By: Alysia Wright
PDF Version: Access to Legal Services in Women’s Shelters
Report Commented On: Canadian Research Institute for Law and the Family, Access to Legal Services in Women’s Shelters
In December 2015, the Canadian Research Institute for Law and the Family (CRILF) published a new report, Access to Legal Services in Women’s Shelters, authored by myself and Dr. Lorne Bertrand, examining access to legal services among clients of women’s domestic violence shelters. The study sampled the views of staff and clients at three domestic violence shelters with the goals of improving understanding of clients’ legal service needs; examining the challenges clients attempting to access legal services encounter; and making recommendations for improvement. Although domestic violence affects both men and women, women are disproportionally victims of domestic violence compared to men and there are no shelters for male victims of domestic violence in Alberta.
We conclude that clients’ service needs are complex and often involve legal problems, yet shelters face specific organizational barriers to coordinating legal services. We recommend that a further Alberta-wide study be undertaken to examine the legal access patterns of women experiencing domestic violence, to assess the prevalence of the barriers identified in the study and to determine whether further barriers are present in other shelters.
As we were working with social service providers serving vulnerable populations, the methodology for this project was developed in a collaborative and participatory manner. The three agency partners worked with us to develop an 18-question client survey and distribute it to their clients. In addition to the survey, agencies made staff available to participate in agency-based focus groups. These groups were facilitated by myself and Dr. Bertrand and included a total of 15 staff members.
The client survey asked about how long the client had stayed at the shelter, which shelters they received help from, how many children they had with them during their stay, and numerous questions about their legal situation. Of 46 respondents, 36 had at least one legal issue while they stayed at the shelter, although the majority (n=24; 66.7%) had two or more legal issues. The purpose of the survey was to determine what legal issues were common among women who access shelters, what resources these clients access during their time at the shelter, and the client’s self-reported experience with using these resources.
The purpose of the staff focus groups was to identify how agency staff responded to legal issues presented by the shelters’ clients. To facilitate the focus groups, we developed a protocol that had areas of focus, which in turn informed the eight questions that guided the focus group. The areas of focus were based on existing literature and best practice standards in North American women’s shelters. Some of the focus areas were coordination protocols for providing holistic services to clients, community partnerships and resources used as referrals to legal services, staff engagement and training to respond to the complex socio-legal needs of clients, and follow-up strategies in order to track client outcomes after the client has left the shelter. The eight questions were then developed in order to flesh out these areas of focus, including engagement, exploration, and exit questions.
The approach used in this study allowed us to explore the intersections of staff and client perceptions. Both staff and clients recognized that the legal system is difficult to navigate, while the majority of clients expressed that navigating their legal issues was more difficult than they expected. When asked how clients would deal with their unresolved legal issues, many of the respondents said that they would access Legal Aid, followed by a preference for hiring a private lawyer. Staff were particularly concerned about the likelihood of clients accessing sufficient legal assistance through free or low-cost programs; staff and clients indicated that they are not satisfied with the legal assistance options available due to stringent eligibility guidelines, long application processing timelines and possibly with lawyer-client compatibility. Staff understood that hiring a private lawyer is a personal choice and that clients have the option to self-represent, but staff expressed concern that the complex nature of the legal system, client vulnerability, and lack of knowledge of the legal system may inhibit clients’ interest in or ability to self-represent.
The data show that clients often left the shelter with unresolved legal issues, possibly indicating that clients either do not expect that shelter services include legal assistance, or clients are not distinguishing their positive experience with the shelter staff from their legal issue. Clients reported feeling safe and secure in the shelters, and feeling particularly safe with staff. One staff member mentioned that clients may associate feeling emotionally safe in the shelter with feeling supported in their legal challenges; the staff member went on to explain that this can be a false sense of security and can be problematic when the client leaves the shelter and is working through her legal problems alone.
Both staff and clients reported that it would be helpful to have legal support onsite at the shelter. Non-traditional intervention strategies may provide clients with a safe and neutral place to access services, such as an agency that provides legal, social welfare, and childcare assistance in one place. The survey findings suggest that clients have multiple legal issues at the time of intake, particularly because many of the primary issues clients deal with, such as housing, income support, separation or safety concerns, involve a legal component. The findings from the survey suggest that staff need to be aware of the socio-legal challenges clients may encounter and the significant complexity these challenges may add to the client’s capacity to participate in their legal proceeding. Staff may also require more extensive legal education in order to efficiently assess their clients’ needs.
The comments of staff suggested that they felt it was the responsibility of shelters to provide or coordinate access to legal services for their clients. Staff agreed that legal issues were the thread of commonality throughout client management and safety planning, which supports the view that interpersonal violence (IPV) survivors may require immediate attention to their legal and social welfare needs in order to obtain safety and security for themselves and their children. Appropriate legal education training and strong relationships with legal professionals would increase the capacity of staff and management to adequately serve the complex socio-legal needs of their clients. In general, staff reported feeling responsible for the safety and well-being of their clients; this behavior can result in a form of gate-keeping between clients and resources, especially if a staff member is not confident or knowledgeable about the resources available. The process of providing numerous referrals to external services that do not result in a positive change or solution for the client is called referral fatigue. Referral fatigue can negatively impact a client’s well-being and staff are reticent to repeatedly refer clients to resources that may or may not prove beneficial.
In order to address referral fatigue and implement a coordinated strategy to provide legal services to clients in women’s shelters, staff and management have a responsibility to broker and foster relationships with legal service providers in their community. Management representatives in the focus groups reported that their agencies had difficulty brokering these relationships; it is apparent that the participating shelters are working at capacity and may not have the resources to develop these partnerships. Some staff said that they experienced referral fatigue due to perceived roadblocks to accessing external resources for their clients, which has the potential to prevent agencies from pursuing future relationships. Social service agencies and the justice system have numerous points of intersection; it is important that these systems participate in inter-agency collaboration.
While both staff and clients agreed on many points, one point of divergence was about working with police services. Of the ten clients who utilized the Calgary Police Service, the majority (n=7; 70%) said that CPS was helpful or very helpful and only 30% (n=3) said that CPS was unhelpful or very unhelpful. Staff reported that the relationship between shelter clients and police had been strained in the past; further, staff expressed concern with the level of compassion and appropriate response training police officers had with regard to domestic violence issues. The difference in opinion could be due to different interactions between police and staff members as compared to interactions between police and clients. There could also be a perceived power dynamic between clients and law enforcement that prevents clients from speaking negatively about police officers and other law enforcement officials. Whatever the cause, it was apparent that staff were skeptical of working with law enforcement and this may contribute to increased gate-keeping behaviors that exacerbate referral fatigue and reduced inter-agency collaboration.
This study required significant trust- and relationship-building due to its focus on vulnerable populations, and it was imperative that the project design address the resulting ethical and methodological issues prior to commencing the study. Despite the collaboration that was undertaken to prepare for this study, we experienced a number of challenges to getting the project off the ground.
The primary challenge involved recruiting agencies to participate in the project. IPV survivors are a group that researchers often want to work with. Unfortunately, research has become a process that many agencies do not have an interest in, particularly because of the frequently dehumanizing language used in social science research. Terms like subject, target demographic and data can cause agency misperceptions of the intentions of the researchers and consequently breed disinterest among potential partners. Trust and safety are cornerstones for work with vulnerable populations and should be applied in research practices. We were aware of this challenge and worked closely with potential agency partners to draft the survey tool.
Given the historical challenge of social service staff working over-capacity and doing a large amount of side-of-the-desk work, it is not surprising that management staff were skeptical of participating in a project that would require time or effort from already limited resources. As well, partnerships need to be brokered with the right staff in order to achieve the most positive outcomes.
Despite building rapport and trust with participating agencies, concerns were expressed about how the data would be used and reported. Data security is a priority for social service agencies working with vulnerable populations, as client safety and confidentiality is paramount to agency operations. Ethical research studies do not identify survey respondents or violate a client’s right to confidentiality. However, some agencies conflate the terms anonymity and confidentiality. Anonymity means that a research project either does not collect identifying information or that any identifying information collected will not be linked to responses. Confidentiality refers to collecting and retaining identifying information such as name, birthdates, phone numbers or other contact information in order to link responses to a specific individual but not divulging their information to third parties.
We had a responsibility to create a collaborative research framework that incorporated the characteristics of the participating agencies and was concise, clear and relationship-based. The results from this study suggest that social service organizations would benefit from creating a partnership strategy that supports social research and community relationship building. One agency said that while building partnerships with local legal professionals would be beneficial, there was no strategy in place to undertake the work, nor were there adequate human resources available to dedicate to the task of legal service coordination. Collaborative research may support the development of partnership strategies and fill the current gap between the social service sector and justice system.
The focus group discussions suggested that distrust of the justice system and its agents fosters an “us versus them” mentality between social service providers and the justice system. This gap could be mitigated by increased communication and establishing partnerships between the justice system and social services. Shelter staff are protective of their clients and resist referring clients to resources that they perceive will revictimize their clients; this gate-keeping behaviour could negatively affect a client’s ability to access resources or give credence to the perception that the justice system unnecessarily interferes with the client’s situation.
The findings from this study suggest that clients of women’s shelters in the Calgary area arrive with complex social service needs that often intersect with legal issues. It is apparent from the focus group findings and lack of internal legal supports that women’s shelters are facing organizational barriers to coordinating sufficient legal resources for clients. These barriers may include limited funding, lack of staff capacity and legal training, and limited to non-existent legal resource partnerships. Further research needs to be conducted to determine if these barriers are present in other Alberta shelters.
We also have to consider the importance of incorporating client and staff perceptions into service delivery models. Objective data collection and analysis may aid senior management in supporting their staff and clients in a holistic manner. It would be beneficial to work with regional shelter networks to complete a representative study of how clients are accessing legal services, what supports clients are seeking, how clients perceive the legal system, and how clients’ legal challenges intersect with other issues presented during their stay at the shelter.
In our view, there is significant value in studying the legal access patterns of women who experience intimate partner violence and the availability of legal assistance to vulnerable populations presenting with complex socio-legal needs. Further, there is value in working with social service agencies to identify systemic and organizational barriers that may contribute to staff referral fatigue, resistance to working with legal authorities, and reduced efficacy of service delivery to clients. Intimate partner violence is a wide-reaching issue that intersects socio-economic status across the province. Urban, rural and indigenous communities have both unique and shared needs that require significant study and planning to address. This work underpins the evidence-based approach that will inform collaborative practice between the justice system and women’s shelters to address the socio-legal issues that arise from IPV crisis.
This study provides data that support an Alberta-wide research project examining access to legal services among clients of women’s domestic violence shelters. There is a significant gap in the current literature about how women’s shelter clients are accessing legal services, particularly in the Canadian context. Social scientists and social service agencies have an opportunity to collaborate in the collection of original data that will support funding applications, improve existing service delivery models, and supplement staff training. A project of this scale requires the establishment of partnerships and the encouragement of trust within social service agencies. Although it is the responsibility of social scientists to foster these relationships, it is the responsibility of social service agencies to provide a space for conversation with researchers. It is also important to involve other partner agencies that work with clients experiencing IPV.
Finally, community-based lawyers and law practices have an opportunity to work with their local social service agencies and build collaborative relationships. Legal service coordination cannot and does not happen in a vacuum; it requires significant contributions from both lawyers and social agencies, including an awareness of the scope of work both groups undertake. This may require a reassessment of resource allocation, time management, or increasing staff capacity to facilitate these partnerships. While the current study did not survey or interview lawyers, it is our intention that a province-wide study will include the voices of lawyers and judges so that we can make more comprehensive recommendations for legal service coordination in women’s shelters.
The report is available for download, along with CRILF’s other recent work, in the Publications section of our website, here.
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By: Nigel Bankes
Decision Commented On: AUC Decision 20799-D01-2016, Finlay Group, Complaint Regarding FortisAlberta Inc, Distribution Line Rebuild Project, February 3, 2016
This decision of the Alberta Utilities Commission (AUC) involves the rebuild of a short 25 kV distribution by FortisAlberta Inc. Other than from the perspective of the landowners who owned property adjacent to the distribution line this could hardly be a matter of great moment, but the decision deserves a post because of what it tells us about what seems to be a gap in the regulatory rules governing the construction and operation of distribution lines in the province. The Commission does its best to fill that gap but it does seem odd that while a homeowner needs to “pull a permit” from the relevant municipal authority before doing electrical work in their home, there is no AUC permitting requirement that a distribution utility must satisfy prior to constructing new distribution lines or changes thereto. The absence of such a permitting requirement may make sense for a sophisticated entity operating a “behind the fence” generation and distribution system for a designated industrial system under s. 4 of the Hydro and Electric Energy Act (HEEA), RSA 2000, c H-16 (see generally, Nigel Bankes, Giorilyn Bruno and Cairns Price, “The Regulation of Cogeneration in Alberta” (2015) 53 Alberta Law Review 383) but it makes less sense when the distribution utility is providing an essential public service. On the other hand, the absence of a history of high profile complaints or adverse publicity for electric distribution utilities for their construction operations suggests that, in general, they have been doing a good job – and “if it ain’t broke don’t fix it.”
The Finlay Group objected to the way in which FortisAlberta was proposing to go about rebuilding the distribution line which was the subject of this inquiry, largely on the basis that the method of construction would involve cutting down trees which provided both privacy and noise reduction qualities for the Finlay Group landowners. The Finlay Group proposed other alternatives all of which were more expensive and would have involved disruptions in service. The Finlay Group brought their complaint to the attention of the Alberta Utilities Commission (AUC) which ultimately dismissed the complaint. My interest in the decision lies in the AUC’s assumption of jurisdiction and the basis of that jurisdiction.
The Law Pertaining to the Construction of Distribution Networks
Most electric distribution systems in Alberta are operated by utilities which have the exclusive franchise to operate those systems within a designated service area approved by the AUC under s. 25 of the HEEA. However, while the HEEA (ss. 14 & 15) requires AUC approval in the form of a permit and licence for the construction and operation of a transmission line, no similar AUC authorization is required for the construction, rebuild or operation of a distribution line, provided that the distribution line is within the utility’s designated service area. FortisAlberta therefore did not require AUC approval for its proposed rebuild. In fact as stated at para 32 “the AUC has no direct oversight or approval role for the routing, abandonment, removal or reclamation of distribution lines.”
How then did the AUC obtain jurisdiction to even consider the complaints of the Finlay Group? According to Commissioner Anne Michaud, the AUC has this jurisdiction by virtue of some combination of s. 8 of the Alberta Utilities Commission Act (AUCA), RSA 2000, c. A-37.2, ss. 85 and 87 of the Public Utilities Commission Act (PUA), RSA 2000, c. P-45, s. 6 of the HEEA and s. 105 of the Electric Utilities Act (EUA), SA 2003, c. E-5.1.
Section 8 of the AUCA provides as follows:
8(1) The Commission has all the powers, rights, protections and privileges that are given to it or provided for under this Act and under any other enactment and by law.
(2) The Commission, in the exercise of its powers and the performance of its duties and functions under this Act or any other enactment, may act on its own initiative or motion and do all things that are necessary for or incidental to the exercise of its powers and the performance of its duties and functions.
(3) In addition to the powers, duties and functions conferred or imposed on the Commission by this Act or any other enactment, the Commission may carry out any other powers, duties and functions determined by the Lieutenant Governor in Council.
(5) Without restricting subsections (1) to (4), the Commission may do all or any of the following:
(a) hear and determine all questions of law or fact;
(b) make an order granting the relief applied for;
(c) make interim orders;
(d) where it appears to the Commission to be just and proper, grant partial, further or other relief in addition to, or in substitution for, that applied for as fully and in all respects as if the application or matter had been for that partial, further or other relief.
The key subsection here must be subsection 2 which refers to other statutes which confer jurisdiction on the AUC and then refers to “all things that are necessary for or incidental to the exercise of its powers and the performance of its duties and functions.” But this cannot resolve the issue itself since, as already conceded, there is no express conferral of jurisdiction under the AUCA or the other statutes listed above with respect to distribution lines.
Sections 85 and 87 of the PUA provide as follows:
85(1) The Commission shall exercise a general supervision over all public utilities, and the owners of them, and may make any orders regarding extension of works or systems, reporting and other matters, that are necessary for the convenience of the public or for the proper carrying out of any contract, charter or franchise involving the use of public property or rights.
(2) The Commission shall conduct all inquiries necessary for the obtaining of complete information as to the manner in which owners of public utilities comply with the law, or as to any other matter or thing within the jurisdiction of the Commission.
87(1) The Commission may, on its own initiative, or on the application of a person having an interest, investigate any matter concerning a public utility.
(2) When in the opinion of the Commission it is necessary to investigate a public utility or the affairs of its owner, the Commission shall be given access to and may use any books, documents or records with respect to the public utility and in the possession of any owner of the public utility or municipality or under the control of the Alberta Energy Regulator or a board, commission or department of the Government.
(3) A person who directly or indirectly controls the business of an owner of a public utility within Alberta and any company controlled by that person shall give the Commission or its agent access to any of the books, documents and records that relate to the business of the owner or shall furnish any information in respect of it required by the Commission.
The PUA is a rate-making statute. It is certainly conceivable that the AUC could have the jurisdiction to order a regulated utility like FortisAlberta not to engage in more expensive re-build operations in order to meet the concerns of a small group of rate payers (unless they were prepared to cover the costs themselves). While this sort of issue might ordinarily arise in the context of disallowing costs at a rate hearing on the basis of a prudency analysis, the combination of these provisions plus s. 8 of the AUCA perhaps justifies the AUC inquiring into the matter on the basis of a complaint as to the utility refusing to incur certain costs; although if word gets out as to this possible avenue of complaint the Commission may be inundated!
Section 6 of the HEEA allows the AUC, of its own motion, to “inquire into, examine and investigate any matter referred to” in s. 2 which establishes the purposes of the Act. Those purposes are:
(a) to provide for the economic, orderly and efficient development and operation, in the public interest, of hydro energy and the generation and transmission of electric energy in Alberta,
(b) to secure the observance of safe and efficient practices in the public interest in the development of hydro energy and in the generation, transmission and distribution of electric energy in Alberta,
(c) to assist the Government in controlling pollution and ensuring environment conservation in the development of hydro energy and in the generation, transmission and distribution of electric energy in Alberta, and
(d) to provide for the collection, appraisal and dissemination of information regarding the demand for and supply of electric energy that is relevant to the electric industry in Alberta.
Both paragraphs (b) and (c) expressly refer to generation and ss. 2 and 6 read together must therefore allow the AUC to examine a matter relating to distribution if such a matter is drawn to its attention and the AUC concludes that it merits further inquiry.
Section 105 of the EUA, so far as relevant (and as quoted in the AUC Decision) provides as follows:
105(1) The owner of an electric distribution system has the following duties:
(b) to make decisions about building, upgrading and improving the electric distribution system for the purpose of providing safe, reliable and economic delivery of electric energy having regard to managing losses of electric energy to customers in the service area served by the electric distribution system;
(c) to operate and maintain the electric distribution system in a safe and reliable manner;
(m) to respond to inquiries and complaints from customers respecting electric distribution service;
While this section standing on its own can hardly be read as conferring any jurisdiction on the AUC (since it simply imposes duties on a utility), it can perhaps do so when read in conjunction with ss. 85 and 87 of the PUA quoted above.
All of this is to say that Commissioner Michaud is likely correct to conclude that the AUC has some complaint jurisdiction in relation to distribution lines by virtue of its general supervisory authority under these various statutes – but it sure is complicated! And it is also worth bearing in mind that the AUC’s general supervisory jurisdiction will only get it so far. Jurisdiction might have been far more contested if in this case the AUC had ordered FortisAlberta to adopt one of the solutions proposed by the Finlay Group. A set of cases that illustrates the distinction between general supervision and concrete relief is the line of AUC and Court of Appeal decisions dealing with the extent of the Commission’s regulatory authority over the Ventures pipeline: see posts here and here.
The current provincial government has lots on its agenda but in the course of crafting rules to encourage a diversity of generation to help the province meet its greenhouse gas emission reduction targets some thought might be given to re-writing the Hydro and Electric Energy Act and clarifying the relationship between this Act and the province’s main utility statutes. I made a similar comment in an earlier post dealing with the regulation of cogeneration in Alberta.
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By: Jennifer Koshan
PDF Version: Reflections on Week One of the Ghomeshi Trial
I posted on ABlawg last Monday on the legal consequences of choking in the sexual assault context, which I suggested would be a likely issue in the Jian Ghomeshi trial. The testimony at the first week of the trial indicates that the question of whether one can legally consent to sexual activity involving choking is less likely to be the focus than whether the sexual assaults actually occurred and / or whether there was consent to the sexual activity in fact. Much ink has been spilled on the scope of the cross-examinations of the two complainants (so far) by defence counsel Marie Henein and the consequences of her tactics for the rights of sexual assault victims and their willingness to come forward. I want to add my two cents worth by focusing on the scope of the rape shield provisions, the relevance of the relationship between the complainants and the accused, and the possibility of expert evidence in this trial.
Section 276 of the Criminal Code, RSC 1985, c C-46, is commonly known as the rape shield provision (along with section 277, which restricts evidence of sexual reputation), and provides as follows:
276. (1) In proceedings in respect of [a sexual offence] … evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
One important point to note is that although this section is often described as restricting “sexual history” evidence, it includes evidence of sexual activity that occurred either before or after the sexual activity that is the subject matter of the offence. If the defence intends to lead sexual history evidence, for example in cross-examining the complainant, they must apply to the court for permission to do so. The court may only admit such evidence where it relates to:
(a) … specific instances of sexual activity;
(b) is relevant to an issue at trial; and
(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice (s 276(2)).
The judge hearing the application must also have regard to several factors in deciding whether the sexual history evidence is admissible, including the right of the accused to make full answer and defence, society’s interest in encouraging the reporting of sexual assault offences, the need to reject discriminatory beliefs or biases, and the rights of the complainant to personal dignity, privacy, security of the person, and to the full protection and benefit of the law (s 276(3)).
Section 276 explicitly applies to “specific instances of sexual activity.” Whether the complainant has engaged in sexual activity before or after the alleged offence with the accused (or others) must not, “by reason of the sexual nature of that activity”, be considered relevant to whether she consented to the sexual activity in question or to whether she should be believed as a witness.
I would argue that the same rationale underlying this section should apply to communications and other conduct of a sexual nature in which the complainant engages, either before or after the alleged incident. For example, we should not consider her more likely to have consented on the occasion in question, or to be less credible, simply because she has engaged in sexualized communications with the accused after the fact. Our focus must still be on whether there was consent at the time of the alleged incident.
To hold otherwise would suggest that sexual assault is not possible in the context of an ongoing relationship – or at least that we should have heightened concerns about credibility and consent in that context. Take for example marriage, an example that one of the complainants, Lucy DeCoutere, raised in her testimony. In a spousal relationship, the parties may engage in consensual sexual activity or sexualized communications after an alleged incident of sexual assault, but this does not mean that a sexual assault did not occur. A complainant in this context may have all sorts of reasons for staying with her partner regardless of the assault, including dependency, fear, or even love. Nevertheless, we must still assess an alleged sexual assault by focusing on whether consent existed at the time of the incident, and to what specific sexual activity that consent existed, rather than drawing inferences of consent or lack of credibility based on the fact that the parties remain together and have sex or talk about sex. These are the requirements of section 276 of the Criminal Code, as well as consent provision in section 273.1 as interpreted in cases such as R v Ewanchuk,  1 SCR 330, 1999 CanLII 711 and R v JA,  2 SCR 440, 2011 SCC 28.
Unfortunately, courts in spousal sexual assault cases often allow sexual history evidence (including post-offence conduct) to “creep in” without application of section 276 of the Criminal Code (see Melanie Randall, Sexual Assault in Spousal Relationships, ‘Continuous Consent’, and the Law: Honest But Mistaken Judicial Beliefs (2008) 32 Manitoba Law Journal 144 at 158; Jennifer Koshan, The Legal Treatment Of Marital Rape And Women’s Equality: An Analysis Of The Canadian Experience at 44-45). But these instances are contrary to the requirements of the Criminal Code and should be resisted or appealed where they occur. The relationship between the parties – whether it is dependent, romantic or professional – should not attenuate the application of the rape shield provisions, and should not influence inferences about consent and credibility even where there is post-offence contact or communication of a sexual nature. Any other interpretation risks undermining the interests that courts must consider in sexual history applications, including society’s interest in the reporting of sexual assault offences, the need to remove discriminatory beliefs and biases from the fact-finding process, potential prejudice to the complainant’s personal dignity and privacy rights, and the right of the complainant to personal security and to the full protection and benefit of the law.
Another useful way to think about the problems with relying on post-offence conduct is to ask how we would treat this kind of evidence in a case involving a different offence – for example, assault rather than sexual assault, which also includes the element of lack of consent. As argued by UBC law prof Isabel Grant in an interview with the National Post, “We wouldn’t start questioning the victim about whether or not he likes being punched in the face. Was he dressed in a way that would invite punching in the face? Did he talk to the person after he was punched in the face? If you think about these arguments in other crimes, you start to see how absurd it is.”
And further to my point about the many reasons why complainants may stay with their partners, or maintain contact with professional colleagues following a sexual assault (even intimate contact), we must recognize that victims of sexual assault have a diverse range of responses to being violated. Lori Haskell gave an excellent interview on CBC’s The Current last week discussing the psychology behind reactions to sexual victimization. The Ghomeshi case may be an appropriate one for the Crown to call expert evidence to provide context to this issue. There are several examples of spousal sexual assault cases where expert evidence has been admitted by the court as useful to its understanding of the post-offence actions of the complainant (see The Legal Treatment Of Marital Rape And Women’s Equality: An Analysis Of The Canadian Experience at 43). While expert evidence of this kind may be thought more appropriate in a jury trial, we should recall that judges sitting alone may be influenced by myths and stereotypes about how sexual assault complainants should act before and after the alleged offence (see e.g. my post on R v Wagar, 2015 ABCA 327). This is not to say that expert evidence should be required; the word of the complainant should be enough. But we are not (yet) living in a world where we can be confident of that.
All of the attention on the fact that the first two complainants in the Ghomeshi trial had contact and communications with him after the alleged incidents is therefore misplaced, should not be seen as relevant to whether they are believable or whether they consented to the alleged sexual assault, and might usefully be contextualized by expert evidence so that rationales contrary to the rape shield provisions are not imputed to their behaviour.
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By: Erin Sheley
Case Commented On: R v Newborn, 2016 ABQB 13
The Court of Queen’s Bench has upheld the Alberta Jury Act’s exclusion from jury service of those criminally convicted or charged, in reasons that emphasize the conflict between the important goals of securing impartiality on individual juries and promoting racial representativeness in jury selection at the systemic level.
Jeremy Newborn, an aboriginal man charged with second degree murder in Edmonton, was granted an adjournment of jury selection after his counsel reported to the judge that none of the members of the jury array appeared to be of aboriginal descent. Mr. Newborn moved for a declaration invalidating s. 4(h) of the Jury Act, RSA 2000, c J-3, which provides that persons who have been convicted of a criminal offence for which a pardon has not been granted, or who are currently charged with a criminal offence, are excluded from serving as jurors. His argument turns on the fact that Aboriginal persons form a disproportionate percentage of the criminally accused, relative to their representation in the general population, and that the s. 4(h) exclusions therefore violate his right to a representative jury under ss. 7, 11(d) and 11(f) of the Charter.
In support of his motion, Mr. Newborn offered the testimony of sociologist Jacqueline Quinless, who testified that, given the aboriginal population of Edmonton, nine aboriginal persons would be the most statistically likely to be selected to compose Mr. Newborn’s 178-person jury array. She provided a sociological analysis of why that number was instead zero, including “the effects on indigenous Canadians of white race colonialism, racism and stereotyping, the residential schools experience, higher incidents of violence, higher rates of incarceration and involvement with the police, inferior educational opportunities and achievement, and higher mobility rates” (at para 20). She concluded that these factors, insofar as they have damaged the relationship between indigenous and non-indigenous Canadians, have resulted in indigenous Canadians being reluctant to serve as jurors (at para 20). Finally, she testified that while there are no definitive statistics on how many indigenous Canadians have criminal records, we can reason from their overrepresentation in the prison system (20% of the prison population, compared to the 2% they comprise of the general population) that they would form a significantly higher percentage of the 3.8% of Canadians who have criminal records (at para 21).
On the basis of this factual proffer, Mr. Newborn argued that the Alberta legislature must have been aware of the disproportionate effect s. 4(h) would have on the indigenous population and have intended to exclude members of that group from jury selection. To evaluate this contention the ABQB considered R v Kokopenace, 2015 SCC 28, decided by the Supreme Court while Mr. Newborn’s motion was pending. In Kokopenace, which also involved an appeal by an Aboriginal accused, the Court considered the appropriate constitutional test for representativeness under s. 11 of the Charter. In that case, the accused discovered that there might have been problems with including on-reserve Aboriginal residents on the jury roll.
Ontario compiles its jury rolls based on municipal assessment lists obtained from the Municipal Property Assessment Corporation (MPAC), which do not capture residents of First Nations Reserves (Kokopenace at paras 10-11). To compensate for this fact, s. 6(8) of the Ontario Juries Act, RSO 1990, c J.3, provides that the sheriff select names of eligible persons inhabiting each reserve and may obtain lists of names from any available records (at para 11). Because in practice this process is carried out by municipal authorities in the Court Services Division (CSD), the Ontario Ministry of the Attorney General provides guidance for its implementation (at para 16).
At the time of Mr. Kokopenace’s trial, the District of Kenora had been experiencing severe decreases in responses to jury summons from First Nations reserves, and the official tasked with compiling the jury list reported difficulties in obtaining updated lists of residents from the reserves. The record indicates her extensive efforts to update the jury roll, and the efforts of Ontario to provide its officials with the proper training necessary to do so (at paras 21-28). However, a 2013 report conducted by Justice Frank Iacobucci concluded that “the problem with the underrepresentation of on-reserve residents is deep-rooted and multi-faceted, and that it extends well beyond the difficulty of obtaining accurate source lists. It explains that the problem is linked to the long history of Aboriginal estrangement from the justice system and the mistrust of that system that has resulted” (at para 29).
To determine whether Mr. Kokopenace’s Charter rights were violated by a jury selected under these circumstances, the Supreme Court first needed to define representativeness and determine how it factored into the s 11 inquiry (at para 39). In defining representativeness, the Court focused on the fairness of the process rather than the production of a particular outcome (at para 39). The constitutional lodestar is the existence of “a representative cross-section of society, honest and fairly chosen” and with respect to the jury roll, “representativeness focuses on the process used to compile it, not the ultimate composition” (at para 40).
The Court then explained that the right to representativeness is tied to specific Charter rights: namely, the right to an impartial tribunal under s. 11(d) and the right to a jury trial under s. 11(f). Lack of representativeness will violate s. 11(d) only when it either (a) results in a deliberate exclusion of a particular group that would cast doubt on the integrity of the process and create an appearance of partiality, or (b) even in the absence of deliberate exclusion, the state’s efforts in compiling the jury roll are so deficient that they create an appearance of partiality (at para 50). However, the Court holds that lack of representativeness may violate s. 11(f) in a wider range of contexts, because the representativeness of a jury is a “key characteristic” of a jury itself (at para 52).
After Kokopenace, the test for whether the state has met its representativeness obligation is whether it “provided a fair opportunity for a broad cross-section of society to participate in the jury process,” which will be deemed to exist when the state makes reasonable efforts to “(1) compile the jury roll using random selection from lists that draw from a broad cross-section of society, and (2) deliver jury notices to those who have been randomly selected” (Kokopenace at para 61). The Court emphasizes that it is the process that determines the constitutionality, not the outcome, and notes “representativeness is not about targeting particular groups for inclusion on the jury roll” (at para 61). Specifically, the majority reasons reject the “results-based” approach advocated by Justice Cromwell in dissent, which would have looked beyond procedure to the actual representation of Aboriginal people on jury arrays. The Supreme Court therefore concluded that the state had made reasonable efforts to compile the jury roll and to deliver notices, and for that reason determined that Mr. Kokopenace’s Charter rights had not been violated (at para 106).
Applying Kokopeance to the facts of the Newborn case, the Court of Queen’s Bench pointed out that the Supreme Court’s reasons had specifically referred to the acceptable need to exclude certain groups of persons from jury rolls for practical reasons, including government officials and participants in the criminal justice system, both practitioners and accused (Newborn at para 44). Relying on the process-driven analysis of Kokopenace, the Newborn court held that the exclusion of the criminally convicted and accused is reasonable and acceptable because “a person who has been convicted of a crime, or is currently charged with a crime, is prima facie likely not to be impartial as between the Crown and the accused in a criminal proceeding” and the status “does not cease to be a reasonable basis for exclusion because of the ethnic origin of the person in question” (at para 30). The court explicitly stated that the exclusion does not become unreasonable on the basis that its effect is to exclude a proportionally greater proportion of Aboriginal persons from jury duty relative to persons of any other ethnic origin, even when such an effect would have been obvious to the legislature when it established the exclusion (at para 30).
Newborn, while logically coherent, points to a broader problem in jury selection generally. On the one hand, the ABQB’s decision flows fairly directly from the clear holding of Kokopenace. The Supreme Court explicitly rejected constitutional scrutiny of the results of a particular selection process. That being the case, the reasonableness of excluding potentially biased jurors, such as criminals, does not need to be constitutionally balanced against the substantive unfortunate outcomes such exclusions produce. The values that support the Crown’s position in Newborn relate to impartiality: to put it in plain English, we do not want accused like Mr. Kokopenace and Mr. Newborn, both of whom were on trial for homicides, getting off because a member of the jury was biased against the Crown for having been convicted of a crime him or herself. Yet they create a potential for systemic bias, if our jury arrays fail to adequately represent segments of the population.
These cases also raise even more pernicious concerns. The Supreme Court’s approach in Kokopenace does not take into account the cyclical relationship between substantive and procedural criminal law, or the relationship between law and society. In the first place, many legal scholars have observed that the justice system has the capacity to “silence” subordinate groups through its procedural rules, thereby denying their social power and contributing to the development of an underclass. (See Kimberly D. Bailey, “Deconstructing the Sound of Silence”,  BYU L Rev 1). While juror impartiality is important on a case-by-case basis, the principles of fundamental justice embodied in the Charter reflect not only the interests of the accused but broader social concerns: see R v Seaboyer  2 SCR 577, 1991 CanLII 76. The court should have considered the meaning of a fair cross-section in this light.
Even more subtly, the legitimacy of the criminal justice system to a given populace flows from its representation of socially shared norms of justice. For example, the body of scholarship on what has become known as the “utility of desert” shows that when the criminal justice system neglects shared social norms about justice—when it over or under punishes relative to what a community believes to be warranted—the system loses legitimacy. This loss of legitimacy results in an increased likelihood of law-breaking in the population at large (see Paul H. Robinson & John M. Darley, “Intuitions of Justice: Implications for Criminal Law and Justice Policy” (2007) 81 S Cal L Rev 1). The evidence presented by Mr. Newborn, not to mention the findings of the Iacobucci Report, suggest the criminal justice system lacks legitimacy among Aboriginal communities, a fact which impacts their complying with jury summons. But by allowing the group to remain silent in the actual process of criminal punishment, that illegitimacy will only take further hold. In other words, by failing to create procedures that make sure all social views about substantive outcomes are taken into account in assigning punishment, those excluded will be less likely to comply with the law in the first instance.
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By: Joshua Sealy-Harrington and Tara Russell
Case Commented On: Abbotsford (City) v Shantz, 2015 BCSC 1909
In Abbotsford (City) v Shantz, 2015 BCSC 1909 (Abbotsford), Chief Justice Hinkson of the British Columbia Supreme Court assessed multiple Charter challenges to various bylaws affecting individuals experiencing homelessness in British Columbia. Abbotsford continues a trend of recent Canadian decisions addressing the Charter rights of homeless individuals. While the Court in Abbotsford recognized a right for homeless individuals to camp overnight in parks when insufficient shelter space is available, that right is narrow since it can be eliminated through the expansion of homeless shelters (even though many homeless individuals legitimately prefer camping to a shelter). Further, that right rests upon an unclear foundation of legal reasoning that narrows the constitutional protections for homeless individuals without adequate justification.
A previous ABlawg post by Ola Malik and Megan Van Huizen provides a detailed summary of the facts in Abbotsford, so we will only provide a brief background here.
In essence, the Charter challenge in Abbotsford arose in response to a permanent injunction sought by the City of Abbotsford against a group of homeless individuals who formed a camp in Jubilee Park. Specifically, the four key events underlying the Abbotsford decision were as follows:
Abbotsford is one of many recent decisions implicating the Charter rights of homeless individuals, including:
While we were disappointed that the Supreme Court did not grant leave in Tanudjaja ONCA, as more cases involving the Charter rights of homeless individuals arise, the “public importance” of the nexus between homeless individuals and the Charter will hopefully justify judicial consideration by the Supreme Court (see Rule 25(1)(c)(i), Rules of the Supreme Court of Canada, SOR/2002-156; section 40(1), Supreme Court Act, RSC 1985, c S-26).
This post focuses on the Charter arguments raised in Abbotsford, namely, that the Bylaws and their corresponding enforcement violate:
The focus of Ola and Megan’s previous ABlawg post on Abbotsford mirrored the Court’s greater focus on section 7. In contrast, this post will focus on summarizing and critiquing the Court’s analysis of sections 2 and 15.
SUMMARY AND CRITIQUE OF DECISION
Violation of Rights to Liberty and Security of the Person (Section 7)
The Court held that the Bylaws and their corresponding enforcement violated section 7 of the Charter. Specifically, the Court held that:
The Court repeatedly qualified that the Bylaws deprived homeless individuals’ liberty and security only if there is insufficient shelter space to accommodate the homeless population (see e.g. paras 188 and 222). Further, the Court held that “there is insufficient accessible shelter space in the City to house all of the City’s homeless persons” (at para 82). In consequence, the constitutional right established under section 7 in Abbotsford is narrowed to a right to camp overnight in parks only if a municipality does not have sufficient accessible shelter space to accommodate them. We describe this constitutional right as narrow because it may, in effect, be overruled when cities respond to camping by homeless individuals with pledges expanding shelter space (a response which fails to take into account the various reasons why homeless individuals may legitimately prefer to sleep outside rather than in a shelter).
While the Court held that the Bylaws violated section 7 of the Charter, it held that the Bylaws and their corresponding enforcement did not violate the fundamental freedoms (section 2) or equality rights (section 15) of homeless individuals.
No Violation of Fundamental Freedoms (Section 2)
Insights from Free Expression Jurisprudence (Section 2(b))
While freedom of expression was not itself at issue in Abbotsford, the Court considered the free expression jurisprudence instructive to its analysis of other fundamental freedoms in the Charter, namely, free assembly and free association (see para 153). Undoubtedly, the Court’s observation that there is, apparently, “almost no case law on the nature or scope of the freedom of peaceful assembly in Canada” (at para 158) was part of its motivation for cross-pollinating the various freedoms in its analysis.
Specifically, the Court relies on the following three-part test for finding a violation of freedom of expression in its analysis of free assembly and free association:
Clearly, the Freedom Test is situated within the context of freedom of expression. However, the Court borrows from the established principles underlying this test in its effort to explore the nature of other less jurisprudentially developed freedoms under section 2 of the Charter.
No Violation of Free Assembly (Section 2(c))
The Court held that the Bylaws did not violate the freedom of homeless individuals to peacefully assemble.
Initially, the Court appeared to signal that the Bylaws may violate free assembly. The Court begins by stating that free assembly guarantees “access to and use of public spaces” (at para 158). Further, the Court is clear that public parks (the public space at issue here) are such a public space (at para 158). Accordingly, the Court appears to signal, at the outset, that free assembly may guarantee access to and use of Jubilee Park.
However, the Court then holds that free assembly is not “engaged” by the presence of homeless individuals in parks. The Court’s explanation on this point is lacking. The Court alludes to various concerns with interpreting homeless camping as a form of free assembly, namely:
But the Court fails to explain how these concerns relate to its holding that the Bylaws do not engage free assembly. Without more explanation, we are left guessing at the Court’s logic.
That said, when the Court’s “concerns” (the three points, above) are read in conjunction with the Court’s stated intent to borrow from the Freedom Test, the Court’s logic can be somewhat ascertained. Presumably, by saying that free assembly is not “engaged” in this case, the Court is saying that the conduct limited by the Bylaws (i.e. camping overnight in parks) fails the first part of the Freedom Test. Put differently, the Court is likely saying that camping overnight in parks is not protected because it is not the sort of free assembly intended to fall within the scope of section 2(c).
For example, when the Court states that public parks are not “generally intended” for residential purposes (the third “concern” listed above), the Court may be stating that the homeless individuals in this case are not protected by section 2(c) because their free assembly (camping) does not align with the historical and actual use of the location of that assembly (public parks). Indeed, many passages of the Court’s reasons suggest that the Court placed significant reliance on the fact that parks are not historically used for residential purposes in dismissing the free assembly claim:
These various passages suggest that the Court held that overnight camping in parks fails the first part of the Freedom Test because it is not the intended use of a public park and therefore not a constitutionally protected form of free assembly. However, the Court fails to articulate this clearly. It could be argued that relying on free assembly (under section 2(c)) to seek the basic necessities of life (which may fit best under a section 7 analysis) causes unnecessary overlap and confusion in Charter jurisprudence and fails to purposively interpret the Charter provisions at issue. But, again, the Court does not elaborate on these points.
In any event, the Court’s reliance on the “historical” uses of parks also fails to take account of how parks are now quite frequently used for residential purposes. Indeed, the Bylaws expressly permit individuals to stay overnight in parks with a permit (albeit with required fees and insurance inaccessible to homeless individuals; see Abbotsford, at para 22) and many recent cases demonstrate that homeless camping in parks is a growing phenomenon. If a precondition to free assembly rights is the intended purpose of the space in which a claimant seeks to assemble, courts will need to pay greater attention to how the intended use of different spaces evolves over time. This will be particularly important given that governments will presumably be more likely to resist the exercise of free assembly rights when individuals use spaces counter to their historically intended purpose (as this case illustrates).
In any event, the Court’s other concerns are even less clearly linked to the Freedom Test. For example, it is unclear how the Court’s concern that the Bylaws affect all citizens equally relates to free assembly. Indeed, a Federal law “equally” banning all citizens from ever protesting near Parliament would, at a minimum, “engage” section 2(c), even though that law applied to all citizens. In our view, the equal impact of the Bylaws more intuitively relates to discrimination under section 15 of the Charter than free assembly under section 2(c). Further, the fact that everyone’s right to free assembly has been infringed, if anything, amplifies the scope of infringement under section 2(c), rather than diminishing it. Accordingly, the other “concerns” the Court relies on to dismiss the free assembly claim cry out for elaboration (and, at first glance, appear flawed).
No Violation of Free Association (Section 2(d))
The Court’s freedom of association reasoning is much clearer.
Similar to its analysis of free assembly, the Court begins by describing free association in broad terms suggesting that it may be violated by the Bylaws. Specifically, the Court notes that free association “protects the choice to join with others, in spaces both public and private, recognizing the empowerment that comes from joining together in community and in pursuit of common goals” (at para 163). Further, the homeless individuals in Jubilee Park were making that very choice – joining one another in public space and in pursuit of common goals, including access to survival shelter, rest and sleep, community and family, and a safer living space (at para 25). Accordingly, the Court appears to signal, at the outset, that free association may protect the camp at Jubilee Park.
However, the Court then narrows the scope of free association to three discrete activities, namely, joining with others to:
(Abbotsford at para 167, citing Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 at para 66).
Based on this narrow scope, the Court denies the free association claim in this case because the Jubilee Park camp (allegedly) does not fall within any of the three forms of constitutionally protected association listed above (see para 168). Rephrased, the Court appears to hold that camping overnight in Jubilee Park fails the first part of the Freedom Test because such camping is not a form of constitutionally protected association.
The Court’s framework is analytically clear. But the Court appears to misapply that framework in its reasoning. The Court holds that associations formed in pursuit of other constitutional rights are protected by free association, and the Jubilee Park “association” was, arguably, such an association. The Jubilee Park camp was formed to access shelter, rest and sleep, community and family, and safety (at para 25), all arguably linked to life, liberty, and security of the person under section 7. Indeed, the Court held that the Bylaws violated the section 7 rights of homeless individuals. It follows that the Jubilee Park camp was, in effect, an association arguably formed in pursuit of other constitutional rights, and yet, the Court held to the contrary in dismissing the free association claim.
In addition, the Court erroneously reasons that there is no violation of freedom of association if individuals are able to freely associate in one permissible avenue of association, whether or not the government prohibits other legitimate avenues of association. Specifically, the Court holds that there is no violation of free association at Jubilee Park because those homeless individuals were able to freely associate in Court pursuant to their membership in DWS (at para 168). Surely a violation of free association cannot be cured simply because other associations more palatable to the government are capable of being formed. Indeed, extrapolating on this logic suggests that a claim of violated free association is automatically defeated once it is filed since its mere filing reflects the extent to which the individuals involved were still able to “freely associate” in advancing their legal rights. At the very least, the Court’s view that the capacity to associate in other forums precludes a violation of free association warranted more analysis.
Similar to its reasoning for freedom of assembly, the Court dismisses the freedom of association claim, in part, because public parks were not historically intended to be used as campsites (see paras 162 and 168). Presumably, the Court was of the view that all fundamental freedoms (expression, assembly, and association) are only protected when they are being exercised in a location where such exercise was historically anticipated to occur. But we can still only guess as the Court was not explicit on this point. And, as explained earlier, the Court failed to consider how the historical use of parks may not align with their current uses, particularly for homeless individuals.
In sum, the Court’s analysis of fundamental freedoms in Abbotsford was lacking, and amounts to a missed opportunity to develop the jurisprudence regarding fundamental freedoms in the Charter and to explore the constitutional rights of homeless individuals.
To be clear, our view is not that the fundamental freedoms should necessarily provide a right for homeless individuals to camp overnight in public parks. Rather, our concern is that the lack of analytical clarity in the Court’s reasoning deprives homeless individuals of that right without adequate justification. Section 7 may very well be the Charter provision most appropriate to addressing the concerns raised in Abbotsford. But section 2 may also apply, and its concurrent application with section 7 is material because section 7 only provides a right to camp when there is insufficient shelter space available – a limitation that may not apply to a violation of section 2.
No Violation of Equality (Section 15)
Lastly, the Court held that the Bylaws did not violate the equality rights of homeless individuals under section 15 of the Charter.
Three grounds of discrimination were alleged by DWS: two enumerated grounds (disability and race (i.e. Aboriginality)); and one analogous ground (homelessness).
The Court identified the two part framework for discrimination as follows:
(R v Kapp, 2008 SCC 41 at para 17).
Arguably, the second step was modified in cases subsequent to Kapp, and now looks more broadly at whether the distinction perpetuates prejudice, stereotyping or historical disadvantage (see Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 at paras 18-21). In any event, the Court erred in its analysis of part 1 of the equality framework. Specifically, the Court erred in its analysis regarding whether the Bylaws discriminated based on an enumerated or analogous ground; and whether the Bylaws created a “distinction”.
Misinterpretation of Analogous Grounds
The Court’s analysis of analogous grounds is inadequate because of its erroneous reliance on Tanudjaja ONSC.
The Court rejects the allegation of discrimination based on the analogous ground of homelessness because it rejects that homelessness qualifies as an analogous ground. It does so by relying entirely on the reasoning of Justice Lederer in Tanudjaja ONSC (Abbotsford at para 231), who held that homelessness cannot be an analogous ground because its members are a heterogeneous group. It is unfortunate to see other courts relying on Justice Lederer’s reasoning. As Joshua explained previously on ABlawg, Justice Lederer’s rejection of homelessness as an analogous ground was flawed because it:
A consideration of those factors discussed in the jurisprudence, in our view, should result in the characterization of homelessness as an analogous ground. In particular, as explained in Joshua’s earlier post, homelessness should be considered an analogous ground because of the difficulty in changing one’s status as homeless and the vulnerability and historical disadvantage the community has been subjected to and continues to be subject to.
In addition, the Court’s reliance on Tanudjaja ONSC in rejecting homelessness as an analogous ground in Abbotsford is also troubling because the definition for “homelessness” arguably differs in the two cases:
In effect, while Tanudjaja ONSC rejected homelessness as an analogous ground, the “homelessness” it rejected differed materially from the homelessness considered in Abbotsford. In consequence, it was likely inappropriate for the Court to simply rely on Tanudjaja ONSC, particularly given that Tanudjaja ONSC’s rejection of homelessness as an analogous ground turned on how the broader definition of homelessness it dealt with was too difficult to define (at paras 129 and 134).
Misinterpretation of Laws Creating “Distinctions”
The Court’s analysis of whether the Bylaws create a “distinction” is also inadequate because it fails to take “adverse effects discrimination” into account.
An understanding of four concepts is required to appreciate the errors made by the Court in its (lack of) analysis regarding adverse effects discrimination:
(See Jonnette Watson Hamilton & Jennifer Koshan, “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter” at pp 4-8 (“Adverse Impact”)).
An example from Adverse Impact clarifies the above concepts. Consider an office where all workers are required to work on Saturday, and which employs Seventh Day Adventists who, due to their religious beliefs, cannot work on Saturdays:
(See Ontario Human Rights Commission & O’Malley v Simpsons Sears Ltd,  2 SCR 536).
As the above example illustrates, the existence of adverse effects discrimination demands a more nuanced approach to anti-discrimination than merely ensuring that people are treated “equally” since treating people the same does not always promote substantive equality. The Supreme Court made this very point in its first section 15 decision where it held that “identical treatment may frequently produce serious inequality” (see Andrews v Law Society of British Columbia,  1 SCR 143 at 164).
The recognition of adverse effects discrimination is crucial to the realization of substantive equality (Adverse Impact at p 1). Indeed, the Court in Abbotsford acknowledged that the “past focus” on formal equality detracted from the focus of section 15, which is “the pursuit of substantive equality” (at para 227). Yet, despite this acknowledgment, the Court seems unaware of the adverse effects discrimination apparent in Abbotsford.
The Court’s two paragraphs devoted to analyzing whether the Bylaws create a distinction contrary to section 15 are a textbook example of a Court only considering formal equality (at paras 235-36, emphasis added):
The Impugned Bylaws are regulatory prohibitions, subject to exemptions, and are neutral on their face. While there has been historic mistreatment of Aboriginal people and the disabled, it does not follow that they, as compared to other groups, have been prejudiced in some manner that is connected to the Impugned Bylaws. Nor is the enforcement of the Impugned Bylaws against the homeless treatment that differs from the enforcement of the Impugned Bylaws against anyone else. While the effect of the Impugned Bylaws may have a greater impact on those who are homeless, that is not because they are being treated any differently than those who are not homeless, disabled or due to their racial backgrounds. DWS has not established that the Impugned Bylaws have the effect of perpetuating disadvantage or prejudice. I am not persuaded that an infringement of any of DWS’ members’ s. 15 Charter rights has been made out on the evidence before me.
Beyond a passing reference to the Bylaws not “perpetuating disadvantage or prejudice”, the above paragraphs repeatedly state the same basic point: the Bylaws apply equally to all citizens (i.e. the Bylaws satisfy formal equality). To be frank, how the Bylaws were enforced casts doubt on even formal equality being met in this case. In particular, it is unlikely that the “disgraceful” displacement tactics employed by the City against homeless individuals (which included the use of bear/pepper spray, damaging tents and personal property, and spreading chicken manure on a homeless camp; see paras 100, 105, and 115) would have been employed against other less marginalized populations. In any event, the neutral language of the Bylaws, at best, only shows that they meet the requirements of formal equality and do not directly discriminate against homeless individuals. This analysis, which disregards substantive equality, is therefore incomplete.
That the Court’s equality analysis is incomplete is reinforced by the Court’s factual findings that undeniably raise concerns about the Bylaws adversely impacting homeless individuals. In the Court’s own words:
Although it is strictly speaking correct that the Impugned Bylaws are not directed at group encampments as compared to individual encampments, the effect of their application affects the homeless far more than it affects others (Abbotsford, at para 223, emphasis added).
The disproportionate effect of the Bylaws on homeless individuals should come as no surprise. Parks are used by the general public for infrequent recreational purposes. In contrast, parks may be used by homeless individuals for daily shelter, community, safety, and even survival.
The Court affirmed (1) the centrality of substantive equality to section 15 and (2) the disproportionate impact of the Bylaws on one of the most marginalized communities in Canadian society. Yet the Court completely disregarded the presence (or even the possibility) of adverse effects discrimination. As a consequence, Abbotsford continues an unfortunate trend in Charter jurisprudence of:
(See Jennifer Koshan & Jonnette Watson Hamilton, “The Continual Reinvention of Section 15 of the Charter” (2013) 64 UNBLJ 19 at pp 21 and 49).
Abbotsford presents a limited victory for homeless individuals in British Columbia under section 7 of the Charter: the right to camp overnight in parks when there is insufficient shelter space available. But the Court’s summary dismissal of the claims based on sections 2 and 15 of the Charter is deeply troubling. In effect, once more shelter space is made available, homeless individuals will likely have no constitutional protection to camp in public parks. Given the many legitimate reasons why homeless individuals may prefer camping in parks to staying in a shelter, recent pledges to expand shelter space may, ironically, be a burden to homeless individuals whose constitutional right to camp in parks will be eliminated.
The Court’s judgment in Abbotsford is also troubling from a jurisprudential standpoint. The Court’s narrow (and, at times, analytically confusing) approach to sections 2 and 15 fails to provide greater clarity to these underdeveloped Charter rights. As neither side elected to appeal the decision in Abbotsford, appellate intervention is no longer possible. However, when the Charter rights of homeless individuals make their way back into the courts (which is likely, as disputes between municipalities and homeless individuals are ongoing), we sincerely hope a clearer and more expansive interpretation of the Charter will prevail. Until then, Canada’s constitutional promise of freedom and equality for homeless individuals will remain un-kept.
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By: Allan Ingelson
This is the fifth national environmental law symposium funded by Environment Canada (now Environment & Climate Change Canada), organized by the Canadian Institute of Resources Law (CIRL) in the Faculty of Law at the University of Calgary, and its partners. During the last four years, practitioners, judges, and academics from across Canada have attended either in person or online and have contributed questions and comments to the discussion of current important environmental law issues. Last year we had 299 registrants from across Canada and in the United States. This year one presenter (Jonathan Leo) will discuss the American experience with environmental inspections and enforcement actions. Registrants can obtain the symposium program and papers in both official languages. Symposium presentations will be in either French or English, depending on the speaker, and will address civil and/or common law perspectives. Attendees at previous symposiums have reported that the information that has been provided is both practical and useful. We encourage active audience participation in the panel discussions. Last year the symposium was held in the Faculty of Law at the University of Calgary. This year the national symposium has been organized by CIRL, the Faculty of Law at the University of Ottawa, and the Ontario Bar Association.
The free symposium will examine major issues that arise in the course of environmental inspections and enforcement actions, starting with the decision to prosecute and proceeding sequentially through key decision points, ending with available defences. The symposium will be conducted by some of the leading environmental law scholars and practitioners from across Canada, reflecting both civil law and common law perspectives. The papers to be presented and discussed will be posted on the CIRL website.
The key topics that will be considered include:
Janet Bobechko, Partner, Norton Rose Fulbright Canada LLP, Toronto
Dan Bunner, Principal, Ramboll Environ Canada, Inc., Mississauga
Jack Coop, Partner, Osler, Hoskin & Harcourt LLP, Toronto
Rosalind Cooper, Partner, Fasken Martineau DuMoulin LLP, Toronto
Jennifer Fairfax, Partner, Osler, Hoskin & Harcourt LLP, Toronto
James D. Flagal, Counsel, Ontario Ministry of the Environment and Climate Change, Toronto
Jonathan Leo, Attorney, State Bar of California, U.S.A.
Dr. Elaine MacDonald, Senior Staff Scientist, Ecojustice, Toronto
Fred Maefs, Counsel, Ontario Ministry of the Environment and Climate Change, Toronto
Heather McCready, Executive Director of Environmental Enforcement, Environment and Climate Change Canada, Gatineau
Paul McCulloch, Counsel, Ontario Ministry of the Environment and Climate Change, Toronto
Martin Olszynski, Assistant Professor, Faculty of Law, University of Calgary
Katia Opalka, Adjunct Professor, McGill School of Environment, Montreal
For those interested in attending in person, the symposium this year will be held at the University of Ottawa, DMS Desmarais Room 12102, 55 Laurier.
You can participate in the symposium online via live webcast. The symposium format will allow for questions from both audiences. In both cases, registration is required. A password for the webcast will be forwarded to registrants allowing access to conference materials.
Papers and Other Materials
Registrants can download papers and other materials that will be available in both official languages.
There is no registration fee, but participants must register online. A password will be supplied to registrants in order to access materials and recordings. To register, please visit the EventBrite conference webpage.
The time spent attending this program may be applied towards the annual CPD requirement in all mandatory continuing professional development jurisdictions.
Sue Parsons, Canadian Institute of Resources Law
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By: Jennifer Koshan
Case Commented On: R v White, 2016 ABQB 24
The Jian Ghomeshi trial gets underway today and there is likely to be intense coverage of this event in the media and blogosphere (for earlier ABlawg posts on Ghomeshi see here and here). Ghomeshi is charged with 4 counts of sexual assault as well 1 count of overcoming resistance by choking. Choking is not uncommon in sexual assault cases, although its legal significance is still somewhat murky. For example, in R v JA,  2 SCR 440, 2011 SCC 28, the Supreme Court declined to rule on whether choking that leads to unconsciousness amounts to bodily harm so as to vitiate consent (at para 21). A recent Alberta case, R v White, 2016 ABQB 24, considered the relevancy of choking in the context of sentencing for sexual assault offences. As I will discuss in this post, White suggests that choking should be seen as equivalent to bodily harm in this context, which may have implications for sexual assault matters more broadly.
First, a few words on what the Supreme Court did and did not decide in R v JA. As I noted in my earlier post on that case, it stands for the proposition that advance consent to sexual activity that takes place while the complainant is unconscious or asleep is outside the scope of the consent provisions of the Criminal Code (see RSC 1985, c C-46, sections 273.1 and 273.2). The facts of JA involved the complainant KD being choked into unconsciousness by her partner. The trial judge found that KD consented to erotic asphyxiation, and that she did not experience bodily harm because the unconsciousness “was only transient” (2011 SCC 28 at para 11). Nevertheless, she convicted JA of sexual assault because she found that KD had not consented to the sexual activity that occurred while she was unconscious, nor could she as a matter of law. At the Ontario Court of Appeal, the majority rejected the Crown’s argument that KD’s consent was vitiated by the intentional infliction of bodily harm through choking. Although it found that the trial judge had committed an error of law in her analysis of bodily harm, JA had only been charged with sexual assault simpliciter, and thus bodily harm could not be relied upon to vitiate consent (2011 SCC 28 at para 17). The Crown did not appeal this holding, so the issue of whether choking amounts to bodily harm and whether it vitiates consent was not before the Supreme Court. According to Chief Justice McLachlin, writing for the majority:
Since the issue of bodily harm is not before this Court, I take no position on whether or in which circumstances individuals may consent to bodily harm during sexual activity. In my view, it would be inappropriate to decide the matter without the benefit of submissions from interested groups (at para 21).
As a result, the issues of whether choking amounts to bodily harm, and whether choking should vitiate consent in sexual assault cases, are still outstanding. To put it another way, it is still an open question whether a person can consent to being choked into unconsciousness in the context of sexual activity. There have been other cases where lower courts have found that bodily harm in the sexual assault context vitiates consent (see e.g. R v Welch, 1995 CanLII 282 (ONCA)), and the Supreme Court itself has held that consent to sexual activity may be vitiated in cases involving significant risk of serious bodily harm (R v Cuerrier,  2 SCR 371, 1998 CanLII 796; R v Mabior,  2 SCR 584, 2012 SCC 47, both dealing with non-disclosure of HIV).
Choking to overcome resistance to the commission of an offence is also a discrete offence in the Criminal Code, RSC 1985, c C-46, section 246(a) of which provides that:
246. Every one who, with intent to enable or assist himself or another person to commit an indictable offence,
(a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle, attempts to render another person insensible, unconscious or incapable of resistance …
is guilty of an indictable offence and liable to imprisonment for life.
In R v White, 2016 ABQB 24, the accused was found guilty following a jury trial of 8 counts involving 3 complainants, all of whom were “young, drug-addicted prostitutes” working in Edmonton (at para 3). White was found guilty of robbery against SH, of sexual assault, unlawful confinement, and choking to overcome resistance against RH, and of robbery, choking, sexual assault, and unlawful confinement against TK. The offences followed a similar pattern: White picked up the victims, drove them to isolated areas, had them perform oral sex on him, choked them, and either demanded his money back and / or forced the victims into further sexual acts without their consent. As noted by Justice Robert A. Graesser, the victims “were clearly vulnerable to abuse by reason of their occupation and their drug-addicted states” (at para 3).
There were several interesting issues that arose during sentencing, including the credit that should be given for post-conviction / pre-sentence custody and restrictive pre-trial bail conditions, as well as the applicability of the maximum credit limits in the Truth in Sentencing Act, SC 2009, c 29. Also at issue was whether White’s size – he weighed over 400 pounds – should be seen as an aggravating or mitigating factor. The Crown argued that size was aggravating, as it allowed White to intimidate and overcome his victims (at para 76); the defence argued that it was mitigating as correctional facilities would have difficulty accommodating his needs (at para 77). Justice Graesser ruled that White’s size was a neutral factor, drawing an analogy to the irrelevance of skin colour that does not seem particularly apt here.
For the purposes of this post, the more germane sentencing issue is how Justice Graesser handled the fact that White choked each of the victims. Essentially, he treated the choking as an aggravating factor in relation to the sentencing for the other offences committed against each victim. For RH and TK, he applied the Kienapple principle and stayed the convictions for choking (as well as unlawful confinement) as a result of this approach. His reasoning was that “Imposing separate sentences seems artificial, although if I were to do so it would then be appropriate to impose consecutive sentences and then potentially reduce the sum of them appropriately under the totality principle” (at para 97). The focus was therefore on the robberies committed against SH and TK, and the sexual assaults committed against RH and TK.
As for the significance of choking as an aggravating factor, Justice Graesser noted that as a separate offence, it is subject to a maximum sentence of life imprisonment under section 246(a) of the Criminal Code. He compared this maximum to that which applies for sexual assault with a weapon, which is 14 years imprisonment. These maximum sentences suggest that sexual assaults including choking should be seen as being at least as serious as sexual assault with a weapon, “although of course each situation must be assessed on its own circumstances and having regard to the nature and extent of the choking and the nature and involvement of the weapon” (at para 96).
Justice Graesser also quoted from an Alberta Court of Appeal decision, R v Robinson, 1993 ABCA 91, at para 8, as to the gendered nature of choking:
[Choking] is a very serious offence. It is one to which women are particularly vulnerable, whether on the street or elsewhere, whether the intent of the offender was to commit a sexual assault or, as in this case, some other crime. Women must feel confident that this Court requires the trial courts in Alberta to impose sentences for such an offence which will deter other men from taking advantage of women in such a fashion, putting their lives in peril.
Justice Graesser found it appropriate to consider sentencing precedents from cases involving sexual assault with a weapon (at para 92). It is curious that he did not note that sexual assault causing bodily harm also carries a maximum penalty of 14 years (see Criminal Code section 272), and is thus equivalent to sexual assault with a weapon when it comes to the relevancy of precedents. Indeed, Robinson suggests that choking is more akin to aggravated sexual assault in terms of its seriousness, given that the maximum sentence for both offences is life imprisonment (at para 9; see also the arguments of LEAF in R v JA (at paras 18, 20)). Aggravated sexual assault is that which includes wounding, maiming, disfiguring, or endangering the life of the complainant (Criminal Code section 273). In any event, the implication of White is that sexual assault involving choking is analogous in its severity to sexual assault with a weapon (or causing bodily harm), at least for sentencing purposes.
Justice Graesser sentenced White to 5 years for the sexual assaults against RH and TK, and to 2 years for the robberies against SH and TK, all consecutive, taking choking into account as aggravating in each instance. He noted the vulnerability of the victims numerous times (at paras 75, 78, 106, 109, 149), but also found that White – in spite of being a “dangerous predator” – was “not beyond redemption” as a 34 year old single father with a good work history (at paras 75, 150). The 14 year sentence was reduced to a global sentence of 10 years pursuant to the totality principle, minus almost 2 years of credit for pre-sentence custody and bail restrictions (at para 151).
The decision in White makes it difficult to imagine that choking would be seen as anything but bodily harm. At the same time, the victims in White clearly did not consent to the choking, so the question of whether choking can vitiate consent was not relevant. This is likely to be what Ghomeshi argues, which brings us back to the Welch case, cited above. In Welch, the Ontario Court of Appeal rejected the defence argument of consensual sado-masochistic (SM) sex, holding that in the sexual assault context, “a victim cannot consent to the infliction of bodily harm upon himself or herself … unless the accused is acting in the course of a generally approved social purpose when inflicting the harm.” Following R v Jobidon,  2 SCR 714, 1991 CanLII 77 (SCC), socially acceptable instances of bodily harm included “rough sporting activities, medical treatment, social interventions, and “daredevil activities” performed by stuntmen” (Welch at para 87). This position has been critiqued on the basis that the courts’ views of approved social purposes are often heteronormative or otherwise majoritarian (see e.g. Ummni Khan, Vicarious Kinks: S/M in the Socio-legal Imaginary (University of Toronto Press, 2014). However, even those advocating in favour of a more expansive approach to consent to SM practices allow for some limits to legality, for example in cases involving grievous bodily harm (see e.g. Sharon Cowan, “The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic Assaults”, in Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh University Press, 2010), 135).
It is also the current position in England and Wales that one cannot consent to sexual activities that cause bodily harm (see R v Brown,  2 All ER 75). There, cases involving consensual SM sex have tended to come to the attention of the authorities via the complaints of persons other than the parties themselves (see e.g. Brown; R v Emmett,  EWCA Crim 1710). This differs from the situation in Canada, where Karen Busby’s research shows that complaints in cases of so-called “rough sex” are normally made by a party to the sexual activity who did not consent in fact (“Every Breath You Take: Erotic Asphyxiation, Vengeful Wives, and Other Enduring Myths in Spousal Sexual Assault Prosecutions” (2012) 24(2) Canadian Journal of Women and the Law, 328 at 346-347). Given that the Ghomeshi complainants came forward themselves, whether there was consent in fact will clearly be at issue in the case, in addition to the possible issue of whether one can consent to choking as a matter of law. The complainants will face intense questioning about issues of consent on the witness stand; to conclude on the same note as Joshua Sealy-Harrington did when this matter first came to light, “let’s hope that the courageous women coming forward … can blaze a trail for the many silenced voices that remain unheard.”
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By: Elliot Holzman
Case Commented On: Carter v Canada (Attorney General), 2016 SCC 4
On February 6, 2015, the Supreme Court of Canada handed down its much-anticipated decision in Carter v Canada (Attorney General), 2015 SCC 5 (Carter I), a landmark ruling where the criminal prohibition on physician-assisted dying was declared unconstitutional. Professor Jennifer Koshan wrote here about Carter I. In that decision, the Court did not immediately invalidate the relevant sections of the Criminal Code, RSC 1985, c C-46, rather the declaration of invalidity was suspended by one year, set to expire on February 6, 2016. Since February 6, a confluence of factors, including: Parliament not acting with much hurry on crafting new legislation to respond to Carter I, a historically long federal election that resulted in a change of government, and the four-month dissolution of Parliament, resulted in the Court once again hearing oral arguments in the case – this time an application by the Attorney General of Canada to extend the suspension of invalidity by another 6 months (see Carter v Canada (Attorney General), 2016 SCC 4 (Carter II)).
In Carter II, the Court had to grapple with new issues since the Carter I decision – Quebec’s National Assembly enacted its own legislation permitting physician assisted suicide – and the Court heard oral arguments from the Attorney General of Quebec seeking an exemption from the proposed extension. The Court granted the Attorney General of Canada a four-month extension, Quebec was given the green light to implement its legislation, and in the four-month window, individual patients can apply to the courts for a constitutional exemption to the suspension of invalidity. This comment will first look at the remedy the Court crafted in Carter I, and then move on to its decision in Carter II.
Carter I – February 6, 2015
After concluding that the relevant provisions of the Criminal Code infringed the petitioners’ Charter rights to life, liberty, and security of the person in a manner that was not in accordance with the principles of fundamental justice, and that the infringement was not justified under section 1 of the Charter, the Court determined that “it is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons” (Carter I at para 126).
The Court suspended the declaration of invalidity for 12 months, and denied any exemptions during the period of suspended validity (at paras 128-129). Suspensions are “extraordinary”, since their effect “is to maintain an unconstitutional law in breach of the constitutional rights of members of Canadian society” (Carter II, at para 2). However, the Supreme Court has granted similar suspensions of declarations of invalidity in other landmark Charter cases in recent years, to allow Parliament and provincial legislatures time to respond to complex policy contexts: (see e.g. Canada (Attorney General) v Bedford, 2013 SCC 72 (invalidating Canada’s prostitution laws) and Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 (invalidating legislation prohibiting the right to strike)).
Carter II – January 18, 2016
The questions before the Court in Carter II were: (1) should the declaration of invalidity be extended, and if so, for how long, (2) is Quebec exempted from this extension and free to continue to allow citizens to access physician assisted dying if they so qualify, and (3) should individual Canadians, outside of Quebec, be able to get relief from the courts to access physician assisted dying if they meet the criteria of being terminally ill and suffering from unbearable pain during any extension to the suspension of invalidity?
Should the declaration of invalidity be extended?
The Court unanimously rejected the Attorney General of Canada’s recommendation of a six-month extension, and granted four months instead. The Court’s rationale is summarized in para 2, where the majority states: “Parliament was dissolved on August 2, 2015 and officially resumed on December 3 of that year. This four-month delay justifies granting an extension of the suspension of the declaration of invalidity, but only for four months.”
I was left wondering why the Court did not simply grant the six-month extension as requested by the Attorney General. The Court inferred that Parliament was only ‘interrupted’ by four months due to dissolution of Parliament, the federal campaign period, and the swearing-in of the new Parliament. I was troubled by the SCC’s interpretation of the legislative process. The Court determined that Parliament resumed its legislative process on December 3, 2015, when the House of Commons first sat. It heard arguments that the new federal government constituted a Special Joint Committee on Physician-Assisted Dying and understood the Committee’s mandate to provide a recommendation to Parliament on a legislative response to Carter I. Shouldn’t the question have been: when was this Committee constituted rather than Parliament as a whole?
As this Committee did not exist in the last Parliament, there were various procedures it had to go through before being formally constituted. The first order of business was electing joint Chairs – one from the House of Commons and one from the Senate – and the joint Chairs were not elected until January 18, 2016. Thus, if the Court was focused on when the legislative process was back up and running, the January 18 date is more germane than December 3. It struck me as odd that the Court, which emphasized so strongly in Carter I that the legislative branch ought to have time to craft new legislation, hamstrung Parliament by not allowing the 6-month extension.
Should Quebec be exempted?
In June 2014, before the Supreme Court had even decided the Carter I case, Quebec’s National Assembly passed the Act respecting end-of-life care, RSQ, c S-32.0001 (“ARELC”), which offered terminally ill and suffering individuals the possibility of requesting a physician’s assistance in dying. The legislation did not take effect until December 2015 – after the Carter I case had been decided – and was immediately litigated in court.
On December 1, 2015, Justice Pinsonnault of the Quebec Superior Court suspended the implementation of the ARELC, finding that the law conflicted with sections 14 and 241 of the Criminal Code, which had been struck down in Carter I, but were still unchanged by Parliament: D’amico c Quebec (Procureure generale), 2015 QCCS 5556. The province appealed on the grounds that the issue was a matter related to health, which falls under provincial jurisdiction. The Quebec Court of Appeal agreed and on December 22, 2015, overturned the Superior Court’s ruling and allowed ARELC to be implemented: Quebec (Procureure generale) c D’Amico, 2015 QCCA 2138.
In Carter II, the Supreme Court had to grapple with this new reality: should Quebec, having enacted ARELC, be exempted from the four-month extension? The Attorney General of Quebec argued that an exemption was necessary to avoid a chilling effect of the threat of possible violations of the criminal prohibition or potential civil liability during the four-month extension and that the intervening Attorneys General of the other provinces did not oppose Quebec’s application.
A majority of the Supreme Court exempted Quebec, while four justices dissenting in part would not have. I found both arguments non-compelling. It seemed that the majority accepted Quebec’s arguments primarily on the basis that the other provinces and the federal government did not oppose Quebec’s application (at paras 3-4), which seems devoid of any substantive legal reasoning.
I was similarly unconvinced by the dissenting opinion. The four dissenting justices latched onto a directive issued by the Minister of Justice of Quebec ordering the Director of Criminal and Penal Prosecutions not to prosecute any physician who follows ARELC even if the Supreme Court did not grant an exemption to Quebec. According to the dissenters, this rendered Quebec’s application moot (at para 10). The dissenters seemed satisfied with the notion of prosecutorial discretion. I am skeptical of courts using prosecutorial discretion as the justification for legal reasoning and found the dissent similarly lacking in any substantive legal reason for denying or rejecting Quebec’s application.
Should individual Canadians be exempted under certain conditions?
One of the more curious conclusions from Carter II was the idea of a ‘constitutional exemption’ – that judges may grant relief to individuals on a case-by-case basis – carved out by the majority. In Carter I, a unanimous Court explicitly rejected the notion that there ought to be exemptions for petitioners who meet the ‘Carter conditions’ (i.e. terminally ill and in intolerable pain) but who nonetheless are subject to the suspension of invalidity (Carter I at para 129). In Carter II, the majority seemingly reversed itself by permitting individuals to apply for exemptions during the four-month extension period by applying to a court for judicial review (at paras 6-7).
The question is: with the possibility of exemptions, do we really have an extension of the suspension at all?
Carter II was written in four days and the majority’s opinion is only seven paragraphs long. It is hard to predict its impact; whether it will be viewed as a ruling on a unique set of circumstances brought about by a once-in-a-generation confluence of political events or whether the exemptions and extensions granted will have impacts on other areas of Charter jurisprudence in the future.
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By: Sarah Burton
Case Commented On: Barr v Alberta (Attorney General), 2016 ABQB 10
Last spring, I posted a comment flagging the constitutional concerns surrounding section 69.1 of the Gaming and Liquor Act, RSA 2000, c G-1, the province’s gang affiliation law (here). The provision authorizes police officers to remove or exclude anyone from a licenced premises based on their belief that the target of removal is connected, in varying degrees, to a gang (see section 69.1 here). Failing to comply with this direction is an offence punishable by a fine and/or a maximum of 6 months in prison (Gaming and Liquor Act, sections 116, 117; Barr v Alberta (Attorney General), 2016 ABQB 10 at para 3).
The gang affiliation law is meant to protect bar owners by diminishing gang presence in bars and de-incentivizing the lifestyle to potential recruits (Barr at para 6). Despite this laudable goal, the law raises several red flags under the Charter: it appears overbroad both in its sphere of application (it applies not only to bars, but all licenced premises) and targets for removal (including not only gang members, but persons who support or facilitate gangs, or persons in the company of any of those persons). It also appears to contravene the Charter’s guaranteed freedoms regarding peaceful assembly and association. I encourage readers interested in the provision to read my earlier post here.
At the time of my earlier post, no formal challenge to the law had been launched. Fast-forward one year and the anti-gang provision now faces a direct constitutional challenge stemming from an incident in September 2014. This month, the Applicants in that challenge scored a big procedural victory that, while not determinative, bodes well for future of their challenge (see Barr v Alberta (Attorney General), 2016 ABQB 10). It also raises several questions about the Crown’s approach to this issue.
Barr was an application to strike portions of several affidavits. The two Applicants, Mr. Barr and Mr. Kirkland, were criminally charged after refusing to leave a licensed premise as directed by the RCMP in September 2014, in direct contravention of the law (Barr at para 2).
In June 2015, Barr and Kirkland commenced an Originating Application in the Alberta Court of Queen’s Bench. This Application seeks a declaration that that the gang affiliation law is of no force and effect because it is ultra vires the Province of Alberta, and/or that it unjustifiably infringes section 2 of the Charter (Barr at para 1).
The Respondent Crown filed (at least) six affidavits in its defence. From the information provided in Barr, we know the affiants included several Alberta peace officers and at least one expert on crime prevention and organized crime (Barr at paras 7, 11, 12, 14).
Counsel for the Applicants objected to the content of these affidavits, arguing that they contained several excerpts which offended the Alberta Rules of Court, Alta Reg 124/2010 (the Rules). In particular:
In response, the Crown argued that the Applicants were viewing the Rules too strictly (Barr at para 13). In the Crown’s view, the Rules ought to be read liberally when the Crown was asked to defend legislation enacted for the public good. An overly restrictive reading would unnecessarily restrain its ability to explain why the provision should survive constitutional attack (Barr at para 6).
The Crown argued that the impugned law offered a better approach than other provinces had developed to deal with the same problems. Explaining this benefit required broad affidavits outlining the historical experience of Alberta peace officers, along with other Crown evidence. “[S]trict adherence and slavish obedience” to the Rules would unduly prevent the Crown from advancing its argument (Barr at para 7). So long as the police were exercising their discretion objectively and rationally, the Crown argued that they ought to be given latitude and the provision ought to be upheld (Barr at para 7).
Justice Sanderman agreed with the Applicants. The Rules were designed to regulate litigation fairly and to ensure that all parties are aware of the framework in which the litigation will proceed. The Crown’s reliance on inadmissible evidence would subvert this process (Barr at paras 9, 13).
The Crown was right that it ought to be afforded some latitude to define the case as it saw fit, but not for the reason it suggested. Given that the matter proceeded by way of Originating Application, there was no Statement of Defence to use as a reference in defining the Crown’s view of the matter, or the relevant parameters of the action. However, this latitude does not entitle the Crown to offend an evidentiary or procedural rule (Barr at para 9).
As a result, portions of several affidavits were struck because they offended the rules on hearsay. Two affidavits had additional portions struck because they contained opinion evidence from persons who were not offered as experts capable of providing these opinions. One affidavit was disallowed entirely because it contained expert evidence that was not properly submitted, and additionally, the evidence within it was not relevant to the proceedings (Barr at paras 11, 12, 16).
This case doesn’t provide any final resolution of the constitutional issues raised by Mr. Barr and Mr. Kirkland. It does, however, offer some insight into how the case will be argued. It also raises some questions about Crown counsel’s approach to the Rules of Court.
The Upcoming Challenge
I haven’t had the opportunity to read the Crown’s affidavits, either in their final or amended form. With that caveat in place, based on the discussion in Barr we know that they focus on the fact that the law is necessary, works well in practice, protects the public good, and is properly enacted. Or, in Charter-speak, the affidavits are focused on a section 1 argument that the law is rationally connected to a valid objective. While these arguments may or may not be persuasive, by themselves they are not enough for the law to survive a constitutional attack. A law may be rationally connected to a valid object, and yet fail a constitutional challenge.
Indeed, this is often the case. Most Charter challenges fail at the minimal impairment stage of inquiry (Peter Hogg and Allison Bushell, “The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All)”, (1997) 35:1 Osgoode Hall LJ 75 at 85). Unless a persuasive argument can be made that the gang-affiliation law is minimally impairing and, after that, is a generally a proportional response, it will fail constitutional scrutiny.
It may be that the affidavits do cover these points in areas that were not the subject of the application to strike. However, based on the sweepingly broad blanket this law creates, in my opinion the minimal impairment stage of the section 1 test is a steep hill for the Crown to climb.
The Crown’s Arguments in Defence of their Affidavits
As a civil liberties lawyer, I find the Crown’s defence of this application troubling on two points.
First, it is concerning to hear the Crown argue that a different standard of compliance with the Rules ought to apply to them because they are defending a law enacted in the public good. This idea runs contrary to the rule of law. In a country governed by the rule of law, everyone – including the Crown – follows the same rules. The Crown’s chosen defence strategy should not impact its compliance with the basic rules governing litigation. They should not be granted latitude because the Rules make it more difficult for them to advance their arguments.
It also bears emphasizing that the Crown’s argument (that the law was enacted in the public good) is not unusual or unique. Indeed, in every Charter challenge, the Crown must establish that the impugned law is enacted for the public good (the pressing and substantial objective test). Arguing that this should dictate a more lenient standard for affidavits is tantamount to arguing that the Crown shouldn’t have to follow the Rules as closely as other parties in Charter challenges.
Second, the Crown argued that the gang-affiliation law should be upheld so long as the police used it objectively and in a rational and principled fashion. This is not how Charter challenges should work, and raising the argument in Court displays a problematic attitude of the Crown towards its obligations. Law enforcement may exercise their discretion with every law in a rational and principled fashion. Indeed, we all hope that is the case in every situation. However, if the law is drafted in such a way that it authorizes a sweeping disregard for an individual’s Charter rights without reasonable justification, it must be struck down.
The Crown’s approach to this case (as revealed through the application) raises questions about the Crown’s method for defending the gang-affiliation provision. Only time will tell whether the Crown’s loss in Barr was the result of simple oversight, or whether it was part of a larger strategy or a gamble that didn’t pay off. In the meantime, we are left wondering what the fate of the gang-affiliation law is, and how the Crown will approach the case on a go-forward basis. While litigation can be unpredictable, at this juncture the loss in Barr can only be seen as tilting the odds of success in favour of Mr. Barr and Mr. Kirkland.
Stay tuned on this one.
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By: Lyndsay Campbell
On January 16 & 17 the Canadian Law and Society Association (CLSA) held its midwinter meeting in Waterloo, Ontario. This small conference featured a variety of panels, on topics ranging from legal identities and legal pluralism to AirBnB and Uber, the duty to consult, aboriginal title, legal education, and the corporation.
The CLSA is currently gearing up for its main annual conference, to be held May 28-30 at the University of Calgary as part of the Congress of Social Sciences and Humanities 2016. Our meeting overlaps with that of the Canadian Association of Law Teachers (CALT, May 30-31) and, as well, a one-day interdisciplinary symposium on social justice (May 28) entitled “Building A2SJ: An Interdisciplinary Conversation about Problems and Solutions.” Our founding dean, John McLaren, has agreed to give a keynote address at the jointly held CLSA-CALT banquet on May 31. Calls for papers for the CLSA and CALT conferences are available here and here (note proposals are due January 31), and registration for Congress is now possible via the link here.
Since the Faculty of Law is also beginning its 40th anniversary celebrations, we are hoping for a great western turn-out of people interested in sociolegal issues and welcome expressions of interest in any or all of these activities. For further information, please contact Jennifer Koshan (CALT, email@example.com) or Lyndsay Campbell (CLSA, firstname.lastname@example.org).
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By Michael Nesbitt
This week, it was reported that Canada’s Foreign Minister Stephane Dion and the Liberal government were considering lifting sanctions on Iran and re-establishing diplomatic relations between the two nations. The quandary here – to lift or not to lift, to engage or not to engage – has been foreseeable for some time: I wrote an op-ed in the Globe & Mail back in July warning the next government that they would have to be prepared to act, and act quickly, once the US lifted its sanctions on Iran (see here).
The repercussions of Canada’s delay for Canadian business are immense: Our companies do not want to be left behind as Iran’s enormous emerging market – 80 million people with a dilapidated infrastructure and close connection to a large Diaspora in Canada – begins to open up to the rest of the world. There is no such thing as a second-movers advantage.
But Canada’s business interests are not the only consideration here, even in our struggling economy; Canada’s national security regime is also implicated and the situation is both complicated and controversial.
Let’s start with a reminder of why Iran sanctions are now in the news before getting into the commentaries that have recently set off a debate in Canada.
Iran Sanctions in the News
In the context of Iran-US relations, Saturday 16 January 2016 was “implementation day” – the day that, with the release of an International Atomic Energy Agency (IAEA) Report, the US was to begin implementing terms of the Joint Comprehensive Plan of Action (JCPOA) agreement by lifting its nuclear proliferation-related sanctions on Iran. The JCPOA is an agreement between the US and Iranian governments, signed on 14 July 2015. (Formally the so-called E3+3 – France, Germany, the UK, China, Russia and the European Union – were also signatories to the agreement and will likewise lift sanctions, where relevant). The UN Security Council subsequently adopted the terms of the agreement (see: UN Security Council Resolution 2231 of 20 July 2016, available here).
The agreement is long, complicated, and technical, but at the risk of oversimplifying, it can be explained as follows: the US agreed to lift its nuclear proliferation-related sanctions on Iran that had contributed to the crippling of Iran’s economy in exchange for Iran agreeing to a surprisingly intrusive monitoring and enforcement system headed by the IAEA (see here).
Since July, the IAEA has been working on monitoring and verification of Iran’s terms of compliance with the initial stage of the agreement (for an overview see here). Essentially, this work was a preparatory process to ensure that Iran would be ready to comply with the terms of the JCPOA – and would formally begin compliance – at the same as the US lifted its sanctions. As expected, the IAEA issued its report confirming Iran’s requisite preparatory compliance (it issued its report on 16 January 2016). At that moment, it was then on the US to fulfill its obligations and start lifting sanctions.
When the US subsequently fulfilled its obligations by lifting its nuclear-related sanctions – and levying sanctions on 11 persons or entities with ties to Iran’s ballistic missile program, something I will get to – the question in Canada naturally became: “on this crucial foreign policy file, what are we going to do”? There are arguments for and against a rapprochement with Iran.
On the one hand, it is likely that few who follow the file trust the Iranian regime, and not just because of its possible nuclear ambitions, but also because of its support for terrorist groups (Hezbollah), its troubling actions in support of Assad in Syria, its worrying ballistic missiles program, its active electronic army, its regional meddling, and generally its internal repression and widespread domestic human rights abuses. On the other hand, current Canadian sanctions relate not to these other (valid) concerns but to what Canada asserted to be a “breach of international peace and security” resulting from Iran’s nuclear ambitions (see discussion of SEMA below). Moreover, Canadian businesses would be at a distinct disadvantage if they were left unable to engage with Iran while their competitors were free to negotiate. A good example is the Canadian company Bombardier, surely tempted by Iran’s needs in the airplane and train industries. Bombardier, already in a difficult financial situation, will be at a distinct disadvantage if American Boeing and European Airbus move first into the Iranian market. Finally, it is uncertain how effective Canadian sanctions have been period, let alone if we go it alone on the Iran file. A hard-line could be more symbolic than anything – though again there are reasons to maintain a symbolic hard-line.
In Canada, since the JCPOA was agreed upon, the complexities of these issues have not been fleshed out, either by the government or by commentators. Instead, in response to the US’s recent lifting of sanctions, the Canadian media focused in the first instance on some talk of Harper’s “booby-trap”, wherein it was asserted that by designating Iran as a state sponsor of terror, the Harper government set a legal booby-trap for the Liberals that limited their future course of action on sanctions and in re-establishing diplomatic relations (see e.g. CBC article here). Legally speaking, the Harper government did no such thing, at least not related to Canada’s sanctions on Iran. Politically speaking, Harper may well have done so, though it was less a “booby-trap” – which implies a covert attempt to limit future governmental action – than the sort of ordinary policy decision that is regularly taken by governments. In any event, the CBC article that first reported the controversy seems to conflate the situation with respect to Canada’s sanctions regime and the situation relating to our diplomatic relations with Iran. These are distinct topics with distinct political and legal considerations, so in order to clarify the situation they will be treated separately, below.
Let’s start with a brief analysis of Canadian sanctions on Iran before moving to a discussion of re-establishing diplomatic relations.
Canada’s Sanctions on Iran and the Limitations of our Legislative Regime
Canadian sanctions are governed by umbrella legislation, the Special Economic Measures Act, SC 1992, c 17 (SEMA). In relevant part, section 4(1) of the SEMA states:
4 (1) The Governor in Council may, for the purpose of implementing a decision, resolution or recommendation of an international organization of states or association of states, of which Canada is a member, that calls on its members to take economic measures against a foreign state, or where the Governor in Council is of the opinion that a grave breach of international peace and security has occurred that has resulted or is likely to result in a serious international crisis,
(a) make such orders or regulations with respect to the restriction or prohibition of any of the activities referred to in subsection (2) in relation to a foreign state as the Governor in Council considers necessary; and
(b) by order, cause to be seized, frozen or sequestrated in the manner set out in the order any property situated in Canada that is held by or on behalf of
(i) a foreign state,
(ii) any person in that foreign state, or
(iii) a national of that foreign state who does not ordinarily reside in Canada. (Emphasis added)
Put simply, the SEMA allows Canada to enact regulations sanctioning a foreign country where an international body, like the UN Security Council, has asked the international community to do so, or if we determine that there has been a “grave breach of international peace and security” that “has resulted or is likely to result in a serious international crisis.”
The regulation governing – sanctioning – Iran is called the Special Economic Measures (Iran) Regulations, SOR/2010-165. The Iran Regulations make clear that it is the second consideration that led to the sanctions: “the Governor in Council is of the opinion that the situation in Iran constitutes a grave breach of international peace and security that has resulted or is likely to result in a serious international crisis” (SEMA preamble, emphasis added).
So what does this have to do with the Harper government designating Iran a “state sponsor of terror”? In short: nothing. (I’ll get to the implications of this designation below when I discuss diplomatic relations between Canada and the US). If Canada wants to lift sanctions on Iran, it can do so. If it wants to lift some of the sanctions in the Iran Regulations – for example those on financial services – while leaving others in place – such as the list of designated persons and entities – it may also do so. It certainly has taken this approach in the past, most recently perhaps with Burma (see Special Economic Measures (Burma) Regulations, SOR/2007-285). Contrary to what the CBC article implies, the designation of Iran as a state sponsor of terror does not legally limit the options under these Regulations.
But there nevertheless is a big problem here, and my sense is that this undocumented problem is why there has been a delay in moving forward with any sanctions-related actions on Iran – whether it be lifting them or doubling down. The problem goes as follows.
On the one hand, arguably Canada has a legal duty to lift its sanctions on Iran. First, no international body has demanded that Canada put sanctions on Iran as a result of its nuclear ambitions – indeed the UN has adopted the JCPOA, as discussed. Second, the Iran Regulations relate the “grave breach of international peace and security” to Iran’s nuclear ambitions; now that the international community has said that the Iran’s nuclear ambitions are not an imminent threat to – let alone breach of – international peace and security, the justification for Canada’s sanctions arguably falls away. Remember that these two criteria are the only two justifications upon which Canada can, it would seem, uphold its Iran sanctions regulations. With neither applicable at this time, the raison d’etre of the sanctions regime would no longer seem to apply unless Canada wishes to go it alone and claim that, despite the assertions of our closest allies and an IAEA monitoring regime in place, Iran’s nuclear program has caused a breach of international peace. It’s an argument that could be made, one supposes, but it certainly extends the discretionary terms of the SEMA well beyond what one would suppose was the intention.
On the other hand, as already mentioned, there are lots of valid reasons to maintain sanctions on Iran that are unrelated to its nuclear ambitions. As canvassed, these run the gamut from support for terrorism, to regional meddling, to human rights abuses and a ballistic missile program that evidence suggests shares information with North Korea. It is for this very reason that, just as the US was lifting sanctions on Iran as per the JCPOA agreement, it was levying new sanctions against Iranian entities that purportedly support its ballistic missiles program (see here). The US would surely love it if Canada did the same.
But, again, under the SEMA there must be a breach of international peace and security – wording that goes beyond a “threat” of a breach. Canada cannot designate Iranian persons or entities for threats to international peace and security, or for “mere” human rights abuses, or even for sponsorship of terrorism, unless we find that they rise to the level of a breach of “international peace and security”. Moreover, even if one could argue that the totality of Iran’s actions represent a breach of international peace and security, our Iran Regulations have not made this argument, but rather have tied the breach to Iran’s nuclear program.
This real restriction on the scope of Canadian sanctions is a fundamental problem with Canada’s SEMA that extends beyond the Iran Regulations. Successive governments have failed to tackle this problem and, in so doing, have truly limited the potential scope of Canada’s sanctions regime. Now that might be applauded in some circles, but so long as Canada and our allies treat sanctions as a legitimate foreign policy tool, we should not simultaneously be undermining its potential.
There is another major problem with the SEMA, on which the government must surely be ruminating. While the US lifted its nuclear-related sanctions it also designated (sanctioned) others, including a company in the United Arab Emirates (UAE) (see here). But as per the Iran Regulations, section 4(1)(b)(i)-(iii), Canada can only designate a “foreign state”, “person in that foreign state”, or “national in that foreign state that does not ordinarily reside in Canada.” A company incorporated in the UAE thus cannot be sanctioned by Canada, even if it is known to trade with and transship to Iran. Unless Canada can prove that goods shipped to the UAE are ultimately intended for or make it to Iran, something that is extraordinarily hard to prove in most cases, Canada cannot take action under the Iran Regulations. This in part explains why we have virtually no prosecutions under the SEMA despite widespread use of sanctions against numerous countries.
Until these holes in our legislation are fixed, our sanctions enforcement regime will be weak. Likewise, without legislative reform, Canada will not be able to remove nuclear-related sanctions as the US is doing while simultaneously keeping up with our allies to pressure the human rights abusers and other threats in the Iranian regime or elsewhere in the world. Without a broad re-think of our sanctions policy and legislation, there does not seem to be a win-win solution here, and my sense is this is one of the issues causing pause for Canada’s government.
Iran as a State Sponsor of Terror and Canadian-Iranian Diplomatic Relations
On 7 September 2012 Canada shuttered its Embassy in Iran, “PNG’d” Iranian diplomats (the colloquial diplomatic term used to say that they were issued “persona non grata” papers and required to leave the country), and listed Iran as a state sponsor of terror under the Justice for Victims of Terrorism Act, SC 2012, c 1 (JVTA) (see here).
As I see it there is nothing here that sets up a “booby-trap” or legal barrier to re-establishing diplomatic relations. In fact, from the legal perspective, there’s a relatively easy fix: all the Liberals have to do is un-designate Iran as a state sponsor of terror and they can re-establish diplomatic relations. There will be legal complexities and headaches here, sure, particularly as relates to any (presumably grandfathered) civil actions under the JVTA, but changes of laws often require complex solutions.
This solution does seem to come with a major political rub however. The Harper government had a reasonable justification for designating Iran as a state sponsor of terror. Under Canada’s Criminal Code, RSC 1985, c C-46, both the al-Qods Force and Hezbollah are listed terrorist entities. Hezbollah has been responsible for attacks in Lebanon and Israel and, most recently, egregious violations in support of the Assad regime in Syria. More to the point, the Qods force is not just supported by Iran, it is an elite part of the Iranian regime itself. Some might recall that Qods force General Qasem Soleimani made waves this summer as a major influence peddler in Iraq as Iran took the fight to ISIS (see for example here). The upshot here is that Iran is fairly clearly a state sponsor of terror, at least according to our Criminal Code. The Harper government’s designation is thus justifiable, even if Canada regularly ignores designating would-be state sponsors of terror to avoid tricky diplomatic repercussions.
The end result is that, for Canada to re-establish relations after un-designating Iran, the government will either have to say that these groups are not terrorist entities – a hard and politically divisive argument to make – or that Iran is not sponsoring these groups, an assertion that would belie all available evidence. From a political and messaging perspective, undoing Iran’s designation would surely take some politically astute communications at the very least.
So, if Canada determines that the political repercussions of un-designating Iran are too weighty, or that there is not sufficient justification to un-designate Iran as a state sponsor of terror, what are the repercussions? So far as I can see, there are at least two crucial issues standing in the way of re-establishing diplomatic relations, though there may well be more.
The first and most obvious is that Iran remains designated under the JVTA. With Iran still designated, any lawsuits will continue, new suits will be possible, and Iranian diplomats and politicians will be loath to enter Canada for fear of it exercising its jurisdiction and getting caught up in the legal system.
The second issue relates to the re-opening of the Iranian Embassy in Canada and Canadian Embassy in Iran. Again, this can easily be done – legally – if Canada un-designates Iran as a state sponsor of terror. However, with Iran designated, there is a possible legal and political impediment to re-establishing relations. The issue goes as follows: politically or legally can we, or do we wish to, have open diplomatic relations with designated state sponsors of terrorism? Can or should Canada host the Embassy and diplomatic personnel of a known – and legislated – sponsor of terrorism, particularly when our Criminal Code contains offences for sponsoring terrorism? I invite comment here, but my sense is that legally and politically, without backtracking on the designation, normalizing relations and re-opening the embassies will be very near impossible.
Contrary to recent media attention, there are no legal obstacles to re-establishing relations with Iran that cannot be overcome, though the designation of Iran as a state sponsor of terror certainly made things politically difficult. Likewise, designating Iran as a state sponsor of terror does not limit our ability to act on the sanctions file. Rather, our inability to act on the sanctions file – to remove existing sanctions while simultaneously introducing new sanctions on ballistic missile developers and supporters of terrorism – is limited by past failures to act on the sanctions file and Canada’s continuing unwillingness to update its legislation to address the heart of the matter.
The most likely outcome is that some sanctions on Iran will be removed while others will remain in place; a compromise that gives a bone to Canadian business while maintaining sanctions against a regime Canada does not fully trust. But this is a compromise with relatively little benefit for anyone, at least in the short term. Some sanctions will remain in place, making business between Iran and Canada complex, confusing, and legally risky. Businesses don’t fully lose, but they don’t win either, particularly considering most will have to understand the US sanctions as well and there will not be uniformity between the two countries’ regimes. At the same time, the sanctions that remain in place will have limited impact in that they will not necessarily target those that need to be targeted, they will not be harmonized with and reinforced by the sanctions of our allies, and legal enforcement against those who would challenge them will remain difficult.
I leave the tricky issue of re-establishing diplomatic relations to the political and diplomatic experts, along with the Department of Justice lawyers dealing with terrorism and the JVTA. However, on the sanctions side, things are much clearer: the legislation needs a rethink, and with it so does Canadian sanctions policy, practice and enforcement. Without tackling the real source of our limitations on this file, whatever Canada chooses to do with Iran sanctions will be another temporary, half-hearted fix.Tweet
By: Theresa Yurkewich
PDF Version: Catch Me If You Can
Case Commented On: R v Sandhu, 2015 ABQB 827
Mr. Sandhu, the respondent and an Uber driver, was charged with operating a business without a license (City of Edmonton, Bylaw No 13138) as well as operating a vehicle for hire without a taxi plate (City of Edmonton, Bylaw No 14700). His charges arose as part of an undercover sting, carried out by the City of Edmonton, into suspected Uber drivers. Mr. Hykawy, a municipal enforcement officer, downloaded the Uber application and used it to locate a vehicle which happened to be operated by Mr. Sandhu. Mr. Hykawy’s volunteer, Ms. Lenz, then approached Mr. Sandhu’s vehicle and confirmed Mr. Sandhu was operating as an Uber driver. She advised him that her Uber app was not working and then offered him a cash payment for a ride.
At trial, the Commissioner limited the issue to whether on the day in question, at the moment in question, Mr. Sandhu was committing one of the two offences. Commissioner Yaverbaum indicated that he must decide whether there was a sale or not and further, whether there was actual acceptance by taking cash to provide services. As such, he limited the scope of the Crown’s cross-examination of Mr. Sandhu to the transaction that occurred between him and Ms. Lenz.
During testimony, there were contradicting statements from Ms. Lenz, who stated her payment was accepted, and Mr. Sandhu who denied accepting such payment. Mr. Sandhu testified that he was an Uber driver at the time and was waiting to pick up a passenger, but that he only let Ms. Lenz into his car to warm up. During this time, he demonstrated to Ms. Lenz that he would have to go offline to provide her with a ride, and that he was not willing to do so. Ultimately, the Commissioner could not convict Mr. Sandhu as he had a reasonable doubt, and granted an acquittal. The Crown appealed that decision to the Court of Queen’s Bench, and a new trial was ordered. This article provides commentary on that decision.
The right to appeal an acquittal of the Commissioner is limited to questions of law, and the Crown alleged three errors (at para 17):
The Crown argued that although proof of a transaction is sufficient to establish a business operation, it is not necessary. Given Mr. Sandhu’s admissions that he was an Uber driver and was waiting for a call at the time of the transaction, the Crown argued there was sufficient evidence that he was operating a business as well as a vehicle for hire. Further, the fact that Mr. Sandhu advertised his services through the Uber app was prima facie proof that a business existed (at paras 21-28).
In response, however, Mr. Sandhu argued that the Crown had the obligation to prove its case, including the date and time as framed in the charging documents. It is these particulars that Mr. Sandhu argued allow an accused to make an informed decision on the conduct of their defence, including when to testify and the possible consequences of that decision. In his opinion, when the Crown extended its examination to details of his relationship with Uber, it widened the scope of the case and he was no longer clear of the case he was to defend against (at paras 29-33).
In review of the Commissioner’s decision, Justice Shelley stated that the evidence must be considered as a whole when determining whether the Crown has proven its charge beyond a reasonable doubt. In regards to Bylaw 13138, the Commissioner was obliged to determine whether Mr. Sandhu was operating a commercial activity or undertaking or an activity which provided goods and services. For Bylaw 14700, the Commissioner was to determine whether Mr. Sandhu was driving or in care and control of a vehicle offering transportation in return for a fee (at paras 35-37).
Proof of a transaction is only one piece of evidence and should not be wholly determinative of the Crown’s success. You may at this point recall Veit J’s statement in Edmonton (City) v Peter, 2015 ABQB 635 (at para 43, as I discussed here), that a “business that never concluded any transaction would be an unsuccessful business, but it would be a business all the same.” In Mr. Sandhu’s case, the Court, therefore, ruled that the Commissioner incorrectly focused his decision on the success of the particular transaction. Although he was entitled to consider its success, it was not necessarily determinative of guilt (at paras 41-42).
In light of this error, the Court noted that it is reluctant to overturn acquittals. Rather, the onus is on the Crown to establish that the Commissioner’s errors might have had a “material bearing on the acquittal”; not, however, that the verdict would have changed (at para 20). In this case, a number of Mr. Sandhu’s admissions would have been sufficient to establish the facts of conviction, including that he was an Uber driver, he was logged into the Uber application and waiting for a call, that he was available for hire, and that he would provide Ms. Lenz a ride if she requested it through the Uber application. Had the Commissioner focused on the evidence as a whole, including these uncontroverted admissions, the Court determined it was reasonably certain that this evidence would have had a bearing on the outcome of the Commissioner’s decision (at paras 46-48).
Mr. Sandhu argued that it would be unfair to convict him on a basis other than what was introduced in the Crown’s case in chief. Because evidence was led primarily with respect to the specific transaction, changing the scope of the case would have violated his ability to fully answer and defend himself. As a general rule, however, the Crown is not bound to prove its theory, but only the essential elements of the offence. Where particulars are not given and the Court is capable of capturing alternative bases for conviction, it is an error to grant an acquittal simply because the path differs from the one offered by the Crown. Here, it was not clear to the Court that the Crown limited itself to a particular theory of liability. If it did, however, a conviction based on being an Uber driver was likely part of its original theory. The Crown led sufficient evidence in Ms. Lenz’s testimony to put Mr. Sandhu on notice that he might be convicted on the basis of operating as an Uber driver, such that he could tailor and provide his testimony in response, as needed.
In summary, the Court ruled that the Commissioner erred in acquitting Mr. Sandhu based on the success of the transaction, rather than examining the elements of the offence and the evidence as a whole. The Court allowed the appeal and ordered a new trial (at paras 64-66).
This case reflects an ongoing dispute between municipalities and Uber, as Uber seeks to provide ride-sharing services that extend beyond a regulatory scheme and does so in a bull-dog fashion. Last year, the City of Edmonton failed to thwart Uber with an injunction (see Edmonton (City) v Uber Canada Inc., 2015 ABQB 214 as discussed here), and in response, cracked down on the Uber drivers instead, hoping to make the form of employment less enticing. The City of Calgary, however, learned from Edmonton’s mistakes and was successful in obtaining an injunction against Uber drivers in November 2015, in front of Justice G.H. Poelman (unreported). It is now working with municipal interests, including Uber and taxi companies, to develop a regulatory scheme that will capture this new trend towards sharing services.
Municipalities have perhaps realized that these sharing models are becoming more prominent in society and in fact, demanded by many of their citizens, and as such, traditional ways of thinking must be adapted. If not, the Court’s decision here will certainly provide some direction for enforcement officers looking to catch Uber drivers, and conversely, to Uber drivers hoping to avoid similar charges.
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Today the Supreme Court of Canada is hearing the appeal in R v MB, 2015 ABCA 232, concerning the proper interpretation of infanticide in section 233 of the Criminal Code, RSC 1985, c C-46. Section 233 provides as follows:
A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.
Infanticide is one of only two offences in the Criminal Code that is gender specific, and the Women’s Legal Education and Action Fund is intervening in the case to offer submissions on how the provision should be interpreted in keeping with substantive equality. LEAF’s news release provides its position in the case:
The Women’s Legal Education and Action Fund (LEAF) is intervening before the Supreme Court of Canada today in the case of R v MB. At issue is the legal standard in section 233, the infanticide provision, of the Criminal Code.
The crime of infanticide is one of only two gender-specific crimes in the Code. The interpretation and application of this provision raises important questions relating to the substantive equality rights of women.
Infanticide is a partial defence to a charge of murder and carries a maximum sentence of five years. These cases are rare and typically involve young, socially isolated and otherwise marginalized women, who commit the offence often in desperate and tragic circumstances. The judicial discretion currently available under this provision enables this small group of women, who might otherwise be convicted of murder and sentenced to life in prison, to avail themselves of the reduced culpability offence of infanticide.
The mitigating framework for infanticide in s. 233 reflects the principles of substantive equality, which provide that the law should not be interpreted or applied in a manner that exacerbates historical disadvantage or vulnerability. Societal values and the conditions of many women may have evolved since the infanticide provision was first introduced, but the mitigating framework of infanticide, and the underlying concerns relating to the social context of women’s inequality to which it responds, have relevance and application in the contemporary context.
Currently, the legal standard in the provision enables judges the discretion to recognize the overlapping social, economic, psychological, medical and other effects of childbirth and lactation in the commission of the crime. LEAF will argue that the words “her mind is… disturbed” in the infanticide provision set a cognizable legal standard that was purposefully chosen by Parliament for its breadth and flexibility. The provision must not be interpreted in a manner that inappropriately medicalizes this legal standard simply because it is broad and flexible enough to allow for judicial interpretation and application in a wide range of circumstances.
In the context of s. 233, substantive equality is best promoted by an interpretation that accords with Parliament’s original intent of creating a flexible legal standard that accounts for the diverse array of factors – medical, social and economic – that may arise upon birth and/or lactation. Such an interpretation enables this statutory criminal law defence to operate in a manner that promotes the substantive equality of women.Tweet
By: Jonnette Watson Hamilton
Case Commented On: Kerr v Coulombe, 2016 ABQB 11 (CanLII)
A tenant, Gary Kerr, showed up for a hearing at the Residential Tenancies Dispute Resolution Service (RTDRS) in Edmonton. The hearing, initiated by the landlord, Betty Coulombe, against Gary and Jason Kerr, was scheduled for November 27, 2015 at 1:30 p.m. The tenant arrived on time and checked in with the receptionist. The receptionist told him to have a seat in the waiting room and said they would call him. At 2:30 p.m., the tenant checked with the receptionist again, wanting to know if he should continue to wait. The receptionist disappeared into the back and returned with an Order against the tenant. The Order stated that the landlord appeared by telephone and “Tenants are not participating.” As the tenant succinctly put it in his affidavit, “I did not have a chance to speak on our behalf” (at para 3). This scenario is reminiscent of Franz Kafka’s parable, “Before the Law”, where the man from the country patiently sits before a gatekeeper controlling entry into the law.
What the RTDRS did to Gary Kerr was, without question, a breach of natural justice: “an obvious and fundamental failure of natural justice” (at para 14). No administrative tribunal in the Canadian legal system — no matter how “fast, inexpensive, less formal” it bills itself — can leave a party cooling his heels in the waiting room and conduct a hearing without giving him a chance to speak. It may be fast, it may be inexpensive, and it may be informal — but it is not justice.
We are not told how this bureaucratic negligence occurred, or whether safeguards have now been put in place to ensure it does not happen again. We are not told this because no one from the RTDRS was required to appear and explain what happened or to take responsibility for their bumbling. Instead, the tenant — the innocent party — was the one who had to spend his time and money to take steps to try to remedy the injustice.
If this was such an obvious breach of natural justice by the RTDRS, what was the problem? Why did the tenant have to act — and act very quickly — to remedy this injustice?
The problem lies in the Residential Tenancies Act, SA 2004, c R-17.1, and its provisions and regulations establishing and controlling the RTDRS. They are overly deferential to the RTDRS, providing little possibility of relief to tenants when things go wrong at the RTDRS. See, for example, “Setting Aside Residential Tenancy Dispute Resolution Service Orders for Problems with Service: It Can’t Be Done”, commenting on Abougouche v Miller, 2015 ABQB 724 (CanLII), and “Expensive, Complex Appeals from Residential Tenancy Dispute Resolution Service Orders”, commenting on Nee v Ayre & Oxford Inc, 2015 ABQB 402 (CanLII).
There is nothing to indicate that the Tenancy Dispute Officer who issued the Order tried to remedy his or her error in making the Order when he or she found out that “Tenants are not participating” was incorrect and the tenant was still there. Did the Tenancy Dispute Officer try to contact the landlord immediately, to say that the Order was no good because the tenant had in fact been ready to participate and to say that the matter would have to be re-heard (preferably right then and there so the tenant wasn’t put to any more inconvenience)?
This possible remedy was suggested by Master Schlosser in this case. He mentioned the possibility that a tenant could “more creatively, invite the RTDRS Office to re-hear the matter”, dealing with it under section 19(1)(c) of the Residential Tenancies Dispute Resolution Service Regulation, Alta Reg 98/2006, while leaving a more thorough investigation of this possibility “for another case” (at para 16).
Section 19 of the Residential Tenancies Dispute Resolution Service Regulation does appear to be appropriate if the RTDRS and its Tenancy Dispute Officers are willing to show a little initiative. It states:
19(1) Subject to subsection (2), a tenancy dispute officer may, with or without a hearing,
(a) correct typographic, grammatical, arithmetic or other similar errors in an order of that tenancy dispute officer,
(b) clarify the order, and
(c) deal with an obvious error or inadvertent omission in the order.
(2) A tenancy dispute officer may take the steps described in subsection (1)
(a) on the tenancy dispute officer’s own initiative, or
(b) at the request of a party, which, for the purposes of subsection (1)(b) and (c), must be made within 15 days after the order is received by the party.
(3) A request referred to in subsection (2)(b) may be made without notice to the other party, but the tenancy dispute officer may order that other party be given notice.
(4) A tenancy dispute officer must not act under this section unless the tenancy dispute officer considers it just and reasonable to do so in all the circumstances.
The problem is that the power granted to a Tenancy Dispute Officer by section 19(1) is the power to do some fairly trivial and uncontroversial things, namely, to “(a) correct typographic, grammatical, arithmetic or other similar errors in an order of that tenancy dispute officer, (b) clarify the order, and (c) deal with an obvious error or inadvertent omission in the order.” The more general phrase in subsection (c) must be read in the context of the more specific clauses (a) and (b). The Tenancy Dispute Officer’s power is probably limited to correcting errors or omissions of a minor or clerical nature. The power of the Tenancy Dispute Officer to re-hear a dispute should be expressly provided for. Even if Master Schlosser (or another Judge or Master) decides that errors, such as the one that occurred in this case (or something sufficiently similar), do fall within section 19(1)(c) and give a Tenancy Dispute Officer the power to deal with the error and re-hear the dispute, section 19(1) leaves it up to the Tenancy Dispute Officer to act or not. The power is crafted in terms of what they “may” do. Would they take the initiative?
But, as Master Schlosser said, the possibility of the RTDRS correcting its own errors “remains for another case” (at para 16). In this case, what Master Schlosser crafted was a fifth type of interim relief for the tenant. But before getting to the first (or first to fourth) types of relief, let me digress for a moment.
Despite how badly this matter went before the RTDRS and how frustrating this whole situation must have been, there was some good news for the tenant. First, Brian Summers, Q.C., a commercial litigator with Dentons, appeared as Amicus counsel, i.e., as a volunteer lawyer who could explain the complicated jurisdictional issues in this case as a friend of the court. Pro Bono Law Alberta launched the Court Assistance Program — the Queen’s Bench Amicus Program — in Edmonton in March 2015. The purpose of this program is to improve access to justice for self-represented litigants who appear in Chambers before Masters and Justices of the Court of Queen’s Bench by providing volunteer lawyers who act as ‘amicus curiae’ and help the court understand the facts, issues and arguments of the unrepresented litigants. Second, the tenant’s application was heard by Master W. Scott Schlosser, who has taken an interest in remedying injustice handed down by the RTDRS and the time to produce written judgments that show other tenants how to proceed. This judgment in Kerr v Coulombe is his third in the last ten months. He also decided Boardwalk General Partnership v Montour, 2015 ABQB 242 (CanLII) (Montour) last April and Cardinal v Amisk Housing Association, 2015 ABQB 503 (CanLII) (Cardinal) in August 2015. Those two cases were where Master Schlosser pointed out the first to fourth types of interim relief for tenants.
Interim relief? Why interim? Interim before what? As Master Schlosser noted in Montour, an order of a Tenancy Dispute Officer “is binding on the parties to the dispute unless it is set aside or varied on appeal”: section 21 of the Residential Tenancy Dispute Resolution Service Regulation. Section 23 of the same regulation provides for appeals that might set aside or vary the Order. There are numerous problems with this appeal provision, including:
The result of those rules and realities is that it is usually only the interim relief that tenants want or need or are eligible for, i.e., a stay of enforcement of the RTDRS Order: Montour at para 13. Take this case. The tenant could seek to have the RTDRS Order set aside for the obvious breach of natural justice and would no doubt be successful — but why bother? The dispute could not and need not be decided on its merits. The tenant just needs to get his belongings and square up accounts with the landlord. He needs a stay of the RTDRS Order that makes a landlord amenable to a negotiated resolution. After all, this whole dispute was settled by the Master within two weeks of the RTDRS Order.
But remember that the Residential Tenancies Act and the Residential Tenancy Dispute Resolution Service Regulation say RTDRS Orders are binding on the parties unless and until set aside or varied on appeal to a Justice of the Court of Queen’s Bench. What if there is no appeal? How does a Master give interim relief (short of an appeal) in the face of such difficulties in the legislation? What is the source of the Master’s jurisdiction, i.e., his or her power to act?
Based on a belief that it cannot have been the intention of the legislature to leave the parties without any remedy on facts such as those in Montour, Cardinal and Kerr v Coulombe, Master Schlosser has outlined five possible sources of jurisdiction when the timing of payments need to be changed a little, or the deadline to vacate the rental premises needs to be extended a tiny bit, or the lack of a hearing requires a remedy:
None of these five ways of providing relief without an appeal is a sure thing, although the last one, the inherent jurisdiction approach, looks the sturdiest. As Master Schlosser has said, what is really needed is a “small repair” to the Regulations: Montour at para 26.
One of the saddest aspects of this whole case is how unnecessary it was in the end. We are not actually told what the landlord sued for, or what order the Tenancy Dispute Officer made. It appears that the tenants had not paid rent for November 2015 when the Tenancy Dispute Officer heard from the landlord and made the Order on November 27. The tenant admitted being behind on the rent because of a work slowdown — something all too common in Alberta today. But by the time the tenant swore his affidavit, sometime between November 27 and December 1, the November rent had been paid, together with a $50 late fee. He offered to move out December 3 and noted that they had paid first and last month’s rent when they moved in, so December’s rent was already paid (at para 3). The tenant acted quickly enough to get his application before the Master on December 1. Somewhat ironically, his application was adjourned in order to ensure that the landlord had notice and a chance to appear. The Tenancy Dispute Officer’s Order was stayed in the meantime. But unfortunately, not everyone was acting as expeditiously as the tenant and the landlord did not learn about the Master’s December 1st order in time. She hired a civil enforcement agency to enforce the Tenancy Dispute Officer’s Order and they changed the locks on the rental premises. When the matter was heard on the merits by Master Schlosser on December 9, an arrangement had to be worked out so that the tenants could get into the rental premises and retrieve their belongings. They had found another place to live, as they said they would. But they had to pay the civil enforcement agency’s costs and a per diem rate for a portion of December’s rent.
I wonder if the RTDRS has a fund that would enable them to repay the tenants for those civil enforcement agency costs and any other out-of-pocket expenses they incurred in applying to the Court of Queen’s Bench and trying to correct the injustice perpetrated by the RTDRS? I hope the RTDRS at the very least gave the tenants a written apology for all the trouble and frustration they caused and did not fix. And I hope the help that the tenant received from the Amicus counsel and the Master, and the mostly positive results that followed from his persistence and quick acting, left him feeling better about the Alberta legal system than did his original encounter with the RTDRS.
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By: Alastair Lucas
Case/Matter Commented On: Berger Inquiry; Committee for Justice and Liberty v National Energy Board,  1 SCR 369, 1976 CanLII 2; Joint Review Panel for the Mackenzie Gas Project (2009)
Processes for reviewing and analyzing proposals for large diameter pipelines to move natural gas from the Canadian Arctic to Southern North American markets have been significant for the development of Canadian environmental law. This includes regulatory review processes and judicial review cases that arose out of the pipeline review proceedings. Milestone decisions were taken on critical procedural matters including community hearings to receive traditional knowledge, intervenor funding, and decision maker impartiality. The story spans more than 35 years and involves two separate sets of pipeline proposals (see Thomas Berger, Northern Frontier, Northern Homeland, The Report of the Mackenzie Valley Pipeline Inquiry, (Ottawa: Minister of Supply and Services Canada, 1977) (Berger Report)).
The first set of these pipeline plans, which included two competing proposals – one following a Yukon-Alaska Highway route and the other a Mackenzie Valley route – was advanced in the early 1970s. Approval then, as now, was required by the National Energy Board. The first proposal announced, the Mackenzie Valley pipeline, created sufficient public controversy that a Commission of Inquiry, under Commissioner Justice Thomas Berger was established by the federal government. Justice Berger’s mandate was to study the environmental, social and economic impact regionally of the project, to hold hearings and to report to the responsible federal minister.
Hearings took place from 1974-1976. The Inquiry’s procedure, rulings and final report produced a number of Canadian environmental law firsts. One was the structured, yet open, procedure adopted. Formal hearings involving the applicant Canadian Arctic Gas Pipeline Limited, an expert panel funded by the applicant, Aboriginal and environmental intervenors, and a competing pipeline company, were held in Yellowknife and some other communities. But significantly, dozens of informal hearings were held in small communities. Justice Berger was determined to hear from the people and he did. It was a preview of the significance that traditional Aboriginal knowledge was to have in subsequent regulatory proceedings. Intervenors in the formal hearings received funding from the Inquiry to participate. The Commissioner was adamant that though “public interest groups do not represent the public . . . it is in the public interest that they should be heard.” After hearing representation from the parties, he ruled that groups seeking funding had to meet the following criteria (Berger Report, Vol 2, Appendix, 225-226):
These funding criteria have become the gold standard for guiding participant funding decisions.
Justice Berger recommended that the pipeline should not proceed until Aboriginal land claims were settled in the region. It was precisely the argument made by the Aboriginal intervenors. This recommendation and its supporting evidence provided an important basis for Northern land claims negotiations that proceeded over the next 25 years. The Inquiry also witnessed considerable collaboration between the Aboriginal and environmental intervenors – a preview of the complex issues that have emerged around environmental law and the broadly similar, but not always consistent objectives of First Nations and environmental groups.
Justice Berger stated that for environmental protection, the multiple use concept was insufficient. Land preservation was necessary to protect wilderness, wildlife species and critical habitat. He recognized basic ecological values. Thus, he ruled out Northern Yukon and Mackenzie Delta pipeline routes, and recommended establishment of a wilderness park in Northern Yukon. He did not use the term “precaution” in his reporting letter to the Minister. But the idea of a precautionary principle, now common currency in Canadian environmental law, comes through clearly. A similar precautionary approach was taken by the environmental coalition in the Inquiry. They argued that the proposed pipeline’s buried chilled gas technology (to prevent discontinuous permafrost melting) amounted to experimenting on the North and should not be permitted.
Ultimately, the National Energy Board (NEB) approved both the Canadian Arctic Gas and the competing Foothills Pipeline (Yukon) projects (National Energy Board, Northern Pipelines Decision, Reasons for Decision, June 1977), but not before two major events occurred.
First, the NEB environmental intervenors raised a bias allegation against the NEB chair (who chaired the hearing panel) which they fought all the way to the Supreme Court of Canada (see Committee for Justice and Liberty v National Energy Board  1 SCR 369). The Chair had been appointed six months prior to the NEB receiving the Canadian Arctic Gas application. He had been President of the Canada Development Corporation, a member of the Pipeline Consortium, and had participated in planning and routing decisions. In a decision that has become the leading Canadian case on bias by administrative decision makers, the Supreme Court ruled that participation by the NEB chair created a “reasonable apprehension of bias.” This voided the NEB process. The resulting delay, along with deteriorating national economic conditions, ensured that the pipelines did not proceed.
Fast forward to the early 2000s. A new Mackenzie Valley gas pipeline proposal emerged. In many ways it was remarkably similar to its 1970s predecessor. An NEB application for this 16 billion dollar project was filed by the project consortium in 2004. Hearings that included 15 Arctic communities began in 2006 and led to approval, subject to 264 specific conditions concerning environment, engineering and other matters, in 2010 (Joint Review Panel for the Mackenzie Gas Project, Foundation for a Sustainable Northern Future: Report of the Joint Review Panel for the Mackenzie Gas Project (Canada: Minister of Environment, 2009)).
Along the way, a unique cooperative regulatory assessment process based on a “Cooperation Plan” among ten federal, territorial and First Nation agencies that had some type of regulatory or consultative process, was carried out. This involved a joint federal-territorial-First Nation Environmental Review Panel and separate National Energy Board hearings. An NEB panel member, who also sat on the Joint Review Panel, provided a critical link.
There were several First Nation judicial review applications, including a challenge to the Cooperation Plan. This action, based on constitutional Aboriginal consultation rights, confirmed procedural rights of the Dene Tha’ First Nation, and contributed to the considerable overall length of the process. The litigation was ultimately settled. But it underlines the significance of the duty to consult (see Kirk Lambrecht, Aboriginal Consultations, Environmental Assessment and Regulatory Review in Canada (Regina: University of Regina Press, 2013)), particularly in relation to large linear projects affecting the environment, as well as Aboriginal rights.
The regulatory process introduced innovative cooperative arrangements. But the result was a replay of the 1970s in the sense that the late 2000s recession, coupled with rapid development of shale gas in both Canada and the United States resulted in the project not proceeding.
Thus the 35 year northern gas pipeline saga has shaped Canadian environmental and related Aboriginal law in a number of ways. Procedural fairness and Aboriginal consultation principles were advanced. Perhaps most important, basic values, including early articulations of sustainability, precaution and ecological integrity, values that underpin much of modern Canadian environmental law, were affirmed.
Excerpted from An Introduction to Environmental Law and Policy in Canada, 2nd ed, by Paul Muldoon et al, by permission of Emond Publishing, Toronto, Copyright 2015. For more information: emond.ca/enviro2e.
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By: Jennifer Koshan
Kim Armstrong, Deputy Minister of the Status of Women, visited the University of Calgary campus yesterday. I participated in one of her meetings with a group of deans, faculty members and senior staff. One of the major themes from our meeting was the need for the university to attract and retain a diverse body of students, faculty and staff, and to prepare and support students with the challenges they may face in their fields once they graduate. The need for diversity and intercultural training was also a common theme. It was interesting to hear about initiatives at the university level and in other faculties: Valerie Pruegger, Director of the Office of Diversity, Equity and Protected Disclosure, reported that her strategic plan will soon be released; Jennifer Quin, Senior Director of Student Services, has been working on a new policy on sexual assault and sexual harassment on campus; the Faculty of Science is appointing an Associate Dean responsible for Diversity; and the Werklund School of Education has engaged in cluster hiring of First Nations, Inuit and Métis faculty members. I was pleased to report that our Faculty has a new student group, Calgary Women Studying Law, with whom the Deputy Minister would like to meet to discuss women and leadership, and that we are working towards implementing the recommendations regarding legal education from the Truth and Reconciliation Commission’s recent report (see Calls to Action # 27 and 28, available here).
On my wish list of matters for the Status of Women Ministry to undertake, in conjunction with the Ministry of Justice, are a few amendments to the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA). These amendments would benefit university women as well as women and other equality-seeking groups in Alberta more generally.
First, Alberta is one of the few jurisdictions in Canada that does not have a pay equity law. Section 6 of the AHRA requires women to be paid equally for “the same or substantially similar work”, whereas true pay equity provisions guarantee equal pay for work of equal value (see e.g. section 11 of the Canadian Human Rights Act, RSC 1985, c H-6). The government should amend the AHRA to include a similar guarantee.
Second, the AHRA should be amended to protect against discrimination on the basis of social condition or social disadvantage. Currently, our human rights law only prohibits discrimination based on “source of income”, which is much narrower (including, for example, receipt of social assistance but not poverty, education level, inadequate housing or homelessness). If we want to protect some of the most vulnerable people in our province from discrimination in employment, tenancies, and services customarily available to the public, we should extend the AHRA to include social condition or disadvantage as a protected ground. We would join provinces such as Manitoba, New Brunswick, and Quebec by doing so. And it is worth noting that the new government has already amended the AHRA to include gender identity and gender expression as protected grounds (see Bill 7), so it is on the right track.
Third – and I did not get a chance to mention this at the meeting – the government should amend the AHRA to allow the Human Rights Commission to initiate complaints. At present, the Commission is prevented from doing so (see section 20 of the AHRA). This exclusion limits the extent to which issues of systemic sex and other forms of discrimination can be scrutinized, and may shield egregious cases of discrimination when victims are afraid to come forward. Using the Canadian Human Rights Act as a comparator once again, section 40(3) provides that “Where the Commission has reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice, the Commission may initiate a complaint.” Similar provisions exist in other provinces as well (see e.g. Manitoba’s Human Rights Code, CCSM c H175.
Fourth, it is time to completely remove the requirement that school boards notify parents when the K-12 curriculum will cover issues concerning human sexuality or religion. This requirement was formerly found in section 11.1 of the AHRA, but the Conservative government migrated it to the School Act, RSA 2000, c S-3 last fall when it passed Bill 10. Bill 10 was somewhat of an improvement, as it removed materials on sexual orientation as one of the triggers for giving notice, and no longer branded non-compliant boards and teachers as violating human rights legislation. However, it may still create a chilling effect on classroom discussions covering important issues related to gender and sexual equality (see previous posts on this issue here and here). The repeal of this provision would also align with the government’s new Guidelines for Best Practices: Creating Learning Environments that Respect Diverse Sexual Orientations, Gender Identities and Gender Expressions, released Wednesday.
I am encouraged that we have a new Status of Women Ministry, and a Minister – Shannon Phillips – and Deputy Minister who are committed to improving the position of women and other equality-seeking groups in Alberta. The mandate for the Ministry is still being set and will be released in March 2016. I hope that it will include some actions in the realm of human rights law.
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2016 is the 140th anniversary of the year that the Supreme Court of Canada began hearing cases. Our colleagues at the Bennett Jones Law Library are marking the occasion with a display, and asked us to nominate some notable Supreme Court of Canada cases for inclusion. The cases could be selected on the basis that they were our favourites, had the most impact on people’s lives (positive or negative), and/or were the most significant to our particular fields of study. Below is a compilation of responses from Faculty members and the Directors of some of the Faculty’s Centres and Institutes. Readers in Calgary are encouraged to drop by the Law Library to check out the display, and – for readers everywhere – if you have your own favourites, let us know by adding a comment to this post.
Family law often surprises practitioners by the extent to which certain bedrock concepts, like the circumstances in which spousal support is payable or the foundations of entitlement to child support, are rooted in a theoretical framework rather than economics. Practitioners are also often surprised by the speed with which the superabundance of published decisions in family law cases can obscure and obstruct those frameworks.
In D.B.S. v S.R.G., 2006 SCC 37, the lead case in a quartet of appeals from Alberta, Bastarache J provides an extraordinarily clear and concise survey of the historical principles governing the award and variation of child support, the intent and impact of the Child Support Guidelines, and the muddled law accumulating to that point on retroactive awards of child support. From this masterly work of scholarship, Justice Bastarache concluded that retroactive awards must not be viewed as extraordinary and reserved only for exceptional circumstances, and by articulating four key factors that must be considered on any application for retroactive support. Bastarache J.’s remarkable decision overhauled the Canadian law on retroactive support awards and gave separated parents, and family law lawyers, much needed certainty in an area of law that frequently attracts significant financial consequences for both payors and recipients.
In Miglin v Miglin, 2003 SCC 24, an appeal from Ontario, the court addressed the tricky issue of the duties separating spouses owe to each other when negotiating a settlement of the issues arising from the end of their relationship. The law prior to this decision emphasized the importance of severing the legal and financial ties between separated spouses, and generally upheld even unfair settlements where it was clear that the spouses had entered into the settlement voluntarily and with an understanding of its consequences. Writing for the majority, Bastarache and Arbour JJ noted the special uncertainty and vulnerability of separated spouses negotiating settlements, and crafted a new test for the setting aside of such agreements that examines the extent to which they comply with the objectives of the governing legislation and anticipate the spouses’ future circumstances.
Although the new test appropriately departed from the former clean break mode, the analysis of Lebel J in dissent went significantly further and undertook an important examination of the social context of marriage and marriage breakdown. Lebel J observed that the feminization of poverty is an entrenched social phenomenon in Canada and that the disadvantages flowing from marriage and its breakdown tend to fall disproportionately on women. Lebel J concluded that the traditionally high degree of proof necessary to establish the unconscionability of agreements generally is inappropriate to agreements between spouses, as the assumptions underpinning the enforceability of freely chosen bargains do not apply to the same extent as they do to agreements in the commercial context. The fairness of negotiations between spouses may be impacted by inequalities in bargaining power rooted in the nature of the parties’ relationship and by the fact that it is typically women who come to the bargaining table as the financially dependent spouse, and thus the more vulnerable party in the negotiating process.
How to fit the large swath of legal power exercised by today’s executive branch and its delegates within the contours of the rule of law has proven itself to be perhaps the most perplexing challenge facing the Supreme Court of Canada in recent times. There is little doubt this challenge has pushed traditional principles guiding the judicial review of executive and administrative decision-making in Canada to the breaking point. The majority opinion in the Supreme Court of Canada’s May 2008 decision in Dunsmuir v New Brunswick, 2008 SCC 9,  1 SCR 190 proclaims to address this challenge head on and embarks on a path towards the development of a principled and coherent framework to guide judicial review. Such high ambition would surely place Dunsmuir amongst the Court’s existing administrative law heavyweight decisions such as Roncarelli v Duplessis,  SCR 121, Nicholson v Haldimand-Norfolk Regional Police Commissioners,  1 SCR 311, CUPE v New Brunswick Liquor Corporation,  2 SCR 227, Baker v Canada,  2 SCR 817, and Ocean Port Hotel v British Columbia (Liquor Control and Licencing Branch), 2001 SCC 52,  2 SCR 781. Unfortunately however, the impact of Dunsmuir has fallen well short of its lofty ambition. Indeed, following the guidance set out in Dunsmuir judicial review of executive and administrative decisions in Canada has become more incoherent and unprincipled than ever before. Dunsmuir is thus noteworthy as one of the Supreme Court of Canada’s most spectacular jurisprudential failures.
Rather than nominating a case, I’d like to nominate an event. That was the appointment, in 1943, of Ivan Cleveland Rand to the Court. Here is why:
For a profession whose stock in trade is the past, lawyers tend to have an appallingly short sense of history. For many Canadian lawyers, history now begins in 1982, the year we patriated the constitution and adopted the Charter of Rights. This seems a terrible shame, for the law in Canada in fact forms an important part of the rich tapestry on which the Canadian story has been played out. Indeed, it would be only a slightly sardonic stretch to suggest that history of Canada could properly be entitled “Peace, Order and Good Government, and all that”.
One of the greatest Canadian judges of all was Ivan Cleveland Rand. Rand was born in 1884, in Moncton, New Brunswick, into a working-class railway family. Following high school, he went to work as an audit clerk with the Inter-Colonial Railway. After five years at the Railway, Rand enrolled at Mount Allison University, where he studied first Engineering, and then Arts. Following his BA, Rand worked briefly as a clerk in a Moncton law office. But in the Fall of 1909 (after a preparation which included committing to memory major portions of Blackstone’s Commentaries) he enrolled in the Harvard Law School.
Rand began his post-Harvard working life in Medicine Hat, where he practiced for a dozen years. But the call of Home proved much too strong to resist, and in the early 1920s, he returned to Moncton. He dabbled in politics (he served briefly as Attorney-General of New Brunswick), but in the late 20s, he rejoined the railway, where he served as general counsel to the CNR. In 1943 – directly from the railway, something which would be unthinkable today! – he was appointed to the Supreme Court of Canada, where he served until 1959, when he reached the mandatory retirement age of 75.
Outside the legal profession, Rand attained his place in popular consciousness through his work on two non-judicial projects: his service as the Canadian representative to the 1948 UN Special Commission on Palestine, and his work to resolve the bitter Ford strike of 1946 (which gave rise to the so-called “Rand Formula” as a means of avoiding disputes over compulsory union dues).
By any measure, Rand was a man of extraordinary accomplishment. He was a Companion of the Order of Canada and a King’s Counsel. He was a graduate of Mount Allison University and the Harvard Law School. He was a Barrister of the Supreme Courts of New Brunswick and Alberta. He was a labour arbitrator, Royal Commissioner and UN rapporteur. But as we contemplate the anniversary of the first sitting of the Supreme Court of Canada, he was most importantly of all a jurist without compare. It was Rand who wrote the lead decision in Noble v Alley,  SCR 64, which struck down a restrictive covenant that forbade the sale of property to Jews and non-whites. It was Rand, alone, who acknowledged legal rights of Japanese Canadians when the Canadian government was moving to intern them and to seize their property during the Second World War. It was he, in Smith and Rhuland v Nova Scotia,  2 SCR 95, who was prepared to defend the freedom of expression of the Communist Part of Canada during the height of the “red scare”. And, most famously of all, it was he who wrote the judgment in Roncarelli v Duplessis,  SCR 121, which struck down the actions of the Premier of Quebec to persecute the Jehovah’s Witnesses for their beliefs.
It is because of those judgments – and so many others – that at his retirement, the Chief Justice of Canada described Mr. Justice Rand’s collected jurisprudence as “a memorial which will endure as long as our system of the administration of justice continues”. Unlike today’s judges, Ivan Rand had no Charter of Rights and Freedoms. All he had was the common law, together with his skill as a common lawyer. Yet he was able to fashion a body of jurisprudence that, even sixty years later, makes one feel extremely proud to be a Canadian lawyer. That is why I am nominating his appointment to the Court as my favourite event in Supreme Court of Canada history.
My favourite Supreme Court of Canada decision is British Columbia (Public Service Employee Relations Commission) v BCGSEU,  3 SCR 3, 1999 CanLII 652 (“Meiorin”). Meiorin considered the issue of whether aerobic fitness standards established by the British Columbia government for forest firefighters discriminated on the basis of sex, and if so, whether the standards could be defended as a bona fide occupational requirement (BFOR). The Supreme Court’s unanimous decision in Meiroin, authored by McLachlin J (as she then was), has had a major impact in the field of human rights and is my favourite for several reasons. First, the Court adopted a unified approach to discrimination, abolishing the distinction between direct and adverse effects discrimination as artificial, malleable, difficult to apply, contrary to the remedial focus of human rights legislation, and perhaps most importantly, as legitimating systemic discrimination. Second, as a result of this unified approach, all cases where prima facie discrimination can be shown are now subject to the same analysis in terms of whether the standard is justified as a BFOR. The new approach to BFOR analysis requires employers and other human rights respondents to justify why their standards are legitimate and necessary, rather than simply being required to tinker with those standards for individual claimants. In adopting this new approach, the Court agreed with the analysis of Shelagh Day and Gwen Brodsky, two of my human rights heroes, that the old approach was problematic in that it:
[did] not challenge the imbalances of power, or the discourses of dominance, such as racism, ablebodyism and sexism, which result in a society being designed well for some and not for others. It allow[ed] those who consider themselves “normal” to continue to construct institutions and relations in their image, as long as others, when they challenge this construction are “accommodated.” (see “The Duty to Accommodate: Who Will Benefit?” (1996) 75 Canadian Bar Review 433 at 462).
A third reason that Meiorin is my favourite Supreme Court decision is that it is one of the few decisions in the Court’s history where it has found and remedied sex discrimination (see also Canadian National Railway Co v Canada (Canadian Human Rights Commission),  1 SCR 1114; Brooks v Canada Safeway Ltd,  1 SCR 1219; Janzen v Platy Enterprises Ltd,  1 SCR 1252). Interestingly, almost all of the cases where the Court has accepted claims of sex discrimination have been brought under human rights legislation rather than the Canadian Charter Rights and Freedoms. The only Charter case to date where the Court has upheld a claim of discrimination against women is one where it overturned a BC Court of Appeal judgment and restored the arbitrator’s decision without providing its own reasons (see BC Teachers’ Federation v. BC Public School Employers’ Association, 2014 SCC 70; see also Trociuk v BC,  1 SCR 835 (allowing a man’s claim of sex discrimination) and Newfoundland (Treasury Board) v NAPE,  3 SCR 381 (finding sex discrimination against women to be justified under section 1 of the Charter). There is still much work for the Court to do under section 15 of the Charter, where adverse effects discrimination claims – whether based on sex or other grounds – continue to be treated adversely, contrary to the lessons of Meiorin (see Jonnette Watson Hamilton and Jennifer Koshan, “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter” (2015) 19:2 Review of Constitutional Studies 191, available here).
While there have been many significant human rights and civil liberties cases, Vriend v Alberta,  1 SCR 493, 1998 CanLII 816 stands out. There were no less than 17 intervenors by the time the case reached the Supreme Court. The case was significant because of the remedy that was ordered by the Supreme Court and because of the analysis that the Court undertook in determining that sexual orientation should be included as a protected ground in Alberta’s Individual’s Rights Protection Act (“IRPA”, now the Alberta Human Rights Act, RSA 2000, c A-25.5).
Mr. Vriend tried to complain to the Alberta Human Rights Commission, arguing that he was discriminated against in the area of employment on the ground of sexual orientation. The Commission advised Vriend that he could not make a complaint under the IRPA, as sexual orientation was not included as a protected ground. Vriend then filed a motion in the Alberta Court of Queen’s Bench and was successful in obtaining a declaration that the omission of the protection on the basis of sexual orientation in the IRPA was an unjustified violation of s. 15(1) of the Charter. Justice Russell granted the declaration and ordered that “sexual orientation” be read into various sections of the IRPA as a protected ground. On appeal to the Alberta Court of Appeal, two justices – McClung JA and O’Leary JA — allowed the government’s appeal. Hunt JA dissented. McClung JA held that the omission of “sexual orientation” from the IRPA did not amount to “governmental action” as required by s. 32 of the Charter. Thus, in his view, the court could not use the Charter to force the legislature to enact a provision dealing with a “divisive issue” if it had chosen not to. Both McClung and O’Leary JJA held that Charter s. 15(1) was not violated by the IRPA, and thus any inequality that existed was because of the state of social affairs and not because of the operation of the IRPA. Hunt JA disagreed and held that Charter s. 15(1) was violated by the failure of the Alberta government to provide protection from discrimination on the basis of sexual orientation. Further, in her judgment, the violation of Charter s. 15(1) could not be saved by Charter s. 1.
Vriend then appealed to the Supreme Court of Canada. All nine justices sitting on the SCC heard the matter, although Justice Sopinka did not take part in the judgment, as he passed away in November 1997. Justice Major wrote the sole dissenting judgment. The majority held that under-inclusive legislation could be subjected to Charter scrutiny and that the Charter did not merely apply to positive actions that encroached on rights or excessive exercise of authority. In addition, the majority held that the omission of sexual orientation from the protected grounds under the IRPA created a distinction between gays and lesbians and other disadvantaged groups which were protected under the Act. Further, the omission of sexual orientation had a disproportionate effect on gays and lesbians. The IRPA thus denied formal and substantive equality to gays and lesbians. Finally, the omission could not be saved by Charter s. 1. The majority ordered that “sexual orientation” be read in as a ground in several sections of Alberta’s IRPA.
In addition to being a ground-breaking case for recognizing sexual orientation as a ground for protection from discrimination, the case is also distinctive because the Court ordered that words be read in to existing legislation as a Charter remedy. After having succeeded in his case eight years after being denied the right to complain, Vriend never did proceed with his complaint to the Alberta Human Rights Commission.
British Columbia v Canadian Forest Products Ltd.,  2 SCR 74, 2004 SCC 38 [Canfor]. This was a close call for me, between Canfor and the Supreme Court’s landmark environmental law decision in Friends of the Oldman River Society v Canada (Minister of Transport),  1 SCR 3. But while the latter has undoubtedly had a more profound impact on Canadian environmental law, that legacy is also a mixed one (with several passages having caused decades of confusion over the breadth of federal environmental jurisdiction). The relevant issue in Canfor was whether the defendant forest company was liable to the province for the environmental harm cause by a forest fire that was the result of the company’s negligence. Writing for the majority, Justice Binnie held that the province could indeed sue for environmental loss, including the loss of “the services provided by the ecosystem to human beings, including food sources, water quality and recreational opportunities” (at para 138), but that in this case the province had failed entirely to present any evidence of such loss. Justice Binnie went on to describe the kind of evidence that could be tendered in such a case, drawing on the principles and methods of environmental economics (see generally paras 138 – 154). Although Canfor has yet to meet the considerable expectations of commentators of the time (e.g. Jerry Demarco et al. described it as “a potential watershed” in “Opening the Door for Common Law Environmental Protection in Canada: The Decision in British Columbia v Canadian Forest Products Ltd,” 15 J Env L & Prac 233-255), its impact on Canadian environmental law and policy is undeniable. It has influenced several legislative initiatives including the 2009 Environmental Enforcement Act, which incorporated the concepts of environmental damage into the sentencing provisions of nine federal environmental statutes, and more recently the amendments to Canada’s on and offshore oil and gas regimes, which now contain provisions for the recovery of environmental damages associated with oil spills. Insofar as the Supreme Court’s environmental law jurisprudence goes, it is also probably the most sophisticated and demonstrative of the Canadian judiciary’s capacity for tackling difficult and complex issues.
My favourite Supreme Court of Canada case is Eldridge v British Columbia (AG),  3 SCR 624, 1997 CanLII 327. In Eldridge, the court recognized that the hearing-impaired had an equal right to access medical services which required the government to provide funded sign language interpretation. Eldridge raised equality-seekers’ hopes for a substantive equality analysis of section 15 of the Canadian Charter of Rights and Freedoms. It was the first Supreme Court case to challenge the government’s failure to act to remedy disadvantage under section 15. It was thus the first Supreme Court decision in which the government’s obligation to promote equality — and not just prevent discrimination — was given some real effect. The hope had been that the Court would order the disadvantage remedied, not just because it was necessary to ensure equal treatment, but because the failure to remedy disadvantage was, in itself, a violation of the government’s obligation to promote equality. Eldridge included dicta that moved somewhat in the direction of recognizing that courts could impose positive obligations on governments without undermining the legitimacy of democracy. However, the promise of Eldridge has yet to be kept.
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By: James Coleman
Last Wednesday, TransCanada filed a complaint against the United States in a federal district court in Houston alleging that the President’s rejection of the Keystone XL pipeline was invalid and unconstitutional because it was not authorized by Congress. If successful, this claim would allow construction of the pipeline.
On the same day, TransCanada filed a notice of intent to submit a claim to arbitration under the North American Free Trade Agreement (NAFTA). Even if successful, this claim would not allow construction of the pipeline, but could entitle TransCanada to money damages from the United States. The company is asking for $15 billion in damages.
Like most private lawsuits against the government, these lawsuits face long odds, but both raise important and novel legal issues that will be difficult to decide. TransCanada’s constitutional claim could change the way that the United States approves international oil pipelines. And TransCanada’s NAFTA claim could endanger the United States’ long winning-streak in NAFTA arbitrations.
TransCanada’s Constitutional Claim
The most unexpected part of TransCanada’s legal salvo was the lawsuit that it filed asking a U.S. district court to rule that President Obama’s rejection of the Keystone XL pipeline was unconstitutional. TransCanada notes that Congress has never passed a statute that gives the President authority to reject international oil pipelines and says that, without such a law, the President had no authority for his unilateral rejection of the pipeline.
Congress has never provided a legal framework for regulating oil pipelines that cross the United States’ international borders. By contrast, there are laws that establish a process for the President to decide on international natural gas pipelines and electricity transmission.
In the absence of Congressional authorization, President Lyndon Baines Johnson simply issued an executive order in 1968, Executive Order 11423, that established a process for issuing permits to proposed oil pipelines that “would serve the national interest.” Then in 2004, President George W. Bush issued a new unilateral order, Executive Order 13337 that expedited review of border crossings. Both executive orders delegate decisions on these cross-border permits to the U.S. Secretary of State.
On November 6, 2015, the current Secretary of State, John Kerry rejected the Keystone XL pipeline after seven years of review. The official U.S. Record of Decision stuck by the State Department’s controversial previous conclusion that the pipeline would improve U.S. energy security, benefit the economy, and would be unlikely to increase greenhouse gas emissions in Canada. (It also suggested that the pipeline might even decrease greenhouse gas emissions in the United States by moving oil transport from railroads to pipelines, making oil transport more efficient.) But the U.S. concluded that the pipeline was ultimately not in the national interest because it could undercut the nation’s leadership in climate talks because the pipeline was “perceived as enabling further [greenhouse gas] emissions globally.”
TransCanada’s key argument is that, in the absence of any law, the President does not have unilateral authority to reject an international oil pipeline based on this kind of consideration. Although Presidents have claimed power to decide whether a pipeline is in the national interest since President Johnson in 1968, TransCanada argues that this power has never been fully tested because the President has never rejected an international pipeline.
This creates something of a puzzle: if Congress has never passed a law governing international oil pipelines and the President does not have authority to reject an oil pipeline, then who may, in fact, regulate pipeline border crossings?
One possible answer is that international oil pipelines are primarily regulated by the states, just like domestic oil pipelines. The U.S., unlike Canada, primarily relies on state-by-state regulation for interstate oil pipelines. That is, if no law has been enacted governing international oil pipelines, then the only laws that govern them are the same ones that govern domestic oil pipelines.
President Obama’s administration will raise several counterarguments. First, it will argue that the President has inherent and unilateral constitutional authority to control the nation’s borders, so he must have some kind of ability to control international border crossings. Second, if Congress has not established any criteria for the President to use in this decision, then he is free to create his own criteria. Third, President Johnson established this process almost fifty years ago and it has been frequently used to approve pipelines so Congress has, with the passage of time, acquiesced to this process. Fourth, federal district courts have upheld the President’s unilateral decision to approve international pipelines.*
TransCanada will respond that, whatever power the President has, it does not allow him to reject a pipeline based solely on international perceptions that are inconsistent with his own government’s environmental analysis. TransCanada’s complaint also argues that, far from acquiescing in the President’s unilateral authority to reject international pipelines, recent Congresses have repeatedly sought to constrain the President’s authority, citing Congress’s frequent attempts to approve the Keystone XL pipeline. Finally, TransCanada will point to federal court decisions and executive branch opinions from nearly a century ago, which concluded that in the absence of Congressional authorization the President had, at most, limited authority to control border-crossing facilities. Though old, these opinions may remain relevant in the unusual situation where, as with oil pipelines, Congress has not established a process for permitting border crossings.
The continuing saga of the Keystone XL drama overlaid with a tangle of old and new precedents and conflicting constitutional powers will make TransCanada’s U.S. lawsuit a case to watch. If a Republican is elected President this coming November, then the issue will likely be moot because the Republican contenders say they would reverse President Obama’s decision on the pipeline. But if not, then the U.S. courts will have to resolve the thorny issues raised by TransCanada.
TransCanada’s NAFTA Claim
TransCanada’s other action, its notice of intent to submit a claim to NAFTA arbitration, alleges that the U.S. discriminated against Keystone XL’s Canadian investors, violating its obligations to afford them national and most-favored-nation treatment under Article 1102 and Article 1103 of NAFTA. TransCanada also argues that by delaying a decision on the pipeline for seven years, and then denying it, the U.S. government destroyed the value of its investment, expropriating its property in violation of NAFTA Articles 1110 and 1105.
NAFTA claims are decided by three independent arbitrators. These arbitrators are not bound by the decisions of the arbitrators that decided previous claims. Thus, it is very difficult to predict whether a NAFTA claim will be successful.
If past cases are any indication, a Canadian company like TransCanada begins at a serious disadvantage. The United States has never lost a NAFTA decision to a foreign investor. And arbitrators have sometimes gone to great lengths to avoid a finding of discrimination. In one case, Glamis Gold Ltd. v United States, Award (NAFTA Arb Trib 2009), California passed a law that, it admitted, used “narrowly crafted language intended to prevent approval of a specific mining project” owned by Canadian investors (at ¶167). But the NAFTA panel for that case held that the law was not discriminatory because, in theory, that narrowly crafted language could apply in the future if another company proposed a similar project.
On the other hand, the extraordinary facts of the Keystone XL review process could end the United States’ NAFTA winning streak. First, throughout the seven-year review, President Obama repeatedly responded to complaints from pipeline supporters by admonishing them to remember “this is Canadian oil, this isn’t U.S. oil.” And the President’s administration was, at the same time, moving to expedite domestic oil pipelines. Second, after repeatedly delaying the decision on Keystone XL and repeated environmental impact studies, the U.S. denied the permit on the basis of a perception that was not supported by the seven years of analysis it had done. It will be difficult to explain why it took seven years to analyze the pipeline if, in the end, the government chose to ignore that analysis.
Finally, TransCanada’s lawsuits may operate in tandem because one relevant set of laws that Congress has passed concerning international energy trade is the set of laws approving and implementing NAFTA. In U.S. court TransCanada will argue that even if Congress has not prescribed a specific process for international oil pipelines, it has, at least ruled out any discriminatory or arbitrary treatment of international investors in those pipelines. One of the chief challenges for U.S. lawyers will be to explain why the federal government should impose a uniquely lengthy and unpredictable process on Canadian oil pipelines while expediting domestic oil pipelines.
Regardless of the outcome, TransCanada’s Keystone XL challenges set the stage for potential blockbuster decisions that will have a lasting impact on energy, constitutional, and trade law.
*Disclosure: Before my academic career, I worked in private practice and represented TransCanada in two of these earlier cases.
This post originally appeared on James Coleman’s blog Energy Law Prof. You can see more legal documents & analysis related to the Keystone XL pipeline and other North American oil pipelines at Oil Transport Tracker.
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By: Alice Woolley
PDF Version: The Top Ten Canadian Legal Ethics Stories – 2015
Year’s end invites assessment of what has passed. For me, that includes reflection on the most significant developments in legal ethics over the year (Reflections from past years here: 2014, 2013 and 2012).
As usual, my assessment of significance isn’t one that I claim to be objective or right; it is better characterized as, “things that happened in 2015 I thought were especially interesting” (with assistance from Richard Devlin, Adam Dodek and Amy Salyzyn). Some things drop off the list that could have stayed on it; access to justice remains a crucial and unsolved problem in Canada, but fell off the list because it was more chronic than involving specific developments or discussion, at least this year. Others are on the list for the fourth consecutive year; Trinity Western’s law school was proposed in 2012, remains controversial, and law society decisions in relation to it are before several Canadian courts.
The one thing that constructing this list makes clear, however, is that the ethics and regulation of Canadian lawyers and judges remains an important and fruitful topic for our consideration: there is certainly no shortage of subject-matter.
1. Judges behaving badly
In August the Canadian Judicial Council (CJC) published the new Canadian Judicial Inquires and Investigation By-laws 2015 which creates a new process for the consideration of complaints against judges, and abolishes the role of “independent counsel” to the CJC.
The CJC’s new process is being used to consider the conduct of now Federal Court Trial Division Justice, and former Alberta Provincial Court Judge, Robin Camp, whose conduct of a sexual assault trial in 2014 led to a complaint being filed with the CJC by me, Professor Jennifer Koshan (Calgary), Professor Elaine Craig (Dalhousie) and Professor Jocelyn Downie (Dalhousie) (See ABlawg posts here and here, and this CBC story which includes our complaint). The CJC has struck a review panel to assess Justice Camp’s conduct.
Robin Camp was not the only judge whose conduct was considered by the CJC this year. On December 3 the CJC issued its Report in which a majority (with 3 dissenting) did not recommend removal of Judge Déziel for his participation in unlawful financing of a municipal election prior to his appointment. On November 19 the CJC announced that a three-member Inquiry Committee, with one member dissenting, had recommended the removal of Justice Girouard, even though the Committee “could not conclude that the judge had participated in a transaction involving an illicit substance.” The Committee’s recommendation was based on its own concerns with the testimony offered by Justice Girouard at the Inquiry Committee hearing. The Council will now consider the Committee’s recommendation.
And then there were the judges whose conduct didn’t make it as far as the CJC but made the news. In February a Quebec judge told a woman applying for the return of a seized vehicle that her case could not be heard unless she removed her hijab. And in October a Halifax judge asked a woman in his courtroom to leave to breast feed her baby.
While some might see these cases as evidence of increased judicial impropriety, I tend not to think so. It is to me more likely that we are simply paying more attention to what judges do, and are less tolerant of some types of judicial behaviour. In either case, however, these issues create serious regulatory challenges for the CJC. Judicial independence is a crucial value, one on which the rule of law depends. But at the same time, judicial misconduct, and in particular misconduct which humiliates or denigrates people appearing in court, undermines the rule of law – the fair and unfettered access to the social settlement that law creates. The CJC, and the National Judicial Institute, need to develop regulatory responses – education, incentives and discipline – that maintain judicial independence while discouraging or disciplining wrongful conduct. Some supportable balance needs to be achieved.
2. Trinity Western University before the courts
At the end of 2014, the status of TWU was that the British Columbia Minister of Advanced Education had revoked consent for its law school, and the law societies of BC, Ontario, New Brunswick and Nova Scotia had either declined to approve the admission of its graduates, or had done so only conditionally (See Law Matters, Summer 2015 for a general overview/discussion of TWU).
In February of this year the Nova Scotia Supreme Court overturned the Nova Scotia Barristers’ Society’s decision to only admit Trinity Western law graduates conditionally on the grounds that it was ultra vires the Society and, in any event, a violation of the Charter.
In July the Ontario Divisional Court upheld the Law Society of Upper Canada’s decision not to accredit TWU law school, on the grounds that the Law Society had jurisdiction to consider the issue, and that its decision “did engage in a proportionate balancing of the Charter rights that were engaged by its decision and its decision cannot, therefore, be found to be unreasonable” (at para 124).
In December the BC Supreme Court overturned the Law Society of British Columbia’s decision not to treat TWU as an approved law school for the purposes of Law Society admission. While Chief Justice Hinkson held that the Law Society had jurisdiction to make the decision (at para 108), he also held that the Law Society had wrongfully fettered its discretion (at para 120) by making a decision based on a referendum of its membership, and that it did not grant TWU proper participatory rights in making the decision (at para 125). Chief Justice Hinkson further held that the Law Society had not properly assessed the Charter issues (at para 152) in relation to Trinity Western’s application.
Trinity Western’s case is bound for the Supreme Court. One question that may perplex that Court – or, at least, which perplexes me – is whether the Charter will permit variation between how provincial law societies treat TWU. Does section 1 permit some provinces to reasonably restrict religious freedom in pursuit of protection of equality rights, while others restrict equality to protect religious freedom? And if so, what would that variability do to the quest for national standards across regulation of the legal profession? Trinity Western continues to raise not just existential constitutional questions, but also challenges for achieving a cohesive national approach to professional regulation.
3. National Competency Standard
On a related note, the Federation of Law Societies has begun a process of consultation with the provincial law societies to develop a national competency standard for admission to the profession. In August 2015 the National Admissions Standards Project Steering Committee published a document (not available online) seeking to move the provincial law societies toward the development of a national assessment regime which would include written examinations and the assessment of applicants through articling. The Report asked the provincial law societies to commit “to the direction for moving forward outlined in the proposal” with a goal of implementing the first assessment by 2018. The Report has been controversial. In October students at UVic initiated a referendum against it.
At this time, however, opposition to the Federation’s initiative seems premature. Aspects of the Report are concerning. Its reliance on education jargon makes it hard to understand what the Federation is actually proposing, and some of its discussion hints at a national multiple-choice bar examination, which, while said to be different from the US state bar examinations, sounds a lot like them. The Report is, however, aimed at discussion more than concrete proposals, and each provincial law society would have to agree to any proposed changes. The process needs to unfold further before it can be reliably critiqued.
That is not to suggest that the issues aren’t important: achieving a pedagogically sound national competency evaluation would be a significant accomplishment for the profession, while having the wrong sort of evaluation would be detrimental to a wide-range of constituencies, including the public, prospective lawyers, law firms and law schools. More discussion and evaluation needs to occur to ensure that it is the former of these, not the latter, that happens.
4. The Supreme Court on Money-Laundering
In February the Supreme Court issued its decision on the constitutionality of federal money-laundering legislation in relation to lawyers (Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7). The Court held that, as applied to lawyers, the legislation and regulation violated sections 7 and 8 of the Charter. The provisions violated section 8 because they provided insufficient protection to solicitor-client privilege, and violated section 7 because of the section 8 issues and also because the provisions imposed duties on lawyers that undermined a lawyer’s commitment to her client’s cause. As I discussed on ABlawg, while the Court’s recognition of the legal significance of a lawyer’s loyalty to her client’s cause is welcome, analytical deficiencies in the decision make its ultimate significance for the regulation of lawyers unclear.
5. Lawyer advising
Also in 2015 the Supreme Court issued Guindon v Canada, 2015 SCC 41, which upheld a penalty imposed on Julie Guindon pursuant to section 163.2 of the Income Tax Act for providing “flawed and misleading” advice to her clients, advice which was “indicative either of complete disregard of the law and whether it was complied with or not or of willful blindness” (at paras 85-86, quoting the Tax Court of Canada’s factual findings). The issue at the Supreme Court related to constitutional issues with section 163.2, but in upholding the severe penalty imposed on Ms. Guindon the Court effectively validated a scheme for regulating the quality and content of lawyer advising.
The quality and content of lawyer advising was also before the courts in September 2015, when the Federal Court heard Edgar Schmidt’s request for a declaration that the Department of Justice has not properly advised the Minister about when Parliament must be told that proposed legislation is not consistent with the Bill of Rights or the Charter (CBA National Magazine story, here). Schmidt alleges that the Department has taken the position that legislation is only not consistent with the Bill of Rights or the Charter when it has a less than 5% chance of being upheld in Court.
The questions of what lawyer advice ought to look like (how it differs from advocacy), and how it ought to be regulated, are complex and, I have argued, ones with which the profession has not sufficiently grappled. The Guindon and Schmidt cases force further consideration of them.
6. Truth and Reconciliation Commission
In June 2015 the Truth and Reconciliation Commission issued 94 Calls to Action to address the “cultural genocide” created by residential schools (CBC overview here). Many of the TRC’s Calls to Action aim at Canada’s legal system, including its training of lawyers. Recommendation 27 calls upon the Federation of Law Societies of Canada “to ensure that lawyers receive appropriate cultural competency training” in relation to the residential schools, Aboriginal rights, Indigenous law and Aboriginal-Crown relations. Recommendation 28 calls upon law schools to require students to “take a course in Aboriginal law.” The TRC suggests that both will require “skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.” The Calls to Action further recommend a variety of changes to the civil and criminal justice systems aimed at reducing barriers to holding the government to account for historical wrongs to aboriginal peoples, ameliorating the significant issues for aboriginal people in Canada’s criminal justice system – as offenders, as accused and as victims – and for the recognition and implementation of Aboriginal justice systems.
Prime Minister Trudeau has said that the government will “fully implement” the TRC’s Calls to Action. If he succeeds in this ambition it would be a significant transformation for the Canadian legal system, one that would affect not just the training of Canadian lawyers, but also their resources, competencies and work environment, particularly those working in the criminal justice system.
7. Resignation of Quebec’s bâtonnière
In September 2015 Lu Chan Khuong agreed to resign as bâtonnière of the Barreau du Quebec (Lawyer’s Weekly, October 9, 2015; CBC). In May she had been the first person elected to that role, with 63% of the vote. Her September resignation followed from a summer of disputes and the filing of lawsuits between Khuong and the Barreau. In July the Barreau’s board of directors had suspended her from her position because it was revealed that she had been arrested for shoplifting designer jeans, a matter which had been resolved through a diversion program. Khuong filed a statement of claim seeking reinstatement, and the Barreau launched a countersuit seeking damages for harm caused to its reputation. Lawyers weighed in publicly on both sides of the issue, with 68.5% of 991 lawyers present at a meeting in August reaffirming their confidence in Khuong (see Ottawa Citizen), while Lucien Bouchard, Bernard Landry, Daniel Johnson & Pierre-Marc Johnson co-wrote a letter supporting the Barreau’s decision to suspend her (see Ottawa Citizen). Also in August a judge declined Khuong’s application for immediate reinstatement.
According to an interview included in a detailed story in November’s Canadian Lawyer Magazine, Khuong decided to resign after realizing that “someone needed to sacrifice themselves to end this insane situation, which was really hurting my family and the profession I love. And I knew it had to be me”. She also suggested that she may run again to be bâtonnière in two years time.
8. Regulatory Innovation
In September the Law Society of Upper Canada Working Group on Alternative Business Structures issued a report to Convocation advising that it “does not propose to further examine any majority or controlling non-licensee ownership models for traditional law firms in Ontario at this time” (at para 56) but that it will continue to explore options for “more limited non-licensee ownership models” (at para 57).
The Nova Scotia Barristers’ Society is moving towards a new model for regulating lawyers, which is “risk-focused, proactive, principled and proportionate”. The new model will include removing barriers to fee sharing and will require lawyers and legal entities to implement management systems for ethical legal practice. Canadian Lawyer explored the issue of entity regulation, including Nova Scotia’s proposed changes, in its October issue.
In November, the Prairie law societies (Alberta, Manitoba and Saskatchewan) issued a discussion paper in relation to entity regulation, compliance-based regulation and alternative business structures. The paper provides an update on work of other jurisdictions, explains and defines each concept, and develops “the start of a regulatory framework, applicable across Alberta, Saskatchewan and Manitoba for consideration and discussion” (p 3).
These developments are interesting and potentially exciting but also raise questions about how easy it will be to create a truly innovative regulatory structure here. The self-regulatory and provincial nature of the law societies ensures change is slow, uneven and susceptible to interruption. That may not be an entirely bad thing – regulatory change creates risks and only possible rewards – but in an increasingly disrupted legal services market, the status quo also creates risks, ones to which the profession has not yet revealed itself able to respond.
9. Campaigning in the Law Society Upper Canada Election
In April the Law Society of Upper Canada had its bencher election. Prior to the election, the Ontario Trial Lawyers’ Association published on its website a list of benchers who opposed the introduction of Alternative Business Structures. It stated that “OTLA urges all association members and other eligible licensed lawyers to vote for the following candidates opposed to ABS.”
As detailed by Malcolm Mercer in a comment to a column I wrote about this on SLAW, it appears that the OTLA campaign had only a limited effect on voting patterns. The campaign brings to the forefront, however, the fundamental tension in the self-regulatory structure of professional governance. On the one hand, in an electoral system it makes perfect sense for voters to promote and vote for benchers based on those benchers’ positions on issues that affect their personal interests. If lawyers are given a vote, then why shouldn’t we expect them to vote at least in part based on their own interests? But on the other hand, the legal mandate of any law society is to act in the public interest, not in the self-interest of lawyers. How do we trust benchers chosen based on the collective expression of lawyer self-interest to discharge that legal mandate?
That the OTLA’s campaign brought this tension to the foreground does not necessarily suggest that these types of electoral campaigns are all bad. While I remain concerned about this sort of campaign for the reasons I expressed on SLAW, there are other reasonable perspectives on the issue. It may be true, for example, that if some lawyers are voting in their own interests, then it’s better that that be out there in the public domain – that the presence of self-interest be transparent and open for debate, rather than opaque, especially since the clash between a range of self-interested points of view might generate something close to the public interest. And ultimately it may be better that lawyers be engaged with the electoral process – for whatever reason – than that they simply not participate at all.
10. Joe Groia and Civility Regulation
In the Law Society election Joe Groia was elected as a bencher. In the meantime, however, he continues his challenge to the Law Society’s efforts to discipline him for his conduct of the defence of John Felderhof in the Bre-X matter. In February the Divisional Court upheld the Law Society’s imposition of a one-month suspension on Groia, although it articulated a more rigorous approach to the regulation of lawyer incivility than had the Law Society (Groia v LSUC, 2015 ONSC 686). It held that incivility “begins with conduct that is rude, unnecessarily abrasive, sarcastic, demeaning, abusive or of any like quality. It is conduct that attacks the personal integrity of opponents, parties, witnesses or of the court, where there is an absence of a good faith basis for the attack, or the individual counsel has a good faith basis for the belief but that belief is not an objectively reasonable one” (at para 74). In addition, it is “ultimately necessary for a finding of professional misconduct for the uncivil conduct to have undermined, or to have had the realistic prospect of undermining, the proper administration of justice” (at para 76).
The Divisional Court’s approach to the regulation of civility is, while still very problematic, the best articulation to date in being both relatively clear and very narrow in scope. The problem for Groia was that the Court was not prepared to overturn the Law Society’s characterization of his conduct as uncivil, even though it is not clear that anything he did or said in the Felderhof trial could reasonably be said to satisfy this high standard (I’m a long-standing defender of Groia and critic of civility regulation, and was a witness in his original disciplinary hearing. See e.g., here). Groia has appealed to the Ontario Court of Appeal, who heard his case this past December.
And finally, as with last year, a note in memoriam: On February 26, 2015 Monroe Freedman, described by the New York Times as a “dominant figure in legal ethics whose work helped chart the course of lawyers’ behavior in the late 20th century and beyond”, died at age 86. His most famous paper, “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions” (1965) 64 Mich L Rev 1469 was published 50 years ago this year. It remains relevant and influential today, and will be the subject of a special session at the AALS meetings on January 7. My tribute to Monroe, “Rigorous, Relevant and Right: The Scholarship of Monroe Freedman” can be found here. Monroe was my mentor and my friend. I miss him very much.
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ABlawg is honoured to announce that we were selected for the Best Canadian Law School/Law Professor Blog Award and as runner up for the Fodden Award for Best Canadian Law Blog for 2015. Here’s what the Clawbie judges had to say:
Yes, the blog of the University of Calgary’s Faculty of Law is also a runner-up for the Fodden Award. But the quality and frequency of ABlawg entries make it impossible for us not to honour it with a Clawbie of its own. Martin Olszynski, Sharon Mascher, and Nigel Bankes lead a stellar cast of faculty who help set the standard for law school blogging.
We would also like to acknowledge ABlawg creator Jonnette Watson Hamilton, 2015 Blogmasters Jennifer Koshan and Shaun Fluker, student assistant Evelyn Tang, and all of the bloggers who contribute to ABlawg.
Our congratulations to Paul Daly at Administrative Law Matters, who won the Fodden Award, and to our colleagues Lisa Silver (Ideablawg), Peter Sankoff and the folks at The Court, who were all runners up for the Best Canadian Law School/Law Professor Blog Award. And thanks as always to our readers for your nominations, comments and ongoing support.Tweet