; and the ‘voice, not a veto’ right of a child to express its objection to a return order. This strict presumption is first and foremost designed to act as a powerful deterrent to parents against future international child abductions.
Issues Before the Ontario Court of Appeal
The appellant Mr. Balev and the respondent Ms. Bagott are Canadian citizens and the parents of two children, who were born in Germany but who are both Canadian citizens only. With the exception of two periods of time in Canada (one undisclosed and the other from October 2010 to January 2011) the children resided in Germany until April 19, 2013 when they arrived in Ontario with their mother. The parents had separated in 2011 but subsequently co-habited in 2012. The father had been awarded interim custody of the children in Germany. In April 2013, the parties agreed to take the children to Canada so that they could attend school, with the father signing a “Consent Letter for Children Travelling Abroad” for a period between July 2013 and August 2014. This consent is referred to as a ‘time-limited consent’ in international family law practice.
On the mother’s insistence (so as to enroll the children in a Canadian school), the father also signed a letter transferring physical custody of the two children to the mother for the time-period in question. Upon expiration of the consent period, the mother continued to reside with the two children in Ontario.
The issue before the Ontario Court of Appeal was whether the habitual residence of the two children had changed from Germany to Ontario during the period of the father’s time-limited consent so that the children were habitually resident in Ontario on the date that the consent expired. If so, the mother would not have wrongfully retained them in Ontario within the Hague Convention mechanism.
Case History and Decision
By way of background, the application judge had concluded that after the father’s consent expired on August 15, 2014, the mother had wrongfully retained the children in Canada within the meaning of Art. 3 of the Hague Convention, after she had failed to return them to Germany. The application judge had found that the children remained habitually resident in Germany, based on factual findings that the parties’ settled intention was that the children would reside in Canada on a temporary basis only. There had been a breach of the father’s custody rights under Art. 3 and the children had not ‘settled in’ in Canada within the meaning of Art. 12 of the Hague Convention.
The Divisional Court judge disagreed with the initial findings and concluded that the habitual residence had changed from Germany to Ontario during the consensual, temporary travel period and that the Hague Convention did not apply (at para 22). It held that the change in habitual residence resulted from the joint decision of the parties to move the children to Ontario for an extended period of time. Since the children were residing in Ontario with their mother and with the consent of their father for an “appreciable period of time” (para. 24), their habitual residence had changed.
The Ontario Court of Appeal disagreed. In its view, the Divisional Court had erroneously concluded that the habitual residence of the children could unilaterally be changed by the mother. The determinative paragraph of the Ontario Court of Appeal, at para 42, quotes a long established line of Ontario decisions that confirm that “a parent’s consent to a time-limited stay does not shift the child’s habitual residence”. The time-limitation of a consent fails to establish an “implication of permanency” that is requisite in a change of habitual residence (at para 42). On the facts, the time-limited consent contemplated an extension of the stay, but even if an extension had been agreed to by the father, “the extension does not defeat the time-limited nature of the consent” (at para 48). Nevertheless, the Court left open the possibility that in a different factual scenario, a consensual time-limited stay may be “so long that it becomes time-limited in name only and the child’s habitual residence has changed” (at para 49).
The Ontario Court of Appeal concluded that the components of Art. 3 of the Hague Convention were satisfied. The children habitually resided in Germany prior to their wrongful retention on August 15, 2014. That retention breached the father’s custody rights which the father was exercising at the time of the wrongful retention. The mother therefore wrongfully retained the children in Canada after August 15, 2014 and none of the four discretionary exceptions to the Hague Convention mechanism applied. The children would have to be returned to their father in Germany.
A consistent defence in international child abduction disputes is that the children have ‘settled in’ in their new environment. The Ontario Court of Appeal criticized the Divisional Court for taking this into consideration. As previously confirmed by the Supreme Court of Canada in Thomson v Thomson,  3 SCR 551 (CanLII), evidence of ‘settling in’ is not relevant under Art. 12 of the Hague Convention where an application to return a child is brought within one year of the wrongful detention or removal, as was the case on the facts here. Even where proceedings for a return application are commenced after the one-year period, a child is to be returned under the Hague Convention mechanism, ‘unless’ it can be established that the child is now ‘settled in’ in his or her new environment.
At the time of the decision of the Ontario Court of Appeal, the children had been in Ontario for more than three years. Despite this, the Court rightly concluded that a strict application of the Hague Convention was necessary. Firstly, the mother should not be given undue benefit for her actions in a “direct violation of the father’s custodial rights” (at para 83). Secondly, the issues before the Ontario Court of Appeal “transcend” (at para 83) the direct interests of the children in the overall interest of “countless other children and their parents” (at para 83). Here, the Ontario Court of Appeal reiterated the Supreme Court of Canada’s previous emphasis on deterring future international child abduction by favouring the restoration of the status quo as soon as possible (VW).
The objective and operation of the Hague Convention can only be achieved where there is a strict application of the Convention mechanism by all contracting states. Any decision to the contrary, as the mother in Balev had sought in her attempt to undermine the temporary aspect of a ‘time-limited consent’, would undermine the “purpose and efficacy of a carefully crafted scheme” (at para 84) as set out in the Hague Convention. Whilst the outcome for Ms. Bagott is clearly not satisfactory, the application judge’s order permits her to travel with the children to Germany and to reside there. The order also imposes a requirement that the paternal custodian is to provide ‘suitable housing’ for the mother and the children in Germany that is approximate to their living conditions enjoyed in Canada. As the facts in the case set out, the father is employed and continues to reside in the house in which the parents had resided with the children prior to their wrongful retention in Canada.
Although I do not wish to pass judgment on a family situation that is clearly difficult, one cannot but wonder if Ms. Bagott’s conclusion in the Canadian media that the Hague Convention has become a “means of legislative kidnapping” (“Court orders 2 Canadian children to move to Germany with father”, CBC News, September 13, 2016) is somewhat far-fetched. As the Supreme Court of Canada has previously held, the threshold of harm to a child (both physical or psychological) is a high one, requiring that the harm would amount to an intolerable situation (Thomson, at 596). Nor were there any issues raised that the return to the children’s custodian in Germany would invoke a Canadian public policy exemption as set out in Art. 20 of the Hague Convention on grounds of human rights and fundamental freedoms. The four discretionary exceptions to a ‘prompt return’ order were also not raised.
What is interesting from a conflict of laws perspective is that the Ontario Court of Appeal examined the father’s actions through the concepts of ‘parallel proceedings’ and ‘forum shopping’, which are typically raised in private international law disputes. Before his temporal consent was due to expire, the father filed a Hague Convention application for the return of the children at a court in Ontario. After a delay of 10 months in the Ontario proceedings, the father commenced a Hague Convention application in Germany. When the German courts “indicated” (at para 11) that the children were no longer habitually resident in Germany, the father withdrew his application and proceeded with the Ontario application, an action which the Ontario Court of Appeal considered to border on forum shopping (at para 62). On the facts, however, the German courts had not actually issued an order on the habitual residence of the children, that is, they had not made a final determination (at para 62). Indeed, Art. 8 of the Hague Convention provides that a parent can seek assistance for the return of a child either in the country of the child’s habitual residence or in another contracting state. The Ontario courts were correct to accept jurisdiction, with the Court of Appeal stressing that “the issue of habitual residence under the Hague Convention is one for the courts of the requested state” (at para 64). The jurisdiction of the Ontario courts to adjudicate the father’s application cannot, therefore, be criticized.
There are indications that Ms. Bagott is considering an appeal to the Supreme Court of Canada. Given that the Supreme Court has previously stressed a strict application of the Hague Convention principles and has emphasized the deterrent aspect extensively in VW, it would be surprising if leave were granted.
I began this blog by acknowledging that international child abductions raise sensitive and difficult issues. But in order to deter unilateral actions by parents to wrongfully remove or retain a child, the Ontario Court of Appeal was correct to follow the Supreme Court of Canada’s prior emphasis on deterrence, by applying the Hague Convention mechanism strictly.
On the subject of deterrence, between 2003 and 2008, the latest figures published by the Hague Conference on private international law (Nigel Lowe, A Statistical Analysis of Applications Made in 2008 under the Hague Convention – Part III National Reports, May 2011) show that Canada achieved a reduction of 13% in judicial return applications. Where there is arguable scope for improvement is the speed with which Hague Convention applications are determined. To this effect, courts in Canada, such as the Court of Queen’s Bench of Alberta, have reiterated the Convention’s emphasis on expediency for determining applications on wrongful removal or retention pursuant to the Hague Convention mechanism (see, for example, Court of Queen’s Bench of Alberta, Family Practice Note “6”, Art. 6, effective March 1, 2011).
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By: Shaun Fluker
Case Commented On: Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII)
September at the law school for me includes getting back to the basics of administrative law with the 2Ls as we begin another academic year in the JD curriculum. Early on we study Justice Rand’s seminal 1959 judgment on abuse of discretion in Roncarelli v Duplessis,  SCR 121 (CanLII) (as an aside for some interesting footage of media coverage on Roncarelli see here – thanks to my colleague Professor Martin Olszynski for passing this along), and then we move along to the doctrine of procedural fairness and the threshold question of when does a decision-maker exercising authority owe a duty of fairness. As it turns out, the Alberta Court of Appeal has very recently split over this threshold question in Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII) and this is the subject of my comment here. The point of interest in Wall for administrative law is that the majority (written by Madam Justices Paperny and Rowbotham) rules the doctrine of procedural fairness applies to the impugned decision of the Highwood Congregation even though it is a non-statutory entity exercising power that is not sourced in legislation and does not purport to affect legal rights. Justice Wakeling provides a strong dissent on this point.
RW was a member of the Jehovah’s Witnesses for 34 years and was expelled from the Highwood Congregation in March 2014 for engaging in drunkenness. The expulsion process consisted of a letter dated March 21, 2014 from the Judicial Committee of the Highwood Congregation directing RW to appear before it 3 days later to answer to the allegation. RW appeared before the Committee – which consisted of 3 elders of the Highwood Congregation – on March 24 and admitted to being intoxicated. The Committee gave its oral decision to expel RW the same day. RW appealed this decision to an Appeal Committee consisting of 3 elders from a neighbouring congregation. On April 5, 2014 the Appeal Committee met with the Judicial Committee and RW, and on the same day informed RW it was upholding the expulsion order. RW subsequently appealed to the Watch Tower and Bible Tract Society of Canada. The chair of the Judicial Committee informed RW that this appeal was also unsuccessful.
Because the Jehovah’s Witnesses shun expelled members, RW’s family and other members of the Jehovah’s Witnesses are compelled to shun RW. As a result, RW has suffered severe personal and economic losses. The devastation to his family needs no elaboration here. RW was also a realtor and, as a result of the shunning, he lost a significant portion of his clients.
RW applied to the Court of Queen’s Bench for judicial review of the Highwood Congregation’s decision to expel him, seeking an order of certiorari to quash the March 24, 2014 decision of the Judicial Committee. The Congregation responded by arguing the Court has no jurisdiction to review the decision to expel RW. In April 2015 Mr Justice Wilson in chambers ruled the Court does have jurisdiction because the expulsion decision has severe adverse consequences for RW. The Congregation appealed to the Court of Appeal on this jurisdictional issue.
The legal question at issue in this case is whether the Court has jurisdiction to engage in judicial review of the decision made by a non-statutory entity exercising power that is not sourced in legislation. On the one hand, the answer to this question has to be no. In our legal system, the Court’s inherent jurisdiction for judicial review is applied to ensure the Legislature, the Executive, and their delegates adhere to the limits of their authority, as well as exercise their powers reasonably and fairly. This is the essence of Justice Wakeling’s dissent in Wall. Justice Wakeling observes the Highwood Congregation is not governed by legislation, and that its conduct is completely lacking in statutory flavour (at paras 68 – 74). Justice Wakeling points out that in those rare cases where the Court has engaged in the judicial review of non-statutory entities, it typically does so with sparse reasoning (at footnote 36) or the case also involves an adjudication of legal rights. Justice Wakeling also concludes the expulsion of RW does not affect any of his legal rights and is thus a non-justiciable issue (at paras 126 – 141).
On the other hand, if we look past the legal structure it is possible to identify reasons why judicial review of the Congregation’s decision should be available to RW. This is a disciplinary proceeding with significant adverse consequences to RW and as such it is comfortable territory for judicial oversight. Indeed, several of the Supreme Court of Canada’s seminal judgments in administrative law have concerned or been related to disciplinary proceedings: dismissal of a probationary police officer in Nicholson v Haldimand-Norfolk Regional Police Commissioners,  1 SCR 311 (CanLII); prisoners’ rights in Cardinal v Director of Kent Institution,  2 SCR 643 (CanLII); termination of employment in Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII). Canadian courts have consistently given emphasis to adverse consequences suffered by an individual as a strong factor in deciding whether to grant relief in judicial review. This point is explicitly made by Justice Wilson at the chambers level in this case when he remarks “… I think this man has suffered in a way that does involve the court’s jurisdiction” (from the transcript of proceedings in chambers, cited at para 62 in Wall). And concern with process is what most often catches the eye of a scrutinizing court in judicial review. There is no shortage of concern with process here: 3 days prior notice of a hearing that could lead to severe personal and economic consequences; no written reasons for the expulsion; elements of institutional bias with key officials having overlapping roles. In short, the expulsion process administered by the Congregation fails to meet even the lowest measure of procedural fairness expected of Canadian statutory tribunals in a disciplinary context.
The majority judgment in Wall concludes the Court has jurisdiction to review the decision of a non-statutory religious organization when a breach of procedural fairness or natural justice is alleged (at para 22). The majority relies on a short line of authorities for this conclusion (at paras 17 – 21), none of which directly grapples with the point that judicial review in Canada is directed only at statutory entities exercising administrative power sourced in legislation. Particularly in relation to the application of procedural fairness, the classic doctrinal statement that procedural fairness or natural justice applies to public authorities comes from Justice Le Dain in the Supreme Court’s 1985 Cardinal v Director of Kent Institution decision (at para 14 – cited to Canlii):
This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual. (emphasis added)
The decision that provides the strongest authority for the majority judgment in Wall seems to be the Supreme Court’s 1992 judgment in Lakeside Colony of Hutterian Brethren v Hofer,  3 SCR 165 (CanLII) reviewing a decision of a hutterite colony to expel some of its members (cited by the majority in Wall at para 15). However, it is arguable that in the Hofer case the expulsion decision was a justiciable issue because legal rights were at stake in membership with the colony (acknowledged by the majority in Wall at para 15). Moreover the Supreme Court applies the doctrine of procedural fairness to the colony’s decision, but it may be that the jurisdictional point raised in Wall was not argued extensively (Justice Wakeling notes the colony in Hofer conceded on this point, at para 105 in Wall).
I think the majority in Wall gets it right in result – that is, judicial review should be available for RW to challenge the fairness of the Congregation’s expulsion process. However, the majority judgment fails to provide adequate reasoning to justify what appears to be a significant extension to the scope of judicial review in Canada. By ruling the Court has jurisdiction to review the decision of a non-statutory entity, exercising powers not sourced in legislation, and which do not implicate legal rights, the Court notably expanded the list of decision-makers potentially subject to judicial review. It would have been preferable for the majority to grapple more directly with the threshold point and better identify what makes this case justiciable.
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By: Drew Yewchuk
Case Commented On: R v CMG, 2016 ABQB 368 (CanLII)
R v CMG, 2016 ABQB 368 (CanLII) is a Crown appeal of the acquittal of an accused of sexual offences. Justice Sheilah Martin ultimately ordered a new trial due to errors of law by the trial judge regarding self-incrimination, allowing myths and stereotypes to influence the judgment, and failing to make certain factual findings with sufficient clarity (at para 108). This post will review the errors of the trial judge, with a particular focus on the trial judge’s comments regarding the credibility of the complainant. The post concludes with a suggestion on how decisions relating to the credibility of complainants in trials for sexual offences should be written.
The accused was charged with sexual assault and sexual interference (respectively sections 271 and 151 the Criminal Code of Canada). The accused (CG) was 16 at the relevant time; the complainant (RW) was 13. It was accepted at trial that ostensible consent was not a defence to the charge under section 151 (for an earlier post on ostensible consent see here). The complainant testified that the accused had pushed her to the ground in Kinsmen Park, removed her clothing and forced his penis into her vagina before she escaped and ran away (at para 7). In police statements and at trial, the accused repeatedly said that he had engaged only in consensual intercourse with the complainant though the location, number of occurrences and other details varied in his police statement, examination in chief, and cross-examination (at para 9-10). As is usual in a criminal trial, if the trial judge had accepted the testimony of the complainant without being left with any reasonable doubts based on the evidence of the accused, he would have convicted the accused. Oddly, if he had accepted the testimony of the accused, he also would have convicted the accused, because he admitted sexual activity with a person who was too young to consent. He acquitted the accused because he rejected the testimony of both (at para 12). Exactly what the trial judge concluded did occur was not altogether clear.
The accused admitted that he had engaged in illegal sexual activity with the complainant during the summer in question. The trial judge considered that these admissions could not be used to convict the accused as they were protected “under section 13 of the Charter and under the provisions of the Canada Evidence Act…” (at para 29) As noted by Justice Martin, however, those protections are only for the testimony of an accused that was compelled at an earlier proceeding (at para 35). The accused’s testimony in this case was “freely given in his own trial on the very charges before the court” (at para 37). The trial judge may or may not have relied on this reasoning to exclude the evidence – perhaps he simply found the accused totally unreliable (at para 39) – but “his failure to make an express finding about whether he believed the accused had sex with the complainant amounts to the omission of a key legal issue and is itself a reviewable error.” (at para 40)
The trial judge also appears to have considered that the illegal activity the accused admitted to was outside the scope of the charge (at para 30). Justice Martin found that the trial judge wrongly considered “that time was a crucial element of the offence.” (at para 44) The date of the offence is not an essential element of the offences in question – the trial judge considered the timing issue too narrowly.
Myths and Stereotypes
Justice Martin reviewed the historical provisions relating to the credibility of complainants in trials for sexual offences, pointing out that “Many such myths have their foundation in the same set of beliefs that gave rise to the special and replaced set of provisions, principles and practices that characterized the prior law on sexual offences.” (at para 65). The trial judge commented that the complainant did not scream or run for help (at para 68), potentially drawing upon the myth that a complainant could have resisted the rapist if they really wanted to (at paras 68-69). Furthermore, Justice Martin noted that the trial judge did not mention that the testimony of the complainant was that she actually did struggle, break free, and run away (at para 71).
The trial judge noted that the complainant did not immediately tell anyone about the sexual assault, and Justice Martin indicated that this appears to have drawn in the myth of recent complaint (at para 72). The recent complaint myth is that sexual assault will be reported immediately, and any delay is a reason to doubt the complainant. The trial judge also mentioned that the complainant’s aunt did not notice any change in the complainant’s behaviour following the assault – giving the appearance that he was considering the “myth that women who have really been raped will be hysterical and their terror and injuries will be plain to see” (at para 80).
Justice Martin ruled that these comments, without an explanation of their relevance, showed that the trial judge relied on prohibited assumptions and speculation amounting to an error of law (at paras 85-86). The trial judge’s reasons also failed to specify what inferences he had made with respect to the complainant’s testimony and her credibility more broadly (at para 103). These omissions, amongst others, led Justice Martin to conclude that the acquittal must be overturned, the necessary findings were not present to enter a verdict of guilty, and the appropriate remedy was to order a new trial (at para 51).
A trial does not allow for uncritical acceptance of testimony from any party. What R v CMG reiterates is that “certain categories of complainants should not start from a deficit position or face the additional barriers of being discredited based on myths and stereotypes.” (at para 58)
The trial judge did not explicitly state or apply the myths that Justice Martin identified. What he did was to state the facts that underpinned those myths, leave unexplained his inferences based on those facts, and conclude that the complainant was not credible. In this case, the omission of the discussion of the myths was an indication that the myths had been silently applied. However, this gap in his written reasons for judgment would be an issue (although likely not one reviewable on appeal) even if he had ultimately found the complainant credible. In line with the
principle that ‘justice must be done and be seen to be done’, complainants and the public should never be left in doubt about whether credibility assessments have been impaired by myths or stereotypes.
At first glance, it appears the trial judge said too much. While his judgment may have been overturned if the trial judge had not mentioned the facts that indicate his reasoning may have been based on myths and stereotypes, this clearly would not have resulted in a better judgment. The problem was that the trial judge wrote too little. In sexual assault cases where the underlying facts may support one or more rape myths, the trial judge would be better off not to shy away from mentioning those facts in the judgment (e.g. a delay in reporting the assault, a lack of evidence of struggle, or a less severe emotional reaction than a layperson would expect). A trial decision is improved by the inclusion of such facts, a review of the impermissible myths and stereotypes that such facts might lead to, and a clear statement that those inferences would be impermissible errors of law. The accused, complainant and public should be clear that the myths have no grounding in fact and no place in Canadian law. Such a statement serves both as a self-caution to the trial judge, and as an assurance to the parties and the public. Jennifer Koshan has previously written on R v Wagar, 2015 ABCA 327 (CanLII) here about the importance of jury cautions about rape myths and stereotypes and recommended trial judges administer self-cautions. R v CMG is another instance where such a self-caution may have been of assistance. Another recent example is R v JR, 2016 ABQB 414 (CanLII), where a trial decision tainted by rape myths was overturned on appeal, receiving much media coverage (see e.g. here and here). These decisions, even when corrected on appeal, damage public confidence in the justice system’s ability to treat sexual assault complainants fairly.
Cautions rejecting the myths and stereotypes surrounding sexual assault should appear not only during trial, but also in the written decision following those trials. Silence about the myths risks leaving a complainant in doubt that they received a chance to be heard and have their credibility determined fairly, the accused believing that the trial judge overlooked relevant evidence, and the public in doubt about whether justice was done. Stereotypes thrive in silence and wither under scrutiny; if they are to be purged from sexual assault trials it is necessary to confront them, not to ignore them.
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By: Stephen Armstrong
Case Commented On: R v KRJ, 2016 SCC 31 (CanLII)
The rights and freedoms enshrined in the Charter are not absolute. They are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (Canadian Charter of Rights and Freedoms, section 1). In R v Oakes, 1986 CanLII 46 (SCC), Chief Justice Brian Dickson established the legal standard by which an infringement of a Charter protected right may be justified, which has come to be known as the “Oakes test.” An infringing law must (1) pursue a pressing and substantial objective, (2) be rationally connected to that objective, (3) minimally impair the right or freedom in question, and (4) there must be a proportionality of effects between the deleterious and salutary effects of the law (Oakes at paras 69-70). It is possible to find each of these elements described in somewhat different language throughout the case law, but these four components are the essence of the Oakes test.
In R v KRJ, 2016 SCC 31 (CanLII), the Supreme Court of Canada was tasked with delicately balancing the Charter right of an offender not to be punished by the retrospective application of a punitive law, against Parliament’s objective of protecting children from sexual violence perpetrated by recidivists (KRJ at para 64). I will elaborate on the substance of the decision below, but what is of interest to me in this case is the lengthy and substantial “proportionality of effects” analyses engaged in by Justices Andromache Karakatsanis (writing for the majority), Rosalie Abella (dissenting in part), and Russell Brown (dissenting in part). The most substantial point of disagreement between the three judgements occurred at the final stage of the Oakes test.
By so deeply engaging in the balancing inquiry, the Court has indicated that it may be open to relying more heavily on the proportionality of effects stage in the future. This is a development which should be welcomed and will hopefully lead to greater transparency in the Court’s decision making in s. 1 cases.
In 2013, KRJ pleaded guilty to incest and the creation of child pornography (KRJ at para 8). The offences were committed between 2008 and 2011 (KRJ at para 8).
When a person is found guilty of incest or the creation of child pornography, s. 161 of the Criminal Code obliges the sentencing judge to consider making an order prohibiting the offender, upon release, from engaging in certain enumerated activities that might lead to the offender coming into contact with children (Criminal Code of Canada, RSC 1985, c C-46, s. 161).
At the time KRJ committed the offences to which he plead guilty, s. 161(1) read as follows:
(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; or
(c) using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years.” (KRJ at para 9)
In 2012, the Safe Streets and Communities Act, SC 2012, c. 1, s. 16(1) amended s. 161 by broadening the scope of the activities which may be the subject of a sentencing judge’s prohibitory order. When KRJ pleaded guilty and was sentenced in 2013, paragraphs (c) and (d) of s. 161(1) read as follows:
(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or
(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.
The Charter right engaged in this case was s. 11(i), which guarantees the right of any person charged with an offence:
if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
Issues on Appeal to the Supreme Court of Canada
At the Supreme Court, none of parties disputed that Parliament intended the amendments to s. 161(1) to operate retrospectively (KRJ at para 18). It was accepted by Justice Karakatsanis that Parliament intended the amendments to apply retrospectively (KRJ at para 18).
There were two main questions to be decided by the Court, summarized succinctly by Justice Karakatsanis at paragraph 17 of her judgment:
(1) Does the retrospective operation of s. 161(1)(c) and (d) of the Criminal Code limit s. 11(i) of the Charter?
(2) If so, is the limitation a reasonable one prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Charter?
As mentioned above, the Supreme Court divided three ways:
(1) The majority judgment authored by Justice Karakatsanis, and concurred in by Chief Justice McLachlin and Justices Cromwell, Moldaver, Wagner, Gascon and Côté, answered question 1 in the affirmative and found that a retrospective application of s. 161(1)(c) was not justified, but that a retrospective application of s. 161(1)(d) was justified (the “Majority”).
(2) Justice Abella’s dissent in part also answered the first question in the affirmative, but found that a retrospective application of both s. 161(1)(c) and (d) was not justified under s. 1.
(3) Justice Brown’s dissent in part also answered the first question in the affirmative, but found that a retrospective application of s. 161(1)(c) and (d) was justified under s. 1.
The Majority accordingly allowed KRJ’s appeal in part, ordering that s. 161(1)(c) could not be applied retrospectively, but that a retrospective application of s. 161(1)(d) was justified (KRJ at paras 115-116).
In their respective s. 1 analyses, the dissenters and the Majority agreed that the infringing measure pursued a pressing and substantial objective, and satisfied the rational connection and minimal impairment stages of the Oakes test. Where they disagreed was at the “proportionality of effects” stage, which led to their three separate conclusions under s. 1.
Reasons of the Majority (Question #1): Was KRJ’s s. 11(i) Right Infringed?
The legal test to determine whether a prohibition or sanction is a punishment under section 11(i) was established in R v Rodgers 2006 SCC 15 (CanLII) (“Rodgers”). It is a two part test:
(1) The measure must be a consequence of a conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and
(2) The measure must be imposed in furtherance of the purpose and principles of sentencing. (KRJ at para 28)
The majority at the BC Court of Appeal concluded that the sanctions under s. 161(1) were not imposed in the furtherance of the purpose and principles of sentencing because they were aimed at public safety (KRJ at para 14). This position was adopted by the Crown at the Supreme Court (KRJ at para 31).
The position taken by the BC Court of Appeal and the Crown raised two sub-issues the Majority needed to answer:
(1) Does a public safety objective necessarily exempt a law from the second branch of the Rodgers test? (KRJ at para 30)
(2) What role does the impact of a measure on an offender have in determining if the measure is a punishment under s. 11(i)? (KRJ at para 30)
Justice Karakatsanis quickly dispatched with the first sub-issue, answering in the negative. She found that it was “clear from the plain language of s. 718 [of the Criminal Code] that public protection is part of the very essence of the purpose and principles governing the sentencing process” (KRJ at para 33).
To address the second sub-issue, Justice Karakatsanis reformulated the Rodgers test:
(1) The measure must be a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and
(2) The measure must be imposed in furtherance of the purpose and principles of sentencing, or
(3) The measure must have a significant impact on an offender’s liberty or security interests (KRJ at para 41)
Applying the reformulated s. 11(i) test to s. 161(1), Justice Karakatsanis found that the 161(1)(c) and (d) prohibitions were consequences of conviction that form part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence (KRJ at para 50). The first part of the test was satisfied.
Justice Karakatsanis then went on to find that both the second and third parts of the test were satisfied, although only one or the other were required (KRJ at para 51).
The objective of 161(1) was to shield children from sexual violence by separating offenders from society, rehabilitate offenders, and deter future violence (KRJ at para 52). This objective aligned with the purposes and principles of sentencing (KRJ at para 52).
The 161(1)(c) and (d) prohibitions also had the potential for a non-trivial impact on the liberty and security interests of offenders because of the stigma attached, restrictions on employment, restrictions on the ability of an offender to interact in public and private spaces, and a possible significant deprivation of internet access (KRJ at para 54).
All three elements of the reformulated Rodgers test being satisfied, Justice Karakatsanis concluded that the newer version of s. 161 was “clearly” a more severe punishment than the previous version because of the expanded scope of activities covered in s. 161(1)(c) and (d) (KRJ at para 57). Therefore, a retrospective application of the new version of s. 161 infringed KRJ’s s. 11(i) right to the benefit of the lesser punishment and had to be justified under s. 1 of the Charter (KRJ at para 57).
Reasons of the Majority (Question #2): Justification under s. 1 of the Charter
As noted in the introduction, in order to justify the limitation of a Charter right or freedom the law must satisfy each component of the Oakes test. There must be a pressing and substantial objective, a rational connection between the measure and objective, minimal impairment of the right in question, and a proportionality of deleterious and salutary effects caused by the measure (KRJ at para 58).
The evidence presented by the Crown to justify the Charter infringement in this case was unique because neither the BC Provincial Court nor the BC Court of Appeal heard evidence on s. 1. The Supreme Court was therefore the court of first instance on the matter and none of the evidence was tried in the usual way it might have been in a trial setting (KRJ at paras 59-60).
The Pressing and Substantial Objective
An infringing law must pursue an objective of sufficient importance in the context of a free and democratic society to justify overriding constitutionally protected rights (KRJ at para 61). The relevant objective is not necessarily the objective of the law as a whole, but the objective of the infringing measure (KRJ at para 62, citing Toronto Star Newspapers Ltd v Canada, 2010 SCC 21 (CanLII) at para 20). Justice Karakatsansis identified the infringing measure as being the retrospective application of the amended version of s. 161 (KRJ at para 62).
Upon review of the legislative history, judicial interpretation, and design of s. 161, Justice Karakatsanis found the overarching purpose behind the amendments as a whole to be the enhancement of the protection s. 161 provides children against the risk of sexual violence (KRJ at paras 64-65). Naturally then, the objective behind retrospectively applying these amendments was to, “better protect children from the risks posed by offenders like the appellant who committed their offences before, but were sentenced after, the amendments came into force” (KRJ at para 65). This objective was found to “obviously” be pressing and substantial in a free and democratic society (KRJ at para 66).
The means employed by the infringing law must be rationally connected to the pressing and substantial objective on the basis of reason or logic (KRJ at para 68). KRJ conceded that a retrospective application of s. 161 was rationally connected to the objective and Justice Karakatsanis did not take long to conclude on the basis of reason and logic that there was “clearly” a rational connection (KRJ at para 69).
When there is an alternative means available which both achieves the government’s objective in a real and substantial manner and is less harmful to the right infringed, then the impugned law is not minimally impairing (KRJ at para 70).
It is worth noting at this point that Justice Karakatsanis earlier acknowledged and adopted a line of cases from lower courts which have imposed some constraints on when a s. 161 prohibitory order can be used and what form it must take (KRJ at para 48). The sentencing judge must be satisfied that:
(1) There is an evidentiary basis upon which to conclude the offender poses a risk to children,
(2) The specific terms of the order are a reasonable attempt to minimize the risk, and
(3) The content of the order carefully responds to an offender’s specific circumstances.
This framework affords a high degree of latitude to sentencing judges to allow them to tailor the order to the special circumstances of an individual offender and there will be no order imposed where there is no evidentiary footing for one. The discretionary nature of the orders ensures they will impair an offender’s right no more than is necessary to protect children and the requirement of an evidentiary basis ensures the orders will not be applied in an overly broad fashion (KRJ at paras 72-73).
Justice Karakatsanis also noted that a purely prospective application of the amended s. 161 would undermine the government’s objective because the recidivism rate for sex offenders is significant (KRJ at para 75). Additionally, striking down the retrospective application of the amendments at this stage would fail to grant sufficient deference to Parliament’s legislative choice of means (KRJ at para 75).
Accordingly, it was found that the retrospective application of the amendments was minimally impairing of s. 11(i) (KRJ at para 76).
Proportionality of Effects
Before embarking on her extensive 33 paragraph proportionality of effects analysis, Justice Karakatsanis made a critical observation on the final stage of the Oakes test. The proportionality of effects stage is important because it is the only part of the Oakes test that allows judges to transparently engage in a normative, value-laden discussion about whether the infringement of an individual’s Charter rights is justifiable (KRJ at para 79). This stage is, as Justice Karakatsanis noted, the very “essence of the proportionality enquiry at the heart of s. 1” (KRJ at para 79).
Proportionality of Effects: s. 161(1)(c)
There were three categories of effects that Justice Karakatsanis sought to balance:
(1) Deleterious effects on individual offenders: the expanded scope of s. 161(1)(c) constituted a substantial intrusion on the liberty and security interests of offenders because it would prevent them from freely participating in society (KRJ at para 81).
(2) Deleterious effects on society: retrospective application of punitive laws undermines the values protected by s. 11, namely fairness in criminal proceedings and respect for the rule of law (KRJ at para 82). Additionally, the Parliament’s lack of compelling evidence justifying retrospective application enhanced the deleterious effect because it showed a lack of respect for the principles underlying s. 11 (KRJ at para 83).
(3) Salutary effects for society: Justice Karakatsanis accepted that recidivism rates for sexual offenders were significant and that potentially hundreds of offenders could be caught under the retrospective application of the amendment (KRJ at paras 85-88). She therefore accepted that real risks to children were present and that retrospective application would mitigate these risks (KRJ at para 88).
In balancing these three sets of effects, Justice Karakatsanis noted that, while evidentiary issues are inherent when dealing with public policy, s. 1 requires that a limit be demonstrably justified according to, in the words of Chief Justice Dickson, a “stringent standard of justification” (KRJ at para 91, citing Oakes at para 65). The application of this “stringent standard” was the main bone of contention between the Majority and the dissenters.
In regards to the salutary effects of s. 161(1)(c), the Crown produced little, if any, direct evidence of the marginal benefit accrued by applying the new version of s. 161(1)(c) instead of the previous version (KRJ at para 89-90). Justice Karakatsanis also took issue with a lack of evidence as to why the new version had to be retrospective, finding general evidence of recidivism to be insufficient justification (KRJ at paras 93-94).
Justice Karakatsanis then characterized the deleterious effects of the measure as “significant and tangible”, as against the “marginal and speculative” benefits society stands to gain (KRJ at paras 91-92) and concluded that a retrospective application of s. 161(1)(c) could not be justified under s. 1 (KRJ at paras 95-96).
Proportionality of Effects: s. 161(1)(d)
There were at least five categories of effects that Justice Karakatsanis sought to balance for this measure:
(1)Deleterious effects on individual offenders: A complete ban on internet use would be a “significant deprivation of liberty”, erecting “massive barriers to an offender’s full participation in society” resulting in serious social and economic consequences for that individual (KRJ at 98).
(2) Deleterious effects on society: same as considerations applied as with s. 161(1)(c) above.
(3) Salutary effects for society: rapid technological development has changed the degree and nature of the risk of sexual harm to children, creating a legislative gap filled by the introduction of s. 161(1)(d) (KRJ at para 101). The internet has created new and qualitatively different opportunities to harm young people (KRJ at para 107). Such opportunities were not covered under the older version of s. 161 (KRJ at para 107). Justice Karakatsanis described the evidence of salutary effects as “greater and more certain than those stemming from s. 161(1)(c)” (KRJ at 108).
(4) Mitigation of deleterious effects to society: the fact that the law responds to a legislative gap in a swiftly changing social context, according to Justice Karakatsanis, actually makes it less unfair and less intrusive on the rule of law (KRJ at paras 110-111).
(5) Mitigation of deleterious effects on individuals: the adverse effects of this provision will only be imposed when there is an evidentiary basis that it will mitigate the risk of harm to children (KRJ at para 112). It should be noted this consideration would also have applied to s. 161(1)(c) but Justice Karakatsanis did not reference it in that section.
Justice Karakatsanis ultimately concluded that the Crown had a “compelling case” that the deleterious effects of s. 161(1)(d) were outweighed by its salutary effects (KRJ at para 114). As the evidence of the salutary effects was regarded as more direct and credible, and the deleterious effects were somewhat mitigated, the balance was in favour of justification. She also noted that the harm of sexual violence against young people was particularly powerful, the scheme under s. 161(1)(d) was flexible and discretionary, and that an internet prohibition was not among the most onerous of punishments (KRJ at para 114).
Justice Abella’s Dissent in Part
Justice Abella’s main point of departure with the Majority appears to be on the question of how strict the standard of justification should be for the Crown in this case (KRJ at para 124). Justice Abella would have held the Crown to the highest standard of justification (KRJ at para 124). She relied on the “absolutist language” of s. 11 of the Charter and on the Supreme Court’s recent s. 11(h) case, Canada (AG) v Whaling, 2014 SCC 20 (CanLII) (at para 79), where the Court required “compelling evidence” to justify a retrospective change to parole review, which infringed the claimant’s right not to be punished twice for the same offence (KRJ at para 124).
Justice Abella very clearly wanted direct evidence of the benefits to be gained by retrospectively applying the new law (KRJ at paras 128-129). Given the absence of such evidence, she would have found s. 161(1)(d) unjustified alongside s. 161(1)(c) (KRJ at para 130).
Justice Brown’s Dissent in Part
Justice Brown, while agreeing with the Majority on the s. 11(i) question, would have dismissed the appeal entirely because he found a retrospective application of both measures to be justified under s. 1 (KRJ at para 133).
Justice Brown criticised the Majority’s application of the Oakes test for:
(1) reading the purpose of the legislation too narrowly (KRJ at para 135),
(2) a rigid and acontextual application of Oakes, thereby avoiding the “unavoidable normative inquiry” at its heart (KRJ at paras 135-136)
(3) holding Parliament to an exacting standard of proof, denying Parliament its legislative policy-development role (KRJ at para 141),
(4) overstating the deleterious effects of s. 161(1)(c) while understating the salutary effects (KRJ at para 141), and
(5) finding a retrospective application of s. 161(1)(c) to be unjustified when their reasons for upholding the retrospective application of s. 161(1)(d) equally apply to s. 161(1)(c) (KRJ at para 141)
While Justice Brown raised several points of disagreement, in its essence his critique stems from a difference of opinion as to the proper amount of deference to grant to Parliament in this case, and accordingly, the proper standard of justification to apply. Justice Brown stressed that the analysis must be
“sensitive to policy-makers’ need for a measure of latitude to consider and try previously untried alternatives, particularly when confronting persistent and complex public policy concerns” (KRJ at para 144).
In my view, this departure from the Majority is the basis for his various points of criticism which ultimately led him to a different conclusion as to s. 161(1)(c).
Comparison to Alberta v Hutterian Brethren of Wilson Colony
In her general commentary on the proportionality of effects stage of the Oakes test, Justice Karakatsanis made a brief reference to Justice Abella’s dissent in Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (CanLII) at para 149, agreeing with Justice Abella that much of the heavy lifting and balancing should be done at this final stage of the Oakes test (KRJ at para 78). Indeed, much heavy lifting was carried out by the Court at this stage in both cases.
In Hutterian Brethren, the claimants – a colony of Hutterites – successfully argued that their s. 2(a) Charter right to freedom of religion was infringed by a law which mandated photo identification for driver’s licences (Hutterian Brethren at paras 1-4). The claimants’ religious beliefs precluded them from having their pictures taken (Hutterian Brethren at paras 1-4). Chief Justice McLachlin, writing for the majority, found the limit on freedom of religion to be justified under s. 1 (Hutterian Brethren at para 104). Along the way, the Chief Justice breathed new life into the proportionality of effects stage by insisting on its importance and by engaging in a rare in-depth balancing analysis (Hutterian Brethren at paras 72-103).
Where in KRJ, Justice Karakatsanis required more concrete and direct proof of the marginal benefit of applying the new version of s. 161(1)(c) over the old version, Chief Justice McLachlin, writing for the majority in Hutterian Brethren, took a different approach:
Though it is difficult to quantify in exact terms how much risk of fraud would result from permitted exemptions, it is clear the international integrity of the system would be comprised (Hutterian Brethren at para 81)
…a government enacting social legislation is not required to show that the law will in fact produce the forecast benefits. Legislatures can only be asked to impose measures that reason and the evidence suggest will be beneficial. (Hutterian Brethren at para 85)
This is a starkly different approach to the standard of evidence required for justification. What can explain this difference?
The issue of deference and the evaluation of social science evidence in s. 1 cases has plagued the Supreme Court since Oakes (See S. Choudhry, “So what is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s Section 1” (2006), 34 SCLR (2d) 501). KRJ is one of the hopelessly nebulous cases where the state-versus-the-individual dynamic would seem to necessitate a “stringent standard of justification” (Oakes at para 65), but also where the public policy and social science based aspects around judging how to deal with recidivism and protect the rights of children would seem to oblige a more lax standard (Irwin Toy Ltd. v Quebec (AG) 1989 CanLII 87 (SCC) at pp 993-994, Canada (AG) v JTI-Macdonald Corp. 2007 SCC 30 (CanLII) at para 43).
Thus, while Justice Karakatsanis did note that a degree of deference was warranted in her s. 1 analysis, it would appear she did not affect so deferential a posture as to make it determinative of the outcome (KRJ at para 67).
On the other hand, Hutterian Brethren was a case based on social policy and balancing rights outside of the criminal law context. Accordingly, the majority of the Court appears to have been more willing to defer to the legislature’s judgment on how to effect the proper balance of societal interests versus those of a religious minority (See Hutterian Brethren at para 37).
Justice Abella’s approach has been consistent in each case, insisting in a high standard of justification, even outside of the criminal law context as in the case of Hutterian Brethren (See Hutterian Brethren at paras 135, and 156-162). And in each case she appears to have been unable to persuade a majority of her fellow justices on the Supreme Court, although perhaps the Majority’s conclusions on s. 161(1) were influenced by Justice Abella.
The Supreme Court’s jurisprudence concerning the fourth component of the Oakes test has been the subject of considerable commentary by legal scholars. For example, Professor Hogg has described the proportionality of effects stage as “redundant” and observed that it “has never had any influence on the outcome of any case” (Peter W. Hogg, Constitutional Law of Canada (2015 Student Ed.), at section 38.12(b)). Dieter Grimm noted that the final stage of the Oakes test plays a “more residual function in Canada”, which may be born of a “fear that a court might make policy decisions at this stage rather than legal decisions” (Dieter Grimm, “Proportionality in Canadian and German Constitutional Jurisprudence” (2007) 57 UTLJ 383, at 393-394). The dominant narrative in the literature appears to be that, since the introduction of the Oakes test, our courts have been reluctant to meaningfully engage in the inherently value driven act of balancing deleterious and salutary effects of Charter infringing laws.
If the dominant narrative is true, then both Hutterian Brethren and KRJ would seem to buck the trend. One of Justice Brown’s critiques noted above was that the Majority in KRJ shied away from the inherently value-driven nature of proportionality (KRJ at paras 135-136). Respectfully, I could not more strongly disagree. Justice Karakatsanis spent fully 33 paragraphs balancing the deleterious and beneficial effects of the measures and did not shy away from the inherently value-driven nature of proportionality at all.
Just because the Majority was not swayed by the evidence does not mean they have applied Oakes in an unprincipled and mechanical fashion. Indeed, in the absence of hard proof, it was principles and values which moved the Majority to its decision on s. 161(1)(c):
It may be tempting to conclude that mitigating the risk of sexual violence to even one child is worth the costs….Such an approach ascribes almost no value to the right. Section 11(i) protects fundamental interests that can be overridden only in demonstrably compelling circumstances. (KRJ at para 95)
Far from shying away from the normative inquiry, the Majority embraced it. They have stated plainly that our rights and freedoms are not so cheaply held that they may be overridden merely at the say-so of Parliament.
In the final analysis, while the Supreme Court may have breathed new life into the proportionality of effects stage in Hutterian Brethren, the Court has confirmed that the final stage of Oakes does indeed have teeth by using it to overturn government policy in KRJ. If our Courts continue to show a greater willingness to engage in the balancing inquiry at the heart of the Oakes test, there will be greater transparency in judicial decision making in s. 1 cases, and we will be all the richer for it. Such a development should be welcomed.
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By: Julia Gaunce
Decision Commented On: Award on the Merits of the Annex VII Tribunal, In the Matter of the South China Sea Arbitration, The Republic of the Philippines v The People’s Republic of China, 12 July 2016
As recited in an earlier post by Nigel Bankes, the Annex VII Tribunal in the South China Sea Arbitration (SCSA) handed down its Award on the Merits in the dispute between the Philippines and China on 12 July 2016. The dispute between the parties involves China’s extensive maritime claims in the South China (many within the context of the so-called nine dash line), claims in relation to fishing activities by Chinese flagged vessels, as well as claims in relation to China’s dredging and construction activities associated with reclamation activities on a series of maritime features in the South China. The Tribunal ruled in favour of the Philippines on almost all issues in its 479 page unanimous and comprehensive decision.
This post examines the Tribunal’s interpretation of the duty of “due regard” under the United Nations Law of the Sea Convention (LOSC) Article 58(3) in the course of its consideration of Submission No. 9 by the Philippines. That submission requested that the Tribunal declare that “China has unlawfully failed to prevent its nationals and vessels from exploiting the living resources in the exclusive economic zone of the Philippines” (at para 717). The obligation of “due regard” is one of the key mechanisms adopted in the LOSC to balance the potentially competing interests of coastal states and other uses of the new maritime zone, the exclusive economic zone, recognized by LOSC.
The Tribunal concluded that China was in breach of its obligation of “due regard” under LOSC Article 58(3):
… China has, through the operation of its marine surveillance vessels in tolerating and failing to exercise due diligence to prevent fishing by Chinese flagged vessels at Mischief Reef and Second Thomas Shoal in May 2013, failed to exhibit due regard for the Philippines’ sovereign rights with respect to fisheries in its exclusive economic zone. Accordingly, China has breached its obligations under Article 58(3) of [LOSC]. (at para 757; emphasis added)
This post elaborates on that conclusion.
The South China Sea is a semi-enclosed sea in the western Pacific Ocean, south of China and west of the Philippines, important for shipping, fisheries, a biodiverse coral reef ecosystem, and the potential for substantial oil and gas resource exploitation (at para 3). Mischief Reef and Second Thomas Shoal are coral reefs located in the centre of the Spratly Islands, in the southern part of the South China Sea (at paras 290, 3).
The Philippines’ Submission No. 9 concerned Chinese government and fishing vessel activities at Mischief Reef and Second Thomas Shoal, and was one of six submissions (Nos. 8 to 13) dealing with Chinese activities in the South China Sea. The Tribunal’s considerations of Submissions Nos. 8, 12 and 14 (not analysed in this post) all dealt with activities at Mischief Reef and Second Thomas Shoal, and together comprise a broader factual background to Submission No. 9.
In the case of Submission No. 8, the Tribunal noted that the core of the dispute with respect to living and non-living resources was that both the Philippines and China had acted on the basis that each, and not the other, had exclusive rights to these resources (at para 696). With respect to living resources, for example, China promulgated a 2012 fishing moratorium in respect of an area where the Philippines claimed fisheries jurisdiction (at para 712). Although the Tribunal decided the Philippines had not established that China prevented Filipino fishermen from fishing at Mischief Reef or Second Thomas Shoal, it noted it could “readily imagine” that the presence of Chinese enforcement vessels at both locations, combined with China’s general claim to fisheries jurisdiction, could lead Filipino fishermen to avoid such areas (at para 715).
In respect of Submission No. 12 on China’s occupation and construction activities on Mischief Reef, the Tribunal noted that these included the construction of artificial islands and installations (such as concrete platforms supporting three-story buildings, a helipad, communications equipment, wharves, fortified seawalls, temporary loading piers, cement plants, a 250-metre-wide channel to allow transit into the lagoon) and the presence of dredger vessels, cargo ships and ocean tugs (at paras 994, 1003, 1009, 1004).
Regarding Submission No. 14, the Tribunal took note of the vessel grounded on Second Thomas Shoal in 1999 by the Philippine Navy on board of which the Philippines has maintained a small detachment of marines, reports of Chinese government vessels and unidentified aircraft in the vicinity, and the interception of two Philippines supply vessels by two Chinese Coast Guard vessels (at paras 1113, 1115, 1117, 1123).
As factual background related specifically to Submission No. 9, the subject of this post, the Tribunal noted that, since 3 May 2013, China had maintained a “significant presence” of naval and China Marine Surveillance vessels near Second Thomas Shoal (at para 719). The government vessels were accompanied by fishing vessels (at para 720). The Tribunal also noted reports of Chinese fishing vessels escorted by Chinese government ships at Mischief Reef (at para 721). The Tribunal concluded that accounts of officially organised Chinese fishing fleets and close coordination between Chinese fishing vessels and government ships in the area supported the inference that China’s fishing vessels were organised and coordinated by the government—and that, in any event, Chinese government vessels were aware of the actions of Chinese fishermen and would have been able to halt them (at para 755).
Positions of the Parties
In its submissions on issue No. 9 the Philippines relied on the ITLOS advisory opinion in the Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015 (Fisheries Advisory Opinion) for the interpretation that, under LOSC Articles 58(3) and 62(4), a state has a due diligence obligation to ensure its nationals and vessels comply with coastal state regulations in the EEZ and do not engage in illegal, unreported and unregulated (IUU) fishing activities (at para 726; and see SCSA Merits Hearing Transcript (Day 4) pp 84-87, citing Fisheries Advisory Opinion at paras 123, 124, 128, 138). China’s position (as described in diplomatic correspondence with the Philippines, China being a non-participant in the proceedings) was that it did not consider the Philippines to have rights in the relevant area (at para 730).
The Tribunal’s Considerations
The Tribunal concluded that it had jurisdiction with respect to Submission No. 9 on the basis that none of the features claimed by China are capable of generating any entitlement to an EEZ overlapping that of the Philippines (at paras 733-734), and that therefore Articles 15, 74, 83 on delimitation and Articles 297(3)(a), 298(1)(a)(i), 298(1)(b) on exceptions to jurisdiction do not apply (at paras 694-695).
The Tribunal identified the law applicable to the issue of China’s “presence” in the area of Mischief Reef and Second Thomas Shoal (at paras 735-741) as including two elements: first, LOSC Article 61(1) dealing with the jurisdiction of the coastal state (the Philippines) as to the allowable catch within the EEZ, and LOSC Article 62(2) and (3) as to access by flag state vessels to surplus allowable catch, and second—with particular emphasis—Article 62(4) on the obligations of flag state nationals fishing in the coastal state’s EEZ, and Article 58(3) on the obligation of flag states in the coastal state’s EEZ. This last provides that:
In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part. (emphasis added)
The Tribunal’s interpretation of “due regard” under Article 58(3) contains a number of steps.
First, with respect to the “nature” of the obligation, the Tribunal, without further comment, references the observations in the Award on the Merits of the Annex VII Tribunal in the Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom), 18 March 2015 (Chagos) with respect to “due regard” under Article 56(2) (not 58(3)) reproducing from that Award as follows:
… the ordinary meaning of “due regard” calls for the [first State] to have such regard for the rights of [the second State] as is called for by the circumstances and by the nature of those rights. The Tribunal declines to find in this formulation any universal rule of conduct. The Convention does not impose a uniform obligation to avoid any impairment of [the second State’s] rights; nor does it uniformly permit the [first State] to proceed as it wishes, merely noting such rights. Rather, the extent of the regard required by the Convention will depend upon the nature of the rights held by [the second State], their importance, the extent of the anticipated impairment, the nature and importance of the activities contemplated by the [first State], and the availability of alternative approaches. (at para 742, citing Chagos Award at para 519) (square brackets added by the SCSA Tribunal)
Second, remarking on the specific context of the duties of a flag state with respect to fishing by its nationals in a coastal state’s EEZ, the Tribunal noted its agreement with the reasoning of ITLOS in its Fisheries Advisory Opinion, stating that:
…[ITLOS] interpreted the obligation of due regard, when read in conjunction with the obligations directly imposed upon nationals by Article 62(4), to extend to a duty “to take the necessary measures to ensure that their nationals and vessels flying their flag are not engaged in IUU fishing activities.” The Fisheries Advisory Opinion goes on to note that:
the obligation of a flag State . . . to ensure that vessels flying its flag are not involved in IUU fishing is also an obligation “of conduct”. . . . as an obligation “of conduct” this is a “due diligence obligation”, not an obligation “of result”. . . . The flag State is under the “due diligence obligation” to take all necessary measures to ensure compliance and to prevent IUU fishing by fishing vessels flying its flag. (at para 743, citing Fisheries Advisory Opinion at paras 124, 129)
Finally, applying Article 58(3) the Tribunal determined that:
… [Evidence] support[s] an inference that China’s fishing vessels are not simply escorted and protected, but organised and coordinated by the Government…
The obligation to have due regard to the rights of the Philippines is unequivocally breached when vessels under Chinese Government control act to escort and protect Chinese fishing vessels engaged in fishing unlawfully in the Philippines’ [EEZ]. (at paras 755-756)
In the course of its brief consideration of the duty of “due regard,” the Tribunal makes no direct use of the interpretative rules set out in the Vienna Convention on the Law of Treaties (VCLT)–neither explicitly, nor implicitly referencing the interpretative approach outlined in VCLT Articles 31 and 32 (ordinary meaning, context, object and purpose, or any “supplementary” interpretative means) or to the intentions of the parties.
It might have done. Earlier in the Award, the Tribunal elaborated on the procedural safeguards that ensured China suffered no disadvantage with respect to evidence and claims as a result of its non-participation in the proceedings (at paras 119-121). The Tribunal might have been well advised to take a similar approach with respect to the interpretation of “due regard”.
Instead, as noted above, the SCSA Tribunal relies heavily on the reasoning of two prior decisions, the Chagos Award and the Fisheries Advisory Opinion.
While not strictly a source of international law, reference to international jurisprudence is nevertheless commonplace in practice, whether for adjudicative consistency, efficient reference to existing law, or the making of new law through clarification of existing law (see for discussion Thomas Buergenthal, “Lawmaking by the ICJ and Other International Courts” (2009) 103 Proceedings of the Annual Meeting (American Society of International Law) 403, and Harlan Grant Cohen, “Theorizing Precedent in International Law” and Gleider Hernández, “Interpretative Authority and the International Judiciary” both in Andrea Bianchi, Daniel Peat & Matthew Windsor eds, Interpretation in International Law (Oxford: OUP, 2015)).
The Chagos Award on its own might not obviously represent an interpretative consensus on the meaning (or nature) of “due regard”, even if that were possible for a duty the content of which will necessarily arise from the specific circumstances under consideration. Like the SCSA, Chagos was decided by an Annex VII Tribunal which did not elaborate extensively on its interpretative reasoning with respect to “due regard”, although that Tribunal did implicitly refer to the VCLT in referring (albeit abruptly) to the “ordinary” meaning of the term.
Also, as noted by the SCSA Tribunal itself (at para 742), the Chagos Tribunal had before it the “reversed situation”—that is, the question of the “due regard” duty of the coastal state in the EEZ under Article 56(2), rather than “due regard” duty of the flag state under Article 58(3). The SCSA Tribunal does not explicitly conclude whether it equates the respective “due regard” duties of coastal and flag states or whether the interpretation of the one can serve as context for interpretation of the other. The understanding that “due regard” in LOSC Articles 56(2) and 58(3) is mirrored—in the sense of being in the first instance equally weighted or without pre-eminence as between a coastal state (with its sovereign rights) and a flag state (with its freedoms of the high seas)—has been echoed in jurisprudence and literature, but there is not universal consensus on this point. (See, for example, M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v Guinea), Separate Opinion of Judge Laing,  3 ITLOS Rep 10 at para 52, M/V “Virginia G” (Panama v Guinea-Bissau), Dissenting Opinion of Judge ad hoc Sérvulo Correia  ITLOS Rep 1 at para 16, Alexander Proelss, “The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited” (2012) 26 Ocean Yrbk 87, James Kraska, “Resources Rights and Environmental Protection in the Exclusive Economic Zone” in Military Activities in the EEZ: A U.S. China Dialogue (Newport, Rhode Island: China Maritime Studies Institute, U.S. Naval War College, 2010) 75.) Also, apart from the mutual duties of “due regard” under Articles 58(3) and 56(2), the two provisions elaborate on the respective duties of coastal and flag states differently. Under Article 58(3) the flag state has the general obligation of “due regard” as well as the specific duty to “comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part”, while under Article 56(2) the coastal state’s twin obligations of “due regard” and to “act in a manner compatible with the provisions of [LOSC]” are both framed more generally.
As to the “nature” of the duty of “due regard”, the obligation includes, or is, a duty to balance concurrent coastal and flag state entitlements and duties—as described, for example, in the Chagos Award passage reproduced by the SCSA Tribunal:
…the extent of the regard required by the Convention will depend upon the nature of the rights held by [the second State], their importance, the extent of the anticipated impairment, the nature and importance of the activities contemplated by the [first State], and the availability of alternative approaches. (at para 742, citing Chagos Award at para 519) (square brackets added by the SCSA Tribunal)
The Chagos Tribunal applied this balancing analysis as follows:
There is no question that Mauritius’ rights have been affected by the declaration of the MPA. In the territorial sea, Mauritius’ fishing rights have effectively been extinguished. … the [Respondent] United Kingdom’s undertaking for the eventual return of the Archipelago gives Mauritius an interest in significant decisions that bear upon its possible future uses… The Tribunal considers Mauritius’ rights to be significant and entitled, as a matter of good faith and the Convention, to a corresponding degree of regard. (Chagos Award at para 521)
The SCSA Tribunal does not replicate this calculus exactly (i.e. it does not directly contemplate the specific importance of the interests and activities of China and the Philippines, nor impairment or alternative approaches), though it does appear to balance relevant LOSC provisions in the course of its conclusion on the meaning of “due regard” under Article 58(3):
Given the importance of fisheries to the entire concept of the exclusive economic zone, the degree to which the Convention subordinates fishing within the exclusive economic zone to the control of the coastal State, and the obligations expressly placed on the nationals of other States by Article 62(4) of the Convention, the Tribunal considers that anything less than due diligence by a State in preventing its nationals from unlawfully fishing in the exclusive economic zone of another would fall short of the regard due pursuant to Article 58(3) of the Convention. (at para 744)
Presumably a balancing analysis of concurrent coastal and flag state rights and duties is more relevant with respect to an activity by one state that is prescribed (the performance of a duty) or protected (for example, the declaration of an Marine Protected Area by a coastal state, as in Chagos, or navigation by a flag state) but which nevertheless might impair the interests of another state, rather than to an activity that is unlawful in the first instance, such as organizing and coordinating IUU fishing activities in another state’s EEZ.
With respect to the content of due diligence, the SCSA Tribunal goes only so far as to note that:
In many cases, the precise scope and application of the obligation on a flag State to exercise due diligence in respect of fishing by vessels flying its flag in the exclusive economic zone of another State may be difficult to determine. (at para 754)
An analysis of the specific content of due diligence is presumably unnecessary in this case given that China’s conduct was found to be beyond the scope of diligence—that is, its government vessels were found to have escorted, protected, organized and coordinated IUU fishing activities (at paras 754-756).
The SCSA Award is, notably, the first decision to determine a breach of “due regard” obligations by a flag state under Article 58(3) and (agreeing on this with the Fisheries Advisory Opinion) framing the breach as arising from a violation of a general principle of international law not directly expressed in LOSC (see Fisheries Advisory Opinion at para 110). In contrast, the two decisions that have found breaches of “due regard” by a coastal state under Article 56(2), the Chagos Award and the Award on the Merits of the Annex VII Tribunal In the Matter of The Arctic Sunrise Arbitration (Netherlands v Russia), 14 August 2015, each framed the respective breaches of “due regard” in terms of conduct incompatible with LOSC provisions other than Article 56(2) (see Chagos Award at paras 520, 534, 540, 544; and Arctic Sunrise Award at paras 231, 333.)
This blog post will be cross-posted on the JCLOS Blog, the blog of the K.G. Jebsen Centre for the Law of the Sea, the University of Tromsø.
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By: Kristin Barham and Anna-Maria Hubert
International Agreements Commented On: Article 27 of the 1948 United Nations Universal Declaration of Human Rights, and Article 15 of the 1966 United Nations International Covenant on Economic, Social and Cultural Rights
“Scientific and technical advances bring unquestioned benefits, but they also generate new uncertainties and failures, with the result that doubt continually undermines knowledge, and unforeseen consequences confound faith in progress.”
There is a growing body of social science literature emphasising a need for science and technological innovation to be more accountable to society and to take into account the full spectrum of uncertainties surrounding these processes. These calls are often manifested as calls for greater reflexivity, transparency and public participation in R&D. Environmental law – with its focus on the prevention of environmental harm and precaution – provides an important site for regulation and governance for many advances in science and technology. There is an obvious logic to this choice, given the countless examples of technologies that have contributed to environmental damage at various phases of their lifecycles. However, there are conceptual limits to the application of environmental law for governing upstream R&D, as environmental obligations primarily aim at preventing or minimizing actual physical harm to the environment. Precautionary risk assessment and management are examples of governance tools for asserting greater control over research and innovation processes. However, although environmental law is increasingly informed by a broader framework of sustainable development that draws upon a range of legal subject areas, an environmental framing does not directly target the social and ethical concerns that dominate the early stages of science and the development of emerging technologies.
The specific concerns raised by small-scale geoengineering research illustrate this point nicely. Geoengineering is commonly defined as “deliberate large-scale interventions in the Earth’s natural systems to counteract climate change” (Oxford Geoengineering Programme). Larger-scale climate response tests or deployment of geoengineering at material scales are likely to cause a risk of significant harm to the environment or human safety. By contrast, the environmental impacts of initial research projects may be negligible in comparison to other everyday commercial activities. Social scientists point out, however, that precautionary governance may be necessary in the face of the social, political and ethical implications of the knowledge acquired from geoengineering research. They identify the ‘sociotechnical risks’ of geoengineering as including premature entrenchment, path dependency and lock-in (see, e.g., Rob Bellamy, “A Sociotechnical Framework for Governing Climate Engineering” (2016) 41 Science, Technology & Human Values 135).
This blog post highlights the contribution of international human rights law – in particular, the frequently overlooked ‘right to science’ – in providing a supplementary normative underpinning for the governance of sciences and emerging technologies. We begin by outlining legal sources and legal status of this right in international law. We then go on to provide a brief overview of the normative development of this right in the context of ongoing processes established under the auspices of the United Nations Human Rights Council. Finally, we point out some of the implications of the right to science in informing responsible research practices and institutional arrangements for the conduct of geoengineering research.
The Right to Science in International Human Rights Law
Geoengineering will touch on many human rights, but it is the so-called ‘right to science’ that best functions as a normative framework for informing research governance. The right to “share in scientific advancement and its benefits” was first recognized in Article 27 of the 1948 United Nations Universal Declaration of Human Rights, and later reiterated in Article 15 of the 1966 United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR). The Covenant provides a comprehensive articulation of the right to science, including the general right of everyone to “enjoy the benefits of scientific progress.” With 164 States Parties, the ICESCR has near universal participation. Parties are legally bound to respect, protect and fulfill the rights articulated in the Covenant. It requires that States Parties promote “the development and the diffusion of science” (article 15(2)) and “recognize the benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific field” (article 15(3)). In 2013, an Optional Protocol entered into force that sets forth an international complaint and inquiry mechanism which allows the Committee on Economic, Social and Cultural Rights to consider complaints from individuals or groups who claim their rights under the Covenant have been violated and have not received a domestic remedy. The right to science has also been expressed in varying forms in national law with Ecuador, Paraguay and the Republic of Moldova reproducing the scope of the Covenant, and States such as Germany fully protecting freedom of scientific research under its constitution (A/HRC/20/26, para 13).
Normative Development Right to Science and its Implications for the Governance and Regulation of Geoengineering Research
Although the right to science is articulated in binding international treaties, its normative content is vague and underdeveloped. In recognition of this, UN Special Rapporteur Farida Shaheed in the field of cultural rights for the UN Human Rights Council set out a normative framework for the right to science in her 2012 report on “The right to enjoy the benefits of scientific progress and its applications” (A/HRC/20/26). The Special Rapporteur’s report defines the term ‘science’ broadly as encompassing all “knowledge that is testable and refutable, in all fields of inquiry, including social sciences, and encompassing all research” (A/HRC/20/26, para 24). Although this definition provides practical guidance, it is important to bear in mind that the problem of defining the scope and content of the meaning of scientific research is a growing issue in international law. It has cropped up, for example, on several occasions in the context of defining the scope of research exemptions (see, e.g., Whaling in the Antarctic Case (Australia v Japan; New Zealand Intervening)  ICJ; LC-LP.2(2010) on the Assessment Framework for Scientific Research involving Ocean Fertilization).
The UN report further asserts that the normative content of the right to science has four dimensions: (1) access for everyone to the benefits of science, (2) opportunities for everyone to contribute to the scientific process and the freedom indispensible for scientific research, (3) participation for individuals and communities in scientific decision-making, and (4) an enabling environment fostering the conservation, development and diffusion of science and technology (A/HRC/20/26, para 25). All of these elements have implications for the governance and regulation of geoengineering research, and much more can be said on these points, in particular, regarding the third aspect about providing a greater role for citizen participation in the management of technology. However, in the interest of space, the first two elements are examined in further detail below.
Access to the Benefits of Science
Underpinning the right to science is the guarantee of access to the benefits of science. States must guarantee their citizens universal access without discrimination. This means, inter alia, that everyone has the right to access the benefits of science regardless of gender, race, religion or any other defining characteristic (A/HRC/20/26, para 29). The UN report conveys that the ‘benefits’ of science “encompass not only scientific results and outcomes but also the scientific process, its methodologies and tools” (A/HRC/20/26, para 24).
Experts have identified access to scientific information as a key element for the good governance of science and innovation processes. For example, the Third Oxford Principle for geoengineering governance encourages “disclosure of geoengineering research and open publication of results.” Though recognizing that disclosure does carry risks relating to the misuse of scientific data, the authors of the Oxford Principles nonetheless argue for full disclosure to the extent that the “burden of proof should fall on the advocates of any restriction” (Steve Rayner and others, “The Oxford Principles” (2013) 121 Climatic Change 499, 507). Transparency is an end in itself, but also serves a governance function by enhancing legitimacy and the effective and fair distribution of power in decision-making (see further Craik and Moore). Within the environmental law context, open disclosure of scientific information is thought to support implementation and compliance with governance and regulatory regimes, promote public awareness and engagement, and foster trust in institutions and processes (Anne Peters, ‘Towards Transparency as a Global Norm” in Andrea Bianchi and Anne Peters (eds) Transparency in International Law (Cambridge University Press 2013) 599–600).
The guarantee of access to information for researchers is also essential for the freedom of scientific research, described below. It encompasses access to the applications of science, to scientific knowledge and information, scientific literature, data, materials, samples and subjects (A/HRC/26/19, para 15). However, Craik and Moore point out overly onerous disclosure requirements could also hamper scientific progress. Against this backdrop, “a key source of tension in the design of disclosure mechanisms will be balancing the demands for high levels of participation and deliberation against the burdens that these demands place on researchers.” A human rights approach could support procedural fairness and inform the balancing of competing rights in establishing and administering rules for research projects. In particular, legal and ethical disclosure requirements should be subject to the principle of proportionality according to which “non-physical, informational risks” should be treated less onerously than direct physical interventions with the potential to harm the environment or threaten safety (BM Knoppers and others, “A human rights approach to an international code of conduct or genomic and clinical data sharing” (2014) 133 Human Genetics 895).
The Human Rights Council report on the right to science defines ‘scientific progress’ as attributing “positive impact” of science and innovation on human wellbeing. In this vein, it is noted that technology affecting human rights is to be given particular attention (A/HRC/26/19, para 29). Some geoengineering proposals, and, in particular, stratospheric aerosol injection, raise serious human rights concerns. These are related to the preservation of the “international democratic order” both at the domestic level in terms of public participation and consultation on geoengineering and at the international level concerning interference in the affairs of sovereign states in accordance with Article 2(7) of the United Nations Charter (de Zayas, International Law Association (ILA) Panel on Geoengineering (New York, 24 October 2014); see also Werrell and Femia, “CIA Director on the Geopolitical Risks of Climate Geoengineering” The Center for Climate and Security (25 July 2016)).
The Opportunity for Everyone to Contribute to the Scientific Process
The second normative aspect of the right to science is the opportunity for everyone to contribute to the scientific process and have the necessary freedom to do so. This freedom intersects with a variety of other human rights, including the right to mobility, freedom of expression and thought. Most significantly, however, it encapsulates the traditional guarantee of the so-called ‘freedom of scientific research’, which provides for research to be undertaken without political or other interference. This freedom is broad in scope, protecting the freedom of association, inquiry, opinion and expression and extends to all persons, not just professional scientists (A/HRC/26/19, para 15).
The freedom of scientific research is often cited as an argument against stringent governance of geoengineering research (see, e.g., European Commission, European Transdisciplinary Assessment of Climate Engineering (EuTRACE); Edward A Parson and David W Keith, “End the Deadlock on Governance of Geoengineering Research” (2013) 339 Science 1278, 1278). However, the right of free scientific enquiry is not absolute. This point is underscored in several soft-law instruments including in the 1999 UNESCO Declaration on Science and the Use of Scientific Knowledge, according to which “[a]ll scientists should commit themselves to high ethical standards, and a code of ethics based on relevant norms enshrined in international human rights instruments should be established for scientific professions” (para 41). Principles for the responsible conduct of scientific research increasingly extend beyond research involving human and animal subjects to cover ecological research conducted in the open environment (see, e.g., Hubert, “Marine Scientific Research” in Markus and Salomon (eds) Handbook on Marine Environmental Protection: Science, Impacts and Sustainable Management (Springer, in press)).
Clearly, there is a balance to be struck by which “the scientific enterprise remains free of political and other interference, while guaranteeing the highest standards of ethical safeguards by scientific professions” (A/HRC/26/19, para 39). This determination regarding limitations on the freedom of scientific research, will be heavily dependent upon the relevant factual circumstances and should be subject to a precautionary approach in the face of large uncertainties (see Hubert and Reichwein, “An exploration of a code of conduct for responsible scientific research involving geoengineering” (2015) IASS Working Paper, InSIS Occasional Paper No 1. Potsdam & Oxford., Draft Article 8).
Conclusion and Next Steps
A human rights framework can help to bolster the role of environmental law in the establishment of principles, policies and procedures for governing science and emerging technologies. While many general human rights articulated in international law are of consequence for
geoengineering research and development, the normative framework of the right to science has particular relevance. This right has the potential to enhance accountability, transparency and participation, particularly in addressing the sociotechnical risks associated with early research and innovation processes. One advantage of this approach is that the human right to science applies regardless of the scale, duration or environmental impact of the research project. Its normative content is vague and not fully elucidated. However, in light of its universal scope and legally enforceable mechanisms, it provides an important legal basis for the development of responsible research practices grounded in the fundamental principle that that scientific advancement and its benefits should extend to everyone.
Research for this blog post was made possible by a generous grant from the V. Kann Rasmussen Foundation in support of the Geoengineering Research Governance Project (GRGP). The GRGP is an interdisciplinary study on potential arrangements for the governance and regulation of geoengineering research. It is a joint initiative led by Professor Anna-Maria Hubert at the Faculty of Law at the University of Calgary in collaboration with the University of Oxford and Institute of Advanced Sustainability Studies, Potsdam (IASS). You can learn more about the project here: http://www.ucalgary.ca/grgproject/
This comment was originally posted on The Forum for Climate Engineering Assessment, http://dcgeoconsortium.org/2016/08/09/international-human-right-to-science-and-its-application-to-geoengineering-research-and-innovation/
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By: Joshua Sealy-Harrington and David Rennie
PDF Version: Making Sense of Aboriginal and Racialized Sentencing
In R v Laboucane, 2016 ABCA 176 (CanLII), the Alberta Court of Appeal strongly criticizes the Ontario Court of Appeal’s decision in R v Kreko, 2016 ONCA 367 (CanLII), where the Ontario Court of Appeal allegedly approached the sentencing of Aboriginal offenders too leniently, and “almost” interpreted the Criminal Code as providing for automatic sentence reductions in all cases with Aboriginal offenders (Laboucane at para 67).
The Alberta Court of Appeal’s critique warrants a review not only of this alleged disagreement between appellate courts, but also of the lack of clarity in Aboriginal sentencing more broadly. In addition, following a summary of the principles underlying Aboriginal sentencing, we argue that many of those principles should be applied in the context of sentencing racialized communities in Canada, and in particular, in the context of Black offenders.
BACKGROUND: ABORIGINAL SENTENCING
Statutory Background: The Aboriginal Sentencing Provision
At its core, the disagreement between the Alberta Court of Appeal and Ontario Court of Appeal centres on the sentencing framework provided by the Criminal Code, RSC 1985, c C-46.
In a previous post, Joshua Sealy-Harrington and Joe McGrade summarized the Criminal Code’s general sentencing framework, including the fundamental principle that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (Criminal Code, s 718.1; the Proportionality Provision). Here, we will briefly discuss the specific provision that relates to Aboriginal sentencing (the Aboriginal Sentencing Provision).
The Aboriginal Sentencing Provision reads, in relevant part:
A court that imposes a sentence shall also take into consideration the following principles:
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
(Criminal Code, s 718.2; emphasis added).
In other words, the Aboriginal Sentencing Provision instructs courts to pay “particular attention” to the unique circumstances of Aboriginal offenders, and whether those circumstances merit “sanctions other than imprisonment”. The Supreme Court has considered the Aboriginal Sentencing Provision multiple times, a brief summary of which follows.
Jurisprudential Background: The Gladue–Ipeelee Test
Given that the core conflict between the Alberta Court of Appeal and Ontario Court of Appeal here centres on the proper analytical framework for applying the Aboriginal Sentencing Provision, we will concentrate solely on how that analytical framework has evolved (or, in our view, persisted) throughout its consideration by the Supreme Court.
The Supreme Court first considered the Aboriginal Sentencing Provision in R v Gladue,  1 SCR 688 (CanLII). The key principles flowing from Gladue in respect of the Aboriginal Sentencing Provision are the following:
With respect to the analytical framework, Gladue provides at least two distinct considerations for sentencing judges when adjudicating whether an offender’s Aboriginal heritage may justify a more lenient sentence:
(at para 93.6; the Gladue Test).
The Supreme Court next discussed the Aboriginal Sentencing Provision in R v Ipeelee, 2012 SCC 13 (CanLII). Ipeelee did not change the interpretation of the Aboriginal Sentencing Provision. Rather, it reaffirmed the principles established in Gladue and clarified how they operate (Ipeelee, at para 1).
With respect to affirming the principles established in Gladue, the Court restated in Ipeelee that:
In addition to reaffirming that the Aboriginal Sentencing Provision does not displace the Proportionality Provision, the Court explained that the Aboriginal Sentencing Provision does not displace the parity principle. The parity principle requires that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” (Criminal Code, s 718.2(b); the Parity Provision). The Court explained that this principle is not displaced by the Aboriginal Sentencing Provision because, when sentences imposed on Aboriginal offenders are more lenient, they will be “justified based on their unique circumstances … which are rationally related to the sentencing process” (Ipeelee, at paras 76-79).
Lastly, the Court in Ipeelee clarified that Aboriginal offenders need not “establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge.” Rather, those background factors need only be “tied in some way to the particular offender and offence” such that they “bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized” (at paras 81-83). This final point is, in our view, simply a rephrasing of the Gladue Test. Put differently, Ipeelee rephrases the Gladue Test in the following terms:
The Aboriginal Sentencing Provision will impact the sentence of an Aboriginal offender if their Aboriginal heritage either:
(the Gladue–Ipeelee Test).
The Gladue–Ipeelee Test is central to the conflict between the Ontario Court of Appeal and Alberta Court of Appeal discussed in this post. Indeed, their core disagreement distills to how the Gladue–Ipeelee Test should be applied.
ALLEGED APPELLATE CONFLICT OVER GLADUE–IPEELEE TEST
In Laboucane, the Alberta Court of Appeal narrowly distinguishes its approach to the Aboriginal Sentencing Provision from that taken by the Ontario Court of Appeal in Kreko (see Laboucane, at paras 65–73). This alleged distinction relates to how the Gladue–Ipeelee Test should be applied. Accordingly, we will only consider how Kreko and Laboucane address the Gladue–Ipeelee Test, since they agree on all other core principles flowing from Gladue and Ipeelee, including the points that:
Ontario Court of Appeal Approach in Kreko: More Lenient?
In Kreko, the Ontario Court of Appeal shortened a sentence because, in its view, the trial judge improperly required a causal connection for the Aboriginal Sentencing Provision to be triggered.
The trial judge in Kreko did expressly state that “a direct, causal link is not required” to trigger the Aboriginal Sentencing Provision (see Kreko, at para 15). However, the Ontario Court of Appeal held that the trial judge’s reasoning, despite this statement, “effectively requir[ed] a causal link between the appellant’s Aboriginal heritage and the offences” to trigger the Aboriginal Sentencing Provision (at para 20). Specifically, the Ontario Court of Appeal pointed to the following extracts from the trial judge’s reasons for sentence and his report to the Court of Appeal as demonstrating the trial judge’s requirement for a causal link (at para 20):
The Ontario Court of Appeal clarified that, to trigger the Aboriginal Sentencing Provision, a causal link between an offender’s Aboriginal heritage and the offence is not required (at para 21). Rather, the offender’s Aboriginal heritage need only be “tied to the particular offender and offence(s) in that [it] must bear on his or her culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing” (at para 23). In other words, the Ontario Court of Appeal, at least in principle, reaffirmed the Gladue–Ipeelee Test.
Alberta Court of Appeal Approach in Laboucane: More Strict?
In Laboucane, the Alberta Court of Appeal maintained a trial sentence because, in its view, the trial judge correctly determined that the offender’s Aboriginal heritage “did not bear on his culpability for the offences or indicate which sentencing objectives can and should be actualized” (at para 76). Accordingly, the Alberta Court of Appeal, like the Ontario Court of Appeal, reaffirmed the Gladue–Ipeelee Test.
However, despite both judgments affirming the same test for Aboriginal sentencing, the Alberta Court of Appeal strongly criticized the Ontario Court of Appeal’s judgment in Kreko. In essence, the Alberta Court of Appeal critiqued the Ontario Court of Appeal for diluting the Gladue–Ipeelee Test to a near automatic mitigating factor for all Aboriginal offenders. The Alberta Court of Appeal restates this basic critique in various ways, namely, that:
Interestingly, the Alberta Court of Appeal seems to agree with the Ontario Court of Appeal’s holding in Kreko—i.e. reducing Mr. Kreko’s sentence—because the facts in Kreko showed “a measurable connection” between the offender’s Aboriginal heritage and his offence (Laboucane, at para 66). Accordingly, the Alberta Court of Appeal appears to only be critical of how the Ontario Court of Appeal described the relevant legal principles, not how it applied those legal principles in this instance.
In our view, the Alberta Court of Appeal’s critique is likely misplaced, and certainly difficult to understand. On our reading, the problem is not that the Ontario Court of Appeal and Alberta Court of Appeal applied different tests, but rather, that the Gladue–Ipeelee Test is vague, making it difficult for courts to ensure that they are correctly applying the Aboriginal Sentencing Provision.
With that in mind, we will first explore the disagreement between these Courts of Appeal. We will then discuss the possibility of expanding the underlying concepts of Aboriginal sentencing to other racialized offenders in Canada.
Appellate (Dis)Agreement Regarding Gladue–Ipeelee Test
As stated above, it is not clear that there is much if any divide between Alberta and Ontario on the Gladue–Ipeelee Test. Indeed, our best explanation for the ostensible divide between Kreko and Laboucane is the different facts those decisions addressed, rather than the legal principles those decisions affirmed.
First, it is difficult to identify any difference between Alberta and Ontario with respect to the Gladue–Ipeelee Test because the Alberta Court of Appeal’s critique of Kreko is vague. The Alberta Court of Appeal claims that Kreko dilutes the Gladue–Ipeelee Test, but provides no pinpoint references to where the Ontario Court of Appeal’s ruling actually provides for such dilution. Rather, the Alberta Court of Appeal simply describes how “the position adopted in Kreko” (at para 67), “the decision in Kreko” (at para 67), a “probing analysis” of the decision (at para 67), and “the approach taken in Kreko” (at para 68), dilute the Gladue–Ipeelee Test.
Second, a “probing analysis” of Kreko reveals, in our view, the same trigger for the Aboriginal Sentencing Provision as that described in Laboucane (and Ipeelee), namely, the Gladue–Ipeelee Test (see Ipeelee, at para 83; Kreko, at para 23; Laboucane, at paras 55–59).
We appreciate that, when scrutinizing judicial reasoning, it is critical to analyze not only how the court describes the law, but also whether or not the court’s application of the law is faithful to that description (indeed, that is precisely how the Ontario Court of Appeal critiqued the trial judge in Kreko). For example, while the Ontario Court of Appeal undoubtedly affirmed the Gladue–Ipeelee Test (see Kreko at para 23), the Alberta Court of Appeal could be claiming that the Ontario Court of Appeal actually applied a diluted version of that test. But such a critique is difficult to understand in this case because the Alberta Court of Appeal appears to concede that the facts in Kreko—which involved a “measurable connection” between the offender’s Aboriginal identity and his offence—merited an appellate reduction in sentence (Laboucane, at para 66). In other words, it is difficult to characterize the Alberta Court of Appeal’s critique of Kreko as a critique of the Ontario Court of Appeal’s application of the law when the Alberta Court of Appeal appears to agree with how the law was applied in Kreko.
In sum, the Alberta Court of Appeal’s vague critique of Kreko leaves us guessing as to which passages it considers problematic.
Our best explanation is that the source of this vague critique is rooted not in any disagreement over the relevant legal principles, but rather (1) the distinct facts present in Kreko and Laboucane; and (2) the Gladue–Ipeelee Test itself being vague.
Distinguishable Facts in Kreko and Laboucane
The distinct facts in Kreko, which more appropriately justified leniency in light of that Aboriginal offender’s identity, may partially explain the alleged divide between Alberta and Ontario. Indeed, the Alberta Court of Appeal itself appears to admit this, to our confusion (Laboucane, at para 66).
In Kreko, the Aboriginal offender pled guilty to possession without lawful excuse of a loaded prohibited firearm, robbery with a handgun, and intentional discharge of a firearm while being reckless as to the life or safety of another person, contrary to ss 95(2) and 343(d) of the Criminal Code (at para 2). The Trial Judge gave Mr. Kreko a 13-year sentence (Kreko, at para 1).
Mr. Kreko was adopted into a non-Aboriginal family at a young age because his birth mother could not adequately care for him. His Aboriginal grandparents struggled with alcoholism and were unable to parent their children (Mr. Kreko’s mother). This resulted in his mother being placed in various foster homes before becoming a Crown ward at age 11. She gave birth to Mr. Kreko while still a Crown ward at the age of 15 (at paras 4-6).
Mr. Kreko grew up not knowing he was adopted, and assumed his heritage was Finnish and French. However, when he learned of his Aboriginal heritage (around the age of 17), he experienced feelings of abandonment, resentment, and a sense that he was unwanted (at paras 8-9). In particular, Mr. Kreko struggled with his identity and adoption, and the “identity crisis” that followed the discovery of his Aboriginal identity and adoption “coincided with his involvement in the criminal justice system” (at para 14).
In Laboucane, the offender pled guilty to assault on a cabdriver, possession of a stolen taxicab, and refusing to provide a breath sample. Mr. Laboucane was further convicted of one count of break and enter and commit assault, one lesser offence of assault, and uttering threats. Mr. Laboucane was sentenced to two years’ imprisonment (at paras 8-9).
At the time of these offences, Mr. Laboucane was 38 years old, with 36 prior criminal convictions including five assaults, one break and enter, and numerous breaches. These were Mr. Laboucane’s sixth, seventh and eight convictions for violent offences (at para 34).
Mr. Laboucane’s Gladue report found that he had a “good and normal” childhood, free from familial substance abuse and domestic violence. Mr. Laboucane himself considered his parents to be “good parents” and never experienced or witnessed domestic abuse. His father (the only Aboriginal parent) was not raised in the Métis culture. Similarly, his family did not participate in Aboriginal culture and none of his relatives attended residential schools. Mr. Laboucane visited paternal relatives at a Métis settlement, but his cultural involvement was limited. Mr. Laboucane struggled to stay employed due to his personal relationship issues and only experienced domestic violence in his own intimate relationships and his older half-sister’s relationship (at paras 40-45).
In our view, these distinguishable facts explain why the courts in Kreko and Laboucane reached opposing conclusions, despite correctly applying the same legal test.
In Kreko, the Ontario Court of Appeal reduced an Aboriginal offender’s sentence because aspects of his Aboriginal heritage—his dislocated identity that traced back to the discovery of his Aboriginal roots and the factors that led to his adoption—bore on his culpability. Indeed, the Ontario Court of Appeal referenced statistics highlighting how adopted Aboriginal children are more likely to suffer from a sense of dislocation (at para 24).
In contrast, the Alberta Court of Appeal in Laboucane maintained an Aboriginal offender’s sentence because his Aboriginal heritage did not appear to bear on his culpability or inform a suitable sanction. In particular, his upbringing was considered very ‘normal’ and he did not appear to experience the same intergenerational or systemic issues as Mr. Kreko, which could have affected Mr. Laboucane’s culpability (at paras 74-80). Moreover, Mr. Laboucane was a repeat offender who did not take responsibility for his actions (at paras 34 and 46), whereas Mr. Kreko, by the time of the appeal, had found his birth mother, successfully completed a number of rehabilitative Aboriginal programs, and embraced his Aboriginal heritage (at para 12). Given these distinct facts, the Alberta Court of Appeal’s critique of Kreko seems ill-founded, as the same test was applied in both cases, and led to different outcomes that appear responsive to the facts in both cases.
The Gladue-Ipeelee Test is Vague
A further cause of confusion between the Alberta and Ontario Courts of Appeal regarding Aboriginal sentencing is the vagueness of the Gladue–Ipeelee Test itself. The Supreme Court has consistently instructed what the Gladue–Ipeelee Test is not. But it has failed to provide adequate guidance regarding what the Gladue–Ipeelee Test is in a positive sense, i.e. by elaborating on Contributory Mitigation and Suitability Mitigation and providing instructive examples of each.
As we summarized above, ever since Gladue, the Supreme Court, and other appellate courts, have been clear about two extremes, neither of which reflect the proper approach to Aboriginal sentencing:
In this way, courts have been clear in negatively defining Aboriginal sentencing. But a clear positive definition for Aboriginal sentencing remains elusive. At best, the Supreme Court has positively defined Aboriginal sentencing as requiring that an offender’s Aboriginal heritage be “tied in some way to the particular offender and offence” such that it “bear[s] on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized” (Ipeelee, paras 81–83). But what does it mean for an offender’s Aboriginal heritage to be “tied in some way” to an offender or their offence? And what does it mean for an offender’s Aboriginal heritage to “bear” on their culpability? These general terms, without instructive examples, make it difficult for courts to know the threshold at which leniency is warranted in the context of Aboriginal sentencing. Indeed, we suspect that the Alberta Court of Appeal’s alternate and broad language (“a measurable connection”; see Laboucane at para 66) is yet another indicator of these courts not really understanding the type of connection required to warrant leniency in Aboriginal sentencing.
For example, in Kreko, the trial judge acknowledged that the law does not require a causal link (which would be too strict), but still described, in various alternative phrasings, that no leniency was warranted because Mr. Kreko’s Aboriginal heritage did not tie to or bear on his culpability (Kreko, at para 20). Those phrasings included that “there was nothing tied to his Aboriginal genetic heritage”, that his offences “do not relate to his Aboriginal background”, that his “Aboriginal connection had been irrelevant to his offences”, and that “his Aboriginal heritage could not be linked in any meaningful way to these current offences” (at para 20; emphasis added). In other words, even the trial judge in Kreko, like the Alberta Court of Appeal and Ontario Court of Appeal, applied the Gladue–Ipeelee Test (albeit conservatively). With three courts all at least describing the same legal test (see Kreko, at paras 15 and 21–24; Laboucane, at paras 50–63), the only logical source of confusion is the vagueness of the test itself. In particular, the test lacks clarity regarding what it means for an Aboriginal offender’s heritage to tie to or bear on their culpability or to inform the sentencing objectives that should be emphasized in a given case.
Implications for Sentencing Racialized Offenders
In our view, aspects of the sentencing principles discussed above could (and should) be applied in the context of other racialized communities. We say this because many, though not all, of the principles underlying cultural sensitivity with Aboriginal sentencing apply in other contexts. We will discuss the context of Black offenders here.
To be clear, the Aboriginal Sentencing Provision only requires courts to give “particular attention” to Aboriginal offenders. But that does not remove the court’s duty to impose proportional sentences on other racialized offenders. And the unique experiences of other communities—including Black offenders—may inform that proportionality.
Recent commentary argues that systemic and intergenerational factors should be considered for other racialized groups, including Black offenders. This argument has gained momentum in Nova Scotia, where Blacks have a deep history of dislocation and oppression that dates back to the 1770s, when an influx of African-American loyalists and former slaves fled the United States and settled in Canada. In fact, there is an ongoing case in Nova Scotia in which a judge has accepted a cultural assessment similar to a Gladue Report for a Black offender.
In a similar case in Ontario, instead of sentencing a young Black man to the 6-12 month jail term sought by the Crown for drug dealing, Justice Edward Morgan instead issued a conditional sentence (see R v Reid, 2016 ONSC 954 at para 31). In issuing that sentence, Justice Morgan considered both the Black offender’s personal circumstances and societal forces, including anti-Black racism and the over-incarceration of Black citizens (at paras 21-27). In particular, Justice Morgan cited a finding by the Office of the Correctional Investigator, which found that the number of federally incarcerated Black inmates has increased by 80 per cent over the last decade (at para 22).
These cases demonstrate that judges are becoming increasingly willing to consider systemic factors when sentencing members of racialized communities. In our view, this is a welcome development. We appreciate the Supreme Court’s remark in Ipeelee that “no one’s history in this country compares to Aboriginal people’s” (at para 77). But the pursuit of a proportional sentencing process that is sensitive to cultural differences and every offender’s individual culpability should not be blind to other forms of systemic inequality.
The principles underlying sentencing make it clear that the background of racialized offenders should be considered in the sentencing process. For example, it would be difficult to claim that systemic discrimination and intergenerational struggle (experienced in varying ways by different communities) informs proportional sentencing of Aboriginal offenders, but not Black offenders. Even though these communities are very different, certain similarities between those communities (like overrepresentation in the criminal justice system and prejudicial treatment by law enforcement) could surely inform proportional sentencing for Black offenders.
Further, any claim that only Aboriginal offenders should benefit from such considerations because of the phrasing of the Aboriginal Sentencing Provision should be dismissed. First, the Aboriginal Sentencing Provision calls for “particular attention” in the context of sentencing Aboriginal offenders—it does not mandate a complete absence of attention in the context of Black offenders, especially when those circumstances are “rationally related to the sentencing process” (Ipeelee, at paras 76-79). Second, the Aboriginal Sentencing Provision expressly provides that background circumstances mitigating against incarceration should be considered “for all offenders”—which obviously includes Black offenders. Lastly, the Proportionality Provision requires that any sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. Accordingly, if, for example, a Black offender’s background circumstances inform that proportionality, it would be an error not to weigh those circumstances in determining a fit sentence on the basis that such weighing, despite its contribution to proportionality, somehow violated a provision calling for “particular attention” in the context of Aboriginal offenders.
Sentencing is a notoriously complex area of criminal law. And this complex area requires clearer appellate guidance in the context of sentencing Aboriginal and racialized offenders.
The Gladue–Ipeelee Test is well-established, and courts appear to be consistently alluding to its general principles and key terms. However, those principles and terms lack the specificity needed to predictably guide the process of Aboriginal sentencing. In particular, greater positive definition of when Contributory Mitigation and Suitability Mitigation may be triggered will bring much needed clarity to this area of the law. Requiring that Aboriginal heritage tie “in some way” to proportionality is simply too vague.
Recently, the Alberta Court of Appeal released another decision addressing the framework for Aboriginal Sentencing (see R v Okimaw, 2016 ABCA 246 (CanLII)). Okimaw also affirms the Gladue–Ipeelee Test for Aboriginal sentencing (at para 58). However, in our view, the confusion surrounding Aboriginal sentencing persists despite this recent decision. In Okimaw, the Court concedes that the background factors at issue—including the legacy of residential schools, domestic violence, substance abuse, physical and mental health, low income, and unemployment (see paras 26-45)—had “an obvious and profoundly adverse and harmful impact” on the offender (at para 67). In consequence, this relatively ‘clear case’ does not confront the ambiguity caused by the general language consistently used by the Supreme Court in the context of Aboriginal sentencing. Indeed, the Court of Appeal relies on how these many background factors “bear” on the offender’s culpability and appropriate sentencing procedures (at paras 64, 75, and 87)—the same general language we critique above. A later, tougher case may be required before the Court is compelled to provide greater clarity to Aboriginal sentencing.
Additionally, courts should continue to explore the boundaries of how systemic factors inform the proportional sentencing of racialized offenders. Sentencing is a multi-faceted process, and reserving systemic considerations to one community in Canada (albeit an incredibly significant and unique one, particularly in the context of criminal justice) disregards the requirement that every sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing is, and must remain, an individual process. But the diversity of individuals whose backgrounds may inform proportional sentencing should not be arbitrarily limited because those groups lack a specific remedial provision in the Criminal Code. To the contrary, the Supreme Court’s own pronouncements that proportional sentencing demands an exploration of each individual offender’s culpability requires that courts pay attention to racialized offenders and how their background, history, and relationship with the criminal justice system may inform the proportionality of their sentence. Some will confuse such considerations with playing “the race card”. But, in actuality, such considerations will simply ensure that all offenders come before the criminal justice system with an even deck.
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By: Kyle Gardiner
Research Commented On: Shea Nerland Law LLP Fellowship Project on Tax Law and Equality, Summer 2016
On 2 May, 2016, I began a research project with Jonnette Watson Hamilton, Jennifer Koshan and Saul Templeton examining the role section 15 of the Charter plays in tax law. Over 50 variables were recorded from each of the 134 equality challenges to tax law that we analyzed. To read my post on one of these cases, Grenon v. Canada, 2016 FCA 4 (CanLII), see here. The data promises to be a rich tool for examining equality in the realm of tax law.
When I was conducting a literature review for this project, I reviewed Kathleen Lahey’s “The Impact of the Canadian Charter of Rights and Freedoms on Income Tax Law and Policy” in David Schneiderman & Kate Sutherland, eds, Charting the Consequences: The Impact of Charter Rights on Canadian Law and Politics (Toronto: University of Toronto Press, 1997) 109. In that study, Lahey conducted a review of 300 cases in which Charter challenges were brought to various income tax provisions between 1985 and 1995. The current research extends Lahey’s study, systematically reviewing section 15(1) Charter challenges to tax law that have been brought since the conclusion of her study in October, 1995. While many taxation provisions outside of the Income Tax Act, RSC 1985, c 1 (5th Supp) have seen their share of section 15(1) challenges, the cases examined in our study were specifically section 15(1) equality challenges to a section or sections of the Income Tax Act. Our data awaits further statistical analysis beyond what has been done preliminarily here.
By way of background, section 15 of the Charter is an equality rights guarantee, and it allows claimants who believe they have been discriminated against on the basis of a personal characteristic by a government’s law, policy, or program to challenge that law, policy, or program. Section 15(1) protects against both direct discrimination and adverse effects discrimination. Direct discrimination is usually obvious on the face of the law and occurs where a law’s measures explicitly single out some people for specific treatment because they possess a particular trait. Adverse effects discrimination arises when a neutral rule, applied equally to everyone, has a disproportionate and negative impact on members of a group identified by a prohibited ground of discrimination (see here for a thorough discussion of this distinction). Section 15 reads:
15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Of the 134 decisions in our study, 114 were challenges heard in the Tax Court of Canada, and 20 were appeals heard by the Federal Court of Appeal. Of those 20 appeals, 13 were appealed from trial decisions that were included in this data set. No challenge succeeded in reaching the Supreme Court of Canada. Leave to appeal was sought in 12 of the 20 Federal Court of Appeal cases reviewed, and was refused by the Supreme Court in each case.
Figure 1 illustrates the chronological distribution of the cases:
Figure 1: Annual distribution of cases reviewed
A wide array of the Income Tax Act’s provisions was challenged in the cases studied. Personal exemptions, exemptions under the Indian Act, RSC 1985, c I-5, deductions for legal fees, childcare expense deductions, moving expense deductions, disability benefits and tax credits, special opportunity grants, various age restrictions, the inclusion/deduction system of child support, the Canada Child Tax Benefit, eligibility for the GST credit, various credits under section 118(5) of the Income Tax Act (including the equivalent to spouse credit and the credit for a wholly dependent person), tuition credits, and tax rates under section 117 of the Income Tax Act were all challenged.
The two most common sections of the Income Tax Act to be challenged were section 118(5) and section 118.2. These sections were followed in popularity by section 56(1)(b), involving the inclusion/deduction of child support payments.
Section 118(5) is a provision that disallows various deductions under section 118(1) to a taxpayer who is obligated to pay support in respect of a child to whom the credit applies. These two sections combine to allow a recipient of child support to claim the relevant credits in subsection (1), while disallowing a payor from claiming the same credits. This provision was challenged 17 times, 15 of which were by male claimants with an obligation to pay child support. The grounds argued here under section 15(1) of the Charter were most commonly family status or sex.
The challenges to this section provide a good example of cases where judges reworked the claimant’s grounds into characteristics that are not protected by the Charter — in these cases, “having an obligation pay child support” or “being a parent who pays child support” (see e.g. Giorno v The Queen, 2005 TCC 175 (CanLII), Calogeracos v The Queen, 2008 TCC 389 (CanLII), and Sears v The Queen, 2009 TCC 22 (CanLII)).
Section 118.2 was also challenged 17 times. These challenges involved the medical expenses credit, 9 of which were specific challenges to section 118.2(2)(n), or the requirement that medications be “recorded by a pharmacist” in order for the claim for a credit to succeed. The section 15(1) Charter grounds most common in these challenges were physical disability, or the type or severity thereof. Female claimants were overrepresented in this category of challenge (9 males to 8 females or 47% females— compared to the 30% of females in the general sample of cases).
Enumerated or analogous grounds refer to those personal characteristics that, if found to be the basis of the discrimination, render the discrimination unconstitutional (if not saved under section 1 of the Charter). Enumerated grounds are those specified in the text of section 15(1), and analogous grounds are those personal characteristics that have been found by the courts to be similarly immutable or constructively immutable (i.e. changeable only at great personal cost). Sexual orientation, marital status, and citizenship are a few examples of analogous grounds.
Of the 134 cases reviewed, 36 contained challenges upon enumerated grounds, 32 upon analogous grounds, and 12 upon both enumerated and analogous grounds. The grounds of the remaining 54 cases consisted mainly of those that were neither enumerated nor found to be analogous to date, or grounds that were not specified. It is important to note that of all challenges reviewed, the “grounds” stage of analysis was the most common point of failure of the section 15(1) claim.
Of the protected grounds, the most common that were argued as the basis for the section 15(1) challenge were family status (21), physical disability (15), age (12), and “other” (22). Common grounds within the “other” category were income sources or level (which we counted separately given our prediction that numerous challenges would be based on this ground), employment status, and inmate status. Fourteen, or 50% of the challenges brought on “other” grounds failed at the grounds stage of section 15(1) analysis. Figure 2 illustrates the grounds argued by claimants in the cases reviewed:
Figure 2: Grounds argued by claimants in the cases reviewed
It is important to note that two of the claimed grounds that appear in Figure 2, income level and employment status, have not been recognized as analogous grounds in Canadian law to date. Because these grounds appeared so often in the cases reviewed, though, they have been given their own categories for display.
Certain claimants brought challenges via multiple grounds under section 15(1) of the Charter. No notable trends appear between the “Grounds” and “Second Grounds” categories, though certain groupings are apparent. For example, age (12) was the most common ground to be coupled with others, namely family status (2), marital status (2), and sex (1). Further analysis of grounds and corresponding second grounds may yet yield useful data or uncover further trends.
Direct Versus Adverse Effects Discrimination
Cases of adverse effects discrimination were more than twice as prevalent as cases of direct discrimination, a divide of roughly 70 to 30 cases. Common issues of adverse effects discrimination were those regarding section 118(5) of the Income Tax Act, where credits could not be claimed for a child because the taxpayer was paying child support in respect of that child, the deductibility of legal expenses (section 60(o)), medical expenses credits (section 118.2(2)), and issues surrounding childcare expenses (section 63). Claims of adverse effects discrimination also appear to be more prevalent among income tax appeals, as only 9 of the 67 section 15(1) discrimination claims heard by the Supreme Court were adverse effects discrimination claims (see Jonnette Watson Hamilton and Jennifer Koshan, “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter” at Appendix 1, as updated to reflect the Supreme Court’s most recent Section 15(1) decision, Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 (CanLII).
Among adverse effects discrimination cases, the most common grounds argued were family status (14), physical disability (12), “other” (9) and sex (8, 5 males to 3 females). The 12 physical disability cases claiming adverse effects discrimination comprise the entire subset (12) of physical disability cases in our sample. Many of these challenges were to failed claims for medical expense credits under the Income Tax Act.
In direct discrimination cases, “other” grounds were most common (9), followed by age (5) and family status (4). Among the “other” grounds were inmate status (2), sibling status (2), province of residence, cultural rights, and being a receiver of support. The proportion of these grounds within direct discrimination challenges can be compared to the grounds’ prevalence in the greater sample. For example, age represents 17% of all direct discrimination cases, but only 9% of cases in the overall sample were based on the ground of age. As might be expected given that taxation lines are often explicitly drawn on the basis of age, that ground is overrepresented in the direct discrimination category.
The Failure of all Section 15 Claims
The backbone of the section 15 test requires a claimant to prove a distinction based on an enumerated or analogous ground that results in discrimination. While the framework for section 15 analysis has been in a state of flux since its initial development in Andrews v. Law Society of British Columbia, 1989 1 SCR 143 (CanLII), those core elements have remained.
As noted above, the most common stage of failure in our sample was the “grounds” stage (41), where judges often reasoned that the grounds argued were neither enumerated nor analogous. This result was followed by the “no discrimination” stage (28), and the “no distinction” stage (21). Forty-seven decisions were written by judges who failed the challenge at a second stage, either pointing out multiple stages where the test failed, or proceeding to rule that in the event of an error in the judge’s reasoning, the test would still fail at a later stage.
Anecdotally, “no discrimination” was cited commonly as a “catch-all” reason for failure. See, e.g. Fontaine v. The Queen, 2003 TCC 662 at 10:
The Charter of Rights and Freedoms does not assist the Appellant in any way. He is not discriminated against pursuant to subsection 15(1) or any other section. His Charter argument is frivolous.
Within a 13-paragraph decision in Fontaine, McArthur J.A. disposed of the claimant’s Charter argument in one paragraph. See also Pate v. The Queen, 2004 TCC 190 (CanLII) at 25.
Figure 3 reveals the most common stages of failure of the section 15(1) challenge:
Figure 3: The eight most common stages of failure among cases reviewed.
Among the 134 cases reviewed, only one case was successful at trial, but even this modest success was overturned on appeal (see Wetzel v The Queen, 2004 TCC 767 (CanLII)). In 1984, the federal government and the Conne River Band were negotiating criteria for band membership. In a 1984 order-in-council that included the Band under the Indian Act, the criterion of “Canadian Micmac ancestry” was included, effectively excluding Michael Wetzel— a Micmac of American ancestry— from Band membership and from the tax exemptions that go along with such membership. The Tax Court of Canada ruled that this exclusion was a clear violation of Wetzel’s section 15(1) Charter rights. The remedy granted by the Tax Court was to vacate the tax assessments at issue, a personal remedy under section 24(1) of the Charter. The decision of the Tax Court contains no section 1 analysis of whether the government’s actions were reasonable and justifiable.
This case is anomalous, however. Wetzel involved a remission order, a special remedy under the Financial Administration Act, RSC 1985, c F-11, for waiver of tax when it is unquestionably mandated by tax legislation. Instead of challenging a provision of the ITA, Wetzel’s section 15(1) challenge was brought against an order-in-council. On appeal, the issues were characterized as having more to do with “administrative law wrongs” (see Canada v. Wetzel, 2006 FCA 103 (CanLII) at para 23). Sexton J.A. continued with a section 15(1) Charter analysis, concluding that Wetzel was not treated differently from “all the other residents of Conne River Reserve ‘of Indian Ancestry’”. He concluded on this basis that Wetzel’s section 15(1) Charter rights had not been violated (para 30).
Because the cases reviewed in our study are those containing challenges to provisions of the Income Tax Act, Wetzel does not fit cleanly within our data set. The success that this section 15(1) challenge had at first instance may be attributable to its anomalous nature, but this observation is speculative, and the case was overturned on appeal in any event. That result means that no claimants in our overall sample were successful in their section 15(1) challenges.
Turning briefly to section 15(2), the Charter’s affirmative action provision, it was not determinative in any of the cases reviewed. Because section 15(2) protects ameliorative government laws, policies and programs from section 15(1) challenge, it might have formed another basis for the failure of challenges by taxpayers under section 15(1), but this was not borne out in our sample.
Not only were no cases successful in arguing discrimination under the Charter, no case even succeeded in reaching section 1 analysis— the section of the Charter which allows governments to attempt a justification of Charter violations, if they are found. All of the challenges considered in our sample therefore failed because the section 15(1) arguments were unsuccessful.
The challenges reviewed in this study were heard at first level by 40 different Tax Court judges. Seven judges heard 49 of the 113 Tax Court of Canada cases. This means that 43% of the cases were decided by just 7 judges. Eighteen cases were heard by 18 different Tax Court of Canada judges who heard only that case during the period under review. That is, there were 18 “one-off” judges.
Lawyers represented claimants in only 29 cases of the 134 cases reviewed. This is an average representation rate of 22% across both levels of court. Nine claimants were represented by agents, all of whom were law students. One claimant was represented by a relative. The lack of legal counsel across these cases illuminates possible access to justice issues that require deeper exploration.
One other potential access to justice issue is that of cost awards, whereby claimants are either ordered to pay some costs or may have some of their costs of litigation covered (see sections 18.26 and 18.3007 of the Tax Court of Canada Act, RSC 1985, c T-2, under which the court has discretion to award costs). Costs were awarded from the taxpayer in 29 cases, and awarded to the taxpayer in 16 cases. Other arrangements were made in 4 cases, and in the remaining 84 cases cost awards were not specified in the text of the decision.
Claimants were characterized on the face of the decision as “frivolous” 9 times, and “vexatious” 4 times. Frivolous and vexatious claimants never had lawyers and were always male. In the overall sample, claimants were male in 93 cases, and female in 40 cases. In one case the claimant was a corporation. This gender distribution is an exact replication of that found by Lahey in 1997— 70% of the claimants are men. Six claimants were Aboriginal and seeking exemption from payment of taxes under the Indian Act, of which one was Wetzel, the only claimant to succeed in the Tax Court.
While some applications for intervener status were made prior to certain cases being heard, no intervener succeeded in participating in a claimant’s hearing. See e.g. Tall v. The Queen, 2005 TCC 765 (CanLII), where an application for intervener status by the Chinese Canadian National Council (CCNC) was denied in a case involving a section 15(1) challenge based on religion and national or ethnic origin. The claimant in that case sought to claim certain Traditional Chinese Medicine expenses that were not “recorded by a pharmacist” as required by section 118.2(2)(n) of the Income Tax Act. The CCNC intended to offer its unique perspective on issues of equal benefits raised by the claimant’s case.
Finally, 24 cases cited a second Charter section as the basis for the challenge, most commonly section 7 (19 times) and section 6 (5 times). Section 7 protects an individual’s life, liberty and security of the person from government interference that is contrary to the principles of fundamental justice. Section 6 guarantees mobility rights, including the right to move to and take up residence in any province, and to pursue the gaining of a livelihood in any province. Seven cases cited two Charter sections in addition to section 15(1).
The Supreme Court has not heard any section 15(1) challenges in tax cases since the mid-1990s (see Symes v. Canada,  4 SCR 695 (refusing a claim that the non-deductibility of a woman’s child care expenses as business expenses was discriminatory); Thibaudeau v. Canada,  2 SCR 627 (refusing a claim that child support payments count as taxable income to the payee was discriminatory)). It was a discouraging surprise to learn that there has not been a single successful section 15(1) claim to the Income Tax Act since then. Nevertheless, the data provides rich opportunities for analysis of section 15 jurisprudence and tax law. I am grateful for the funding received by Shea Nerland Law LLP and for my opportunity to work on this project.
Research for this blog post was made possible by a generous fellowship received from Shea Nerland Law LLP. For more information on the projects funded by this fellowship, see here.
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By: Hasna Shireen
PDF Version: Human Rights Cannot Be Renounced or Waived
Case Commented On: Webber Academy Foundation v Alberta (Human Rights Commission), 2016 ABQB 442 (CanLII)
The Court of Queen’s Bench of Alberta recently upheld a human rights decision that found Webber Academy, a private school in Calgary, had unlawfully discriminated against two Muslim high school students by prohibiting them from performing certain prescribed Sunni prayers at school. Dr. Webber, President and Chairman of Webber Academy, said that bowing and kneeling was too overt and such prayers would be not allowed on campus. The Alberta Human Rights Tribunal in 2015 found that Webber Academy discriminated against the two students and awarded the students $12,000 and $14,000 respectively as damages for distress, injury and loss of dignity (see 2015 AHRC 8 (CanLII)). The Academy did not explicitly claim that the complainants had waived their rights prior to enrollment. However, on appeal Justice GH Poelman addressed the issue of waiver, as the pre-enrollment discussions between the students and staff were discussed at length by the Tribunal. Justice Poelman held that waiver is not a possible defence in any case, as human rights are a matter of public policy and protect the inherent dignity of every individual; thus they “cannot be waived or contracted out of” (at para 106).
Complaints at the Alberta Human Rights Commission
On February 13, 2012, Ms. Farhat Amir and Dr. Shabnam, on behalf of their sons Sarmad Amir and Naman Siddique, made a complaint to the Alberta Human Rights Commission against Webber Academy for discrimination on the ground of religious beliefs in the area of services or facilities customarily available to the public (section 4 of the Alberta Human Rights Act, RSA 2000, c. A-25.5 (AHRA)). The students are Sunni Muslims and need to pray five times a day. According to their personal Sunni religious beliefs these prayers are mandatory and at least one and not more than two prayers must be performed during school hours (depending upon the time of year). The parents and their children requested a space that would accommodate the students’ need to stand, bow and kneel safely, but not a dedicated prayer space. The Academy facilitated their prayers until December 17, 2011. On that date and in subsequent meetings, Dr. Webber advised the parents that bowing and kneeling was “too overt” and this form of prayer was forbidden on the school’s campus, as the Academy is a non-denominational school (paras 5 – 6).
Tribunal’s Findings and Decision
One issue before the Tribunal was whether the complainants were asking for a designated prayer space as per the Webber Academy’s submission, or their request was to be able to pray, with flexibility as to where that occurred, as per the Director’s and the complainants’ submission (at para 13).
The Tribunal perceived that the prayer space required was only a bit larger than the space required to be occupied by a person and rejected the Academy’s framing of the issue as a request for “prayer space”. It found that the students were requesting the Academy to permit them to honour their religious beliefs on praying (at para 16).
The Tribunal was presented with conflicting evidence regarding the discussion at the pre-enrollment meeting about whether prayers are allowed on school campus. The Tribunal found the testimony of the students and their mothers to be “more accurate and consistent with the balance of the evidence as a whole” (at para 19) and that a positive indication of acceptance to praying on campus was given by Academy staff at the pre-enrollment meeting.
Dr. Webber stated that Webber Academy is a non-denominational school and there had been no approval to have prayer space at school; since the policies were disregarded, the students would not be accepted for enrollment the following year (at para 23).
The Tribunal characterized “the service and facility customarily offered by Webber Academy” to encompass “educational programs and other supportive services and facilities including the use of Webber Academy campus and Facilities”, and defined the “public” as the “student body” (at para 26). The Tribunal considered the scope of services and facilities, and found the students were dependent upon the school to meet their needs during school hours, as they were minors and attended school for full days. Thus, the Tribunal disallowed the Academy’s argument that it did not fall under the AHRA because prayer space is not a service it customarily makes available to its public—prayer space was not the service being offered; rather, the service was education and other supportive services and facilities allowing meaningful access to education (at paras 26 – 27).
The Tribunal used the Moore test for discrimination, which is as follows:
(1) The complainant must have a characteristic that is protected from discrimination;
(2) The complainant must have experienced an adverse impact; and
(3) The protected characteristic must have been a factor in the adverse impact
(at para 49, citing Moore v. British Columbia (Ministry of Education), 2012 SCC 61 (CanLII)).
Applying this test, the tribunal found prima facie discrimination contrary to section 4 of the AHRA for the following reasons:
After finding prima facie discrimination, the Tribunal considered the defence of whether the Academy’s actions were reasonable and justifiable under section 11 of the AHRA. Here, the Tribunal applied British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC) (commonly known as “Grismer”), which involves three steps that must be proven by a defendant in order to rely on section 11. As applied to Webber Academy, these criteria were as follows:
The Tribunal held that the first two criteria were met by Webber Academy. The Academy’s standard was articulated as “no overt prayer or religious activities on school property” (at para 71) and the purpose for the standard “was to foster a non-denominational identity that ensures Webber Academy’s students are placed in a learning environment that is ‘free of religious influence’’’ (at para 71). Next, the Tribunal identified the Academy’s ‘function being performed’ as educational services and facilities (at para 73). The Tribunal decided that the Academy had established a rational connection between the Academy’s purpose and the function it performed (at para 74). It also found that the Academy had adopted its position in good faith (at para 75).
However, the Academy did not meet the third criterion from Grismer. There was no evidence that the students’ prayer practices would have a religious influence on other students, other overt religious observances were permitted, initial allowance of prayers had been easily accommodated, and Webber Academy had not undertaken any assessment of whether allowing the students’ prayers would amount to a hardship for the Academy (at para 31). Thus, the Tribunal found against Webber Academy and awarded Mr. Amir $12,000 and Mr. Siddique $14,000 as damages for distress, injury and loss of dignity.
Standard of Review: Court of Queen’s Bench of Alberta
Justice GH Poelman of the Court of Queen’s Bench of Alberta relied on Association of Professional Engineers and Geoscientists of Alberta v Mihaly, 2016 ABQB 61 (CanLII) for the standards of review to apply to various questions on appeal (at para 34). These will be identified for each of the issues discussed below.
Characterizations: Students’ Request and Services Customarily Available
Both parties agreed that the “public” for the purposes of section 4 of the AHRA is the student body of the Academy as per the Tribunal decision and University of British Columbia v Berg, 1993 CanLII 89 (SCC). However, the parties differed on whether there was discrimination with respect to any services or facilities “customarily available to the public” (at para 36). Justice Poelman determined that this inquiry required a characterization of what the students were seeking and how that related to the services offered to Webber Academy’s “public”—the student body (at para 36).
Justice Poelman held that determining what was requested by the students is primarily a factual matter and thus was reviewable on a reasonableness standard. The Tribunal factually disallowed the Academy’s characterization of the students’ request as being for “prayer space”. There was ample evidence the students were not asking for dedicated space but only for somewhere they could perform prayers for five to ten minutes in a discreet manner (at paras 37 – 38).
Justice Poelman then focused on determining whether what the students requested was a service or facility customarily available to the Academy’s public. On appeal, the Academy did not clearly express how its services and facilities should be described. Rather, the Academy argued that if the specific thing requested—namely the provision of prayer space—is not customarily available to the student body, and it is not therefore protected under section 4 of the AHRA (at para 40).
Justice Poelman agreed that the Tribunal was correct in using the Berg and Moore cases. In applying these two cases to the matter before the Court, Justice Poelman found that the services and facilities the Academy customarily made available to its public were non-denominational educational programs and other supportive services and facilities incidental to those programs (at para 44). To apply the language of Moore, incidental supportive services and facilities include “the means by which those programs could be accessed by students” (at para 44). To apply the language of Berg, Webber Academy has “discretion in the types and scope of incidental services and facilities it offers” (at para 44). However, the “discretion must not be exercised on prohibited grounds of discrimination” (at para 44, citing Berg at para 75). Accordingly, the Tribunal was accurate in concluding “that Webber Academy, as a private school offers services and facilities customarily available to the public and does not have an ‘unfettered discretion’ to summarily refuse a student’s request to perform a religious obligation on its campus” and the Academy’s discretion to set policies regarding student conduct “does not give a private school license to exercise their discretion in denying the services or use of facilities in a discriminatory fashion” (at para 45).
Prima Facie Discrimination
On appeal, the Academy submitted that the Moore test used by the Tribunal was inadequate because it failed to incorporate a “comparator analysis” as per Kelly v B.C. (Ministry of Public Safety and Solicitor General) (No. 3), 2011 BCHRT 183 (CanLII). The Court held that as it was the most recent relevant Supreme Court of Canada authority, the Tribunal was correct in identifying the Moore test as applicable (at para 49).
Application of the Test
Characteristic Protected from Discrimination
As noted above, the Tribunal found that the students had a characteristic protected from discrimination under the AHRA, because of their sincerely held religious beliefs. The Academy argued that the Tribunal gave inadequate consideration to their expert testimony because leading and majority opinion among the four major Sunni schools of Islamic law consider attendance at school is a valid reason to delay or skip prayer (at para 52). The Tribunal’s decision on religious beliefs was based upon its finding that the students personally believed it was necessary to conduct their prayers during scheduled times and it would be sinful to miss them, based on the Qur’an and the sayings of the Prophet as conveyed to them by their parents. Moreover, the Tribunal accepted the testimony of the principal of Rundle College (where the students attended after Webber Academy) that the students practiced their prayer without significant disruption for the two years they attended that school. This was strong evidence of a genuine belief and commitment by the students to their prayer practices (at paras 52 and 54).
Justice Poelman found that the Tribunal appropriately followed the approach established in Syndicat Northcrest v Amselem, 2004 SCC 47 (CanLII). Amselem holds that for complainants relying upon freedom of religion, it is not necessary to prove their beliefs are objectively recognized as valid by coreligionists, nor is it appropriate for courts to inquire into that question. Rather, a person must show sincerity of belief, not validity of a particular belief. Amselem does not support the reliance placed by the Academy on expert evidence, because, as stated by the Court, “[r]eligious belief is intensely personal and can easily vary from one individual to another. Requiring proof of the established practices of a religion to gauge the sincerity of belief diminishes the very freedom we seek to protect” (at para 60, citing Amselem at para 54). Thus, the Court ruled that the Tribunal properly focused on a determination of whether the students sincerely held their religious beliefs regarding the form and times of prayer and found ample evidence from the students, their mothers and their coreligionists to support the Tribunal’s finding that the religious beliefs were sincerely held (at paras 59 and 60).
On appeal, the Academy maintained its argument that the students had requested a designated prayer space. The Court noted that this argument was “premised on a mistaken characterization” and that the students desired to be allowed to conduct private prayers “in whatever unobtrusive place was available” (at para 64). The Academy denied their right to pray and treated them “differently from other students whose religious beliefs in the form of head coverings and facial hair were permitted during their attendance at school, even advertised by Webber Academy, despite the fact that those observances were contrary to the usual policies applicable to Webber Academy students” (at para 64). Thus, there was plenty of evidence showing that the students experienced an adverse impact as a result of the Academy’s actions (at para 65).
Religious Belief a Factor in Adverse Impact
The Tribunal found the students were denied meaningful access to the Academy based on their religious belief, which clearly connects the protected ground of religion to the adverse impacts (of refusing to allow prayer and denial of re-enrollment) (at para 66). The Court of Queen Bench found that based on the evidence, the Tribunal’s findings were reasonable.
The Tribunal’s findings with respect to rational connection and good faith were not challenged on appeal (at paras 74-75). As for the third criterion, the Tribunal made note of the following: the Academy’s public information in the Parent-Student Handbook stated that “at Webber Academy, we believe in,” among other things, “creating an atmosphere where young people of many faiths and cultures feel equally at home”; the Academy’s website page for “Admissions” prominently showed a student with a turban, mustache and beard, along with two other students, conveying the acceptance of students of many backgrounds and faiths; the “Webber Academy information package” contained the statement that the Academy is “non-denominational” (at para 77, citing the Tribunal decision in general). However, the Tribunal rejected Dr. Webber’s view, expressed in his testimony, “that a non-denominational school can reasonably be interpreted as meaning that no prayer or religious practice would be allowed” (at para 79). Justice Poelman found that the tribunal’s finding that the standard imposed by the Academy “was not reasonably necessary to accomplish its purpose of fostering a non-denominational identity” was a reasonable one “founded on the evidence” (at para 83).
As noted above, the third aspect of the Grismer test also requires the respondent to establish that it could not accommodate persons with the characteristics of the claimant without incurring an undue hardship. The Tribunal found that “[t]he evidence overwhelmingly supports that accommodation of the prayer was possible and it would not have been an undue hardship to accommodate the Students’ requests to pray on campus” (at para 81). The Court held that the Tribunal applied the correct legal test under section 11 of the AHRA and its conclusions were reasonable based on the evidence (at para 87).
Webber Academy made submissions on the conflicting evidence on the content of the pre-enrollment meeting and school tour, and also argued that the Tribunal had incorrectly refused to accept evidence of one staff person’s version of the meeting. Justice Poelman held that the Tribunal’s explanations about its conclusions on credibility were unreasonable (at para 100) and not adequately transparent and intelligible (at para 104). However, Justice Poelman concluded that even if Webber Academy’s evidence was accepted, and the Tribunal had found that there had been a clear warning that no prayers would be allowed, this conclusion would also have led to an analysis of whether there was discrimination and whether it was reasonable and justifiable (at para 105). This brings into play the point that one cannot waive one’s rights under human rights law.
Justice Poelman noted that the Academy did not argue waiver, but nevertheless found that a defence of waiver by the complainants of their human rights would not be available (at para 106). As a general rule, any person can enter into a binding contract to waive the benefits conferred on them by legislation, or in other words, can contract out of legislation, unless it can be shown that it would be contrary to public policy to allow such an agreement. In the context of human rights law, “It has been well established that human rights are a matter of public policy, created for the benefit of the community, inherent to the dignity of every individual, and cannot be waived or contracted out of” (para 106, citing Ontario (Human Rights Commission) v Etobicoke (Borough), 1982 CanLII 15 (SCC) at paras 8 to 9; Central Okanagan School District No. 23 v Renaud, 1992 CanLII 81 (SCC) at paras 23 to 25; and Dickason v University of Alberta, 1992 CanLII 30 (SCC) at para 116). As noted in Dickason, human rights legislation is quasi-constitutional, and rights generally cannot be renounced or waived.
After upholding the Tribunal’s finding of discrimination, Justice Poelman also upheld the Tribunal’s damages awards (at para 119).
Justice Poelman’s concluding remarks emphasize that this case was not “precedent-setting with far reaching implications” as argued by Webber Academy (at para 120). Public and private schools have long been required to adhere to human rights law when offering educational services to the public (at para 121). Webber Academy had discriminated against the Sunni students, and could not defend its practices as reasonable and justifiable. Perhaps the most interesting aspect of this decision is the discussion of waiver. Although waiver was not clearly argued, the Tribunal spent a fair bit of time analyzing the pre-enrollment discussions between the school and the students. Presumably, the Tribunal concluded that Webber Academy was arguing that the students waived their human rights based on the pre-enrollment discussions. However, as noted by Justice Poelman, one cannot contract out of human rights legislation. What is interesting is that Justice Poelman does not completely rule out waiver, as the stated conclusion is “it is highly unlikely that waiver would be made out on these facts, even if it was open as a possible defence” (at para 106, emphasis added). To date though, contracting out arguments have only been successful in limited circumstances (see e.g. Dickason, dealing with a mandatory retirement clause in a collective agreement where the parties had equal bargaining power).
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By: Alena Storton
Case Commented On: R v Hamiane, 2016 ABQB 409 (CanLII)
Recent appeals by self-represented litigants (SRL) often focus on the extent of a trial judge’s duty to assist the self-represented litigant. Trial judges are expected to assist SRLs throughout a trial, but the scope of assistance is left to their discretion (R v Hamiane, 2016 ABQB 409 (CanLII); Cold Lake First Nations v Alberta (Minister of Tourism, Parks & Recreation, 2012 ABCA 36 (CanLII); Malton v Attia, 2016 ABCA 130 (CanLII); for earlier posts discussing Malton v Attia see here and here). From the appeals, however, it is clear that SRLs do not feel sufficiently supported or informed to meaningfully participate in a trial. To remedy this issue, trial judges should consider altering the way in which they approach assisting SRLs in the trial process. Judges already explain procedural steps during a trial, as seen in Hamiane. By providing that same assistance at the outset of a trial in accordance with an established set of guidelines, however, trial judges could streamline the process and ensure that all SRLs receive consistent information sufficient to allow them to meaningfully and fully participate in a trial.
This method of assisting SRLs was discussed in Hamiane, an Alberta Court of Queen’s Bench decision. In this case, Mr. Justice Graesser heard an appeal of a summary conviction for dangerous driving. Mr. Hamiane represented himself with the help of a French translator at trial. On appeal, Mr. Hamiane asked for a new trial because he said that the trial judge did not adequately inquire as to whether he wished to retain a lawyer, explain the trial process, instruct him on the applicable law or the permissible nature and extent of cross-examination, or satisfy herself that Mr. Hamiane had the necessary linguistic abilities to understand the proceedings (at para 3).
Justice Graesser determined that the extent to which a trial judge must inquire whether a SRL wishes to retain counsel, or explain the trial process, are matters for the judge’s discretion. That discretionary decision should be based on the circumstances, including the seriousness of the charge (at para 78). In this case, Justice Graesser focused quite extensively on the seriousness of the charge and the potential consequences for the accused. He concluded, “These were not ‘serious’ charges” (at para 55) and the potential consequences for Mr. Hamiane were minimal. Specifically, Mr. Hamiane was not at risk of being sent to jail and “there was no indication at the trial that a criminal record would affect Mr. Hamiane differently than other people convicted of such [driving] offences” (at paras 51-52). In addition, Justice Graesser noted that the case was not complex and did not give rise to any difficult legal issues or obvious Charter arguments (at para 53). Overall, Justice Graesser found that the trial judge exercised her discretion properly and adequately assisted Mr. Hamiane (at paras 60 & 94).
In reaching this decision, Justice Graesser also rejected Mr. Hamiane’s argument that, at the outset of a SRL’s trial, the judge should describe the trial process, the presumption of innocence, the burden of proof, the specific elements of a charge that the Crown must prove, possible defences, the purpose and technique of cross-examination, and various aspects of calling a defence (at para 79). In Justice Graesser’s view, these explanations may be necessary to ensure a fair trial in cases that include a serious charge and potentially serious consequences (at para 80). In less serious cases, however, Justice Graesser held that a trial judge could choose to give only some of this information. He also went on to say, “But in less serious cases, such as this one, a reviewing Court should be slow to fetter the discretion given to trial judges to assess the situations unfolding before them and to determine the best course of action” (at para 80).
It seems unreasonable, however, to base the amount of assistance to be provided to a SRL primarily on the particular charge or other circumstances of a case, as SRLs generally face the same challenges when navigating the Canadian legal system no matter how serious or seemingly inconsequential the charge or claim. The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants interviewed SRLs from a range of legal areas and found that SRLs consistently felt overwhelmed and identified a need for orientation and education, as well as one-on-one assistance to help with their case and understand what is involved in representing themselves (“Final Report” at p 11). The study also indicated that the information that SRLs were able to access before the trial varied and was inconsistent. SRLs’ primary source of information was court staff, but some of the respondents could not find information on these resources online or in the courthouses and, as a result, missed out on this important source of information (at p 10). Information sheets created by the courts also may not help some self-represented litigants because, as Justice Graesser pointed out, these documents are only available in English (Hamiane at para 82). In addition, guidance on procedural matters, a critical topic for participating in a trial, was generally missing from informational sources for SRLs (at p 67).
In light of these common challenges, providing information on the trial process and its requirements at the outset of a trial may be an effective method of fulfilling a judge’s duty to assist SRLs to ensure that all SRLs have access to a basic level of information necessary to participate in a trial, regardless of the seriousness of the charge or any language or knowledge constraints. In addition, creating guidelines for this assistance would provide judges with a useful framework for the type and scope of information to be discussed at the beginning of a trial. An explanation given at the beginning of trial would also help to make trials more efficient because judges would not need to stop at each new step to explain what is required, as in Mr. Hamiane’s trial. Overall, giving SRLs an explanation of trial process and requirements at the outset of trials in accordance with established guidelines would likely improve SRLs’ participation in trials by ensuring that all SRLs have consistent access to sufficient information.
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