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The Social Licence to Operate: Mind the Gap

Wed, 06/24/2015 - 10:00am

By: Nigel Bankes

PDF Version: The Social Licence to Operate: Mind the Gap

This post is based on an invited presentation that I gave at the Canadian Energy Law Forum on May 14, 2015 in Lake Louise. I began my remarks by looking at the three elements of the social licence to operate and then offered a summary of a lecture given by Rowland Harrison at the University of Alberta on March 10, 2015 from his position as the TransCanada Chair in Administrative and Regulatory Law, entitled “Social Licence to Operate: The Good, the Bad and the Ominous.” Mr. Harrison is a former member of the National Energy Board. I concluded my remarks by reflecting on four issues: (1) the normative context for thinking about the social licence to operate, (2) why it is that industry itself uses the term “social licence to operate”, (3) the need to narrow the gap between the legal licence and the idea of the social licence, and (4) the implications of allowing the social licence to operate as a veto.

Elements of a Definition: Social Licence to Operate (SLO)

Let’s start with the word “social”, the adjective that qualifies the noun, which tells us that the source of the licence that we are referring to is not government or a regulator but society, or some subset of society, or some community or subset of that community (begging of course questions like which society, what community, but, typically in the literature, some local or affected community).

And as for the noun, the word “licence” to us as lawyers means consent or permission; the permission to do that which without the licence would be a trespass; carrying the connotation that the permission originates from some entity whose authorization is in some sense required. The holder or applicant for the licence is typically industry – a resource company, a pipeline company or perhaps equally a party seeking to develop a new aquaculture operation, a wind farm, or even a school board wanting to open a special needs school in suburban Calgary. And the licence that we are taking about is additive; it is in addition to any legal licences or permits that may be required from a formal governmental authority.

And as for the verb “to operate”, this signifies that the concept is concerned not just with the commencement of the project, but implies that the project should continue to have the support of the community throughout its life.

The concept then is a highly normative concept; you ought not to proceed or continue with this operation without the permission of the affected community. But it is an extra-legal norm.

Rowland Harrison on the Social Licence to Operate

Let me turn now to Rowland’s excellent paper. Rowland started with some general observations before using the headings of his title and I will follow that same order; I am paraphrasing and parsing throughout, so don’t lumber Rowland with my choice of words and terminology.

First, the preliminary observations.

The concept of SLO is generally attributed to Jim Cooney of Placer Dome who used the term in the late 1990s in the context of social and political risk assessment by mining companies operating in developing countries which lacked a commitment to the rule of law. It is now commonly used in a broader range of social and political contexts, including linear projects (pipelines and transmission lines) in western liberal democracies strongly committed to the rule of law and with sophisticated and well-resourced regulatory schemes.

While one would expect the concept to be enthusiastically endorsed by elements of civil society it is perhaps more surprising to see industry broadly endorsing the concept, including pipeline companies, industry associations (e.g. the Canadian Association of Petroleum Producers (CAPP) and Canadian Energy Pipeline Association (CEPA)) and even some regulators.

Rowland suggests that to the extent that we are thinking about social licence and resource development projects it is useful to place this in the context of the more formal decision making procedures which, crucially in Rowland’s thinking, involve a public interest determination by a regulatory body, or even by cabinet, following a process that involves significant citizen engagement, typically through industry led consultation programs and perhaps supplemented by full public hearings. Such a public interest determination will always be contingent and contested but this is the mechanism, or some form of it, which western liberal democracies have chosen to make decisions about these types of projects.

Rowland deliberately distinguishes between the concept of social licence and the rights and obligations associated with the Crown’s duty to consult and accommodate aboriginal peoples — principally on the grounds that the duty to consult and accommodate is a legal and indeed a constitutional doctrine; the social licence to operate (SLO) is, by definition, extra-legal. I also note, parenthetically, that other commentators have also distinguished between social licence to operate and the concept of free, prior informed consent (FPIC). Prno and Slocombe for example note the following: (1) FPIC is a duty of the state whereas a proponent may acquire SLO without state involvement; (2) FPIC focuses on obtaining consent before a project proceeds, SLO emphasizes maintaining community support; (3) FPIC focuses on the rights of indigenous communities, SLO applies more broadly. See “Exploring the origins of ‘social licence to operate’ in the mining sector: Perspectives from governance and sustainability theories” (2012), 37 Resources Policy 346 at 349.

We can now turn to the three headings of Rowland’s title.

The Good

The “good” for Rowland is that the concept of SLO serves as a reminder to us all and, perhaps especially to regulators, that any legitimate project approval process needs to consider affected interests, and especially local and community interests.

The Bad

The bad for Rowland largely turns on all of the uncertainties associated with the concept of SLO. Who must the licence be obtained from? How can we tell when the licence has been earned or obtained? When is it lost? If one thinks, for example, of the events on Burnaby Mountain in the fall of 2014 where protestors disrupted the efforts of TransMountain Pipelines to carry out surveying activities associated with the proposed expansion of the Kinder Morgan pipeline, who was the potential social licensor? Was it the City of Burnaby? Was it the protestors? (For a judicial account of those activities see Trans Mountain Pipeline ULC v Gold, 2014 BCSC 2133, 2014 BCSC 2403, 2015 BCSC 242).

The Ominous

Following on from the bad, Rowland’s argument on the ominous (and one sees similar arguments in the writings of Dwight Newman and Brian Crowley) is that the very uncertainties associated with the content of the concept of social licence make it inconsistent with the ideals of the rule of law. Rowland recognizes that that is in some sense an unfair criticism precisely because SLO exists outside the law and the formal legal system. His response is that to the extent that the SLO concept makes normative claims then it should play by the normative rules of the formal legal system, including the rule of law.

Equally ominous for Rowland are the signs that SLO is being used by some to justify the non-application of the formal rules of the legal system by actors within the legal system. Thus, it is one thing for protesters to exercise what in the 1960s we might have termed civil disobedience, but it is altogether different if the police, for example, fail to enforce the terms of a properly obtained court order because the protesters have clothed themselves in the rhetoric of social licence to operate. This again undermines the rule of law. Here Rowland refers to Justice Brown’s experiences in getting an injunction enforced in Canadian National Railway Company v John Doe, 2013 ONSC 115.

What Then Does the Future Hold?

Rowland concludes with three observations. First, we can retain the good underlying the SLO concept and reduce the bad and the ominous if we ditch the language of licence which is too redolent of the formal normative order. Other possible terms that are less freighted include acceptance or support. Second, industry and government need to be more careful in their choice of words and what they endorse. And third, perhaps one response to the social licence debate is, in my words, to build a bigger tent. Thus, if we recognize that there is some legitimacy to the concerns that underlie the development of the SLO, that is to say, if we recognize that in some ways and in some respects there is a gap between the formal licence of the law and acceptance of a project by an affected community or communities, then we might try to develop techniques within the formal legal system to help reduce or eliminate that gap or deficit. Sometimes that gap will be unbridgeable but in other cases perhaps we need to try to bridge it.

That concludes my summary of Rowland’s paper and I now turn to my own remarks.

SLO in its Normative Context

I said earlier that SLO is a highly normative concept. What do I mean by that? A norm for me is simply an expectation about behavior. It is a claim that in X circumstances Y ought to act in a particular way. We are all (as lawyers, family and community members, and citizens in society) familiar with different types of norms and normative orders. We frequently recognize a hierarchy of norms but we also recognize norms of different qualities and specificity.

A lawyer’s hierarchy will start with the constitution and move down through senior levels of government to the local level. We saw some of the interplay between these rules operating in the TransMountain Burnaby Mountain standoff and we have sophisticated techniques for resolving normative conflict within the legal system including the doctrines of applicability or interjurisdictional immunity (IJI) and paramountcy, all as nicely illustrated by the NEB’s very well-reasoned Ruling No. 40 in the TransMountain proceedings.

As for the quality of our norms, consider for example the distinction between constitutional law and constitutional conventions, or in international law the distinction between soft norms and hard norms. A norm may be hard if it is (a) law, (b) expressed with precision, and (c) enforceable. A norm may be soft if: (a) its status as law is contested, (b) it is drafted in hortatory or excessively general terms, or (c) there is no enforcement mechanism. A prescriptive treaty might establish a set of hard norms whereas the Rio Declaration on Environment and Development is generally considered to establish a softer set of norms; and some instruments such as United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) may encode both hard and soft norms. See generally Alan Boyle, “Some reflections on the relationship of treaties and soft law” (1990), 48 ICLQ 901.

And as for the specificity of our norms, consider the distinction between rules and principles. Ronald Dworkin famously said that law is more than a system of rules but includes principles as well as rules. Both are norms but they operate in different ways. Norms like the neighbor principle, the precautionary principle, the polluter pays principle, or even something like the “regulatory compact” have weight, they push us in particular directions without requiring a particular outcome. They do not apply in an all-or-nothing way and the status of such principles may be highly contested. For example, there is a famous and ongoing debate in international law as to whether the precautionary principle is actually just “an approach” or whether it represents customary international law or is a general principle of law. Examples from Canadian case law of the application of normative principles include the Baker case (‘best interests of the child’) and the Spraytech Case (precaution). Rules on the other hand apply in an all-or-nothing way and demand a particular outcome.

My point thus far is that we live in a normatively complex world where there is constant interaction between different normative claims and different normative orders. Part of that complexity is attributable to the globalized world in which we live. If we reflect on that picture we as lawyers are actually very familiar with normative complexity; sorting through that complexity is part of what we do both as academics and practitioners. But how does this relate to the topic of SLO? I think it prompts two contradictory observations. The first is that this discussion suggests that there is nothing particularly unusual about SLO; it is simply part of, or another example of, this normative complexity and that we should not be too worried about it. A second observation is that this extended reflection on the different types of norms suggests that there is something really quite unusual about SLO which is that while it is a soft norm in the sense that it is clearly not law (it is a social licence and not a legal licence) the fact that it is presented in the form of a rule rather than that of a principle causes it to appear harder and more demanding than it actually is. Indeed on its face it is more demanding than the constitutional concept of the duty to consult and accommodate which, as the Supreme Court reminds us, does not amount to a veto. These reflections also suggest that the concept might be more useful to us, and indeed less threatening, if we could (re)frame it as a principle. As an aspirational goal or principle it is far more attractive than as a rule.

Why Might Industry Embrace the Social Licence to Operate?

Rowland suggests that the alacrity with which industry has latched on to the concept of social licence is perhaps surprising. I think that this enthusiasm can perhaps best be explained by recognizing the different ways in which we use the term, and appreciate that it is in fact used descriptively as well as normatively. To this point I have been emphasizing the normative usage i.e. you cannot operate unless you have a social licence. A more descriptive use is simply the claim “I have a social licence to operate”. (And we might observe as well that one usage is ex ante, while this second is ex post). Of course, as soon as I make the ex post claim that I have a SLO the attractiveness of the term to industry is obvious. It may help industry fast track the legal approval process (as where an oil sands proponent reaches an impact and benefit agreement with an affected First Nation community with the result that a scheduled hearing is cancelled because there is no party left with standing who can insist on a hearing); it may enhance the reputation of that industry player and meet its corporate social responsibility policies; and it may help that party improve or maintain market access for its products. All of these qualities make the endorsement of a social licence very valuable in managing project risks and timelines.

Narrowing the Gap

If we accept that in some cases there may be a gap between the legal licence and community expectations what measures can we take to help us narrow that gap? The first step of course is that government, and in particular responsible ministers, should be cautious not to widen the gap by undermining the credibility of the regulatory system. In my view (see my post here), Minister Oliver’s open letter to Canadians attacking “environmental activities” on the eve of the opening of the Northern Gateway hearings was one such misstep. Other more positive measures to be taken might include: broader adoption of strategic environmental assessments; landscape level planning approaches (e.g. Alberta’s planning process under the Alberta Land Stewardship Act (although clearly there has to be full implementation of plans as well, and here, for example we have yet to see the development and implementation of the biodiversity framework called for by the Lower Athabasca Regional Plan); and broader adoption of public interest standing rules (while also exercising some control over process) rather than limiting standing to recognized private interests. I also think that the public needs a forum in which to address broad public policy issues such as climate change and greenhouse gas emissions. Thus while it might be reasonable to conclude that a pipeline application before the National Energy Board is not the best place to assess upstream and downstream greenhouse gas emissions (see Forest Ethics Advocacy Association and Donna Sinclair v National Energy Board, 2014 FCA 245 and discussion here) these are legitimate concerns, as is the absence of a coherent federal climate change policy, and it is important to provide some forum within which these issues can be discussed. And finally, we should not underestimate the importance of reasons as a means of supporting the legitimacy of the legal licensing process. In this respect, I think that the NEB has been doing a good job in providing reasons for its decisions (see the reference above to its Ruling No. 40) whereas with the single exception of its decision in Forest Ethics (above), the Federal Court of Appeal’s habit of not providing reasons to support denial of applications for leave when serious legal issues are at stake does nothing to enhance the legitimacy of the regulatory scheme.

The Implications of Social Licence as a Veto

One of the concerns that I have with the concept of social licence is that it has the potential to undermine what we mean by living in a society or community. We live in societies because we are more than just individuals and we crave the benefits that living in a society offers including cultural benefits as well as material benefits such as schools, airports, hospitals, roads and energy services and infrastructure. While the market may help us make decisions about some of these projects, holdout problems and settlement and transaction costs cause us to acknowledge that contract and consent alone will not get those projects built. We need a regulatory system that allows us to assess that societally we are better off with these projects than without, we need to ensure that environmental values are properly protected at both the landscape level and the project level, we need to ensure full protection of indigenous rights (including in some cases the right to withhold consent), and we need a compensation mechanism to ensure that those who are inordinately affected are appropriately compensated. But if we also grant all of those who are detrimentally affected by such projects the power to act as a social licensor (or the power to withhold such licence), then we can pretty much guarantee that these projects will not be built, to the ultimate impoverishment of what we mean by living in a society.

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Keep It To Yourself: The Private Use Exception for Child Pornography Offences

Tue, 06/23/2015 - 10:00am

By: Joshua Sealy-Harrington and Ashton Menuz

PDF Version: Keep It To Yourself: The Private Use Exception for Child Pornography Offences

Case Commented On: R v Barabash, 2015 SCC 29

Last month, the Supreme Court of Canada revisited the Private Use Exception – a defence to the possession and creation of child pornography – in R v Barabash, 2015 SCC 29. The unanimous judgment, authored by Karakatsanis J, clarified the analytical framework relating to the Private Use Exception and elaborated on how courts should assess exploitative relationships in which child pornography may be made. This post explains the Private Use Exception, describes its evolution in the jurisprudence, and explores questions left unanswered by the Court’s decision in Barabash.

The Facts in Barabash

In 2008, two 14 year-old girls, K and D, ran away from an adolescent treatment centre in High Prairie, Alberta to stay with 60 year-old Donald Barabash. Both girls had “difficult pasts”, including drug addiction, criminal history, family issues, and in K’s case, a history of sex work (at para 4). During their stay with Barabash, K and D engaged in sexual activities with each other and 41 year-old Shane Rollison. These activities were generally recorded by Barabash, though K and D operated the camera at times as well.

The police began investigating Barabash and Rollison after receiving complaints about a photo posted to Nexopia, a Canadian social networking site. The photo depicted K and D, with one of them topless. As a result, the police searched the Barabash residence, where they found a number of materials they identified as child pornography.

Following the investigation, Barabash and Rollison were both charged with offences under the Criminal Code, RSC 1985, c C-46. Specifically, both were charged with making child pornography (Criminal Code, s 163.1(2)) while Barabash alone was charged with possessing child pornography (Criminal Code, s 163.1(4)). In response, both Barabash and Rollison argued that their making and possession of child pornography was legal because it fell within the scope of the Private Use Exception. The “core issue” at trial (and on appeal) was the availability of the Private Use Exception as a defence to the charges above (at paras 1, 9, and 11).

Explaining the Private Use Exception

It may come as a surprise to some that it is legal to create and possess child pornography as long as it is held for private use (an oversimplification, to be fair). But the Private Use Exception is a logical extension of the legal framework surrounding sexual activity involving minors.

Child pornography is media that depicts sexual activity with, or that displays the sexual regions of, a person under the age of 18 (Criminal Code, s 163.1(1)). But there is no blanket prohibition on persons under the age of 18 engaging in sexual activity. Indeed, the Criminal Code permits certain minors to engage in sexual activities subject to numerous protections seeking to protect them from harm.

First, the Criminal Code incrementally increases the capacity for a minor to consent to sexual activity as they increase in age. A minor under 12 years old is incapable of giving consent to sexual activity (Criminal Code, ss 150.1(1)-(2.1); Barabash at para 20). In contrast, a minor that is 12-15 years old can consent to sexual activity with a partner that is close in age or, if the minor is 14 or 15, with a partner who is their spouse (Criminal Code, ss 150.1(2)-(2.1); Barabash at para 22). While there is no upper age limit on the person a 16 year old minor can consent to sexual activity with (Criminal Code, s 150.1(1)), all minors benefit from the limits placed on legal consent that adults benefit from. For example, at any age, consent is vitiated if it is obtained by force, threats, fraud, or the exercise of authority (Criminal Code, s 265(3)) or if it is obtained in other problematic circumstances, such as where the complainant is incapacitated (Criminal Code, s 273.1(2); Barabash at para 21).

Second, the Criminal Code‘s provisions relating to sexual exploitation provide further protection to minors. Specifically, a person who is sexually active with a minor (even with the minor’s consent) will still be convicted of an offense if their relationship with the minor is exploitative (Criminal Code, ss 150.1(2)-(2.1) and 153; Barabash at para 34). This provides residual protection to minors from ages 16 to 17 who are too old to benefit from the limits on consent described above.

In sum, minors can, in certain circumstances, legally engage in sexual activity, even with adults – but can they record it? Minors aged 13-17 can engage in legal sexual activity, but the Criminal Code ostensibly criminalizes making recordings of such sexual activity. This is where the Private Use Exception steps in. There would be some contradiction in letting minors engage in sexual activity while criminalizing the recording of it for private use. In consequence, the Private Use Exception acts as a defence to various child pornography-related offences to permit the making and creation of child pornography that meets certain criteria (Barabash at para 16). For example, the Private Use Exception could apply to prevent the conviction of two 17 year old partners who innocently take nude photographs of each other. However, the Private Use Exception could also apply to prevent convictions in less benign circumstances, as the cases discussed below demonstrate.

To avoid confusion, we note that there were material amendments made to the Criminal Code between the time when the facts in Barabash occurred and when the Court’s decision in Barabash was released. In particular, during this intervening time the age of consent was raised from 14 to 16 (Criminal Code, s 150.1(1), Barabash at para 7). As a consequence, the current legal framework governing a minor’s consent described above did not apply to Barabash or Rollison whose impugned acts predated the amendments resulting in the current legal framework. Indeed, if the facts in Barabash were to occur in the present day, Barabash and Rollison would be precluded from arguing the Private Use Exception as a defence because 14 year old minors (like K and D) can now only consent to sexual activity with partners who are close in age or who are their spouse.

Evolution of the Private Use Exception in the Jurisprudence

A preliminary overview of how the Private Use Exception has evolved in the jurisprudence facilitates an analysis of the Court’s reasoning in Barabash.

The evolution of the Private Use Exception, in respect of Alberta courts, can be distilled to three key stages, namely:

  1. the origin of the Private Use Exception in R v Sharpe, 2001 SCC 2;
  2. the extension of the Private Use Exception in R v Cockell, 2013 ABCA 112; and
  3. the return to the original Private Use Exception in Barabash.

In Sharpe (2001), a majority of the Supreme Court held that the offences of possessing and making child pornography, while largely justified under section 1 of the Charter, captured two categories of privately held material which did not strike the proper balance between preventing harm to children and protecting freedom of expression (at paras 103-105). In respect of one of those categories – private recordings – the Supreme Court created the Private Use Exception, which is a defence to child-pornography offences if three criteria are satisfied:

  1. lawfulness e. any sexual activities depicted in the recording must be lawful;
  2. consent to recording e. all parties must consent to the recording; and
  3. privacy e. the recordings must be kept in strict privacy and intended for private use exclusively by:
    1. the creator; and/or
    2. those depicted in the recordings.

(Sharpe at paras 116 and 128; the “Original Private Use Exception”).

Next, in Cockell (2013), the Alberta Court of Appeal extended the Original Private Use Exception by reading in two additional “standalone” criteria, namely:

  1. absence of factual exploitation e. the circumstances must show that the minor’s consent was not obtained through exploitation or abuse in fact, regardless of whether any exploitation offences are made out in law; and
  2. mutuality of benefit e. the parties must intend for the recordings to be used by all those involved in its creation.

(Cockell at paras 36-41; the “Extended Private Use Exception”).

Sharpe and Cockell set the stage for Barabash (2015). At the Alberta Court of Queen’s Bench (2012 ABQB 99) both Barabash and Rollison were acquitted because the court held that the Original Private Use Exception was the governing law and that both men satisfied its criteria (at paras 275-78). However, both men were convicted at the Alberta Court of Appeal (2014 ABCA 126) which held that the Extended Private Use Exception was the governing law and that both men failed to meet its additional criterion of lack of factual exploitation (at paras 28 and 35-37). Reconciling these differing approaches was at the heart of the Supreme Court’s decision in Barabash.

The Supreme Court’s Decision in Barabash

In Barabash, the Court was asked to clarify the elements of the Private Use Exception, and in particular where the concept of exploitation fits into the Private Use Exception’s analytical framework (at para 2).

The Court situates the concept of exploitation under the lawfulness criterion from Sharpe, and in consequence, rejects “absence of factual exploitation” as an additional standalone criterion for the Private Use Exception (at para 31). The Court also rejects the standalone criterion of “mutuality of benefit” (at para 52). As a result, the Court reaffirms the analytical framework of the Original Private Use Exception provided in Sharpe (at para 18). Specifically, the Court reaffirms that when a person possesses a visual recording created by or depicting that person (see para 16), the three part conjunctive test for the Original Private Use Exception – lawfulness, consent to recording, and privacy – still applies (at paras 18 and 53).

A summary of the Court’s observations in respect of each of the three criteria follows.

Criterion 1: Lawfulness

First, the Court holds that the Private Use Exception can only apply to private recordings if the sexual activity recorded is itself lawful (at para 20). It follows that a minor:

  1. must consent to sexual activity, if any, depicted in the recording (Criminal Code, ss 150.1(2)-(2.1), 265(3), and 1); and
  2. cannot be sexually exploited (Criminal Code, ss 150.1(1)-(2.1) and 153).

(Barabash at paras 20-24).

As discussed above, Criminal Code provisions relating to consent and sexual exploitation operate to protect minors from harm. The consent of minors aged 12-15 is subject to various limits (Criminal Code, ss 150.1(2)-(2.1)), while minors aged 12-17 are protected from sexual exploitation (Criminal Code, ss 150.1(1)-(2.1) and 153).

Specifically in respect of sexual exploitation of a minor aged 16-17 (a “young person”; Criminal Code, s 153(2)), sexual activity, or an invitation of sexual activity, can only be lawful if the relationship with the young person does not involve:

  1. a position of trust or authority;
  2. dependency; or
  3. exploitation.

(Criminal Code, s 153(1); Barabash at para 34).

Moreover, in assessing exploitation, the Court looks at “the nature and circumstances of the relationship”, including the following “non-exhaustive list of indicia”:

  1. the age of the young person;
  2. the age difference between the accused and young person;
  3. the evolution of the relationship; and
  4. the degree of control or influence that the accused has over the child.

(Criminal Code, s 153(1.2); Barabash at para 36).

The legislative limits above restrict the circumstances in which sexual activity with a minor is lawful, and in turn narrow the scope of the Private Use Exception (Barabash at para 23). In particular, the Criminal Code offences relating to exploitation of minors restrict the availability of the Private Use Exception, even in circumstances where a minor legally consents to the sexual activity depicted (Barabash at para 35).

Given the above, the Court rejects the Extended Private Use Exception’s additional “absence of factual exploitation” criterion because it is largely “redundant” with the lawfulness criterion, which takes sexual exploitation into account (at para 43). In effect, the Court subsumes the “absence of factual exploitation” criterion from the Extended Private Use Exception into the lawfulness criterion of the Original Private Use Exception.

In our view, the Court’s rejection of a standalone “absence of factual exploitation” criterion is sound. If such a criterion were to exist, it would result in the absurd consequence of it being legal to ‘factually exploit’ a minor for sexual activity, but illegal to factually exploit a minor for sexual recordings. There are already multiple provisions in the Criminal Code devoted to preventing the sexual exploitation of minors (Criminal Code, ss 150.1(1)-(2.1) and 153) and if any of those provisions are violated, recordings relating to that exploitation will not be protected by the Private Use Exception – an already “robust analysis” (Barabash at para 43). Further, as Professor Peter Sankoff observes, tying lawfulness under the Private Use Exception to an established body of jurisprudence addressing sexual exploitation is a “richer”, “broader”, and “clearer” approach to applying the Private Use Exception than the creation of a new absence of factual exploitation criterion (see Ten Minutes on R v Barabash, Child Pornography and the Private Use Exception, at 8:40 (“Ten Minutes on Barabash”)).

Criterion 2: Consent to Recording

Second, in addition to consenting to the sexual activity, the minor must also consent to that activity being recorded (Barabash at para 25).

As “exploitation” is addressed under the lawfulness criterion of the Original Private Use Exception, the Court holds that there is no consideration of exploitation in respect of the minor’s consent to the recording (at paras 48-49). However, the Court concedes that there may be instances in which consent to the recording is itself acquired through exploitation (at paras 45-47); a potential blind spot in the Original Private Use Exception (the first point discussed below under “Commentary”).

Criterion 3: Privacy

Third, the Original Private Use Exception will only apply if the recording is kept in strict privacy and intended for private use only by the creator and/or persons depicted in the recording (Barabash at para 26). Interestingly, by restricting access to those who either (1) created the recording or (2) are depicted in the recording, the Court seemingly prohibits a minor from taking a sexually explicit photo of themselves and sharing it with a partner (the second point discussed below under “Commentary”).

While the Court restricted legal disclosure of child pornography to those involved in its recording, the Court did not go as far as the Alberta Court of Appeal in Cockell and insist on the minor using the recordings – the “mutuality of benefit” criterion. Rather, the Court held that the element of privacy requires only that the benefits derived from the recording are restricted to the individuals involved (Barabash at para 52). What these benefits consist of and which of the parties involved receive these benefits is for the determination of the individuals themselves (at para 52). In consequence, the Original Private Use Exception dismisses the added mutuality of benefit criterion found in the Extended Private Use Exception.

In our view, the Court’s rejection of the mutuality of benefit criterion is, like its rejection of the absence of factual exploitation criterion, sound. While the Court held that such a criterion would “unnecessarily complicate the private use exception test while providing little benefit” (at para 52) we would add that such a criterion would contradict the principles in Sharpe seeking to promote sexual exploration by minors (see Sharpe at para 109). Dictating to a minor that they can only meaningfully explore their sexuality by jointly possessing and viewing explicit photos with their partner is unnecessarily restrictive. Indeed, Joshua addressed, in a previous article, how ostensibly one-sided sexual activities can nonetheless reflect the meaningful sexual autonomy of both partners involved (see Tied Hands? A Doctrinal and Policy Argument for the Validity of Advance Consent at 145-46).

We note that the Court, in obiter, suggests that the element of privacy imports continued control over the recording in question such that the minor may be able to demand the destruction of the recording at a later date (at paras 27-30; the third topic discussed below under “Commentary”).


Applying the three part Original Private Use Exception test above, the Court allowed the appeals and ordered a new trial (at para 63).

The Court found that the trial judge erred in law in his analysis of lawfulness, and in particular, in his analysis of whether or not the relationships in question were sexually exploitative. Specifically, in respect of sexual exploitation, the trial judge’s analysis improperly focussed on “the voluntariness of the particular activities, instead of on the nature of the relationship between the parties” as required by the Criminal Code (Barabash at para 56; emphasis in original). While the trial judge did consider factors relevant to exploitation (such as age disparity), he erroneously considered those factors “one at a time” rather than assessing “whether they cumulatively resulted in an exploitative relationship” (at para 55; emphasis added).

The Court ordered a new trial (rather than making its own ruling on the evidence) because the trial judge’s error had a material bearing on the acquittals (see para 62). Specifically, the Court held that the trial judge’s factual findings did not inevitably lead to a lack of exploitation in this case because the evidence was equivocal in respect of exploitation (at paras 58-61). On one hand, multiple factors raised the risk of sexual exploitation, including K and D’s homelessness, addictions, and need for shelter from Barabash and Rollison (see para 60). On the other hand, K and D were lucid enough to consent, initiated and directed many of the sexual activities, and willingly consented to the making of the recordings (see para 59). As a consequence, a new trial, at which a judge can properly address whether the sexual activity was lawful under the Private Use Exception (i.e. non-exploitative), was necessary (see para 62).

Commentary: Unanswered Questions from Barabash

Barabash brings significant analytical clarity to the Private Use Exception. Still, it leaves some questions unanswered, including:

  1. Can a minor be lawfully exploited for sexually explicit photographs?
  2. Can a minor share sexually explicit “selfies” with their partner? And
  3. Can a party later retract consent to recording?

1. Can a Minor be Lawfully Exploited for Sexually Explicit Photographs?

First, how should courts deal with child pornography lawfully obtained through exploitation? As described above, the Original Private Use Exception rejects the additional “absence of factual exploitation” criterion included in the Extended Private Use Exception. It follows that the second criterion under the Original Private Use Exception – consent to recording – does not take exploitation into account (Barabash at para 49). But what if child pornography is obtained through “lawful” exploitation (i.e. exploitation that falls short of sexual exploitation under the Criminal Code, s 153)?

For example, if an adult, in an exploitative relationship, takes nude photographs of a minor, but never touches the minor or invites the minor to touch them, then the offence of sexual exploitation is arguably not made out. As a consequence, such an adult could benefit from the Private Use Exception despite exploiting a minor to obtain child pornography – an apparent loophole (albeit narrow) around the Court’s primary objective in Barabash of preventing the exploitation of minors. On this point, the Court observes that consent to recording is typically intertwined with consent to sexual activity, which would leave the minor with protection under the Criminal Code. But the Court also concedes that this may not always be the case (at paras 46-47). Indeed, the Crown’s factum in Barabash (at para 124) makes this very point, referring to R v Hewlett, 2002 ABCA 179, where three teenagers responded to a modeling advertisement in which they were offered drugs and alcohol in exchange for their consent to taking explicit pictures. Without analyzing exploitation in such a case, “a predator need only manipulate his or her victim to the point of obtaining consent to be free from criminal sanction” (Cockell at para 37).

In the end, the Court refrains from opining on this issue, stating that it will be dealt with when such facts are brought before it (at para 48). At that time, it will be interesting to see how the Court responds. While permitting the exploitation of children to obtain child pornography appears to be something that ought to be criminalized, such a view runs contrary to the offence of sexual exploitation under the Criminal Code (which would not apply to procuring photographs through exploitation without touching or an invitation thereof). It likewise runs contrary to the Court’s exclusion of exploitation from the consent to recording criterion under the Original Private Use Exception. In consequence, to criminalize possession of child pornography lawfully obtained through exploitation would either require a revision to the Original Private Use Exception or the expanding of sexual exploitation beyond its prescribed requirements under the Criminal Code. As the Court has just recently reaffirmed the Original Private Use Exception and as it is well-established that Criminal Code offences should be interpreted in favour of the accused when multiple interpretations are available (R v CD, 2005 SCC 78 at para 50) it is unclear how a court could convict someone merely for obtaining nude photographs of a minor through exploitation.

In any event, we tend to support the Court’s decision to remain silent on this issue. The Court correctly observes that it may be misguided to opine on the issue of consent to recording when it was not an issue in the facts of Barabash (at para 32), when the common law of consent was “not fully argued” before it or the courts below (at para 32), and when the implications of altering the common law of consent “may be far reaching” (at para 48).

2. Can A Minor Share Sexually Explicit “Selfies” With Their Partner?

Second, it is unclear how the courts will deal with a minor taking a sexually explicit photo or video of themselves (a “Selfie”) and sending it to a partner (which, if sent by text message, is known as “Sexting”). While the concept of Sexting a Selfie is not addressed in either the reasoning or facts in Barabash, it is an example worthy of discussion, particularly given the increasing use by minors of technology that involves the private sharing of photographs and videos, such as Instagram and Snapchat. Indeed, the police were tipped off about Barabash in this very case because of photos posted to a social media platform, Nexopia (see para 7).

The discussion above addressed only private recordings because that is the type of child pornography at issue in Barabash. But Sharpe actually read in two exceptions to child-pornography offences under the Criminal Code, namely, exceptions applying to:

  1. self-created expressive material (the “Personal Use Exception”); and
  2. private recordings of lawful sexual activity (the Private Use Exception, discussed above).

(Collectively, the “Sharpe Exceptions”; Sharpe¸ at para 128).

Despite the documented frequency of minors Sexting Selfies, it appears as though such recordings would not qualify under either of the Sharpe Exceptions.

The inapplicability of the Personal Use Exception to Sexting Selfies is clear. The Court’s summary of the Personal Use Exception in Sharpe (at para 128), which was not at issue in Barabash (see para 16)¸ states that the Personal Use Exception applies only to “expressive material created through the efforts of a single person and held by that person alone, exclusively for his or her own personal use.” It follows that when a minor sends a sexually explicit Selfie to their partner, neither can benefit from the Personal Use Exception because it would apply, at most, to Selfies that are held exclusively by the minor who took the Selfie.

Indeed, the Court’s elaboration on the Sharpe Exceptions suggests that the Personal Use Exception does not apply to Selfies in any circumstance, even those held privately by the person who took the Selfie. Admittedly, the Court states that the Personal Use Exception applies to “visual expressions […] created through the efforts of a single individual and held by that person for his or her eyes alone” (at para 115). This passage suggests that the Personal Use Exception applies to Selfies held exclusively by the person who took the Selfie. But the Court later states that the Private Use Exception applies to “auto-depictions, such as photographs taken by a child or adolescent of him- or herself alone, kept in strict privacy and intended for personal use only” (at para 116). As this passage expressly deals with Selfies, it appears that the Court intended the Personal Use Exception to be limited to “visual expressions” like drawings, not actual recordings, like photographs.

In contrast, the Private Use Exception appears to apply to Selfies, but arguably not when they are shared with a partner. The Court’s summary of the Private Use Exception in Sharpe (at para 128) which it reaffirms in Barabash (at para 16) states that the Private Use Exception applies only to “a person’s possession of visual recordings created by or depicting that person.” In consequence, when a minor sends a sexually explicit Selfie to their partner, arguably neither can benefit from the Private Use Exception because the recipient neither participated in the creation of, nor is depicted in, the recording.

The Court’s elaboration on the Private Use Exception provides further support to the inapplicability of the Private Use Exception to Sexting Selfies. As stated above, the Court appears to limit the application of the Private Use Exception to Selfies “intended for personal use only” (at para 115). Similarly, the Court, in elaborating on the Private Use Exception, reiterates that “the person possessing the recording must have personally recorded or participated in the sexual activity in question” (at para 39) and that the recording must be “intended exclusively for private use by the creator and the persons depicted therein” (at para 26). Indeed, the Court specifically discusses the example of minors exchanging sexually explicit photos, and that discussion seems to suggest that Selfies would not fall within the Private Use Exception:

[F]or example, a teenage couple would not fall within the law’s purview for creating and keeping sexually explicit pictures featuring each other alone, or together engaged in lawful sexual activity, provided these pictures were created together and shared only with one another (at para 116; emphasis added).

Similarly, the Court in Barabash states that “private use is limited to use by the creator and the persons depicted, and nobody else” (at para 52).

In sum, the Court in Sharpe and in Barabash appears to hold that if a minor takes a sexually explicit Selfie and sends it to their partner, both partners will be criminally liable.

That said, neither Sharpe nor Barabash, in respect of their facts, dealt specifically with minors exchanging sexually explicit Selfies. Further, the broader principles described in Sharpe arguably apply to minors exchanging sexually explicit Selfies. The majority in Sharpe read in the Private Use Exception because of the significance of private recordings to “adolescent self-fulfilment, self-actualization and sexual exploration and identity” (at para 109). Surely a partner need not press the button on the camera for the exchange of sexually explicit photos to engage with adolescent sexual exploration.

In our view, whether the exchange of Selfies should be protected by the Sharpe Exceptions is legitimately controversial. On one hand, we would guess that most sexually explicit photos exchanged by minors are Selfies (though Canada seems to lack studies in this regard). As a consequence, excluding what could be the most common way minors choose to explore their sexuality with their partners through photographs from protection intended to preserve that exploration seems misguided. Insisting that a minor’s partner literally take the photo, when that minor may only be comfortable with sending an explicit photo which they have taken (and retaken, and possibly edited) themselves, significantly depreciates the sexual autonomy of minors which the Private Use Exception seeks to preserve. Indeed, requiring that the photo be taken by a minor’s partner may pressure minors to be in sexually compromising positions earlier than they are comfortable with since some minors may be comfortable with sharing nude photos but uncomfortable with being nude in the presence of their partner (where the pressure for sexual activity may be more intimidating). On the other hand, permitting a minor to take sexually explicit Selfies and send them to others may raise concerns about proliferating child pornography and facilitating the manipulation of minors by sexual predators. In particular, if Sexting Selfies can qualify under the Private Use Exception, then adults will be able to convince minors through online exchanges to send them sexually explicit photos that could be protected by the Private Use Exception. While insisting that the adult take the photo may seem misplaced, a minor may very well be comfortable sending a photo of themselves, but uncomfortable being physically present with the adult when the photo is taken, which could indirectly result in fewer minors being manipulated by adults since there will be no legal means (that they are comfortable with) of sharing sexually explicit photos with those adults.

Regardless of whether Sexting Selfies should be included within the scope of the Sharpe Exceptions, greater clarity in respect of how the law should address such materials will be a welcome addition to the Supreme Court’s next foray into child pornography laws.

We note, parenthetically, that Cockell involved sexually explicit Selfies (see para 42). Interestingly, the Court of Appeal did not reason that the accused could not benefit from the Private Use Exception in respect of those Selfies because he was neither depicted in them nor created them (pursuant to para 116 of Sharpe). Instead, the Court of Appeal merely mentioned that some of the recordings at issue were Selfies in passing while discussing the (now defunct) mutuality of benefit criterion (at para 42).

3. Can A Party Later Retract Consent To Recording?

Third, how should courts deal with the situation when a party to a recording later retracts their consent to the recording (either by demanding its return or destruction)? While this issue is clearly in obiter as retracting consent was not at issue in Barabash (at para 27) it nonetheless raises interesting questions to explore.

According to the Court, a party’s right to later retract consent to recording follows from how applying the Private Use Exception depends on the “ongoing nature of the possession” (at para 29). For example, privately-held recordings that are protected by the Private Use Exception are no longer protected by the Private Use Exception the moment they are shared with third parties, even if that sharing occurs decades later. And that sharing may not only make the current possession of that child pornography illegal; it may reach back in time to make its creation illegal as well (see Sharpe at para 118). In this way, the Private Use Exception is a ‘living defense’ that must be tested against the entire history of the recording, not just the moment the recording is created. As a consequence, the Court reasons that the minor’s ongoing consent to the recording could, likewise, be a ‘living’ requirement of the Private Use Exception which, if retracted, may vitiate the protection of the Private Use Exception (Barabash at para 29).

To be clear, the Court, even after acknowledging that this issue is in obiter, uses equivocal language regarding the right for a minor to retract consent to recording and vitiate the Private Use Exception (e.g. “[i]t may well be” and “Sharpe suggests” that a minor has such a right; at para 30). Indeed, the Court expressly states that it “would not make any final pronouncement” on this issue (at para 30).

Still, the Court outlines persuasive obiter commentary in favour of minors retaining the right to retract consent to recording. Specifically, the Court describes how providing such a right would further the principles underlying the Court’s decision in Sharpe and balance the right to freedom of expression with protecting children from harm, such as the anxiety or stress they may feel about having such a recording in the possession of another person (at para 30). But as the Court provides only limited obiter commentary on this issue, the Court provides no guidance as to the process or implications of a child requesting that the recording be destroyed. How long would the person possessing the recording have to delete it before being subject to criminal liability? If the person refrained from deleting it, under what offence would they be charged? Can the adult demand that the recording be destroyed even if the minor wishes to preserve it? What if the recording contains two minors, one who later demands that it be destroyed, and another who insists on its preservation? All of these questions will require further clarification from the Court when facts engaging those questions ultimately arise.

In particular, it is relatively unique for a private citizen to have the power to transform legal conduct into criminal conduct at their sole discretion and possibly years after the initially non-criminal activity took place. However, in Ten Minutes on Barabash, Professor Sankoff notes (at 11:07) that this unconventional application of the criminal law follows from the unique ongoing operation of the Private Use Exception. Any material showing a minor engaged in sexual activity is “frozen in time” (at 12:19) and would be child pornography, even many years later, but for the presence of the Private Use Exception (which requires the consent of all parties to the recording). As a consequence, according to Professor Sankoff, the Private Use Exception no longer applies when a minor retracts their consent to the recording. While we agree with Professor Sankoff that a recording will likely transform into illegal child pornography “at [the] very moment” a party later retracts their consent (at 12:35), clearer guidelines in respect of how that retraction must be communicated to the individual possessing the recording and reasonable parameters for destroying the recording (e.g. how it should be destroyed, how much time you have to destroy it) are important to ensure that such an offence does not cast too broad a net of criminal liability.


Barabash brings greater clarity to the analytical framework for the Private Use Exception. At a minimum, this clarity should result in courts applying the Private Use Exception with greater precision and consistency. At best, with effective outreach to minors, this clarity may help provide young people with clearer parameters in respect of exploring their sexuality while being secure from abuse and exploitation. Still, even with the greater clarity brought by Barabash, many questions remain unanswered. Hopefully, with the clear foundation provided in Barabash, courts will be better-equipped to grapple with these new questions as they arise.

It is understandable for the Court to refrain from providing specific legal guidance on the unanswered questions discussed above given that none were present on the facts in Barabash. Indeed, the many nuances described above demonstrate how factually complex these issues can be and how attempting to address them without the benefit of specific facts and arguments may be premature. That said, clarity in the criminal law is fundamental to a just society (R v Levkovic, 2013 SCC 25 at paras 33-34). With these questions left unanswered, there is significant ambiguity in what conduct is legal and how courts should treat it, particularly the conduct of minors exchanging sexually explicit Selfies. Only time will tell how these issues will be addressed in future cases. For now, it may be best for minors to keep things to themselves.

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Entering the Fray for Self-Represented Litigants

Mon, 06/22/2015 - 10:50am

By: Ian Pillai

PDF Version: Entering the Fray for Self-Represented Litigants

Case Commented On: R v Crawford, 2015 ABCA 175

Judicial interventions are common in trials involving self-represented litigants, especially in family and civil courts. According to a report authored by Dr. Julie Macfarlane in 2013, self-represented litigants face a range of negative consequences as a result of representing themselves, including “descriptions of negative experiences with judges, some of which suggest basic incivility and rudeness.” However some judicial interventions are more positive, such as advice on court procedure or coaching on presentation. (The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants at 13) Judges find themselves in a difficult position when one party is represented by counsel, and the other is not. Some interventions are necessary.

Although the accused in Her Majesty the Queen v Kimani Gavin Crawford, 2015 ABCA 175, was not a self-represented litigant, the case is interesting because the Alberta Court of Appeal ordered a new trial on the grounds that the trial judge’s numerous interruptions rendered the trial unfair. The multiple interventions by the court led to the appearance that the trial judge had entered the fray and left judicial impartiality behind (at para 7).


The appellant, Kimani Crawford, was convicted of theft of an automobile and being a party to a robbery committed with the use of a firearm. Crawford appealed his conviction on two grounds: first, that the trial judge interfered too often in the examination and cross-examination of witnesses and thus compromised the fairness of the trial, and second, that the judge erred in finding that the pellet gun used in commission of the offence was a firearm for the purpose of s 344(1)(a.1) of the Criminal Code, RSC 1985, c C-46.

The Court of Appeal Decision

The Alberta Court of Appeal allowed the appeal on both grounds and ordered a new trial. Martin J.A., writing for the majority, referred to several inappropriate judicial interventions that undermined the appearance of a fair trial.

Martin J.A. considered the appropriate level of judicial advocacy during a trial. He noted that the judicial process is not compromised by interventions from the court to clarify an unclear answer, to resolve a misunderstanding of testimony or to correct inappropriate conduct by counsel or witnesses (at para 17). Nor is the appearance of impartiality undermined when a judge asks questions that should have been asked by counsel (at para 8). Yet such situations are rare, and as the Court pointed out, the task of posing questions to a witness that counsel should have asked must be approached with care (at para 13).

Martin J.A. relied (at para 12) on the decision of Lamer J (as he then was) in R v Brouillard, [1985] 1 SCR 39 at 42-43, 16 DLR (4th) 447, for instructions on when a trial judge descends into the arena of counsel:

When this happens, [that a judge steps down from the bench and assume the role of counsel] and, a fortiori, when this happens to the detriment of an accused, it is important that a new trial be ordered, even when the verdict of guilty is not unreasonable having regard to the evidence, and the judge has not erred with respect to the law applicable to the case and has not incorrectly assessed the facts.

The Court of Appeal, after reviewing the transcript, indicated concern both with the number and the nature of the interventions throughout the trial. The trial judge’s interventions in leading Crown witnesses during cross-examination were found to be inappropriate. Of particular concern to the Court of Appeal was the trial judge’s cross-examination of the Appellant on his involvement in an unrelated robbery, on which the Crown and defence declined to examine the appellant (at para 22). The Court also referred (at para 18) to R v Stewart (1991), 62 CCC (3d) 289, 43 OAC 109 (ONCA), suggesting that the cumulative effect of the trial judge’s interventions combined to create an overall appearance of unfairness.

The Court of Appeal followed (at para 16) the test respecting the fairness of the trial process, as is outlined in R v Valley (1986), 13 OAC 89, 26 CCC (3d) 207 (ONCA). The question to ask is not whether the accused was in fact prejudiced but “whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial.”

In reply to the Respondent’s argument, the Court gave little weight to the fact that defence counsel did not object to the interventions at trial. As Martin J.A. pointed out (at para 20), “[o]bjecting to questions put by a trial judge whose responsibility it is to decide the appellant’s fate, is a delicate task at best, and counsel may be forgiven for not rising to the challenge.”

Martin J.A. added that any harm caused by the trial judge’s questioning could not be cured by the judge asking counsel whether they had any questions arising. An invitation to ask further questions, on a topic that should not have arisen, does not restore the apparent loss of neutrality by the trial judge (at para 22).

Finally, the second ground of appeal, whether the pellet gun was a “firearm” for the purpose of s 344(1)(a.1) of the Criminal Code, was also allowed (at paras 24-37). The case, however, is more notable for its instructions to trial judges on inappropriate court interventions.

Application to Self-Represented Litigants

A judge’s role within a trial is primarily to ensure a fair trial. To do this, a trial judge often has to interrupt court proceedings. At times this will be to the benefit of the self-represented accused, for example, when the accused does not have the skills to question a witness properly. Other times, interventions will benefit the interests of the Crown, so as to prevent the accused from derailing the trial.

In Crawford (at para 23), Martin J.A. wrote “I wish to emphasize that this was a trial where the accused was represented by counsel; a judge may have a somewhat greater latitude to question witnesses when the accused is unrepresented by counsel.”

When allowing a trial judge “a somewhat greater latitude”, Martin J.A. meant more leeway should be afforded to a trial judge when questioning a witness for the benefit of a self-represented accused. But the Court of Appeal’s paucity of instructions to judges when handling self-represented litigants is troubling. Ideally, the Court of Appeal could have provided a protocol, or a step-by-step process, to guide a judge in their treatment of self-represented accused. Certainly, such a process would not only help future self-represented litigants, but also legal counsel and poverty law clinics such as Student Legal Assistance. The Court had an opportunity to provide more direction to lower courts regarding self-represented litigants but failed to take it.

Perhaps the Court did not want to articulate a protocol because it believes there should be no unique treatment for self-represented litigants in a trial process. In the case of K(P.E.) v K(B.W.), 2004 ABCA 135, Wittman J.A. (as he then was) expressed the Court’s view on a separate set of procedures for self-represented litigants (at para 7):

First, the mother urges us to take into consideration that she was self-represented when this matter was heard before the chambers judge. While we are sympathetic to her position, there are not two sets of procedures, that is, one for lawyers and one for self-represented parties. In the absence of special provisions, our courts will apply the same legal principles, rules of evidence, and standards of procedure regardless of whether litigants are represented by counsel or are self-represented.

Similarly, Rule 1.1(2) of the Alberta Rules of Court does not allow for lenience to a self-represented litigant, as it states:

These rules also govern all persons who come to the Court for resolution of a claim, whether the person is a self-represented litigant or is represented by a lawyer.

In 2006, the Canadian Judicial Council adopted a Statement of Principles on Self-represented Litigants and Accused Persons. The Statement is advisory in nature and not intended to be a code of conduct. Higher courts from provinces across the country have adopted the advice from the Statement in part or in whole (see e.g. Cole v British Columbia Nurses’ Union, 2014 BCCA 2 at para 36; Cicciarella v Cicciarella, 2009 CanLII 34988 (ON SCDC) at para 45; Deschênes c. Valeurs mobilieres Banque Laurentienne, 2010 QCCA 2137 at para 37), yet Alberta has not explicitly done so. The Statement outlines principles for those who are participants in litigation with a self-represented litigant, including the judiciary. Of particular importance are principles 3 and 4 under the heading “Promoting Equal Justice”:

  1. Where appropriate, a judge should consider engaging in such case management activities as are required to protect the right and interests of self-represented persons. Such case management should begin as early in the court process as possible.
  1. When one or both the parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may:

(a) explain the process;

(b) inquire whether both parties understand the process and the procedure;

(c) make referrals to agencies able to assist the litigant in the preparation of the case;

(d) provide information about the law and evidentiary requirement;

(e) modify the traditional order of taking evidence; and`

(f) question witnesses.

Lord Chancellor Francis Bacon (1561-1626) in Essays, Civil and Moral, observed that “Patience and gravity of hearing, is an essential part of justice; and an overspeaking judge is no well-tuned cymbal.” The phrase is most applicable to situations when both parties are represented by counsel. Yet often there are times, such as when one party is self-represented, that a judge needs to over speak, for the purposes of promoting equal justice and access to justice.

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Why We Should Care About Magna Carta

Fri, 06/19/2015 - 10:00am

By: Ian Holloway

PDF Version: Why We Should Care About Magna Carta

I write this just as I’m returning to Canada from Runnymede, England. The Queen was there, as were the Duke of Edinburgh, the Princess Royal, and Prince William. The five of us — along with a thousand others from all over the world — were gathered to commemorate, and to celebrate, the 800th anniversary of the sealing of Magna Carta by King John on June 15, 1215.

So what’s the big deal? Why is it that a document that, as a British civil servant once described it, is nothing more than an archaic piece of paper with no intrinsic value, should attract such attention?

After all, while bits of it continue to have the force of law, the majority of Magna Carta’s provisions reflect little more than an incoherent jumble of individual grievances from King John’s nobles. Moreover, John himself showed his disdain by reneging on the deal a mere nine weeks later. And the Pope formally nullified it as soon as he became aware of its terms.

Oliver Cromwell — someone not normally known for his sense of humour — called it “Magna Farta.”

So why were a thousand of us assembled in an English country meadow this morning?

It’s because Magna Carta has come to stand for much more than it actually was. Magna Carta the reality was simply one more tawdry nail in the coffin of the disastrous reign of the man who was perhaps the worst king in English history. Magna Carta the illusion is one of the most important events in the evolution of our constitutional system.

What gave Magna Carta its enduring life was not the events of 1215, but rather the constitutional tumult that beset England 400 years later, during the jockeying between the King, Parliament, and the courts for power in the aftermath of the end of the Tudors and the ascension to the English throne of the Scottish house of Stuart.

The Tudors — chiefly Henry VIII and Elizabeth I — had overseen a significant decentralization of state power. When the Scottish King James assumed the English throne and tried to assert absolute authority, the institutions of government pushed back. And the tool they chose to justify their resistance was Magna Carta.

The hero of the story — assuming that one likes our current vision of the rule of law — was the jurist Sir Edward Coke, who served as chief justice between 1606-16. During that time, he almost single-handedly brought Magna Carta back to life.

Magna Carta’s language was feudal. Coke translated it for a post-feudal world. It was he who declared that Magna Carta “hath no fellow,” and it was he who held conclusively that because of Magna Carta, the king himself was under the law. It was Coke who gave legal meaning to the hapless John’s capitulation to the barons.

Coke rewrote history in a way that suited his political ends, and in so doing, he made Magna Carta seem relevant to a society that by now had developed a concept of constitutionalism.

Magna Carta is an icon. Few can fail to be stirred by clause 40, for example, which provided that: “To no one will we sell, to no one will we deny right or justice.” Or by clause 39, which talked about judgment by one’s equals.

But the fact is in the 300 years following John’s reign, Magna Carta was not considered particularly important. Measured against its own text in its own time, Magna Carta was a failure. But what it became in the Stuart period was a tool; a tool to legitimize judicial review of royal action. And a very successful tool it proved to be.

In law as in comedy, timing is everything. And Coke’s time on the bench had the good fortune to coincide with the beginning of British colonization of the New World. As the first colonists left England in search of greater freedom, and as they later nurtured a full slate of grievances against the Crown, Coke’s formulation that the king was under the law proved to be a useful justification both for declaring independence and for enshrining a Bill of Rights a few years afterwards.

That’s why Americans today revere Magna Carta more even than the English. Indeed, the monument to Magna Carta at Runnymede was actually paid for and dedicated by the American Bar Association.

Typically for Canada, our history with Magna Carta has been more subdued. Americans like to wear their iconography on their sleeves. We generally don’t. But even unacknowledged, Magna Carta was — and is — an important tool in Canada, too. For without the tradition of judicial assertiveness it gave rise to in the United States, it is difficult to imagine that our own Charter of Rights and Freedoms would have taken on the life it has.

That’s why we should be conscious of Magna Carta. When we adopted our own Charter in 1982, we enshrined Coke’s picture of Magna Carta. How can we not make sure that we actually understand it?

This post originally appeared on Legal Feeds, the Blog of Canadian Lawyer and Law Times.

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Court of Appeal Confirms ISO Rule on the Allocation of Intertie Capacity

Thu, 06/18/2015 - 10:00am

By: Nigel Bankes

PDF Version: Court of Appeal Confirms ISO Rule on the Allocation of Intertie Capacity

Case Commented On: Saskatchewan Power Corporation v Alberta (Utilities Commission), 2015 ABCA 183

With the commissioning of the Montana/Alberta intertie – a transmission line for electric energy connecting neighbouring transmission systems and allowing the transfer of electricity between jurisdictions – the Independent System Operator (ISO), operating under the name of the Alberta Electric System Operator (AESO), concluded that its existing last-in-first-out rule for the allocation of available transfer capability (ATC) on interties operated unfairly. It therefore engaged in a rule-making exercise as provided for under ss.20 – 20.4 of the Electric Utilities Act, SA 2003, c E-5.1 (EUA) resulting in the adoption of a proposed new ISO Rule on Available Transfer Capability and Transfer Path Management. The new Rule adopts a pro-rata methodology for allocating ATC. Section 20.2(1) of the EUA requires the ISO to file the proposed rule with the Alberta Utilities Commission (AUC) so as to give market participants (MPs) the opportunity to object in s.20.4(1):

20.4(1) A market participant may object to an ISO rule that is filed under section 20.2 on one or more of the following grounds:

(a) that the Independent System Operator, in making the ISO rule, did not comply with Commission rules made under section 20.9;

(b) that the ISO rule is technically deficient;

(c) that the ISO rule does not support the fair, efficient and openly competitive operation of the market;

(d) that the ISO rule is not in the public interest.

Several MPs availed themselves of this opportunity but the AUC ultimately concluded in AUC Decision 2013-025 that (at para 1) it had “not been persuaded that the rule is against the public interest or the fair, efficient and openly competitive operation of the electricity market in Alberta or that the rule is technically deficient.” Several MPs thereupon sought and were granted leave to appeal the AUC’s decision on two grounds: (1) did the AUC err in law in its interpretation of s.29 of the EUA by finding that the Operator was required by statute to provide system access service to intertie operators; and (2) did it err in law in its interpretation of s.16 and/or s.27 of the Transmission Regulation, Alta Reg 86/2007 (TReg)? In this decision the Court of Appeal dismissed those appeals thereby confirming both the AUC Decision and the ISO Rule. Both grounds of appeal seem to have been argued under s.20.4(d) of the EUA and on the basis that an unreasonable interpretation of any of the above provisions would necessarily result in a conclusion that was not in the public interest. There was also a more general public interest argument which is discussed in the final paragraphs of this post.

Statement of the Problem

In order to understand what the issue was it is useful to know a little bit about just what available transfer capacity (ATC) is. An intertie, like any other transmission line, will have a “path rating” which “is generally determined by the physical characteristics of the line or lines, such as the type of material in the wiring, the line capacity, transformer capacity, and other factors” (AUC at para 18). However, the amount of energy than can be safely and reliably transmitted on an intertie will typically be less than the path rating, principally for system reliability reasons in each of the interconnected jurisdictions. As a result the Total Transfer Capacity (TTC) will be less than the path rating. The TTC may be further reduced by a transmission reliability margin (TRM) which is “the amount of transfer capability necessary to ensure the reliably operation taking into account uncertainties in system conditions and the need for operating flexibility” (AUC at para 19). Thus available transfer capacity (ATC) is TTC minus the TRM (AUC, id).

Prior to the construction of the Alberta/Montana intertie Alberta was only connected to British Columbia and Saskatchewan. The Saskatchewan intertie differs from the BC and Montana interties in one significant way. Whereas BC, Montana and Alberta are all part of the Western Electricity Coordinating Council (WEEC) and operate synchronously, Saskatchewan is part of the Midwest Reliability Organization (MRO) and operates synchronously with its MRO partners rather than with the WEEC.

The problem that arises when adding new intertie capacity is that the new capacity will not itself resolve underlying system reliability concerns; these system reliability concerns continue to limit the full deployment of the rated capacity of all interconnections which operate synchronously, with the result that the ATC will not increase in a linear way with the rated capacity of additional new intertie capacity. The addition of a new player in the intertie market therefore tends to increase competition for the available transmission capacity. Thus the ability to make full use of the rated capacity of interties depends upon the qualities of each of the neighbouring interconnected systems. The AUC put it this way in a crucial passage which clearly informs how one thinks about the ATC “resource”; the last sentence is particularly telling:

It is clear to the Commission that ATC is a measure of the ability of an interconnected electric system to transfer electric energy from one jurisdiction to another and is the result of the conditions within each of the interconnected electric systems. The Commission concludes that interties do not in and of themselves create ATC, but rather they enable (up to the path rating of the intertie) the transfer of electric energy between neighbouring interconnected electric systems (up to the transfer capability of each of those interconnected electric systems). The Commission concludes that ATC should be treated as a system resource which does not inure to the benefit of any particular market participant or facility owner (AUC at para 69, emphasis added).

The dispute in this case was therefore between the incumbents who argued for preferential access to ATC and those who argued that there could be no vested rights in ATC. One final fact is worth emphasizing. With the exception of the Montana/Alberta intertie (MATL), all transmission in Alberta, while privately owned, is subject to rate regulation by the AUC. This is not the case for MATL, which is a so-called merchant transmission line. This led to the argument that existing ATC capacity had effectively been funded by Alberta ratepayers and therefore should not be shared (for free) with MATL.

It has been well known for years that overall system reliability issues on the Alberta Interconnected Electric System had reduced ATC on the existing interties. The province recognized this when it adopted its Transmission Development Policy in 2003 (at 10). The problem is also recognized in the text of s.16 of the TReg which, as originally adopted in 2007, provided as follows:

16 (1) In making rules under section 20 of the Act, and in exercising its duties under section 17 of the Act, the ISO must prepare a plan and make arrangements to restore each intertie that existed on August 12, 2004 to, or near to, its path rating.

(2) The plan to restore interties to their path ratings must specify how the ISO intends to restore and maintain each intertie to, or near to, its path rating without the mandatory operation of generating units.

(3) The plan to restore and maintain interties must be incorporated into and form part of the transmission system plan as soon as practicable.

Crucially however, s.16 was amended in 2010 to add a new subsection (4):

(4) This section shall not be interpreted as meaning that priority should be given to interties that existed on August 12, 2004 over interties existing after that date in respect of the allocation of available transfer capability.

As noted above, there were two grounds of appeal. The first ground dealt with s.29 of the EUA and the ISO’s duty to provide system access service. The second set of grounds of appeal dealt with issues relating to priority of access and the responsibility for the costs associated with increasing available transfer capacity. All parties agreed (at paras 2 – 23) that the standard of review for all of these questions was reasonableness.

Section 29 of the EUA and the Duty to Provide System Access Service

Section 29 of the EUA provides that the ISO “must provide system access service on the transmission system in a manner that gives all market participants wishing to exchange electric energy and ancillary services a reasonable opportunity to do so.” In interpreting this section and in particular the meaning of “reasonable opportunity”, the AUC also took into account the purposes of the EUA including s 5(b) which states that access to the power pool should be available on a non-discriminatory basis to all persons wishing to exchange electric energy. This allowed the AUC to conclude (at para 92) that “a reasonable opportunity for system access service constitutes non-discriminatory access and equal treatment of market participants, subject to any … requirements for maintaining safety and reliability of the AIES where there may be insufficient transmission available. The Commission considers this reasonable opportunity for system access applies equally to generators and interties.”

The Court of Appeal was clearly of the view that this was a reasonable interpretation and one that was not inconsistent with previous AUC decisions (CA at paras 34 – 47).

Section 16 of the Transmission Regulation and Priority of Access

I have quoted s.16 above and referred to the evolution of the section. The Commission’s interpretation of s.16(4) is crucial. The AUC took the view that the office of s.16(4) was to prevent “sections 16(1) through (3) being taken as the basis for giving the interties existing on August 12, 2004 priority in respect of ATC allocation” (AUC at para 226). This interpretation was not inconsistent with the goal of the previous subsections but it meant that “the AESO is required to allocate ATC on a non-priority basis between interties.” The Commission recognized that “In certain circumstances this allocation may diminish ATC on the existing interties, but the AESO is in no way relieved of its legislated obligation to eventually restore those existing interties as set out in Section 16(1)” (AUC at para 228). In other words, the duty to restore the capacity of existing interties could not be used as a means of establishing a priority of access of those interties to the ATC.

Once again the Court of Appeal was not persuaded that the AUC’s decision was an unreasonable interpretation of these apparently conflicting policy objectives (restoring path capacity and no vested rights). The Court put it this way (at para 59):

Although some of the appellants’ suggested interpretations are not outside the realm of “possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir), none of their arguments persuade us that the Commission’s interpretation of section 16 was unreasonable. – sec16subsec4_smoothSection 16(4) was enacted when knowledge of the Montana intertie can be inferred. The Legislature stated that the restoration requirements should not be read so as to confer a priority on the existing interties. The Supreme Court’s decision in McLean makes it clear that we are not to interfere with the decisions of an expert tribunal when it interprets its home statute unless the interpretation is one the statutory language cannot bear. That has not been demonstrated here.

Section 27 of the Transmission Regulation and the Duty to Cover Intertie Costs

Section 27 of the TReg deals with the duty of proponents to cover the amounts associated with the cost of planning, designing, constructing, operating and interconnecting an intertie. In particular, s.27(4) provides that:

27(4) The cost of planning, designing, constructing, operating and interconnecting an intertie to which this section applies must be paid by

(a) the person proposing the intertie, and

(b) other persons to the extent that they directly benefit from the intertie, based on the use described in the needs identification document approved by the Board, and then only to the extent permitted by the ISO tariff.

Several MPs argued that the proposed ATC rule was inconsistent with s.27 and therefore not in the public interest insofar as it effectively reallocated ATC from incumbents to the Montana/Alberta intertie which was a merchant proposal. This would require ratepayers to fund the cost of grid reinforcements that the ISO would be required to undertake in order to restore capacity as required by s.16 of the TReg (AUC at paras 231 – 243). The AUC’s response was really two-fold. First, it concluded that “there is no evidence persuading it that the costs described in [s.27(4)] ….. have not been paid by the operator of the MATL intertie” (AUC at para 244). The Court of Appeal noted that this finding was not disputed on appeal (at para 65). Second, the Commission was of the view that since ATC was a system resource the cost of increasing ATC should be a system cost rather than a cost allocated to any particular intertie proponent (AUC at paras 246 – 248). This too was not an unreasonable conclusion in the opinion of the Court of Appeal (at para 70).

General Public Interest Considerations

In addition to the more specific statutory interpretation arguments examined above there was also a more general public interest argument to the effect that a scheme that shared rate-payer funded ATC with a merchant line could not possibly be in the public interest. The Court of Appeal summarized the argument as follows (at para 73):

The appellants assert that given the undisputed facts, it cannot be in the public interest (i.e., in the interest of Alberta ratepayers) to allocate ATC to the privately owned and for-profit Montana intertie as proposed by the ATC Rule. Doing so would unfairly deprive Alberta ratepayers of the benefit of ATC, which their rates indirectly funded. Linked to this submission is that the decisions approving the Montana intertie mandated that it not have an adverse financial impact on Alberta ratepayers and any incremental costs associated with it were required to be borne by its owner, Montana Alberta Tie Ltd. They say the ATC Rule will have an adverse financial impact on ratepayers, which is inconsistent with previous Commission decisions. A further submission is that the Commission did not squarely address the public interest consideration until after it concluded that section 29 obligated it to give the Montana intertie equal treatment. This, the appellants submit, is backwards. In summary, the appellants argue that ATC is a public good, paid for by Alberta ratepayers, and should not be shared with or allocated to a private, for-profit entity on the same terms as it is allocated to the existing ratepayer-funded intertie operators.

It is not clear to me that the issue was expressly framed this way before the AUC but the Court dismissed the argument summarily (CA at para 74) largely, I think (and to some extent reading between the lines), on the basis that this was simply a different (and perhaps rhetorically more powerful way) of putting the earlier arguments based on a vested entitlement. That argument had already been disposed of largely on the basis of the ISO’s overriding duty of non-discriminatory access.

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Eligibility for Nomination under the Local Authorities Election Act (Alberta)

Wed, 06/17/2015 - 10:00am

By: Shaun Fluker

PDF Version: Eligibility for Nomination under the Local Authorities Election Act (Alberta)

Case Commented On: Mueller v Oko, 2015 ABCA 194

This short decision from the Court of Appeal considers the challenge by Mueller to the eligibility of Oko to be nominated as school board trustee in September 2013 for the Evergreen School Division under the Local Authorities Election Act, RSA 2000 c L-21. Mueller alleges that Oko was ineligible to be nominated because he was employed with the Pembina School Division at the time of his nomination and failed to take a leave of absence as required by section 22 of the Act. Justice Hillier dismissed Mueller’s application for judicial review in January 2014 and this post concerns the appeal of Justice Hillier’s decision.

The Local Authorities Election Act governs election procedures for municipalities and school districts in Alberta. Section 22 governs eligibility for nomination to elected office. Among other grounds of ineligibility, section 22 states that a person is not eligible to be nominated for elected office in a municipality if that person is employed by the municipality or is indebted to it (e.g. property taxes owed for a previous taxation year). Similarly section 22 states that a person is not eligible to be nominated for election as a school board trustee if that person is employed by any school district in Alberta. A distinction of note here with respect to school districts is that the section 22 employment ineligibility applies to all districts in the province, not just the one in which the candidate seeks to be nominated. The broader scope of ineligibility for school districts (as compared to municipalities) was enacted by legislative amendment in 2004. In its 2007 decision in Baier v Alberta, 2007 SCC 31, the Supreme Court of Canada ruled that this broader restriction for school districts does not violate sections 2(b) or 15(1) of the Charter.

In this case, Mueller claims that Oko was ineligible to be nominated for election to the Board of Trustees for the Evergreen School Division because at the time of his nomination he was employed by the Pembina School Division. The facts of the case indicate that Oko had a contract to provide marking services for the Alberta Distance Learning Centre administered through the Pembina School Division at the time of his nomination. The legal issue before the Court is the meaning of “employed” as found in section 22 of the Act and whether by virtue of the marking contract Oko was employed by the Pembina School District and thus ineligible to be nominated for the Evergreen trustee position because he failed to obtain a leave of absence from his position with Pembina.

The Court’s reasons provide a straightforward run through on the principles of statutory interpretation in Canada (at paras 13 to 19). The Act does not provide a definition of “employed” and the Court of Appeal observes that a word in a statute takes its ordinary meaning unless altered by the legislature. Likewise, the legislature is presumed not to alter the common law meaning of a word unless it does so expressly. In the absence of any legislated definition here the Court finds that the common law defines employment as a master-servant relationship. The Court also notes the context in section 22 supports this meaning with the use of phrases such as “leave of absence” and “return to work”. The Court also observes that the School Act, RSA 2000 c S-3, allows trustees to maintain certain contractual relations with their Board so long as they comply with conflict of interest rules, and thus these provisions would be redundant if nominees were precluded from holding contractual provisions such the one held by Oko. The legislature does not draft gratuitously. The Court agrees with the earlier finding by Justice Hillier that Oko was an independent contractor with Pembina. The Court rules that this contractual relationship is not within the meaning of “employed” as found in the Act (at paras 20 – 24).

The case is dealt with by statutory interpretation, however the Court also notes that Mueller raised certain legal arguments for the first time on appeal (at para 21). Generally speaking, appellate courts are reluctant to hear a new argument on appeal. This reluctance is in part because of concerns over whether there was a sufficient factual or evidentiary record in the lower proceedings to support the new argument.

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A Trap for the Unwary: Assuming High Ratio Mortgages

Tue, 06/16/2015 - 10:00am

By: Jonnette Watson Hamilton

PDF Version: A Trap for the Unwary: Assuming High Ratio Mortgages

Case Commented On: CIBC Mortgages Inc v Abdallah, 2015 ABQB 363 (CanLII); Bank of Montreal v Hoehn, 2010 ABQB 405 (CanLII)

Five years ago, in Bank of Montreal v Hoehn, Master Jodi L. Mason decided that one small piece of consumer protection legislation was not properly created by Alberta lawmakers in 2003. As a result, a law that should have required a prominent warning to borrowers on high ratio residential mortgages was not available to protect individuals who unknowingly assumed these types of mortgages. The problem Master Mason identified could have been easily remedied by the legislature — but it was not. One of the consequences of the legislature’s failure to act can be seen in CIBC Mortgages Inc v Abdallah. As Madam Justice Barbara Romaine notes in this decision, the absence of mandatory warnings about assuming high ratio mortgages “creates a high-risk scenario for unwary transferees and creates hard cases like this one” (at para 33).


A “high ratio” mortgage is defined by section 1(2) of the Law of Property Regulation, Alta Reg 89/2004 as “a mortgage of land given to secure a loan under which the specific principal sum of the mortgage, together with the specific principal sum of any existing encumbrance on or mortgage of the same land, exceeds 75% of the market value of the land at the time the mortgage is given.” Borrowers who have less than 20% for a down payment for a home can only get a high-ratio mortgage. And in order to get a high ratio mortgage, these borrowers must qualify for mortgage default insurance through the Canadian Mortgage and Housing Corporation (CMHC), Genworth or Canada Guaranty (see Part I of the National Housing Act, RSC 1985, c N-11).

Most borrowers who need a high ratio mortgage are, of course, first-time home buyers. They may have only a five or ten percent down payment. After they buy, if real estate prices tumble or interest rates skyrocket or borrowers lose their jobs, then they may not be able to make their mortgage payments. They may even end up owing more than their home is worth. Although borrowers make large premium payments on mortgage default insurance, the insurance protects lenders, not borrowers, in the event of borrowers’ default. Section 8(2) of the National Housing Act explicitly states: “For lenders, the purpose of insuring housing loans is to indemnify lenders in the event of default by borrowers. The obligations of borrowers or other persons are not released or discharged by that insurance or indemnification” (emphasis added).

However, in Alberta, it is not these risks — risks that any Canadian mortgagor with a high ratio mortgage faces — that explain why adding a prominent warning about high ratio mortgages was considered a good idea in 2003. The real issue in Alberta is deficiency judgments, i.e., if the property foreclosed upon is worth less than the amount owed on the mortgage, who makes up the shortfall?

At common law, lenders had the right to sue borrowers on their personal covenant to pay in mortgages, as well as a right of to recover against the mortgaged property by foreclosing and selling that property. In order words, if mortgaged properties were sold by the lenders for less than was owed on the mortgages, lenders could sue the borrowers and get the difference in a deficiency judgment against borrowers.

In 1939, Alberta’s Social Credit government limited lenders’ remedies to recovery from the land: The Judicature Amendment Act, SA 1939, c 85, s 2. This was originally temporary legislation that reflected the idea that deficiencies based on “distressed” market values were inequitable and contributed to the severity of the Great Depression (Lawrence D Jones, “Deficiency Judgments and the Exercise of the Default Option in Home Mortgage Loans” (1993) 36 JL & Econ 115 at note 6.) Thus, since 1939, lenders who foreclose on residential mortgages given by individual Albertans (not corporations) have been prevented from taking any action against those borrowers beyond taking the property — even if that property is worth less than the amount owing on the mortgage. This is what is known in Alberta as a “conventional mortgage.” And although the anti-deficiency law was originally intended to be only temporary relief, during the 1980s the prohibition on deficiency judgments was strongly defended by the then Progressive Conservative government in legislative debates about one dollar home sales and foreclosures (Alberta Hansard, 20th Legislative, 2d Session, April 3, 1984, 273-381).)

The 1939 anti-deficiency law was modified shortly after because of the enactment of federal legislation — the National Housing Act — to exclude loans made under that Act. As Master Mason explained in Bank of Montreal v. Hoehn, 2010 ABQB 405 (CanLII) at para 11:

In 1945, the right to sue on the covenant was restored for mortgage loans made under the National Housing Act, S.C. 1944, c. 46: The National Housing Loans Act (Alberta), S.A. 1945, c. 6, s. 2. These loans were for a larger percentage of the value of the property secured than allowed in a conventional mortgage. This was part of a federal policy to stimulate the economy and allow greater home ownership. Loans made under the current NHA [National Housing Act, RSC 1985, c N-11] are a permitted exception to section 418 of the Bank Act, S.C. 1991, c. 46, which precludes banks from making mortgage loans that exceed 80% of the value of the property at the time of the loan.

Loans made under the National Housing Act were insured by a federal Crown corporation, the CMHC: Canada Mortgage and Housing Corporation Act, RSC 1985, c C-7. The incentive for financial institutions to lend money to borrowers who would not otherwise qualify for mortgages was for CMHC to insure the loans made. Lenders were put into a “no lose” position, recovering from CMHC if borrowers defaulted.

The result of the 1945 amendment was that, even in Alberta, CMHC was not restricted to recovery from the sale of the land when borrowers defaulted. Borrowers and subsequent buyers who assumed these mortgages were also liable on the covenant to pay in the mortgage. (See Marguerite J Trussler, “Foreclosure of Corporate Mortgages: Update 1984” (1985) 23 Alta L Rev 332 for a review of this legislative history.)

The current version of the ban on deficiency judgments is found in section 40(1) of the Law of Property Act, RSA 2000, c L-7. And it is now section 43(4) of the Law of Property Act that exempts National Housing Act loans insured by CMHC from the anti-deficiency provisions.

The latest change, effective in 2004, put “high-ratio mortgages” insured by private insurers in the same position as those ensured by CMHC. In 1945, CMHC was the only entity in Canada providing mortgage default insurance, but private entities have recently entered the market. This amendment is found in section 43(4.1) of the Law of Property Act. It allows all high ratio mortgage lenders to sue borrowers on covenants to pay, and not just CMHC. On second reading of Bill 29, which introduced this change, the Bill’s sponsor, the then Member for Calgary-Lougheed, explained that “[t]he exemption for CMHC gives CMHC a competitive advantage over its private-sector competitor, the previously mentioned GE Capital Mortgage Insurance Canada, and of course any other private company that may want to enter the mortgage default insurance business in this province” (Alberta Hansard, 25th Legislature, 3rd session, March 27, 2003, 802). Thus, since August 1, 2004, there are more types of mortgages that do not afford borrowers in Alberta protection from being sued for any deficiency.

The government deliberately left out the definition of a “high ratio mortgage” from the amendment to the Law of Property Act. Instead, they left the definition to regulations to be made later “to allow further input on how the term should be defined and whether or not it should reflect the definition of high-ratio mortgage in the federal Bank Act” (Alberta Hansard, 25th Legislature, 3rd session, March 27, 2003, 803). Why the government felt the need to proceed so quickly is not revealed in the Alberta Hansard debates on the amendment, although opposition members’ discomfort with the lack of a definition is. Section 50.1was added to the Law of Property Act by the Legislature to provide that “[t]he Lieutenant Governor in Council may make regulations defining “high-ratio mortgages” for the purposes of sections 43(4.1) and (4.2) and 44(4.1) and (4.2)” (emphasis added).

Under section 1(2) of the Law of Property Act Regulation, “high ratio mortgage” is defined to mean “a mortgage of land given to secure a loan under which the specific principal sum of the mortgage, together with the specific principal sum of any existing encumbrance on or mortgage of the same land, exceeds 75% of the market value of the land at the time the mortgage is given.” In defining what a “high ratio mortgage” is, the Lieutenant Governor in Council (i.e., the executive branch of government, Cabinet) did exactly what the Legislature’s amendment to the Law of Property Act said they could do.

However, the Lieutenant Governor in Council did more than simply define high ratio mortgages. In section 2 of the Law of Property Regulation, Cabinet also demanded lenders add what Justice Romaine refers to as the “High Ratio Warning Statement” to each such mortgage:

2(1) A high ratio mortgage for the purposes of sections 43(4.1) and (4.2) and 44(4.1) and (4.2) of the Law of Property Act must also contain the following statement:

This mortgage is a high ratio mortgage to which sections 43(4.1) and (4.2) and 44(4.1) and (4.2) of the Law of Property Act apply. You and anyone who, expressly or impliedly, assumes this mortgage from you, could be sued for any obligations under this mortgage if there is a default by you or by a person who assumes this mortgage.

(2) The statement referred to in subsection (1) must be published prominently on the mortgage document. (emphasis added)

This “High Ratio Warning Statement” provision came into effect on August 1, 2006. However, it did not last long.

Bank of Montreal v Hoehn

Bank of Montreal v Hoehn, 2010 ABQB 405 (CanLII) involved five test cases brought by two lenders and heard by Master Jodi L. Mason. In each of the five cases, the lenders wanted a deficiency judgment on a high ratio mortgage. In each case, the high ratio mortgage being foreclosed upon did not contain the High Ratio Warning Statement required by section 2(1) of the Law of Property Regulation. The absence of the warning was the only defence the borrowers raised. In answer to that defence, the lenders sought and were granted leave on notice to the Attorney General to argue that section 2 of the Law of Property Regulation was ultra vires the Lieutenant Governor in Council.

By insisting that mortgage lenders add a prominent warning about the high ratio mortgage to every such mortgage, the lenders argued that the Lieutenant Governor in Council had overstepped its authority. Section 50.1 of the enabling statute, the Law of Property Act, merely allowed the regulation to define “high ratio mortgage” and that power was not broad enough to allow cabinet to require a High Ratio Warning Statement on those mortgages. The Master accepted the lenders’ position in a comprehensive judgment that appears to have benefited from thorough arguments by the Attorney General.

It is well established that subordinate legislation must be authorized by the empowering statute (Hoehm at para 25, citing BCPL Holdings Inc. v. Alberta, 2008 ABCA 153 at para 9). The test for determining whether regulations are unlawful because they do not conform to the regulation-making powers of the Governor in Council (if federal) or the Lieutenant Governor in Council (if provincial) were recently considered by the Supreme Court of Canada. In Katz Group Canada v Ontario (Health and Long-Term Care), 2013 SCC 64 (CanLII), at paras 24-28, the Supreme Court summarized how the vires of a regulation is tested:

(1) Is the impugned regulation consistent with the objective of its parent statute – in order to demonstrate invalidity a person must establish that the regulation is not consistent with such objective or that it addresses a matter which is not set out in the regulation-making provision of the parent statute;

(2) There is a presumption of validity such that the onus or burden is on the challenger to demonstrate that the regulation is ultra vires – so where possible a regulation will be read in a ‘broad and purposive’ manner to be consistent with its parent statute;

(3) The inquiry into the vires of a regulation does not involve assessing the policy merits of the regulation, nor does the reviewing court assess whether the regulation will successfully meet its objective. (See Shaun Fluker, “Syncrude v Canada: Where is the gatekeeper when you need one?”)

Master Mason, deciding the matter before her prior to that Supreme Court decision, concluded (at para 61):

The requirement of the High Ratio Statement in section 2 of the LPA does not form part of the definition of “high ratio mortgage” and thus exceeds the scope of power granted by section 50.1 of the LPA. It adds a new substantive requirement that is outside the scope of the LPA. The requirement of the High Ratio Statement has been adopted for a purpose beyond providing a definition, namely to provide a warning of the potential legal consequences of entering into a high ratio mortgage. While this may be a worthy exercise, it is not encompassed by the defining power granted by section 50.1. Section 2 of the LPA Regulation is therefore ultra vires (emphasis added).

In her decision, Master Mason focused on the objectives of the relevant Part of the Law of Property Act, as well as on the regulation-making provision of section 50.1 of the Law of Property Act Regulation, and she also properly ignored the policy merits of the challenged provision of the regulation. Thus it seems likely that the same decision would be reached today using the test in Katz Group Canada v Ontario (Health and Long-Term Care).

Despite the fact that the Attorney General appeared before Master Mason and addressed the vires issue, the government of the day seemed content to do nothing after the provision was found ultra vires. The provision still sits on the books as though it had some legal force. And there does not appear to have been any attempt by either the legislature or cabinet to implement a lawful requirement for a warning about high ratio mortgages. If cabinet thought it was good policy in 2003, why did they not act to implement it lawfully after 2010?

That obfuscating lack of reaction on the government’s part is what brings us to the June 5, 2015 decision of Madam Justice Barbara Romaine in CIBC Mortgages Inc v Abdallah.

CIBC Mortgages Inc v Abdallah

Justice Romaine was hearing an appeal from a decision of a Master, coincidently Master Mason. The appellant, Mr. Abdallah, assumed a mortgage when he bought a condominium. When he defaulted on the mortgage and the lender foreclosed, the Master found him liable for a deficiency judgment under the covenant to pay in the mortgage and section 58 of the Land Titles Act, RSA 2000 Chapter L-4. This Land Titles Act provision codifies a covenant of indemnity between a buyer and seller of land and creates privity of contract between the buyer and the seller’s lender, so that the lender can sue the buyer who assumed the mortgage directly (at paras 18-26).

On the appeal, Mr. Abdallah argued that he thought he assumed a conventional, as opposed to a high-ratio, mortgage. He thought this because, when he assumed the mortgage, there was nothing in the mortgage to indicate that it was granted under the National Housing Act or that it was high-ratio. Neither was he advised of his potential liability prior to his assuming the mortgage. Indeed, at the time he assumed it, the mortgage was not in fact high-ratio to the value of the property; Mr. Abdallah bought the property for $199,000 and assumed a $144,000 mortgage.

Nevertheless, Justice Romaine dismissed Mr. Abdallah’s appeal. There was no duty on the seller to tell Mr. Abdallah that the mortgage was a high ratio one and the time to meet the definition of a high ratio mortgage is at the time the mortgage is given, and not when it is assumed: s. 1(2) of the Law of Property Act Regulation. She found that “Mr. Abdallah was caught by the trap for the unwary created by the failure of the legislature to provide an enforceable method of identifying a mortgage as a high-ratio mortgage to a subsequent transferee who may assume such a mortgage without such notice” (at para 3, emphasis added).

The “trap for the unwary” that Justice Romaine refers to was set because the assumed mortgage did not indicate on its face that it was granted under the National Housing Act or that it was CMHC-insured or a high-ratio mortgage. It did not have the High Ratio Warning Statement that had been required by the Law of Property Act Regulation that was struck down in Hoehn as ultra vires. There was nothing in Mr. Abdallah’s now deceased lawyer’s file to indicate that Mr. Abdallah was advised that the mortgage was a high-ratio CMHC insured mortgage. The “Statement of Mortgage Account for Assumption Purposes” sent to Mr. Abdallah’s lawyer by CIBC Mortgages did refer to a CMHC number, but it was dated almost a year after Mr. Abdallah assumed the mortgage. Justice Romaine summarized the situation as follows (at paras 32-33):

[T]he uncontroverted evidence is that Mr. Abdallah purchased a property subject to a mortgage that appeared to be conventional, at a purchase price that would indicate that it was conventional. There was nothing on the face of the mortgage to indicate otherwise, and it was not until Mr. Abdallah’s lawyer received the assumption statement, many months later, that there was anything that would indicate the status of the mortgage as high-risk.

Since the High-Ratio Warning Statement required by LPA Regulation was struck down in 2010 in Bank of Montreal v Hoehn, there exists nothing that would compel mortgagees to make it clear on the mortgage itself, as opposed to collateral documentation, that the mortgage is high-ratio.

Going Forward?

The legislature and cabinet were sloppy on the enactment of the High Ratio Warning Statement bit of consumer protection legislation in 2003. A statute was amended without a definition of the only topic of the amendment. The High Ratio Warning Statement was added by cabinet to the new regulation for no known reason; it was not the topic of debates in the legislature. No consequences were specified by the lawmakers for non-compliance with the requirement for the warning. Master Mason in Hoehn was therefore required to discuss, at considerable length, the consequences of non-compliance with the High Ratio Warning Statement provision (at paras 63-109). Was it mandatory or directory? Could the purpose of the statement be fulfilled by other methods?

There is good reason to want substantive requirements in statutes, and not regulations. This seems to be particularly the case when the provisions are consumer protection provisions.

Although proposals for legislation, drafting of bills, consultations, and other steps leading up to the introduction of a proposed statute in the federal Parliament or a provincial Legislature do not necessarily take place in public, the actual legislative process is a public and transparent one. Individuals can attend Parliament and Legislatures and see and hear statutes being debated, they can read a transcript of the debates about legislation in Hansard (see the Alberta Hansard website here), and they can read about controversial bills in the media.

Of course there is a need for subordinate legislation such as regulations and rules. Most statutes include a provision authorizing the federal Governor in Council or provincial Lieutenant Governor in Council to make subordinate legislation that sets out the operational details that make statutes work.

But the making of regulations is a much less transparent and public process. Cabinet discussions do not take place in public. There is no publically available record of their regulation making process. True, the final regulation must be published and registered. The Alberta Regulations Act, RSA 2000, c R-14 section 3(1), for example, requires publication in The Alberta Gazette.

The Alberta Gazette Part II, published by Alberta Queen’s Printer twice each month, contains new regulations as well as amendments to regulations filed with the Registrar of Regulations. But how many borrowers are readers of the Alberta Gazette Part II? It is an obscure publication.

Requiring lenders to warn of high ratio mortgages could be beneficial to borrowers and, especially, to those who assume such mortgages. The result of prominently publishing a provision like the ultra vires High Ratio Warning Statement may illuminate the potential legal consequences of entering into a high ratio mortgage. It should eliminate the “trap for the unwary” that Mr. Abdallah was caught in.

It would be easy enough for the Legislature to fix this problem. If the Legislature thinks warning borrowers of the possible perils of assuming high ratio mortgages is a good idea, then it could expressly provide for a warning statement in the Law of Property Act itself or authorize the Lieutenant Governor in Council to do so in a regulation in clear and express language.

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Agent Regulation: The Case of Emmerson Brando (AKA Arturo Nuosci, AKA Maverick Austin Maveric, AKA Landon Emmerson Brando)

Mon, 06/15/2015 - 11:51am

By: Heather White & Sarah Burton

PDF Version: Agent Regulation: The Case of Emmerson Brando (AKA Arturo Nuosci, AKA Maverick Austin Maveric, AKA Landon Emmerson Brando)

Case Commented On: R v Hansen, 2015 ABPC 118

On May 12, 2015, CBC news reported that Emmerson Brando – a well-known Calgary-based court agent – had an extensive criminal history (Meghan Grant, “Emmerson Brando’s criminal past outlined in Calgary court memo” CBC News (12 May 2015) (“CBC News”). This was of great interest to the Calgary Bar owing to his regular appearances in court. Mr. Brando had served 90 days in Canadian jail and 33 months in U.S. prison for offences including fabricating evidence, fraud, identity theft, misuse of a social security number, and making a false statement in a passport application (CBC News). Upon completing his sentence in the United States, Mr. Brando was deported back to Canada, where he set up practice as an agent in Ontario. A few years ago, Mr. Brando moved his practice to Alberta where paralegals are not regulated (CBC News).

Once Mr. Brando’s criminal history was uncovered, Chief Crown counsel Lloyd Robertson, Q.C., brought an objection to Mr. Brando being given leave to represent a client at an upcoming trial. The resulting decision, R v Hansen, 2015 ABPC 118, written by Judge Gaschler, provides a thorough analysis of Brando’s criminal history and the way in which it affects the Court’s willingness to grant him leave to appear as an agent. After a careful review of the circumstances, Judge Gaschler held that Mr. Brando’s appearance would undermine the integrity of the justice system, and denied him leave to appear as an agent (at para 29).

This decision raises the question of agent regulation. In Alberta, court agents operate in a vaguely defined territory. The Criminal Code of Canada, RSC 1985, c C-46, authorizes defendants to appear via an agent on summary conviction matters (at ss 800 and 802). Unlike Ontario, however, Alberta court agents are not regulated. Given that agents are authorized to appear in Alberta courts, should the Law Society (or some other entity) be regulating who gets to call themselves a court agent? Doing so has obvious benefits, but some object that regulation creates unintended barriers to justice. This post examines the Hansen decision and considers the role of agent regulation in the future.

The Decision

Judge Gaschler’s decision was guided by reference to the Ontario Court of Appeal decision R v Romanowicz, (1999) 45 OR (3d) 506. Romanowicz considered whether a trial judge can refuse to permit an agent to represent an accused in summary conviction proceedings for concerns over competency or otherwise. The Court of Appeal held that a trial court can deny leave to an agent when participation in the proceedings “would either damage the fairness of those proceedings, impair the ability of the tribunal to perform its function or otherwise undermine the integrity of the process” (Romanowicz at para 61). Furthermore, that power “must be invoked whenever it is necessary to do so to protect the proper administration of justice” (Romanowicz at para 73).

While not an exhaustive list, the Court of Appeal found that the “administration of justice would suffer irreparable harm if an agent were allowed to appear [in situations involving] representation by an agent facing criminal charges involving interference with the administration of justice and representation by an agent whose background demonstrates pervasive dishonesty or blatant disrespect for the law” (Romanowicz at para 74).

However, the Court of Appeal emphasized that a criminal record or discreditable conduct does not automatically disqualify someone from representing an accused. Disqualification will only occur if the conduct pertains to situations in which “the agent’s criminal record or other discreditable acts are such as to permit the conclusion that the agent cannot be relied upon to conduct a trial ethically and honourably” (Romanowicz at para 74).

In light of the Romanowicz ruling, it is clear that there are some concerns surrounding the types of offences on Mr. Brando’s criminal record. In the Hansen decision, Judge Gaschler provided an overview of Mr. Brando’s prior convictions (at paras 8-9). They are as follows:

  • 1990 – Ontario: forgery and uttering a forged document
    • Six months on each charge concurrent
  • 1995 – Ontario: fabricating evidence
    • 90 days intermittent and probation
  • 1996 – Ontario: two counts of fraud over $1,000
    • Suspended sentence, probation for two years and restitution of $30,000
  • 1998 – Ontario: two counts of fraud over $5,000
    • Two years less a day, conditional sentence order, three years probation, restitution on the first count of $40,183.73, and restitution on the second count of $15,228.21
  • 1999 – Ontario: uttering threats
    • Suspended sentence and one year probation
  • 2006 – United States: mail fraud, identity theft, false statement in an application for a US passport, three counts of bank fraud, and misuse of social security number
    • Global sentence of 60 months in prison, five years of supervision upon release, $800 special assessment, and $200,000 in restitution.

While reviewing Mr. Brando’s criminal past, Judge Gaschler drew attention to a much more recent deception. On his website, Mr. Brando stated that he had served with the Royal Canadian Mounted Police for 25 years (at para 21). In reality, Mr. Brando had only served as a special constable for a few months (at para 22). Furthermore, this misleading information had only been removed from Mr. Brando’s website one week earlier when the Crown informed him that it would be objecting to his appearance as a court agent (at para 22). With respect to this point, Judge Gaschler stated “[t]hat particular falsehood, it is clear, is a significant and material falsehood in the present. This demonstrates that Mr. Brando’s dishonesty and falsehoods are not only in the past. Rehabilitation, which Mr. Brando claims, cannot in these circumstances be claimed to be complete” (at para 22).

Mr. Brando’s recent falsehood and past offences led Judge Gaschler to find that the “total record of criminal convictions and disreputable conduct is of such a kind and character that pervasive dishonesty and blatant disregard for the law and the rights of others is abundantly demonstrated” (at para 25). As a result, he concluded that “[n]o representation by Mr. Brando could be heard without the overwhelming distraction and concern over Mr. Brando’s veracity and reliability”, and denied Mr. Brando leave to appear as an agent on behalf of his client (at para 29).


According to ss 800 and 802 of the Criminal Code, an accused can appear by agent on summary conviction charges carrying a maximum sentence of six months. In Ontario, those who provide paralegal services are subject to regulation by the Law Society of Upper Canada (see Law Society Act, RSO 1990, c L8). Among those regulations is the requirement that the court agent be of good character (The Law Society of Upper Canada, Licensing and Accreditation, Toronto: LSUC, 2014). In order to determine whether a person is of good character, the Law Society has set out thirteen guidelines, and has indicated that other information may also be considered. The guidelines consider whether the person:

  • has been found guilty of, or convicted of, any offence under any statute;
  • is the subject of criminal proceedings;
  • has had judgment rendered against him or her in an action involving fraud;
  • has ever disobeyed any order of any court requiring the person to do any act or to abstain from doing any act; and
  • has been sanctioned or had a penalty imposed upon him or her by a court, an administrative tribunal or a regulatory body (The Law Society of Upper Canada, Licensing Process Policies – Paralegal, Toronto: LSUC, 2014)

Clearly, Mr. Brando would have difficulties meeting the “good character” requirement in Ontario.

Court agents remain unregulated in Alberta. In 2012, the Law Society of Alberta issued a report regarding the Alternate Delivery of Legal Services as part of a provincial initiative to enhance access to justice (The Law Society of Alberta, Alternate Delivery of Legal Services Final Report (Alberta: Law Society of Alberta, February 2012)). That report concluded that agent regulation was unnecessary despite the fact that it may expose some Albertans to a risk of harm (at 21). In its view, there was insufficient evidence indicating that regulation would increase the availability of services (at 22), and may pose some barriers to justice. Persons dissatisfied with their agent operate in a “buyer beware” marketplace and may rely on the Criminal Code and consumer protection legislation (at 23). Admittedly, the Report had difficultly collecting data on the harms caused to Albertans through a lack of regulation (at 16).

Mr. Brando’s case forces us to revisit important questions about this regulatory gap. There are arguments to be made both for and against the regulation of agents in Alberta.

As the Report notes, agent regulation will likely increase the amount of money it costs to be an agent, and thus, erect a barrier to justice. The resulting increase in fees may diminish the agent’s ability to serve the lower income clientele that relies on their services. The potential financial requirements to become an agent can be estimated from those in Ontario. In Ontario, paralegals must write the Paralegal Licensing Examination and be of good character before they can become licensed (The Law Society of Upper Canada, Licensing and Accreditation, Toronto: LSUC, 2014). The fee to write the paralegal exam in 2015 was $1,075.00, plus a $160.00 application fee, and a $165.00 fee for an application for a license (The Law Society of Upper Canada, Become a Paralegal: 2015-16 Fees Schedule, Toronto: LSUC, 2014). Financial assistance is not offered to offset the costs of writing the exam, and there are no bursaries, government loans, or grants available. Paralegals must also carry professional liability insurance (LSUC By-laws, By-law 6, Part II, section 12(1)), and pay annual fees set out in the Law Society By-Law 5. At the moment, the 2015 annual fee is up to $1,125.48 (The Law Society of Upper Canada, Paying Your Law Society Fees, Toronto: LSUC, 2014).

If Alberta were to implement regulation similar to that in Ontario, paralegals would also have to pay into the same compensation fund as lawyers. In Ontario, regulations dictate that an agent’s clients have access to the Law Society’s Compensation Fund if they lose money because of a paralegal’s dishonesty. The compensation fund is paid for “exclusively by the lawyers and paralegals of Ontario, out of their own pockets”, and has “paid out millions of dollars to help clients” since 1953, though paralegals have only been included since 2008 (The Law Society of Upper Canada, Compensation Fund, Toronto: LSUC, 2014). If paying out of their own pockets, it is likely agents will pass this expense along to the consumer through increased fees. However, is it not fair that clients should have access to a compensation fund, regardless of whether they are represented by a lawyer or agent? And is it not fair that, if agents are providing legal services, they be required to contribute to such a fund?

These increased costs will likely result in a fee increase for agent representation. As finances are one of the key reasons behind hiring an agent, this could negatively impact access to justice.

Access to justice concerns guided the conclusions in the Law Society of Alberta’s Report. The Report found no evidence that regulation would increase availability of legal services, but did find evidence suggesting that regulation discouraged or reduced independent legal services activity (at 23).

However, while regulation may raise barriers to justice, it also has obvious benefits. The arguments in favour of agent regulation are focused on facilitating the proper administration of justice. Agent regulation could decrease costs associated with administering justice through a reduction of appeals, and mitigate the onerous burden placed on judges to perform their own method of agent regulation to ensure the rights of the accused are protected.

In considering the proper administration of justice, Judge Gaschler’s decision was guided by his concern that an unscrupulous agent’s statements and questionable evidence could lead to flimsy, or even incorrect, judicial decisions. These concerns, if borne out, could lead to false convictions and a wave of appeals. False convictions are the antithesis of the proper administration of justice. Aside from compromising this pillar of the justice system, these appeals would be costly, and would result in added strain to an already overloaded court system.

The lack of regulation also shifts the burden of ensuring the quality of agents onto judges. Judges who are faced with a court agent are placed in an awkward position – the accused has elected to appear via agent, but the competence and quality of that agent is unverified. In order to ensure the proper administration of justice, the rights of an accused must be protected. Those rights are protected by defense lawyers and the courts, and as a representative of the accused, an agent must also bear that responsibility. Without regulation, even apparently competent agents must be treated with caution. These extra precautions mean that judges are essentially required to act as though they are dealing with a self-represented litigant.

When dealing with agents, judges must be able to proceed under the basic premise that the agent is competent and trustworthy. Regulation can provide the foundation for this belief.

Regulation gives judges more certainty that the agents appearing before them are competent and trustworthy. Judges will face less of a burden ensuring that the rights of the accused are protected. However, this line of reasoning also raises an important question. If regulation diminishes some of the responsibility of the courts, who is ultimately responsible for protecting the rights of an accused: the agent, the regulatory authority or the court?

Concluding Thoughts

Despite potential costs concerns, we are of the view that Alberta ought to be regulating its agents in some way. Low and middle income Albertans are desperate for affordable legal assistance, and agents are increasingly filling this need. Given this reality, it is in the Law Society of Alberta’s interest to make sure that agents meet certain criteria of integrity and competence.

Amongst many other concerns, the Law Society seeks to protect the public from the unauthorized or unethical practice of law. In failing to regulate agents, we are ignoring an area where these concerns are most prominent. Failing to regulate agents does not dissuade agents from advertising their services, or clients from seeking them out. It merely makes a client’s choice of agent a hazardous occasion fraught with uncertainty.

The Law Society’s Report was understandably concerned about access to justice. There is little doubt that access to justice is a significant concern, and if regulating agents, every opportunity should be taken to keep expenses low to keep them accessible to those who rely on agents. However, we disagree that the need to keep costs low justifies a complete void in regulation or oversight. Legal proceedings significantly impact people’s lives. In choosing a representative, members of the public ought to have some measure of comfort that their agent is ethical and competent.

The Report took the view that disserved clients of non-lawyers have protection, because they can rely on consumer protection laws and Criminal Code provisions (at 16). This view proliferates one of the most serious problems identified in contemporary access to justice research – that of clustering legal problems (Ab Currie, The Legal Problems of Everyday Life: The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians (Ottawa: Department of Justice Canada, 2007) at 1; The Canadian Bar Association, Reaching Equal Justice: An Invitation to Envision and Act (Ottawa: The Canadian Bar Association, November 2013) at 16). By forcing the burden of policing unscrupulous agents on the (often low-income) clients they serve, we are effectively snowballing one legal problem into several. In our view, it seems more reasonable to try and prevent the practice of unscrupulous agents in the first place, before problems develop.

We note that authors of the Report had difficulty collecting data on harms caused by independent non-lawyer service delivery (at 16). In other words, the Report’s conclusions were rendered without considering evidence of the harms caused by that failure. Based on that gap, we view its conclusions with caution.

Ensuring that agents have good character and have had enough training to pass an exam will help reduce the disparity between the quality of justice for the wealthy and the quality of justice for those with a lower income. Serious consideration should be given to implementing agent regulation in Alberta, and as it stands, the Alberta Law Society is the only feasible regulatory body.

The website of the Law Society of Alberta states that the objective of their Strategic Plan for 2010-2013 is “promoting access to high quality legal services” (The Law Society of Alberta, Access to Justice – Alternate Delivery of Legal Services, Alberta: Law Society of Alberta, 2010). We are concerned that the Report unduly focused on the access portion of this equation, with very little emphasis on the “high quality” requirement. With any luck, Judge Gaschler’s decision will facilitate a conversation surrounding the regulation of agents in Alberta. While there are strong reasons to implement a regulatory system such as the one already in place in Ontario, the issues of access to justice must play a key role in any regulation considerations that may take place.

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Landowners Can’t Use the Surface Rights Board to Mount a Collateral Attack on the Approval of a Transmission Line

Fri, 06/12/2015 - 10:00am

By: Nigel Bankes

PDF Version: Landowners Can’t Use the Surface Rights Board to Mount a Collateral Attack on the Approval of a Transmission Line

Case Commented On: Togstad v Alberta (Surface Rights Board), 2015 ABCA 192

In a completely predictable decision the Court of Appeal has applied the doctrine of collateral attack to dismiss the efforts of landowners to have a second kick at the can by seeking to question the constitutional basis for provincial regulation of a proposed transmission line before the Surface Rights Board.

This case, in fact, two cases, Togstad on appeal from 2014 ABQB 485 and an appeal from Kure v Alberta (Surface Rights Board) 2014 ABQB 572, involves the longstanding efforts of the provincial government to strengthen the transmission grid in the province through the construction of two new major transmission lines known as WATL and EATL – Western Alberta Transmission Line and the Eastern Alberta Transmission Line. These projects have been, to say the least, controversial. Along the way the Energy and Utilities Board bumped into its spy scandal and was subsequently dissolved; the province introduced the so-called critical infrastructure legislation to definitively and authoritatively resolve the question of “need” (SA 2009, c.44); and there was litigation, lots of it, on everything from allegations of bias (Lavesta Area Group v Alberta (Energy and Utilities Board), 2011 ABCA 108) to valiant efforts to argue that the Alberta Utilities Commission (AUC) still had to establish need as part of its assessment of public interest and notwithstanding the critical infrastructure legislation: Shaw v Alberta (Utilities Commission), 2012 ABCA 378, albeit involving the Heartland project rather than WATL or EATL. And then, in the hearings on the merits in WATL, the AUC carefully examined (and dismissed, AUC Decision 2012-327) landowner arguments to the effect that the lines were interprovincial undertakings that should be subject to federal regulation.

Alberta’s legislative scheme is such that once an intraprovincial transmission line has been approved for construction by the AUC under the terms of the Hydro and Electric Energy Act, RSA 2000, c. H-6, the transmission line operator (in this case AltaLink) must acquire the necessary rights of way either by way of private agreements with the relevant landowners, or by way of a right of entry order under the Surface Rights Act, RSA 2000, c. S-24 (SRA). AltaLink engaged in that process and the applicants in this case took advantage of this new forum, the Surface Rights Board (SRB) to raise, once again, provincial jurisdictional authority to licence the construction of WATL. In doing so, counsel for the landowners in these cases faced at last two hurdles: (1) the province has not included the SRB in the list of provincial regulatory tribunals authorized by the Administrative Procedures and Jurisdiction Act, RSA 2000, c. A-3 (APJA) and Designation of Constitutional Decision Makers Regulation, Alta Reg 69\2006 to consider constitutional questions; and (2) the doctrine of collateral attack.

As to the first issue, the Board itself in both the Togstad (2013 ASRB 576) and Kruse (2014 ASRB 263) matters concluded that it had no jurisdiction to consider the constitutional question because it was not on the APJA list. The landowners in both cases brought applications for judicial review (an appeal to the Court of Queen’s Bench only being available on compensation questions (see SRA, s.26)). Both Queen’s Bench justices (McCarthy and Sisson) agreed with that conclusion (Togstad at para 7; Kruse at para 22). The Court of Appeal concurred (at paras 3 – 5):

[3] Togstad says his objection was not constitutional in nature. He says it was based on the statutory limit to the Board’s jurisdiction created by the phrase “wholly in Alberta”, and only required the Board to determine the nature of the transmission line as a question of fact.

[4] The standard of review has no impact on our determination of this issue. It is clear that the Togstad objection raised a constitutional question. It was framed in constitutional terms and accompanied by a Notice of Constitutional Question. An inquiry into whether a transmission line is extraprovincial necessarily involves constitutional considerations. No doubt the legislative provisions limiting jurisdiction to lines wholly in Alberta were enacted to ensure that the legislation and its application are consistent with constitutional imperatives.

[5] Having raised the objection as a constitutional question before the Board, Togstad cannot now argue that the Board erred in treating it as such. The Queen’s Bench judge correctly concluded that the Board did not err in declining to consider a question which it clearly had no jurisdiction to decide.

All three Courts also found that the landowners’ applications constituted an impermissible collateral attack. Justice McCarthy put the point particularly well in the Togstad decision at para 16:

Mr. Togstad’s counsel argued that there are two complementary processes in respect of transmission lines, one before the AUC and another before the SRB, and that Mr. Togstad can attack either or both. That is true to some extent, but it does not mean that Mr. Togstad can make the same arguments on the same question before both boards in the hope of getting the answer he wants from one of them. The AUC is the body charged with issuing permits for the construction and operation of transmission lines. It is also the body designated by the Legislature to address constitutional questions arising in this context. If Mr. Togstad was unhappy with the AUC’s decision, his remedy was to appeal to the Court of Appeal. Counsel for Mr. Togstad argued that this Court should not prevent a litigant from challenging WATL because no court has dealt with the question of whether WATL is an interprovincial line. But Mr. Togstad had the right to appeal the AUC’s decision to the Court of Appeal and to raise the issue there. He did not. The SRB’s role is limited to granting right of entry orders that are consistent with the permit previously granted by the AUC. While its decisions with respect to compensation or conditions attached to rights of entry may be subject to attack, its deference to the AUC’s permit is unassailable. Mr. Togstad’s contention that the SRB should make a decision that is entirely inconsistent with the prior decision of the AUC is the essence of collateral attack. I disagree with counsel for Mr. Togstad that collateral attack is limited to situations in which there is a mandatory order issued against a party.

Justice Sisson in the Kure case based his analysis on the factors developed by the Supreme Court of Canada in R. v Consolidated Maybrun Mines, 1998 CanLII 820 (SCC) (at para 45), [1998] 1 SCR 706, and R. v Al Klippert Ltd., 1998 CanLII 821 (SCC), [1998] 1 SCR 737: (1) the wording of the statute under the authority of which the order was issued; (2) the purpose of the legislation; (3) the existence of a right of appeal; (4) the kind of collateral attack in light of the expertise or raison d’être of the administrative appeal tribunal; and (5) the penalty on a conviction for failing to comply with the order. Having carefully examined each of these factors, Justice Sisson too concluded that this was an impermissible collateral attack (at paras 27 – 62). The Court of Appeal agreed (at paras 8 – 9):

[8] All of this leads to the inescapable conclusion that the appellants’ objections were collateral attacks on the Commission’s decision. By seeking to raise the question again before the Board, the appellants were attempting to circumvent the Commission’s order and were forum shopping for a different and inconsistent result. This is precisely the approach that the rule is designed to prevent.

[9] The legislative scheme does not support the appellants’ contention that the rule against collateral attacks should be relaxed in these cases. Indeed, it suggests the opposite, that the rule should be strictly applied so as to maintain the integrity of the integrated and interrelated regulatory regime. A direction that the Board must consider this question would turn the legislative scheme upside down. The Board and the Queen’s Bench judges did not err in concluding that the objections were prohibited collateral attacks. Even if this was not a collateral attack, it clearly falls within the doctrine of abuse of process.

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Sense and Sensibility at the AER?

Thu, 06/11/2015 - 10:00am

By: David Laidlaw

PDF Version: Sense and Sensibility at the AER?

Decision Commented On: Pembina Pipeline Prehearing Meeting 2015 ABAER 002

The Alberta Energy Regulator (AER) held a prehearing meeting on May 14, 2014 with all of the objecting parties and the project’s proponent Pembina Pipeline Corporation (Pembina). The AER felt it was appropriate to issue a decision report for the guidance of industry, landowners and objecting parties.

The Decision noted that the Responsible Energy Development Act, SA 2012, c R-17.3 (REDA) requires the AER to provide for the “efficient, safe, orderly and environmentally responsible development of energy resources in Alberta,” under subsection 2(1)(a). Further the AER must consider the interests of landowners when reviewing applications under section 15 of REDA and section 3 of the Responsible Energy Development Act General Regulation, Alta Reg 90/2013. Thus when a matter is referred to a hearing, a Panel is appointed to establish a hearing process for the application, and:

[i]n determining procedural matters, the panel takes guidance from REDA, its regulations, and its rules. One of the panel’s most important responsibilities is to ensure that the hearing process is fair. This includes ensuring that parties are provided with adequate notice of the hearing and application and that they have an opportunity to reply or to be heard (at para 5).

Further, the process is “intended to be fair, efficient, and effective for all concerned: for participants as well as the applicant” (at para 6, emphasis added).

The Decision is a short, well written 10 page ruling that warrants careful consideration by industry, lawyers and the public, but in this post I will focus on 3 novel aspects.


The Decision is available on AER’s website. The decision to publish the decision represents a break with past practice (criticized by Nigel Bankes here and here) and is to be welcomed.


On April 17, 2015, the AER issued a Notice of Hearing setting July 13, 2015, as the hearing start date. Only the applicant Pembina supported the original hearing date.

The participants, among them the Grassroots Alberta Landowner Association (Grassroots) wrote a letter on May 5, 2015 asking for an adjournment to October 26, 2015 arguing that a summer hearing would interfere with their farming business and harvesting. The aboriginal participants, Gunn Métis Local 55, the Driftpile First Nation, the Alexander First Nation, and the Alexis Nakota Sioux Nation, also spoke to the proposed adjournment. They advised that the July 13 hearing schedule would directly conflict with the extensive preparations for the annual historical Lac Ste. Anne pilgrimage, taking place from July 18 to 23. All participants noted that the timeline, April 17 to July 13 – some 60 working days, was inadequate and they would have to rush to obtain expert testimony, particularly for the aboriginal participants who were negotiating with the applicant Pembina for their interim advance costs.

In an uncommon display of sensitivity, the AER Panel noted that the decision to grant an adjournment was discretionary and what was fair depended on the circumstances. In granting the adjournment, the AER Panel identified the relevant factors by way of seven questions to be answered:

Question 1: What is the nature of the application?

The proposed project was considered significant as it extended 270 kilometres through 70 landholders’ private lands most of which were held as farmland and public lands which fell within the traditional territories of the aboriginal participants.

Question 2: When was the adjournment requested?

The AER had established the original hearing schedule without consulting the parties in order to conduct the hearings in a timely manner. The adjournment request was made shortly thereafter and well in advance of the hearing date.

Question 3: Have there been any previous requests?

This was the first request for an adjournment and even the applicant did not argue that the requested adjournment was an attempt to delay the proceedings.

Question 4: Was the hearing schedule established through consultation with the parties?

The AER set the original hearing schedule without consulting the parties and the participants had established that keeping to the original schedule “would be unfair and would make it difficult for them to effectively engage in the process” for the reasons described above (at para 21).

Question 5: Are there any concerns about an unnecessary or unjustified delay?

The applicant argued that the participants had known about the application for over a year, but the AER Panel noted that no one could know that the application would be set for a hearing until April 9, 2015 at the earliest when a letter was sent by the AER to the proponent and participants who had filed statements of concern advising them that a hearing would be held. This was followed by the AER issuing the formal Notice of Hearing on April 17, 2015.

At the meeting of May 14, 2015 giving rise to the Decision, the AER Panel heard from all parties that they had, prior to and after the Notice of Hearing, been endeavouring in good faith to engage with each other to resolve concerns and that this would continue. In short, the AER noted that time did not appear to be wasted in the process and the participants “could not reasonably be expected to have started preparing for the hearing or retain experts before the notice of hearing was issued” (at para 22).

Question 6: What would be the prejudice to the participants if no adjournment is granted?

The AER Panel was satisfied that “prejudice to the participants resulting from the original hearing date outweighs any potential prejudice to the applicant of an adjournment. Participants provided specific examples of how they would be prejudiced, including:

  • being forced to choose between participating in traditional practices and gatherings, or participating in the hearing;
  • being compromised in their ability to provide helpful submissions in the most efficient manner; and
  • detrimental consequences to farm operations and livelihood” (at para 23).

Question 7: What would be the prejudice to the applicant if an adjournment is granted?

The AER Panel noted that the applicant Pembina did not provide any specific examples of prejudice but only argued fairness. While a speedy process is desirable for any applicant, the AER panel found “the balance of fairness and potential prejudice weighs in favour of the adjournment” (at para 25).

The AER Panel accepted Grassroots’ proposed adjournment date of October 26, 2015, noting that a lesser adjournment to August or September would “present more conflict with agricultural operations and traditional harvesting activities by the Métis and First Nations” (at para 26). In granting the adjournment, the AER Panel noted the participants’ submissions that an adjournment would enable them to collaborate; and avoiding duplication was desirable and more likely to be achieved with the adjournment which the AER Panel said they expected to continue.

Aboriginal Traditional Knowledge at the AER

Another notable aspect of the Decision is the possibility that the AER Panel would travel to the participant First Nation and Métis Communities to hear oral evidence on traditional knowledge.

Counsel for the aboriginal participants had, in the course of the pre-hearing meeting, advised that “oral evidence of traditional knowledge given by community elders would form an important part of their presentation. They also noted that the demands of travelling to and attending a hearing can be difficult for community elders” (at para 53). The AER Panel raised the possibility of travelling to the respective communities to receive such evidence. This surprising proposal was greeted with enthusiastic support by the counsel and representatives of the Alexander First Nation and lawyers for other aboriginal parties expressed interest in that procedure. Even the applicant Pembina was not adverse to this provided that the evidence was part of the public record.

The AER Panel said:

[55] In light of the comments received at the prehearing meeting, the panel would like to further explore the idea of receiving oral evidence of traditional knowledge in the community. There are a number of procedural processes and logistics that would have to be worked out. The panel would have to ensure that oral evidence of traditional knowledge is gathered and included on the record in a manner that is respectful and fair for all parties.

To do so the AER Panel asked the lawyers for the aboriginal participants to confirm whether their clients were in agreement and to prepare proposals for the AER Panel as to timing and dates as soon as possible. If aboriginal participants were in agreement the AER Panel would provide an outline of the hearing plan to all parties for comment.

Consideration of oral evidence of aboriginal traditional knowledge would fulfill the directions of the Supreme Court of Canada in Delgamuukw v British Columbia, [1997] 3 SCR 1010 to “adapt the laws of evidence so that the aboriginal perspective on their practices, customs and traditions and on their relationship with the land, are given due weight” (at para 84). Traditionally Delgamuukw has been interpreted to allow the admission of aboriginal oral history as that was the specific result in the Supreme Court. However, I would argue that the specific language used regarding the consideration of aboriginal perspectives is much broader than the traditional interpretation.

Other Matters

Various other procedural matters were addressed sensibly in the Decision, including among others: Grassroots members who had filed confirmation of non-objection will be allowed to participate as members of the Grassroots group (at para 45-48); reciprocal Formal Information Request Process (at para 36-40); potential supervision of the presently amicable negotiation of advance interim cost requests (at para 33-35); deferral of firm witness schedules (at para 30-31) and potential collaboration (at para 41-44).


Traditionally, administrative tribunals such as the AER have not considered themselves bound by their own prior decisions as courts are (stare decisis). This has, at least in Alberta, been partially addressed by the Court of Appeal in Altus Group v Calgary (City), 2015 ABCA 86, the potential implications of which are canvassed by Professor Fluker in a blog post here. Essentially, the Court argues that there should be some consistency in interpreting the tribunal’s home statute.

The AER’s home statute is REDA, although one wrinkle is that REDA contemplates differing hearing panels. In this Decision this AER Panel has interpreted REDA and the AER Rules in accordance with the legislative intent with some surprising sensitivity. The precedential value of the Decision should be important.

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Aboriginal Title Claim Against a Private Party Allowed to Continue

Wed, 06/10/2015 - 10:00am

By: Nigel Bankes    

PDF Version: Aboriginal Title Claim Against a Private Party Allowed to Continue

Case Commented On: Ominayak v Penn West Petroleum Ltd, 2015 ABQB 342

Some forty or so years ago the Lubicon Lake Band and Chief Bernard Ominayak commenced an action for aboriginal title, and, in the alternative, a treaty reserve entitlement claim. Chief Ominayak also brought a petition before the United Nations Human Rights Committee (HRC) under the Optional Protocol of the International Covenant on Civil and Political Rights alleging a breach by Canada of Article 27 of that Covenant dealing with the cultural rights of minorities.

In the end, at least so far as I know, the title and treaty entitlement claim died after the Band failed in its attempts to obtain an interlocutory injunction: see Lubicon Indian Band v Norcen Energy Resources Ltd, [1985] 3 WWR 196 (Alta CA) – a matter I commented on very early in my academic career here. Chief Ominayak did however succeed, if that is the right word, in his petition before the HRC on the grounds that the degree and intensity of resource extraction occurring in the traditional territory of the Lubicon Cree was so extensive as to deprive the Lubicon of access to the material aspects of their culture. In another sense however, the petition was a failure since Ominayak’s concerns have never been adequately dealt with. It is true that Alberta has settled a treaty entitlement claim with at least some of the Lubicon Cree, but there remains an outstanding question (to which this litigation attests at para 5) as to whether or not the Lubicon Cree with whom Alberta negotiated were properly mandated to agree to the settlement.

In any event, time moves on, and the Lubicon Lake Cree, represented in this matter once again by the Lubicon Lake Cree Nation led by Bernard Ominayak, have commenced two actions, one against the Crown (federal and provincial, the “Crown action”) filed in June 2013 (at para 2) and a second action (the subject of this decision and this post) against Penn West in November 2013 (at para 15, the “Penn West action”). In this application Penn West applied to strike the action against it on the basis that it was an abuse of process (since the matters raised were “virtually” the same as the matters raised in the Crown action) and on the basis that in part at least it represented a collateral attack on regulatory decisions made by the Energy Resources Conservation Board (ERCB) as the predecessor of the current Alberta Energy Regulator (AER or Regulator).

Justice Simpson concluded that there was no abuse of process since there was no duplication of proceedings. Neither could the entire action be struck on the basis of collateral attack although Justice Simpson did order that the pleadings be amended so as to remove the attack on the validity of the permits.

Justice Simpson concluded that there could be no duplication of proceedings since (at para 38) “while many of the facts plead are identical, the causes of action are not. In fact, they cannot be, since the claims in the Crown action are against different defendants and involve public, not private, law claims.” While this conclusion seems justifiable if not self-evident, I am less sure about the public/private law distinction that Justice Simpson relies upon to support his conclusion, since an argument about competing property claims is perhaps best characterized as a private law argument. That said, to the extent that an aboriginal title claim is based on the property laws of a pre-existing legal system (as acknowledged in both Delgamuukw, [1997] 3 SCR 1010 and Tsilhqot’in, 2014 SCC 44) then it does have aspects of a claim in public law. Better then I think simply to have said that there can be no duplication when the defendant in the two actions is different rather than to distinguish the actions on the basis of public and private law.

As for the collateral attack argument, Justice Simpson concluded that those parts of the statement of claim that questioned the validity of Penn West’s regulatory approvals should be struck on the grounds that the plaintiffs should have raised this issue by way of judicial or appellate review of the relevant decisions. While again there is merit in the conclusion I wonder if it is not stated too broadly. For example, it appears that one of the grounds on which the plaintiffs contest the validity of the approvals is on the basis of a failure to consult. Since there is at least some evidence that Ominayak indicated that he had no concerns with Penn West’s proposed program, it seems reasonable to conclude that consultation was a potential issue in proceedings before the Board or the Regulator in issuing the necessary well licences. Therefore, any determination as to the sufficiency of the consultations should have been raised by way of application for leave before the Court of Appeal to the extent the matter involved a decision by the Board or the Regulator (and now, in light of s 21 of the Responsible Energy Development Act, RSA 2000, c R 17.3 and the role of the Aboriginal Consultation Office (ACO), by way of judicial review of the departmental or ACO decision). On this see previous posts here, here and here, illustrating as well how convoluted this area is and how arguments as to preferred forums change over time and in a very adversarial and self-interested way. However, a claim based on aboriginal title might also have more deep-seated implications for decisions made by the energy regulator. For example, suppose that the plaintiffs succeed in establishing aboriginal title in this case and that that title includes oil and gas rights (see Delgamuukw). Surely at that point the Lubicon are entitled to say (assuming the applicability of the province’s Oil and Gas Conservation Act, RSA 2000, c. O-6 (OGCA) as per Tsilhqot’in) that Penn West is not entitled to hold a well licence under s 16 of the OGCA by virtue of a lease from the Crown. While it is certainly the case that the AER and its predecessor can make a determination in any particular case whether or not a licensee has a property interest for the purposes of s 16 (see for example the coalbed methane proceedings, AEUB Decision 2007 – 024), there is nothing that compels a party to try oil and gas property law questions before the AER or the ERCB – and indeed any such requirement might well breach s 96 of the Constitution Act, 1867. In many cases of course the shoe is on the other foot and the Crown and other parties urge that these more fundamental questions are best dealt with in the ordinary courts rather than in regulatory, quasi-criminal, or judicial review proceedings: see, for example, R v Lefthand, 2007 ABCA 206, esp per Slatter JA).

Thus, while it is reasonable to use the collateral attack doctrine to preclude a later attack on issues directly related to the particular regulatory decision (e.g. the consultation issues in this matter), the doctrine surely cannot be used to require a party to raise issues “upstream” of the regulatory matter in question (on the language of upstream in this context see Skeetchestn et al v Registrar of Land Titles, 2000 BCSC 118, aff’d 2000 BCCA 525). This distinction might be addressed in the formal order since Justice Simpson concludes his judgement by inviting the parties (at para 64) “to make representations as to how the Statement of Claim should be amended to remove references to the invalidity of the approvals” if counsel cannot agree.

And finally, while the collateral attack doctrine seems to have some purchase with respect to consultation issues it does not seem to me to be particularly helpful or indeed relevant to colour the reasoning with allusions to the possibility of corruption or the claims made for the “openness and transparency” of the “tribunal process” (is that the AER/ERCB or the ACO, or the relationship between them all that we are talking about?):

To allow a collateral attack on the open and transparent tribunal process with the additional protection of judicial review and appellate review, would give rise to a high degree of risk for corruption. If the process can be collaterally attacked, it would create great temptation for corporations to offer payoffs to claimants or provide contracts to them for little or no service so as to avoid collateral attacks (at para 56).

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Blogging and Legal Education

Fri, 06/05/2015 - 10:00am

By: Jennifer Koshan

PDF Version: Blogging and Legal Education

I was at the Canadian Association of Law Teachers (CALT) conference in Ottawa earlier this week and participated in a roundtable on blogging and legal education. Other participants included University of Ottawa’s Angela Cameron from Blogging for Equality; Paul Daly from Administrative Law Matters; and Moin Yahya from the University of Alberta Faculty of Law Blog. Suzanne Bouclin from the University of Ottawa chaired.

I started off the discussion by describing the ways that ABlawg engages law students. We employ a student coordinator who spends about 10 hours per week summarizing Alberta court decisions, posting, moderating comments, and maintaining the ABlawg website. Student bloggers are recruited through volunteer organizations such as Student Legal Assistance and Pro Bono Students Canada, and some of them continue to blog for ABlawg after graduation. Some professors have also incorporated blogging into our courses; for example my constitutional clinical students were required to synthesize their 50 page briefs on the rights of farmworkers into shorter, more accessible blog posts (see here, here, here and here). Interestingly some of the students questioned the value of this exercise at the time, but the blog posts led to attention from media and Alberta politicians, and an invitation to submit a book chapter consolidating the students’ work. Faculty members also use blog posts in the classroom as the basis for problems, moot/factum exercises, and as supplementary reading. ABlawg includes a category of posts on legal education as well.

Paul Daly noted that he began Administrative Law Matters three years ago to fill a gap in Canadian law blog market in the area of administrative law – an area that intersects with many other areas of law. The blog has been a great success, winning the 2014 Clawbie for Best Law Professor Blog. Paul described the blog as a personal notebook in the sense that it helps him with class preparation, conference papers, and idea development. In order to maintain an audience, one needs to post commentary fairly quickly after decisions are released and write in a clear, accessible style, which is a very important skill for academics. Blogging on legal decisions is of value to students, academics and the legal community, as case comments are no longer very popular in Canadian law journals. Paul also maintains a Teaching / Student Corner on Administrative Law Matters.

Angela Cameron explained that Blogging for Equality is a collective project of a number of feminist academics at the University of Ottawa. The blog began a few years ago after a group of feminist law professors attended a workshop with journalist Shari Graydon on how to get women’s voices heard in the media. The posts on Blogging for Equality are in the nature of op-eds – usually 500 words or less. The focus of the blog (which Angela coordinates along with her colleagues Vanessa MacDonnell and Jena McGill) is social justice issues. In addition to using the op-ed format, posts include information hubs on particular issues and a recent feature identifies the “latest and greatest” articles on SSRN. Angela and her colleagues use their blog as a teaching tool – especially posts of original content – and have assigned blog posts as evaluation components in some courses, allowing students to develop the useful skill of writing pithily. The audience for Blogging for Equality is largely students, academics, NGOs and activists, both Canadian and international.

The University of Alberta’s Moin Yahya noted that his Faculty’s blog is also a collective effort, and has an intentionally freestyle format, which facilitates the engagement of young faculty and students / alumni. The blog contains everything from op-eds on legal decisions to ruminations on sports and popular culture. Moin stressed the importance of daily content to keep the audience engaged. In terms of student involvement, Moin described a course he ran in the winter of 2015 on the Magna Carta, which required a small group of five students to write daily blog posts on different aspects of that document (which celebrates its 800th anniversary this year and will make a trip to Edmonton in the fall). The students were evaluated both on the substance of their posts and on the number of hits they attained, and developed a number of skills – writing, editing each other’s work, interviews with human subjects (requiring ethics approval), copyright issues, and dissemination of their posts via social media. For a summary of the Magna Carta course project see here.

The Q + A following the presentations raised a number of interesting issues. A discussion about the various approaches to archiving blog posts led to representatives from Carswell raising the possibility of including blogs in the Index to Canadian Legal Literature. Audience members wondered about the time commitment for blog coordinators, especially to moderate comments, which revealed a range of approaches from no comment functionality (Blogging for Equality) to moderated comments (ABlawg) to a more liberal approach (University of Alberta). Blog coordinators also take different approaches in terms of how much editing they do before submissions are posted. Questions were raised about how much students get out of blogging, especially in writing short pieces (if that is all they do), and Moin gave a strong defence of the merits of having students blog on a common theme over the course of several weeks as an organic, multi-faceted approach to legal research and writing. University of Ottawa’s Craig Forcese – who runs his own blogs and participates in some collective ones – talked about the ways that blogging can connect with larger academic research projects, and noted that when the media misinterpret or quote selectively from blog posts there is always an opportunity to correct the error (unlike traditional op eds). I indicated that many ABlawg authors had worked their blog posts up into peer reviewed articles, which also allows afterthoughts and comments about the position taken in an initial post to be reflected in the final product.

I will close with an observation an audience member made about Rod Macdonald, “mentor to generations of lawyers”, to the effect that academics should strive to embrace new ways of communicating our work as modes of communication change. It was agreed by participants that law blogging is an important way to do so, with some concrete benefits for law students and law teaching.

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Life, Liberty, and the Right to CanLII: Legal Research Behind Bars

Wed, 06/03/2015 - 10:00am

By: Sarah Burton

PDF Version: Life, Liberty, and the Right to CanLII: Legal Research Behind Bars

Case Commented On: R v Biever, 2015 ABQB 301

The link between access to information and access to justice is not often discussed, but it is implicit in our legal process. Document production, questioning, and Crown disclosure are all premised on the notion that one needs access to relevant information in order to present one’s case. This idea should also extend to legal research. Without access to precedents, case law and procedural texts, the ability to adequately argue a case is significantly impaired.

R v Biever, 2015 ABQB 301, tackles the issue of access to legal information in a unique context – the right of an imprisoned accused to conduct online legal research. While prisons provide access to criminal law texts, the Court in Biever considered whether those resources were adequate for an inmate to meet and defend the case against him. In ruling that the accused was entitled to more materials, the Court raised questions about how prisons should be providing access to legal information. Biever also raises interesting questions about how we deal with self-represented parties who simply do not want a lawyer.


The accused, Mr. Biever, was charged with of a number of offences related to bank robbery. He was denied bail and had been in custody since March 2013. After moving on-and-off through ten publicly and privately retained lawyers, Mr. Biever elected to represent himself (at paras 1, 8, 9).

Self-representation is complicated at the best of times, but it is particularly problematic for prison inmates. The Edmonton Remand Centre (ERC) – the facility housing Mr. Biever – does not provide internet access to prisoners. There is no formal library, but there is a collection of criminal law texts that can be ordered through an internal request system (at paras 22, 23). There is also no access to photocopying, scanning, word processing, or commissioning services (at paras 15, 17).

To facilitate his research efforts, Mr. Biever purchased an annotated criminal code and relied on family and friends to bring him case law. He experienced difficulty and delay getting that case law into the ERC.

In light of these difficulties, Mr. Biever launched a pre-trial application arguing that these restrictions (and particularly, the ban on internet research) violated his section 7 Charter right to make a full answer and defence to the case against him. This argument was premised on three points (as presented by an amicus):

  1. the election to self-represent was his right;
  2. his liberty was infringed by the denial of bail; and
  3. the conditions of his detention prohibited him from accessing information necessary to defend himself (at para 26).

In an attempt to meet Mr. Biever’s continuing complaints (and perhaps, to undermine the weight of his argument) the Crown provided the accused with research materials and assistance short of internet access. In addition to the texts that are regularly available to inmates at the ERC, Mr. Biever was given:

  • access to a laptop with the DART Westerns Decisions [DART] database uploaded on it; and
  • an amicus defence counsel who would provide case law and guidance.

Mr. Biever appreciated these resources, but argued that they were inadequate. The DART database was limited – it provided case summaries only and was infrequently updated (paras 14, 29). As for the amicus, Mr. Biever was appreciative for this assistance, but expressed frustration at the restrictions placed on how frequently they could speak or meet (at para 34).

In defending the application, Crown counsel focused on the safety, logistical, and financial hurdles to Mr. Biever’s request. The request would cost money not only in terms of equipment, but additional staffing and monitoring costs. Internet access raised questions about witness tampering, or the ability to access and use information against other inmates or staff. Logistically, there were numerous questions about exactly where and how access would be allocated and granted. In light of these concerns and the reasonable alternatives provided, the Crown argued that Mr. Biever’s requests were neither required nor workable (at para 35).


Justice Graesser ruled in favour of Mr. Biever. He was satisfied that Mr. Biever would be unlikely to make a full answer and defence without having greater access to legal information (at paras 119, 121). Justice Graesser explained his reasoning at paragraph 87:

At a minimum, Mr. Biever should have timely and reasonable access to all Canadian criminal law case authority. … Supreme Court of Canada decisions come out weekly, and Alberta Court of Appeal decisions come out daily. Their decisions are binding authority in Alberta and timely access to these decisions is essential to anyone attempting to anyone presenting arguments in a criminal matter, whether it be at trial or on pre-trial applications.

While he declined to order the exact legal sources that must be provided, Justice Graesser had some strong “suggestions” about what reasonable access would look like (at para 89). He was “hard pressed to see” how reasonable access could be provided without some access to the internet, and in particular, the CanLII website (at paras 92, 126). While the ERC would be under no obligation to pay for online research services like Westlaw or Quicklaw, Justice Graesser saw no reason why inmates could not be provided access to these sites at their own expense. Similarly, while inmates could not expect free typing or printing services, access to word processing and printing at the inmate’s expense appeared to be reasonable (at paras 97, 114-118, 127).

This decision signalled that Justice Graesser was unpersuaded by the Crown’s arguments about practical constraints. In particular, concerns about the ERC’s ability to provide restricted internet access rang hollow in light of its own website which called the ERC “the largest, most technologically advanced remand facility in Canada” (at para 93).

Justice Graesser was equally unpersuaded that his decision would create a slippery slope. He noted that most criminally accused persons choose to be represented by counsel, either through public or private sources. These inmates would not need access to online research sites (at paras 104, 106-108). Moreover, Justice Graesser took steps to constrain the decision to its particular facts. Mr. Biever had specifically demonstrated (through his evidence and prior appearances before the Court) that he would benefit from more and better access to legal information. In his efforts and previous appearances, Mr. Biever had demonstrated his ability to make use of legal information after being given access to better resources (at paras 106-108). Many other inmates would not be able to demonstrate this benefit.


Justice Graesser had two bodies of case law to draw from in rendering his decision. Interestingly, he opted to follow the less predictable path.

The first collection of cases was directly on point. These Ontario and British Columbia decisions held that self-represented inmates simply cannot expect internet access to conduct research. The applications were dismissed for the following reasons:

  • the right to self-represent is a right, but not one without consequences (at para 56, citing R v Jordan, [2002] OJ No 5250 (QL) (Ont Sup Ct J);
  • practical and security constraints render requests for internet access unworkable (at para 58, citing R v John, [2007] OJ No 2257 (QL));
  • reasonable alternatives (such as the appointment of an amicus) can remedy any constitutional concerns (at para 54, citing Jordan at para 20);
  • a court lacks jurisdiction to order a remand centre to provide these facilities (at para 74, citing R v Wilder, 1998 CanLII 4172 (BC SC)); and
  • cases that were not complex and did not raise unsettled points of law failed to establish the need for more fulsome legal resources (at para 59, citing R v Parchment, 2011 BCCA 174).

The cases of Mr. Biever and the amicus were more general, and drew on broad principles from Canadian and US case law. These decisions discussed the ability of self-represented inmates to prepare their cases, and held:

  • there is an (American) constitutional right to prepare one’s case, which includes an obligation on prisons to provide direct access to “truly adequate” law libraries (at para 68); and
  • the right to make a full answer and defence can be impeded if there is a failure to provide adequate space or facilities where preparation can be performed (at para 74).

None of the cases cited by any party arose in Alberta, so Justice Graesser was free to draw from either camp. However, given that the Crown’s cases provided a much closer analogy, why did he opt for the less obvious choice?

The first reason is context-specific and was made explicit in Justice Graesser’s decision – Mr. Biever had demonstrated through his multiple court appearances that he actually uses and benefits from better access to legal information (at para 106). He had been given limited access to CanLII on a prior application, and had demonstrated an ability to make reasonable use of any resources provided (at paras 10, 111). With that backdrop, it was difficult to say that denying those resources would not impact his ability to defend himself.

In my view, however, two less explicit rationales equally guided Justice Graesser’s decision.

A. Technology and Legal Research

We live in a technology driven age, and nowhere is this more evident than in reviewing how legal research has changed over the past 20 years. Legal research is now a predominately online exercise. It is likely beyond the contemplation of every legal researcher to imagine preparing for trial without access to the internet or a computer. Given that no one in 2015 would head to trial relying solely on research collected without at least checking online legal resources, it simply does not follow that an accused can adequately defend him or herself without it.

In a related vein, the ERC’s argument that internet access is too risky or problematic does not fly in a way it might have 10 years ago. As any employment lawyer (or employee) knows, online access is regularly restricted and monitored. Providing an inmate with access to CanLII does not entitle him or her to peruse Facebook. In terms of logistics, Justice Graesser noted that internet ports were already installed in many rooms at the ERC – they just had not been connected yet. Any additional obligations in terms of monitoring or security were not unduly onerous (at paras 23, 93, 94, 104).

B. The Use (and Limits) of an Amicus

At various points in the judgment, Justice Graesser made special note of the value added by Mr. Badari, the amicus appointed to assist Mr. Biever (see, for example, at paras 103, 135). As amicus, Mr. Badari met with Mr. Biever, provided him with case law and research, and made arguments in support of Mr. Biever’s position to the Court.

Justice Graesser not only approved of Mr. Badari’s work specifically, he noted that (present circumstances notwithstanding) an amicus may often remedy the problems raised by a self-represented accused preparing for trial while incarcerated (at para 108). As Justice Graesser rightly noted, however (at paras 83, 108), there are limits to this practice. Mr. Badari was not Mr. Biever’s lawyer, and should not be treated as such.

The appointment of an amicus, as helpful as they may be to the Court, Crown, and accused, raises some uncomfortable questions insofar as this practice is used to remedy constitutional defects. For better or worse, Mr. Biever elected self-representation because he did not like, trust, or want a lawyer. In this circumstance, can we say that he was able to fairly meet and defend the case against him because, instead of providing him with access to free legal information, we appointed a lawyer to assist?

Of course, Mr. Biever’s subjective beliefs do not govern whether or not he received a fair trial – the test is an objective one. With that said, however, we must be cognizant of the limits of an amicus’s role, and the fact that self-represented persons are ultimately in charge of their own defence. Meeting that task requires access to adequate legal research materials. In deciding how to handle a self-represented inmate’s right to defend him or herself, it is a dangerous presumption to conclude that an amicus fixes the constitutional defects arising from unduly restricting their ability to conduct research. While this was not the conclusion in the present case, it was a deciding factor in other decisions (for example see Jordan, supra).

Concluding Thoughts

In my view, this case is most important for its recognition of the changing face of legal research. The move to web-based resources has forever altered the way legal research is conducted. The Biever decision simply recognizes that this reality has implications for the pre-existing right of criminal accused persons to represent themselves and adequately prepare for trial. This decision has the further benefit of correctly confining the role of a court-appointed amicus. It will be interesting to see how Alberta detention facilities respond to Justice Graesser’s suggestions, and how many self-represented inmates will reap the benefit of this decision.

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Alberta Court of Queen’s Bench Overturns Human Rights Tribunal’s Finding of Disability Discrimination in Employment

Tue, 06/02/2015 - 10:00am

By: Linda McKay-Panos

PDF Version: Alberta Court of Queen’s Bench Overturns Human Rights Tribunal’s Finding of Disability Discrimination in Employment

Case Commented On: Syncrude Canada Ltd v Saunders, 2015 ABQB 237

Syncrude Canada Ltd v Saunders, 2015 ABQB 237, case highlights the role of the appeal court in reviewing Human Rights Tribunal decisions, and the effect of the claimant’s credibility on proving discrimination on the basis of disability or perceived disability.

Jeff Saunders was hired by Syncrude as a process operator, effective March 17, 2003, in its oil sands operation in Fort McMurray. Although process operators work in a dangerous environment, he had no prior experience. Saunders was required to undergo a health assessment for new hires, where he did not disclose any health issues. He denied ever smoking marijuana, denied consuming alcohol regularly and indicated he was a body builder who worked out regularly at the gym. He passed the company’s drug and alcohol tests. Usually, process operators commence employment with on-site training. After training, Saunders was assigned to a 128-day-cycle, with two days worked, two nights worked, two days off, two days worked, two nights worked and then six days off.

Saunders was entitled to use vacation days as long as he obtained the supervisor’s approval in advance. During the first six months of employment, he was granted six vacation days. He was absent for two separate days for illness. Medical notes were not required for these absences under Syncrude’s policy (at para 13).

A routine performance review on July 18, 2003 indicated that Saunders was getting more comfortable with his surroundings but that he was very new to the process and it would take some time to gain the required knowledge. The supervisor also expressed concern about Saunders’ attendance, and an appointment was made with the Syncrude health and wellness advisor to discuss Saunders’ absenteeism (at para 14).

On July 31, 2003, Saunders requested vacation leave for August 2-3, 2003 to attend the Big Country Jamboree in Camrose. The acting supervisor refused because they were short staffed that weekend (at para 16). On August 1, 2003, Saunders took the company bus to the worksite but did not report to his shift because he had a severe headache. He telephoned his supervisor from the site, left a message that he was sick and returned to Fort McMurray on the bus (at para 16). Saunders also called in sick the next two days. The acting supervisor was suspicious that Saunders had taken the days off to attend the Jamboree, and sent an email to Saunders’ supervisor, his manager and human resources, describing the events that had occurred (at para 17). Saunders was instructed not to report for his regular shifts on August 8 and 9, 2003, but to attend the previously scheduled meeting with the health and wellness advisor on August 11, 2003. Before the meeting, Saunders obtained medical notes confirming that he had seen his physician on August 1 and 6, 2003 (at para 18).

On August 11, 2003, Saunders met with the health and wellness advisor, his supervisor and a representative from human resources. The manager accepted Saunders’ explanation that he had a migraine headache from August 1 to August 6, 2003. Saunders was reminded of the proper rules for reporting absences and told that he would be tracked medically for three months (at paras 19, 20).

Saunders had illness absences in September 2003, and he also requested some vacation leave in order to babysit his younger siblings due to an urgent family matter. On October 24, 2003, Saunders broke his hand in a bar fight while intoxicated, and he went on disability leave, and was ready to come back to work on February 17, 2004. His supervisor did not want him back because of his absenteeism and his belief that Saunders could not be made an operator (at para 23). The supervisor testified he was concerned about the number of vacation days that Saunders had taken on short notice in order to extend his days off. Also the absences due to illness were at the end or beginning of a period when Saunders was scheduled to have days off, causing the supervisor to suspect that Saunders was “manipulating the system” (at para 24). Then, on January 1, 2004, Saunders fell on some ice after a late night party and re-broke his hand, requiring surgery (at para 25). He was terminated “without cause” on February 17, 2004, based on poor performance and innocent absenteeism (at para 26).

On March 4, 2004, Saunders filed a human rights complaint against Syncrude, alleging discrimination on the basis of disability or perceived disability in employment practices. The Alberta Human Rights Tribunal concluded that Syncrude had discriminated against Saunders and awarded him $33,901 for lost wages and $10,00 general damages, plus interest and out of pocket costs (at para 4).

Syncrude appealed to the Alberta Court of Queen’s Bench under section 37 of the (now) Alberta Human Rights Act, RSA 2000, c A-25.5. This section states (in part):

37(1) A party to a proceeding before a human rights tribunal may appeal an order of the tribunal to the Court of Queen’s Bench by application filed with the clerk of the Court at the judicial centre closest to the place where the proceeding was held.

(4)  The Court may

(a)    confirm, reverse or vary the order of the human rights tribunal and make any order that the tribunal may make under section 32, or

(b)    remit the matter back to the tribunal with directions.

Justice Bryan Mahoney of the Alberta Court of Queen’s Bench noted that when determining whether a complainant has established a prima face case of discrimination, the standard of review is reasonableness. Normally, appellate courts will not disturb findings of fact made by a trier of fact if there was credible evidence upon which the trier of fact could reasonably base his or her conclusion (at paras 33, 34). Thus, the task of the Court in this case was to look at whether the weighing of the evidence done by the Tribunal was reasonable, and whether all relevant evidence was considered (at para 37).

Syncrude argued that the Tribunal erred in finding that Saunders had established a prima facie case of discrimination, because he was the only witness at the hearing, and his evidence was untruthful and evasive, and thus not credible. In addition there was no reliable medical evidence (there were just a couple of notes submitted) to establish perceived disability or disability (at para 40). Saunders and the Director of the Human Rights Commission argued that the Tribunal should have identified whether the basis for its finding of a prima facie case was the headaches or the hand injury. Nevertheless, they argued that Saunders had provided satisfactory medical evidence to establish discrimination based on disability (at para 42).

Justice Mahoney noted that while Syncrude had expressly challenged Saunders’ credibility, the Tribunal had failed to adequately address the impact of Saunders’ credibility on his ability to establish a case of discrimination. Thus, this was a reviewable error. Justice Mahoney then reviewed the evidence and provided twelve indicators that demonstrated Saunders’ lack of credibility. These may be summarized as follows (at para 50):

  • While Saunders denied substance use in his new-hire health assessment, on cross-examination he admitted to smoking marijuana until at least the age of 20. His physician’s medical notes indicated he was smoking one ounce of marijuana per week, but he denied their accuracy (the physician was not called to give oral evidence);
  • In his new-hire health assessment, Saunders said he had never broken any bones or had any prior sprains, but his medical records indicated prior injuries not disclosed to Syncrude;
  • He did not recall using cocaine, despite his medical records indicating he was using cocaine and financing this habit by selling his possessions;
  • While he denied using alcohol in his pre-hire assessment, his medical chart indicates he consumed 30 ounces of alcohol per week. He also admitted he was intoxicated on both occasions when he broke his hand—the first by punching someone in the face in a bar and the second when he fell down on ice after leaving a New Year’s Eve party;
  • While Saunders had indicated he had sought medical attention for his headaches in June 2003, medical records did not include any record of attending the clinic for treatment at any time in June 2003;
  • He also told his supervisor that he was seeing his doctor for the headaches in July 2003, but his medical records and his own admission on cross-examination indicated he did not seek medical attention until August 1, 2003;
  • Saunders never provided any documentation of his assertion that he had attended a hospital for a headache in June 2003;
  • While Saunders testified that his absence in early September 2003 was caused by having the flu, the medical records said nothing about him having the flu;
  • He testified he had broken his hand playing floor hockey on October 24, 2003, but later admitted that he had punched someone in the face during a bar fight;
  • Saunders originally told Syncrude that he had re-broken his hand by falling on ice at 8 a.m. January 1, 2004, but hospital records indicated he had injured his hand shortly after midnight, which he acknowledged in cross-examination;
  • Saunders had testified that he could not pay child support due to his termination, but confirmed during cross-examination that his wages had been garnisheed by maintenance enforcement before his termination. Further, the evidence indicated that his cocaine use and sale of possessions were the actual reasons for inability to pay child support; and
  • While he testified he had tried to find alternate employment immediately after he was terminated, he was unable to provide any evidence of any actual mitigation efforts.

The Tribunal had therefore erred in not evaluating the credibility of a witness whose evidence was critical and needed to be proven as reliable in order to form a factual basis for a finding of prima facie discrimination (at para 52). The Tribunal had also committed a reviewable error when it did not draw an adverse inference against Saunders for not calling his physician to testify in support of his claim of disability or perceived disability (at paras 67, 69). Because of this error, Syncrude had not had the opportunity to cross-examine the author of the medical records. This breached the duty of fairness (at para 78).

The Tribunal also erred when it concluded that Saunders had established a prima facie case that he was terminated on the basis of perceived disability. There had been no evidence of any linkage between his termination and a perceived disability (at para 86).

Justice Mahoney also analyzed whether, assuming the complainant had established a prima facie case of discrimination, the respondent had demonstrated that the discrimination was justifiable. Had the employer accommodated Saunders’ needs with respect to a disability or perceived disability to the point of undue hardship (at para 87)?

While the Tribunal had concluded that Saunders’ absenteeism was excessive and his poor attendance had been discussed with him, it was not accurate in stating that Saunders had not been warned that his continued employment was in jeopardy (at paras 90-1). Justice Mahoney pointed out that Saunders was aware of Syncrude’s concerns about his attendance and was aware of the disciplinary actions available under the employee guidelines (at para 92). Because Justice Mahoney had concluded that Saunders’ poor attendance was not connected to any disability, it would be impossible for Syncrude to accommodate Saunders without undue hardship due to the patterns of his absenteeism (at para 93).

Justice Mahoney also concluded that had Saunders made out his discrimination complaint, the remedies provided by the Tribunal (two years lost wages with a 50% discount for failure to mitigate, and $10,000 for pain and suffering) were reasonable.

Given the long history of the matter and the futility of remitting the matter back to the Tribunal to arrive at the “only reasonable result”, Justice Mahoney allowed Syncrude’s appeal and dismissed Saunders’ claim (at para 106).


With respect, I have some difficulty with the conclusions reached in this case. First, some of the indicia of Saunders’ lack of credibility were not relevant to the issue of discrimination on the basis of disability. For example, the Tribunal had correctly noted that evidence (medical notes) indicating alcohol and cocaine use by Saunders was actually about a period of time after he was dismissed and therefore not relevant to the issue of discrimination (or credibility) (at para 45).

Second, the Tribunal had concluded that the documentary evidence submitted (e.g., the doctor’s notes) was sufficient to support a finding of discrimination. It is clear that, whatever the cause, Saunders was disabled by his hand injury for a period of time. Further, no one at the hearing disputed that Saunders had a broken hand that required surgery (at para 64). Counsel for the Human Rights Commission and Saunders submitted that it may have been better if the Tribunal had specifically identified the basis of Saunders’ case as the headaches or hand injury. Nevertheless, the Tribunal had concluded that Saunders had provided satisfactory medical evidence to support a prima face case (at para 42). The Tribunal was prepared to accept the tendered evidence for proof of disability. Syncrude argued it was denied the opportunity to cross-examine the physician on the medical records, but the Tribunal had indicated that Syncrude could have called the physician as a witness; it was not the Tribunal that denied Syncrude that opportunity.

Third, Justice Mahoney held that Saunders did not state to Syncrude that he had a disability or required accommodation (at para 56). Further, the physician could have testified about the needed accommodations for Saunders’ disability (at para 72). Yet, Syncrude was aware of the headaches and the hand injury, and the Tribunal’s decision indicates that Saunders had communicated with the health and wellness office about “light duties” after his hand injury (see 2013 AHRC 11 at paras 24 to 27).

Further, case law is clear that if disability is one of the reasons for discrimination (even if not the sole reason) that is sufficient to make out a prima facie case of discrimination (see Holden v Canadian National Railway Co., [1990] FCJ No 419 [QL], 112 NR 395; Bernard v. Waycobah Board of Education, [1999] CHRD No 2 [QL], (1999), 36 CHRRD/51 (CHRT), cited by the Tribunal). The Tribunal relied on Desmoreaux v Ottawa-Carleton Regional Transit Commission [2003] CHRT No 1 at para 72 for the principle that taking into account disability-related absences in deciding to terminate an employee for excessive absenteeism is prima facie discriminatory (see 2013 AHRC 11 at para 78). Thus, since most of Saunders’ absences were related to his hand injuries and surgery, terminating him for “excessive innocent absenteeism” was prima facie discriminatory. Of course, if excessive absences pose an undue hardship for the employer, at some point, the employer would be able to argue that disability could not be accommodated to the point of undue hardship. However, there was little discussion of this in Justice Mahoney’s decision. He concluded that disability was not the cause of the excessive absenteeism (at para 93).

Perhaps it was Justice Mahoney’s decision that was unreasonable?

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ABlawg’s New Look

Mon, 06/01/2015 - 9:00am

Readers will notice that ABlawg has a new look this morning. After seven years with the header created by our first student coordinator, Brian Milne, we thought it was time for a change – call it the seven year itch. Our current student coordinator, Evelyn Tang, gets the credit for shifting us from the prairies to the mountains (Lake Louise to be exact), and has incorporated the University of Calgary crest and colours into our new header. We have also made it easier for readers to tweet posts. We hope you like the new look and features, and welcome your comments (and your tweets, Facebook likes, etc).

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The Supreme Court’s Latest Equality Rights Decision: An Emphasis on Arbitrariness

Fri, 05/29/2015 - 10:00am

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Supreme Court’s Latest Equality Rights Decision: An Emphasis on Arbitrariness

Case Commented On: Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 (CanLII)

The Supreme Court released its decision in Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 yesterday. We commented on the Federal Court of Appeal decision in the case here. Taypotat was one of two appeals concerning adverse effects discrimination under section 15(1) of the Charter heard by the Supreme Court in October 2014, the other being Carter v Canada (Attorney General), 2015 SCC 5. The Supreme Court declined to rule on the section 15(1) issue in Carter (see here; see also the Court’s decision not to address section 15 in last week’s ruling in R v Kokopenace, 2015 SCC 28 (CanLII), a case involving the representativeness of juries for Aboriginal accused persons). However, the Court did not have the option of avoiding section 15 in Taypotat. In a unanimous judgment written by Justice Abella, the Court held that the adverse effects claim in Taypotat was not established by the evidence.

The Taypotat case involved a community election code adopted by the Kahkewistahaw First Nation in Saskatchewan to govern elections for the positions of Chief and Band Councillor. The code restricted eligibility for these positions to persons who had at least a Grade 12 education or the equivalent. Louis Taypotat had previously served as Chief for a total of 27 years, but the new Kahkewistahaw election code excluded him from standing for election because he did not have a Grade 12 education. Currently 76 years old, Taypotat attended residential school until the age of 14 and was assessed at a Grade 10 level. He also holds an honorary diploma from the Saskatchewan Indian Institute of Technology recognizing his service to the community. In an application for judicial review, Taypotat challenged the eligibility provision under section 15(1) of the Charter. He was unsuccessful at the Federal Court level (2012 FC 1036), but the Federal Court of Appeal allowed his appeal (2013 FCA 192).

Commenting on the decisions of the courts below, Justice Abella focuses on the first step of the test for discrimination under section 15(1) of the Charter, whether the law or policy draws a distinction based on an enumerated or analogous ground. She notes that in his initial judicial review application, Taypotat argued that the Grade 12 educational requirement violated section 15(1) because “educational attainment is analogous to race and age” (at para 10). On appeal, he re-framed his challenge to focus on “residential school survivors without a Grade 12 education” as an analogous group under section 15(1) (at para 12). Justice Abella has this to say about the Federal Court of Appeal decision (at para 13, emphasis added):

It did not deal explicitly with the argument that residential school survivors without a Grade 12 education constituted an analogous group for the purposes of s. 15, but concluded instead, even though it was not pleaded, that the education requirement had a discriminatory impact on the basis of age. In addition, without anyone having raised the issue, it found the education requirement discriminated on the basis of “residence on a reserve”.

After identifying this procedural problem, she then summarizes the Court’s holding at para 14 (emphasis added):

While facially neutral qualifications like education requirements may well be a proxy for, or mask, a discriminatory impact, this case falls not on the existence of the requirement, but on the absence of any evidence linking the requirement to a disparate impact on members of an enumerated or analogous group.

The Court’s approach to the test for discrimination, and its treatment of the evidence in the case, are noteworthy in several respects.

To begin with the passage above, Justice Abella correctly identifies this case as one of adverse effects discrimination. However, her statement that “education requirements may well be a proxy for, or mask, a discriminatory impact” is misleading — adverse effects cases are ones where it is the discriminatory intent that is masked, which is why the focus must be on the effects or impact of the law on the individual or group concerned.

Justice Abella goes on to note (at para 16) that the Court’s most recent articulation of the approach to discrimination was “clarified” in Quebec (Attorney General) v A, [2013] 1 SCR 61 (an interesting characterization given the Court’s 5:4 split in that case, with four sets of reasons). Justice Abella refers to her reasons for the majority on the section 15(1) issue in Quebec v A for the point that the equality section requires a “flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group” (at para 331, emphasis added). Her judgment in Taypotat goes on to use the term “arbitrary” an additional five times. Arbitrary is used as a modifier of the term “disadvantage”, as well as a synonym for “discriminatory” (see e.g. para 20, where Justice Abella refers to “arbitrary — or discriminatory — disadvantage.”).

We have been critical of the Court’s use of the term “arbitrary disadvantage” in section 15 cases (see here and here), as well as in its human rights jurisprudence (see here), where the test for discrimination has been influenced by the Court’s approach under the Charter. A consideration of arbitrariness in discrimination claims is problematic, as it focuses on the purpose of the government’s action rather than its effects. This is a particular problem in adverse effects discrimination cases, because the neutral laws and policies that are the subject of these claims can only be assessed as discriminatory in light of their effects.

A focus on arbitrariness also improperly imports section 1 Charter considerations into section 15(1), shifting the burden to the claimant to disprove the arbitrariness of government action rather than requiring the government to prove the rationality of its action. This has been an issue since at least the Court’s decision in Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, where the “correspondence factor” necessitated consideration of whether the law corresponded with the claimant’s actual needs, capacities and circumstances, essentially a consideration of arbitrariness. While the Court does not refer to its earlier decision in Law v Canada in Taypotat, it does use the language of the correspondence factor at para 20, asking “whether the impugned law fails to respond to the actual capacities and needs of the members of the group” (emphasis added).

Interestingly, in Quebec v A Justice Abella only used the term “arbitrary” once, and we queried whether that was a slip of the pen in light of her decision’s broad focus on discrimination as the perpetuation of disadvantage (see here). But Taypotat suggests that her usage of the term was quite intentional, and that the Court continues to view discrimination as requiring proof of arbitrariness (see also Justice Abella’s post- Quebec v A decision in McCormick v Fasken Martineau DuMoulin LLP, 2014 SCC 39 (CanLII), a human rights case where she uses the language of arbitrary discrimination).

At other points in her judgment, Justice Abella articulates the approach to discrimination more broadly, without reference to arbitrariness:

[Substantive equality] is an approach which recognizes that persistent systemic disadvantages have operated to limit the opportunities available to members of certain groups in society and seeks to prevent conduct that perpetuates those disadvantages (at para 17, emphasis added).


The s. 15(1) analysis is accordingly concerned with the social and economic context in which a claim of inequality arises, and with the effects of the challenged law or action on the claimant group: Quebec v A, at para. 331 (at para 18, emphasis added).

These statements of the approach to discrimination, with their broad focus on context, systemic disadvantage and the effects of government actions, are more in keeping with a substantive approach to equality. They also make it clear that the Court’s references to disadvantage are actually to historic disadvantage, with discrimination requiring proof of the law’s perpetuation of that historic disadvantage for the group in question.

This is confirmed by Justice Abella’s statement that the focus of step 2 of the test for a violation of section 15(1) — which is whether the distinction based on a protected ground at step 1 of the test results in discrimination — should be on whether the law “imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage” (at para 20, emphasis added).

Justice Abella’s articulation of step 2 of the test for discrimination in Taypotat is also notable because there is no reference to “prejudice or stereotyping” here or elsewhere in the judgment. Prejudice and stereotyping were the focus of step 2 of the test prior to Quebec v A (see R v Kapp, [2008] 2 SCR 483, 2008 SCC 41 (CanLII); Withler v Canada (Attorney General), [2011] 1 SCR 396, 2011 SCC 12 (CanLII)), as well as in the dissenting reasons under section 15(1) in Quebec v A.

Another significant aspect of the Taypotat judgment is Justice Abella’s statement of the sort of evidence that will be required to prove an adverse effects discrimination claim (at para 33, emphasis added):

… statistical evidence is [not] invariably required to establish that a facially neutral law infringes s. 15.  In some cases, the disparate impact on an enumerated or analogous group will be apparent and immediate.  The evidence in this case, however, does not point to any such link between the education requirement and a disparate impact on the basis of an enumerated or analogous ground.

The Court acknowledges that “education requirements for employment could, in certain circumstances, be shown to have a discriminatory impact” (at para 23), citing Griggs v Duke Power Company, 401 US 424 (1971), where the United States Supreme Court found that an employer’s requirement that employees have a high school diploma disproportionately excluded African Americans from positions in a power plant. Justice Abella notes the USSC’s metaphor that when employment requirements “are unrelated to measuring job capability [they] can operate as “built-in headwinds” for minority groups, and will therefore be discriminatory” (at para 21, quoting Griggs at 432).

The Court’s reference to Griggs is problematic, as U.S. discrimination law — especially in the context of private actors such as employers — is notorious for requiring either proof of intentional discrimination or statistical proof of disparate impact discrimination, putting a heavy burden on claimants in both kinds of cases. It is telling that the Court felt the need to turn to American law to offer an example of a successful adverse impact claim, as there is a scarcity of such claims in Canada (see here and our discussion below).

As for the evidence in Taypotat, the problem, according to Justice Abella, was that there was “virtually no evidence about the relationship between age, residency on a reserve, and education levels in the Kahkewistahaw First Nation to demonstrate the operation of such a “headwind”” (at para 24). The Court was not prepared to accept the statistical evidence relied on by the Federal Court of Appeal, which was not specific to the Kahkewistahaw First Nation, and, in the Court’s view, did not establish sufficient discriminatory impact of the education requirement on the basis of residence on a reserve or age. Although it indicates that all the claimant must prove is a prima facie breach (at para 34), which is language usually reserved for the human rights context rather than the Charter, the Court does not acknowledge the burden on the claimant of proving the adverse effects of an education requirement within his own small community of 2,000 people. This would presumably require a sociological study of some kind, or evidence of the adverse impact of similar requirements in other First Nations communities. The Court seems to have been influenced by the fact that Taypotat was Chief while the consultations for the education requirement were being debated in the community (see paras 2, 5, and 7), leading the Court to express concerns about “put[ting] the Kahkewistahaw First Nation to the burden of justifying a breach of s. 15” (at para 34).

The Court also declined to consider whether the education requirement discriminated against “older community members who live on a reserve”, noting that Taypotat had not framed his claim based on that intersection between grounds initially, and there was therefore no evidence on it (at para 33). Moreover, despite the Court’s emphasis on systemic discrimination and context, the residential school setting of Taypotat’s education and its connection to his age was not addressed, except for the point that this argument had not been raised by the claimant in the first instance (see paras 12-13). The Court thus missed an important opportunity to comment on the intersection amongst several grounds of discrimination, an underdeveloped area in the Court’s jurisprudence. This is a particularly significant omission for Aboriginal equality claimants, whose claims often engage multiple, intersecting grounds of discrimination.

Taypotat is only the ninth adverse effects discrimination decision under the Charter from the Supreme Court in the last 30 years, and the number of successful adverse effects claims still stands at only two (see Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, 1997 CanLII 327 (SCC); Vriend v Alberta, [1998] 1 SCR 493, 1998 CanLII 816 (SCC)). In our review of the Court’s adverse effects discrimination case law (here), we identified a number of problems arising in this type of case: more burdensome evidentiary and causation requirements and assumptions about choice, the reliance on comparative analysis, acceptance of government arguments based on the “neutrality” of policy choices, the narrow focus on discrimination as prejudice and stereotyping, and the failure to “see” adverse effects discrimination, often as a result of the size or relative vulnerability of the group or sub-group making the claim.

The Court’s decision in Taypotat only deals with some of these issues of concern. First, and as noted above, the Court states that statistical evidence will not always be required to establish that a facially neutral law violates section 15(1), although its absence was fatal in this case. Second, the Court seems to reference causation when it states that “The evidence before us … does not rise to the level of demonstrating any relationship between age, residence on a reserve, and education among members of the Kahkewistahaw First Nation, let alone that arbitrary disadvantage results from the impugned provisions” (at para 34, emphasis added). This passage suggests that claimants will continue to be held to fairly onerous causation requirements in adverse effects discrimination cases, hinting at the need for a direct link between the law and the disadvantage and a dominant role for the law in causing the disadvantage. A third problem — the Court’s previous reliance on prejudice and stereotyping as the primary harms of discrimination, which are difficult to prove in adverse effects cases — may be alleviated somewhat by the Court’s current focus on the perpetuation of historical disadvantage. Nevertheless, Justice Abella’s multiple references to “arbitrary disadvantage” continue to concern us for the reasons stated above.

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Section 27 of the Surface Rights Act and the Potential Fallout of Non-Compliance

Fri, 05/22/2015 - 10:00am

By: Fenner Stewart

PDF Version: Section 27 of the Surface Rights Act and the Potential Fallout of Non-Compliance

Legislation Commented On: Surface Rights Act, RSA 2000, c S-24

Section 27 of Alberta’s Surface Rights Act obliges operators to notify landowners of the opportunity to renegotiate leases, but provides no enforcement measures for operator non-compliance. This post explores the potential fallout.

1. Introduction

Alberta’s Surface Rights Act helps to encourage the negotiation of surface leases between landowners and operators. Whether granting a producer the right of entry to drill for oil and gas or granting an energy company the right to place a pipeline or power transmission line across one’s property, many landowners would not allow such operators access to their land if the force of law did not compel the right of entry. In mining and drilling cases, the common law recognizes an implied right of entry in conjunction with the granting of mineral rights. In pipeline and transmission line cases, the Crown can exercise its power of expropriation to take private property for public use. In these situations, the legal authority for such rights of entry is not dependent on any power granted by the Surface Rights Act.

The primary purpose of the Surface Rights Act is to avoid litigation when an obstinate landowner rejects all reasonable offers for compensation in exchange for access to their property. When negotiations breakdown, the Surface Rights Board intervenes and establishes the terms, including compensation, of the surface lease. By offering an alternative to a privately negotiated lease, the Act promises to break deadlocks between lessor-landowners and lessee-operators resulting in expedited energy projects. Further, it is hoped that by providing an alternative to the more adversarial judicial system, more amicable relations between landowners and operators will develop even in less than ideal circumstances.

Unfortunately, section 27 of the Surface Rights Act appears to be undermining the goal of facilitating amicable relations. Section 27 aspires to initiate the renegotiation of a surface lease every 5 years. Such renegotiations are necessary so that the parties can review the compensation payable in light of variables arising and evolving over the lease term. These variables include: the compensation that other landowners recently received, the per acre value of the land, the actual loss of use, and other adverse effects such as damages. The problem lies in section 27’s requirement that obliges the operator to notify the landowner of the opportunity to renegotiate the lease. Predictably, the landowners rely upon this notification requirement. The Act, however, provides no punitive measure for non-compliance; this, in turn, leaves the operator to follow market incentives. Since renegotiating a lease usually costs the operator more through additional compensation payouts, this incentive encourages the operator, as a rational market actor, to ignore the notification requirement. Non-compliance with the requirement frustrates the landowner when he or she discovers they were short changed by the operator; this ultimately undermines the goal of amicable relations. Undermining amicable relations is precisely what the drafters of the Surface Rights Act were attempting to avoid. In contemplation of this regulatory failure, this article explores the pitfalls of this legal quagmire for landowners, the Alberta government, and even the operators who appear to be profiting from the situation.

2. Landowners

If the landowner can look past this additional point of contention with the process, he or she may see the advantage in the situation. To start, the landowner can apply to the Surface Rights Board to adjust the compensation and remedy the situation. If the rate of compensation is higher, the operator will be required to back pay the difference, plus interest if appropriate. So the landowner will not miss out on any compensation. Furthermore, if the operator is failing to provide notice as a normal course of business, which appears to be what is happening in some cases, the operator may neglect to notify the landowner even when it is in its own benefit to do so. The landowner is under no obligation to remind the operator of this failure to negotiate if it is not in the landowner’s interest to do so. In addition, if the operator overpays, the Board will not require the landowner to reimburse the overpayment. The landowner can enjoy the windfall without fearing adverse consequences down the road.

The only potential pitfall for the landowner is the time limitation for providing his or her notice to the operator; the Act requires landowners to provide notice to the operator of his or her intention to have the Board review the compensation. This notice needs to be given within a reasonable period of time measured from the date the renegotiation ought to have occurred. So the landowner will not be able to reach back indefinitely to claim additional compensation. This is fair; if renegotiation fails to occur, the landowners are not blameless. They ought to read their leases and know their rights. The regulatory requirement that the operator needs to provide notice should be considered a courtesy to the landowner, and it should not be used as a reward to landowners who mismanage their business affairs. The time limitation reflects this balance.

3. The Alberta Government

Systemic non-compliance occurs, most often, when regulators fail to appreciate other normative pressures placed upon those subjected to their regulation. The most obvious of these normative pressures, especially for businesses, are market pressures. All for-profit actors exist in competitive marketplaces; they need to be profitable to survive. On a fundamental level, business decision-makers evaluate potential options for profit in light of the potential risks associated with each option. From this vantage point, a regulation is merely a single risk in the complex spectrum of risks that must be successfully navigated to achieve profit. The bottom line is that if non-compliance is profitable, profitable businesses will not comply. Regulators ignoring this slightly cynical truism, do so at their peril. Section 27 is a perfect example; the regulatory drafters ignored the market incentives for non-compliance and achieved the foreseeable result: non-compliance.

Some might regard section 27’s failing as insignificant, considering the landlord’s ability to recoup losses, but regulators should never create rules that habitually encourage non-compliance. Those subjected to such regulatory incompetence understandably conclude that regulators are either indifferent to the rule breaking or too inept to notice. This can nurture an unpredictable culture of non-compliance, which impacts the integrity of the entire regulatory field, and can result in much more serious regulatory failures in the future.

Of course, to err is human, but it is less understandable when no effort is made to correct an obvious pattern of perpetual failure. In other words, regulatory shortcomings will occur, but when identified, they ought not be allowed to persist; in fact, they ought to be fixed as soon as reasonably possible. In the case at hand, the regulator should devise an adequate mechanism to inspire compliance, but requiring compliance with full knowledge of systemic non-compliance ought to stop—better to not regulate at all. So, at bare minimum given the present circumstances, the regulator ought to repeal the notice requirement.

 4. Operators

At first blush, there appears to be little incentive to comply with the notice requirement. A shrewd operator will appreciate that not all landowners will petition the Board to review the rate of compensation, which saves it money presuming renegotiation increases compensation. Also, an operator may have a significant number of surface leases in Alberta. Managing each of them incurs administrative expenses, including: the cost of ensuring that the landowner receives notice as prescribed, the cost of renegotiating the lease, and potentially the cost of preparing for a review by the Board. The only potential cost of non-compliance is the interest charged upon the back pay, and such interest is only charged when the Board deems it appropriate. Even if interest is charged, a rational market actor will appreciate that the present discounted value of money will mitigate the said interest payment. Accordingly, based solely on the immediate economic considerations outlined above, no operator ought to comply with this requirement.

However, if operators focus solely upon these immediate economic considerations, they may win the battle but lose the war. To appreciate this warning, one needs to step back and adopt a more farsighted cost-benefit analysis. To start, the benefit is marginal to most operators. The savings of non-compliance is minuscule relative to the operating budgets of the relevant players in Alberta. It is fair to say that for the average oil and gas producer, these gains would have no noticeable impact upon their bottom line. Of course, achieving impressive operational efficiency is a details game; every penny counts, but risk-reward needs to be kept in balance. If the reward is a small one, the risk ought to be as well.

The risk analysis starts with section 27. Prima facie, there appears to be no cost in non-compliance. The formula is simple: potential cost of interest less the present discounted value of money equals zero—or next to zero. Of course, this assumes that there are no additional costs. This begs two questions. Does this strategy aggravate landowners? If yes, does it matter?

In answering the first question, when the surface owner does not own the subsurface mineral interests, they receive relatively little of the gain and suffer the majority of the inconvenience of drilling and production. In fact, there is generally not a natural market because there is not a willing supply of landowners lining up asking oil and gas producers to start drilling on their land. Anyone who knows the business of upstream oil and gas can appreciate that such production does little to add to the quiet enjoyment and value of one’s property. It is safe to say, without engaging in formal empirical research, that most surface owners who do not have a stake in the oil and gas royalties would prefer no development on their land.

One would think that in the United States of America, where freedom is intimately connected to the right of private property, the imposition of the right of entry would be less acceptable than in Alberta; this is not that case. In America, when surface owners buy land with severed mineral interests or choose to sever the mineral interest, they generally accept that they own only a portion of the land. Furthermore, the right of entry is taken into account when negotiating the purchase price of the land. From this perspective, the implied right of access is more palatable. At the most rudimentary level, if the landowners do not like their situation, they should not have bought into the situation in the first place. In other words, the landowner chose this potential inconvenience when they purchased the property with the severed interest or sold such mineral interest to another. The right of entry is just part of the deal.

In Alberta, the provincial Crown owns approximately 81% of subsurface rights—66 million hectares. Generally speaking, Alberta landowners never chose to sever the mineral interest; never chose to purchase land with a split title; and arguably paid a price that was not properly discounted to reflect the implications of these realities. To put differently, they were cut out of the deal from day one. Thus, Alberta landowners, unlike American landowners, are less amicable to drilling and production on their land. Without choice, they do not see themselves as the author of these impositions. Rather, the lack of choice creates the perception, rightly or wrongly, that oil and gas producers and the provincial Crown are imposing themselves upon the landowner and profiting handsomely from doing so. Thus, it is not surprising that the surface lease issue is contentious in Alberta as Dome Petroleum Ltd v Richards, (1985) 66 AR 245 so clearly demonstrates.

So, does it matter if non-compliance alienates landowners? Yes. The current oil and gas business in Alberta requires polish and a deft touch; operators need all the public support they can muster. For instance, consider the challenge posed by today’s environmental activists. Simple industry reform, to many, will not avoid dangerous climate change; they are squarely fighting to have the use of fossil fuels phased out completely. These activists are not only targeting politically embedded carbon producers, like the coal industry, but also soft targets, such as pipelines, hydraulic fracturing, and other non-conventional forms of production. Needless to say, this is not good news for producers of Alberta’s crude.

Furthermore, hydraulic fracturing is transforming America, in particular the Midwest, from a customer to a competitor. Alberta crude needed access to new markets even before the “U.S. Shale Gale,” but today the Cushing Hub is starting to look less and less like a reliable option to meet Canadian needs. For a case in point, America’s Senate shelved Keystone XL, after an icy President Obama declared: “Understand what this project is. It is providing the ability of Canada to pump their oil, send it through our land, down to the Gulf, where it will be sold everywhere else.” Obviously, Canadian-American cooperation generated by the politics of peak oil has shifted—at least for now.

Regardless of the future of Keystone XL, Alberta crude still needs at lease one significant pipeline from Alberta to a Canadian coast. This has been complicated by recent events, including the Tsilhqot’in Nation case, 2014 SCC 44, coupled with the new pressures placed upon the Assembly of First Nations, the promise of more public demonstrations such as the Burnaby Mountain Protests, and the opposition to an “Alberta” pipeline expressed by Southern Quebec and other such Eastern constituents. Finally, to add insult to injury, crude prices are falling dramatically amidst a shift in the geopolitics of global oil markets that no one—except maybe the Saudis—fully understand. The only thing that appears clear is that there is willingness to allow crude oil prices to remain uncomfortably low, at least for Canadian oil sands producers, for the foreseeable future.

In sum, what’s the benefit? Basically, there isn’t one: a nominal cash savings. On the other hand, it is the little things, such as this non-compliance, that can swing public support against the industry, and there is not much room to squander goodwill as it is. In light of this, non-compliance with section 27 makes little sense.

An earlier version of this post was first published in CAPL’s “The Negotiator” in February 2015. With CAPL’s permission, the Farmers’ Advocate Office at Alberta’s Ministry of Agriculture and Rural Development will republish it in May 2015.

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The Application of stare decisis in Administrative Decision-Making

Tue, 05/19/2015 - 10:00am

By: Shaun Fluker

PDF Version: The Application of stare decisis in Administrative Decision-Making

Case Commented On: Altus Group v Calgary (City), 2015 ABCA 86

In Altus Group v Calgary (City), 2015 ABCA 86, the Alberta Court of Appeal confronts the application of stare decisis to administrative tribunal decision-making. Some would say it is a truism that statutory decision-makers are not bound by precedent given the fact-intensive and policy-laden nature of their work, and that most tribunal members have little or no substantive legal training. Jurists of Diceyan thought have surely held this position and indeed typically point to the very absence of stare decisis in administrative law to bolster their suspicion of and disregard for statutory decision-making and to justify the need for intrusive judicial scrutiny. In modern times, a tribunal seeking to downplay arguments based on precedent might be expected to respond along the lines of “[w]hile our earlier decisions may be relevant and even persuasive in this case, we are not bound by these previous rulings.” But on the other hand, many administrative law practitioners have no doubt appeared before a tribunal who references its earlier decisions and the need for consistency to support a particular ruling. Perhaps all we can say for sure is that the application of stare decisis to administrative decision-making is a tricky business.

The need for consistency in administrative decisions is starting to gain some traction in Canadian administrative law at the expense of the traditional rule that a statutory tribunal is not bound by its prior decisions. In particular, this issue has arisen in the context of statutory interpretation by administrative decision-makers. I raised this point earlier in Some Thoughts on the Presumption of Deference under the Dunsmuir Framework in Substantive Judicial Review wherein I questioned the ruling in Alberta Treasury Branches v Alberta Union of Provincial Employees, 2014 ABQB 737, that it was lawful for a statutory decision-maker to completely depart from an earlier interpretation of provincial legislation.

In Altus Group the Court of Appeal has ruled that while an administrative tribunal is not bound by its previous decisions and is free to adopt any reasonable interpretation of its home legislation in a matter before it, previous interpretations given to that legislation will have some bearing on the reasonableness of the tribunal’s interpretation in a current matter (at paras 16 – 31). Whether this decision is helpful in clarifying the application of stare decisis in administrative decision-making is open to question. It seems to me while the Court begins by asserting that stare decisis is not applicable to an administrative decision-maker, in the end the Court rules that stare decisis does apply to how an administrative decision-maker interprets its home legislation. And since the vast majority of administrative decisions involve some measure of statutory interpretation, this decision is arguably a significant change from the traditional rule.

The Court observes that little attention has been paid to conflicting statutory interpretations given by administrative tribunals and the need for consistency in statutory decision-making (at para 19). The issue is commonly understood as arising from the conflict between two fundamental norms in public law: (1) the separation of powers doctrine that calls on the judiciary to respect the intention of the legislative branch to empower an administrative tribunal to make legal determinations within its specialized area; and (2) the rule of law that abhors arbitrary decision-making by public officials and calls for similar treatment in legal determinations.

The leading authority on this topic is the Supreme Court of Canada’s 1993 decision in Domtar Inc v Quebec, [1993] 2 SCR 756, 1993canlii106, which ruled that conflicting interpretations by an administrative tribunal of its home legislation does not constitute an independent basis for judicial review. Madam Justice L’Heureux Dubé held that allowing the superior courts to resolve conflicting administrative decisions would inevitably thwart the intention of the legislature to empower administrative decision-making to make legal determinations within its specialization, as jurisprudential conflicts would develop over time in mature administrative regimes and eventually demand intrusive judicial review. The Court stated that any conflicts within administrative law that are truly offside the rule of law should be remedied with legislative action (Domtar at 794-800). We might say this decision asserts the norm of curial deference over the rule of law.

This line of authority can be seen in the more recent iterations by the Supreme Court on applying the reasonableness standard to review the interpretation given by an administrative tribunal to its home legislation. Perhaps the most striking illustration of this is the Supreme Court’s 2013 decision in McLean v British Columbia (Securities Commission), 2013 SCC 67. This case involved a dispute over the interpretation of a provision in the Securities Act, RSBC 1996, c 418, given by the British Columbia Securities Commission. In upholding the interpretation provided by the statutory agency, Justice Moldaver stated that there may be competing lawful interpretations of the same legislative provision (at paras 40, 41, emphasis by the Court):

The bottom line here, then, is that the Commission holds the interpretative upper hand:  under reasonableness review, we defer to any reasonable interpretation adopted by an administrative decision maker, even if other reasonable interpretations may exist.  Because the legislature charged the administrative decision maker rather than the courts with “administer[ing] and apply[ing]” its home statute (Pezim, at p. 596), it is the decision maker, first and foremost, that has the discretion to resolve a statutory uncertainty by adopting any interpretation that the statutory language can reasonably bear.  Judicial deference in such instances is itself a principle of modern statutory interpretation.

Accordingly, the appellant’s burden here is not only to show that her competing interpretation is reasonable, but also that the Commission’s interpretation is unreasonable.  And that she has not done.  Here, the Commission, with the benefit of its expertise, chose the interpretation it did.  And because that interpretation has not been shown to be an unreasonable one, there is no basis for us to interfere on judicial review — even in the face of a competing reasonable interpretation.

Justice Moldaver applied the modern principle of statutory interpretation to conclude that the interpretations put forward by the Appellant and the Commission were both reasonable given the applicable facts and law, and that the principle of curial deference required the Court to uphold the interpretation given by the Commission rather than adopt the interpretation put forward by the Appellant.

The question more particularly at issue in this post would be whether the Commission is then able to adopt the Appellant’s competing interpretation of the Securities Act in a subsequent proceeding on similar facts? Is it still the case that the curial deference espoused by Justice Moldaver requires the reviewing court to respect this choice by the Commission as well? One argument would surely be that since both interpretations were seen as reasonable by the Court in the Mclean case, curial deference (and arguably stare decisis itself) requires that both interpretations remain reasonable in any subsequent proceedings. However the rising line of authority that calls for consistency in legal determinations suggests otherwise.

Canadian courts have supported the need for consistency in administrative decision-making on many occasions. The Supreme Court of Canada relied on the need for consistency when it qualified the rule of natural justice that “she who hears decides” by acknowledging the legitimacy of institutional consultations within an administrative agency on specific cases to ensure individual adjudicators or panels of that agency render consistent findings on substantively important topics within their regulatory area (IWA v Consolidated Bathurst, [1990] 1 SCR 282, 1990 Canlii 132). More recently in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, 2013 SCC 34 , Justices Moldaver and Rothstein (in dissent) speak of the need for statutory decision-makers to consider prior rulings in their field. Irving Pulp& Paper involved the review of an arbitration decision on a labour grievance dispute concerning random drug testing in the workplace, and Justices Moldaver and Rothstein remarked (at paras 77, 78):

Thus no arbitral board is an island unto itself. As it is with the common law, which matures with the benefit of experience acquired one case at a time, so it is with the arbitral jurisprudence. Indeed, in this case, the arbitral board cited multiple prior arbitral awards for the proposition that Mr. Day had a right to privacy in his workplace . . .

Respect for prior arbitral decisions is not simply a nicety to be observed when convenient. On the contrary, where arbitral consensus exists, it raises a presumption – for the parties, labour arbitrators, and the courts – that subsequent arbitral decisions will follow those precedents. Consistent rules and decisions are fundamental to the rule of law.

This decision and others in this camp assert the rule of law over curial deference. The significance here is that once an administrative tribunal has adopted a particular interpretation of its governing legislation which is found to be reasonable by a reviewing court, the tribunal is no longer free to adopt another interpretation – arguably contrary to what the Supreme Court of Canada suggested in McLean. The scope of what amounts to a reasonable decision under the presumption of deference is significantly narrowed once a statutory tribunal has established a body of decisions in its area.

The Irving Pulp & Paper decision also illustrates some of the difficulty faced by a reviewing court when it digs into the jurisprudence of an administrative decision-maker. Just how far should a reviewing court dig? In assessing the reasonableness of the board’s decision in Irving Pulp & Paper, the majority of the Court found the arbitration board had given careful attention to the consensus of prior arbitral awards in balancing workplace safety and employee privacy (at paras 29-42). In contrast, the dissenting justices held the board departed from that consensus because it held the employer in this case to a higher evidentiary burden without any explanation, and that accordingly its decision was unreasonable because it departed from the jurisprudence without explanation (at paras 98-111). Arguably the Irving Pulp & Paper dissent is exactly the sort of intrusive review – guised as deference – that Justice L’Heureux Dubé cautioned against in Domtar.

In Altus Group the Court of Appeal gives likewise gives emphasis to the need for consistency in administrative decision-making over curial deference, noting it is difficult to conceive of meaningful legislation that allows for competing, reasonable interpretations (at paras 23-30). The Court concludes:

[W]hile an administrative decision-maker is unconstrained by the principles of stare decisis and is free to accept any reasonable interpretation of the applicable legislation, the reasonableness standard does not shield directly conflicting decisions from review by an appellant court. In assessing the reasonableness of statutory interpretation by the administrative tribunal, the appellant court should have regard to previous precedent supporting a conflicting interpretation and consider whether both interpretations can reasonably stand together under principles of statutory interpretation and the rule of law. (at para 31, emphasis mine)

Query whether a reviewing court can insist on consistency in administrative decision-making, while remaining true to the principle of curial deference called for under the reasonableness standard in Canadian administrative law? We can begin to see why the application of stare decisis to administrative tribunal decision-making is a fundamental problem for Canadian administrative law. Administrative decisions by their very nature usually involve statutory interpretation. As John Willis persuasively observed almost a century ago, the nature of legislative drafting is such that in cases where parties are willing to spend money to argue their case on a statutory provision you can be sure there are at least two compelling interpretations of that provision (John Willis, “Statutory Interpretation in a Nutshell” (1938), 16 Can Bar Rev 1). Thus most administrative decisions will require a statutory tribunal to choose between reasonable, competing interpretations of its governing legislation. How is it then possible to both defer to the interpretation given by a statutory tribunal and also insist on consistency in those interpretations? The real answer is that it is not possible to reconcile these public law norms in the case of statutory interpretation by administrative tribunals. Any attempt to reconcile will either be an application of correctness under the guise of reasonableness or some fudging on whether there is more than one reasonable interpretation of the statutory provision in question.

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Assessing Canada’s Habitat/Fisheries Protection Regime: A Near Total Abdication of Responsibility?

Fri, 05/15/2015 - 10:00am

By: Martin Olszynski and Alex Grigg

PDF Version: Assessing Canada’s Habitat/Fisheries Protection Regime: A Near Total Abdication of Responsibility?

Legislation Commented On: Section 35 of the Fisheries Act, RSC 1985 c F-14, as amended by the Jobs, Growth and Long-term Prosperity Act SC 2012, c 19

Roughly three years ago (on June 29, 2012), Bill C-38, the omnibus budget bill also known as the Jobs, Growth and Long-term Prosperity Act, received royal assent. As most ABlawg readers will surely know, Bill C-38 fundamentally changed some of Canada’s most important environmental laws. Among these were changes to the Fisheries Act and a new regime for the protection of fish habitat in particular. Section 35 of the Act, which used to prohibit any work or undertaking that resulted in the “harmful alteration or disruption, or the destruction” (HADD) of fish habitat, was amended to prohibit works, undertakings and activities that result in “serious harm to fish that are part of a commercial, recreational or Aboriginal fishery,” serious harm being defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat” (DPAD). At the time of Bill C-38’s passage, this wording was widely panned as vague, confusing and bound to reduce the scope of protection for fish habitat (see here, here, here, here and our own professor emeritus Arlene Kwasniak here). This summer – and with a view towards a Fisheries Act panel at the Journal of Environmental Law and Practice’s 5th conference in Kananaskis in June – we are conducting research to assess the merits of this new regime. This blog sets out our approach and some preliminary findings. Long story short, it appears that the federal government has all but abdicated its role in protecting fish habitat in Canada.


Section 35 has always been more of a regulatory regime than a prohibition. Impacts to fish habitat prohibited by subsection 35(1) could be – and still can be post-Bill C-38 –authorized by the Minister, through the Department of Fisheries and Oceans (DFO), pursuant to subsection 35(2). Prior to Bill C-38, this regulatory regime generally worked as follows. DFO would receive inquiries or authorization requests from proponents (referred to as “referrals”), which it would then review to determine if a HADD was likely to occur. DFO would then do one of two things. For low risk projects, it would provide advice to proponents on how to avoid a HADD and, consequently, the need for an authorization. Such advice could be found in a letter specific to the proponent (referred to as a Letter of Advice) or in an Operational Statement (essentially a generic Letter of Advice available on DFO’s various regional websites for certain, usually routine, kinds of projects, e.g. culvert cleaning and beaver dam removal). In the case of the latter, DFO simply requested that proponents voluntarily notify DFO of their project. If avoidance of a HADD was not possible, DFO would require proponents to obtain an authorization, which until 2012 also triggered the need for an environmental assessment (EA) pursuant to the previous federal EA regime.

As noted above, Bill C-38 received royal assent in June 2012, but the changes to the Fisheries Act were not brought into force until November 25, 2013. Around that time, changes were also made to the manner in which DFO conducts its business. Operational Statements have been replaced with a “self-review” feature on DFO’s primary fisheries protection website. Here, project proponents are provided information and advice about the kinds of waters and works that DFO has determined do not require an authorization, with the important difference that there is no longer any way for proponents to notify DFO of their projects. Proponents are also encouraged to seek advice from a Qualified Environmental Professional (QEP), which suggests that Letters of Advice will also be less frequent; no doubt a reflection of the fact that the department had its budget reduced by $80 million in 2012 and another $100 million in 2015.

The Minister of Fisheries and Oceans also released the Fisheries Protection Policy Statement (October 2013), which set out her interpretation of the new “fisheries protection” regime and which replaced the Policy for the Management of Fish Habitat that had been in place since 1986. The stated goal of the 1986 policy was to ensure “No Net Loss” (NNL) of the productive capacity of fish habitats, which would be achieved by requiring compensatory (offsetting) fish habitat when authorizing any HADDs. DFO had a hard time achieving this objective, in large part due to inadequate monitoring and enforcement activity (see here and here). Under the new fisheries protection regime, the goal is “to provide for the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries” directly (Fisheries Act, s 6.1).


To gain some insight into how DFO is actually implementing the new fisheries protection regime and the implications for fish habitat in Canada, we are currently analyzing over 150 subsection 35(2) authorizations issued by DFO’s two largest regions (the Pacific and Central & Arctic Regions) over a six month period (May 1 – October 1) for the years 2012, 2013, and 2014 (2014 being the first year under the new regime). Because DFO does not maintain a public registry, these authorizations were obtained through the federal Access to Information Act, RSC 1985 c A-1. By analyzing and comparing these authorizations, we hope to get a better sense of how the new regime is different from the previous one, especially with respect to the relevant level of harm (HADD v. DPAD) and the new requirement that fish be part of, or support, a fishery in order for their habitat to receive protection.

In order to help frame the analysis and provide additional baseline information, however, we are also analyzing and compiling data from twelve annual reports to Parliament by DFO (2001/02 – 2013/14). These reports are statutorily required by section 42.1 of the Fisheries Act and must include information on “the administration and enforcement of the provisions of the Act relating to fisheries [previously habitat] protection and pollution prevention for that year,” as well as a statistical summary of convictions under the Act. They contain information regarding the number of referrals that DFO received in a given year, the number of authorizations issued, as well as DFO’s enforcement activities (e.g. the number of warnings issued, charges laid, as well as convictions reported) – all broken down by project type and region. The preliminary findings discussed below come from our initial analysis of these twelve annual reports.

As a quick aside, readers can access the 2012/13 report here, and previous reports here and here. To access the 2013/14 report, readers must click here. This is because it is not yet available on DFO’s website (or anywhere else on the internet for that matter), notwithstanding the fact that it is May 2015 and that these reports are supposed to be tabled in Parliament “as soon as feasible after the end of each fiscal year” (section 42.1). Indeed, it took considerable (student) sleuthing to discover that Minister Shea had in fact deposited the 2013/14 report with the Clerk of the House of Commons less than a month ago (April 21, 2015), at which time it was apparently sent to the Standing Committee on Fisheries and Oceans (though you won’t find the report on its website either). We obtained our copy by contacting the Library of Parliament directly.

Preliminary Findings

Figure 1 (below) demonstrates that the total number of authorizations issued by DFO (nationally) (right axis) has declined from a high point of almost 700 in the 2003/04 fiscal year to roughly 150 for 2013/14. The most dramatic drops occurred between 2006 – 2008 and then again in 2012 – 2014. Similarly, the number of referrals that DFO reviewed has also declined. The most dramatic decline in referrals occurred between 2004 and 2006. The slight lag in the drop in the number of authorizations issued around that time makes sense when one considers that referrals would take on average two years to process (thus the decline in authorizations in 2006 is likely a reflection of the decline in referrals in the preceding two years). That is not the case, however, with respect to the declines in both authorizations and referrals immediately following the passage of Bill C-38 in 2012, bearing in mind that the changes to the Fisheries Act were not brought into force until November 25, 2013 (in other words, the data below includes only four months of activity under the new regime). These declines appear consistent with a Vancouver Sun story from June 2014, wherein the chair of the Fraser Valley Watersheds Coalition suggested that “[t]he level of disturbance has clearly increased in recent years… people got the memo that now is the time, no one is watching, the rules are vague, your chances of being prosecuted are virtually none.” As for those four months under the new regime (November 25, 2013 – March 31, 2014), DFO only issued 17 authorizations in that time. Pro-rated to a yearly average, that would be 51 – or an 83% decline from an average of 300 authorizations/year in the years prior to the passage of Bill C-38.

Overall, this information can only mean one of two things. Either project proponents have become exceedingly good at understanding and avoiding impacts to fish habitat, or they have had increasingly less reason to worry about the consequences of those impacts. We are going to suggest the latter for two reasons.

First, the decline in referrals between 2004 and 2006 coincides with DFO’s launching of its “Environmental Process Modernization Program” (EPMP), which is referred to widely in its annual reports for those years. The goal of the EPMP was to “contribute to more efficient and effective delivery of its regulatory responsibilities and to support the federal smart regulation agenda” (Fisheries and Oceans Canada, 2005. Annual Report to Parliament on the Administration and Enforcement of the Fish Habitat Protection and Pollution Prevention Provisions of the Fisheries Act, April 1, 2003 to March 31, 2004 at 7). Probably the most tangible result of that program was the development of DFO’s “risk management framework” (below – as found in DFO’s “Practitioners Guide to the Risk Management Framework for DFO Habitat Management Staff” at 18), pursuant to which risks to fish habitat were classified as high, medium and low, with high-risk projects receiving site-specific review and authorization, medium risk projects being subjected to streamlined authorization processes, and low risk projects being subject to advice and Operational Statements.

What is striking about this figure is the upward and seemingly arbitrary placement of the low-risk threshold, which results in this category taking up roughly 60% of the available matrix space. This is remarkably consistent with an approximately 60% reduction in authorizations following the implementation of the EPMP starting around 2004/05 (see Figure 1).

Our other reason for suggesting that fish habitat is likely being degraded may seem simplistic but here it is nevertheless: if project proponents had become pros at avoiding impacts to fish habitat, it seems unlikely that they would bother to lobby for changes to the Act. The only other alternative is that they were pros, but compliance was deemed too costly (see preceding link). In either case, the future for fish habitat – and Canadian fisheries – appears bleak.

There is, of course, a simple way to test our theory: compliance and enforcement. With all of the time and resources saved by the reductions in project review, one might reasonably expect a shift towards increased compliance and enforcement activity. Here too, however, we see a dramatic decline, as set out in Figure 2:

It would be one thing if, all other things being equal, the number of charges laid decreased over time. But that is not the case. There has also been a dramatic decrease in the number of warnings issued since 2001/02, again most notably following the implementation of the EPMP in 2004 but also from 2010 onwards. The most telling trend, however, is in the number of hours actually allocated to enforcement. These numbers only began to be reported in the 2009/10 fiscal year, but saw a significant decline (~ 75%) since 2012/13.

A near-total abdication of the federal government’s role in protecting fish habitat in Canada? Looks like it. Stay tuned for more in June.

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A “Convicted Terrorist” By Any Other Name

Wed, 05/13/2015 - 11:45am

By: Maureen Duffy

PDF Version: A “Convicted Terrorist” By Any Other Name

Case Generally Considered: Pelham, Warden of the Bowden Institution, et al. v. Khadr, No. 36081 (Alberta) (Criminal) (SCC, By Leave); Bowden Institution v Khadr, 2015 ABCA 159; Khadr v Bowden Institution, 2015 ABQB 261; Canadian Broadcasting Corporation v Warden of Bowden Institution, 2015 FC 173; Khadr v Edmonton Institution, 2014 ABCA 225; Khadr v Edmonton Institution, 2013 ABQB 611

“What’s In a Name?”

Shakespeare famously wrote:

’Tis but thy name that is my enemy;

Thou art thyself though, not a Montague.

What’s Montague? it is nor hand, nor foot,

Nor arm, nor face, nor any other part

Belonging to a man. O! be some other name:

What’s in a name? that which we call a rose

By any other name would smell as sweet …

The idea, of course, is that names may be superficial labels, which do not, by themselves, define the character of the person to whom they are attached. Rather, they can be misleading, giving an impression of a person that is entirely different from reality.

A name, or a label, can be dispositive, however, if your name happens to be “Omar Khadr.” While Khadr’s status, both legally and in the public perception, should have been based on the specific facts and the law regarding his case, the reality is that the Canadian Government has gone to lengths to build a narrative around him, which does not match those facts or that law. Although the U.S. Government is largely responsible for the many abuses Khadr suffered in the eight years he was in U.S. custody, his case seems to be less in the public eye in the U.S., so this phenomenon has not played out in quite the same way there.

Khadr’s case provides a disturbing example of ways in which the public narrative created around a story can overshadow, and even contradict, the story itself. It would not be possible, in a posting like this, to comprehensively explore this theme relating to Khadr, since this phenomenon played out over a period of approximately 13 years. The intent, rather, is to illustrate this problem through several specific examples. The problem is significant, because the media in Canada picked up on much of the discourse used by the Government, and several misconceptions appear to have thus become embedded in some of the public discourse. That problematic perception became apparent this past week, as Khadr was released on bail, pending the appeal of his Military Commission “conviction,” and as the Supreme Court of Canada hears one of the outstanding legal issues on this case on May 14, 2015.

The statements routinely made by the Canadian Government, echoed by the media, suggest that Khadr is some sort of hardened terrorist, convicted of terrible crimes. To genuinely believe that, though, one must overlook virtually every aspect of his case, right from the very beginning.

I have blogged about some of the serious lapses in the handling of Khadr’s case by U.S. authorities, here, and, to a lesser extent, here, and here. While the extensive litigation, in two countries, may make this case appear complex, the underlying issues are actually quite straightforward and not consistent with the public narrative presented. It is only by considering the context of what happened that a true narrative can emerge.

“Sticks and Stones May Break My Bones, But Names Can Never Hurt Me”

The “Convicted Terrorist” and/or “Convicted War Criminal”

The Canadian Government, and much of the media, often call Khadr a “convicted terrorist,” or sometimes a “convicted war criminal.” Aside from the fact that these terms are not simply interchangeable in the way such usage suggests, there are numerous other problems with these labels.

It is arguable that Khadr is not a “convicted” anything. The problems with the way Khadr was treated date back to 2002, in a virtually unbroken chain, so they are extensive, but well documented. The many problems with each step of his proceeding have been seriously critiqued as undermining the legitimacy of any ultimate “conviction.”

For example, there is the over-arching problem with the notorious Guantanamo Bay prison, which the U.S. uses to warehouse people it accuses of terrorism, but is unwilling to try before a legitimate court, established under Article III of the U.S. Constitution. The prison has been widely denounced for egregious human-rights violations, and it has been referred to as a “legal black hole.”

Then there is the important fact that Khadr was tortured. While the extent of his torture has been the subject of some dispute, the fact of his mistreatment was acknowledged by some of his interrogators and accepted as fact by the Supreme Court of Canada (see Canada (Prime Minister) v. Khadr, [2010] 1 SCR 44, 2010 SCC 3 (CanLII)). In real courts, evidence obtained through torture is inadmissible. In the parallel world of Guantanamo Bay, however, a military judge ignored even the admissions of mistreatment by Khadr’s interrogators to find that he had not been mistreated.

There is also the problem with the very existence of the Military Commissions. The U.S. has a sophisticated court system, sanctioned by the U.S. Constitution, which is perfectly capable of trying allegations relating to terrorism. In fact, numerous high-profile terrorism prosecutions have been successful before U.S. courts, such as that of Richard Reid, the so-called “Shoe Bomber”, or Umar Farouk Abdulmutallab, the so-called “Underwear Bomber”. Those cases both involved plots to attack a civilian population, not the alleged tossing of a grenade in the heat of a battlefield firefight, so they also highlight substantive problems with calling Khadr’s alleged actions “terrorism” at all.

For those detained at Guantanamo Bay, the U.S. Government has gone to great lengths to avoid the U.S. court system. To avoid U.S. courts, President George W. Bush simply made up a parallel system, a fabricated Military Commission system, after the 9/11 attacks. Although the specifics have since evolved, it was obvious from the original structure of the Military Commissions that they were intended to avoid the due process guaranteed under the U.S. Constitution. The Military Commission system was amended, and supposedly “improved” – although arguably made worse – through the iterations of the Military Commissions Acts of 2006 and 2009, in the face of successful challenges before the Supreme Court of the United States (see Hamdan v. Rumsfeld, 548 U.S. 557 (2006)). The Military Commissions are still widely denounced as violating international standards for fair trial, as well as those mandated by the U.S. Constitution. David Glazier, an American law professor and former member of the U.S. Navy, summed up the Military Commissions by saying “[t]here’s no plausible reason for the government to be using these military commissions, they’re really just a complete failure on every level.” Nathan Whitling, one of Khadr’s lawyers, has referred to the Military Commissions as “kangaroo court[s].”

The list goes on, of course. Khadr was held for eight years with no trial before his hearing at the questionable Military Commission even began. He was charged with various offenses that were only created four years after the incident giving rise to his charges. Some of those same offenses have already been thrown out on appeal in other cases, and all of them are subject to potential problems, both based on retroactivity and based on the fact that they do not meet the standards for war crimes under international law.

Khadr was also charged with killing a U.S. soldier, and wounding another, in a case that proceeded before a U.S. Military Commission, before a U.S. military officer as presiding judge, with members of the U.S. military as members of the jury, and U.S. military personnel as prosecutor and defense. The lack of impartiality is obvious. There is also the substantive issue as to whether the laws of war actually allow for criminal sanctions for throwing a hand grenade during the course of a firefight.

I previously blogged, beyond all of the above, about the disturbing, coercive circumstances under which Khadr pled guilty to the “charges” before this problematic court. Although the Canadian Government makes much of the fact that Khadr pled guilty, he hardly did so under conditions that could be described as voluntary.

Even this is not a comprehensive list of the numerous problems with Khadr’s so-called conviction. For the Canadian Government to simply refer to Khadr as a “convicted terrorist”, or a “convicted war criminal”, is misleading at best.

The shaky foundation of Khadr’s “conviction” before the Military Commission has been given a coat of whitewash by the Canadian Government. As soon as Khadr crossed the border to return to Canada, the official narrative has simply assumed that his underlying “conviction” in the U.S. was legitimate. Putting a coat of whitewash on rotting wood may give a short-term appearance of something new, but the underlying wood rot will eventually show through. By taking the position that it has in regard to Khadr, the Canadian Government has moved from simply endorsing the misconduct of the U.S. to actively perpetuating it.

All of this sounds rather complicated, but it did not have to be. If either the U.S. or Canada truly believed that Khadr was a “terrorist” or a “war criminal”, the recourse would have been simple. They could have charged Khadr with offenses under their respective national laws, in legitimate courts that are governed by their national constitutions. The fact that both, instead, relied on a process so riddled with legitimacy problems is enough, on its own, to raise serious doubts as to Khadr’s “conviction”.

The problems do not stop there. Khadr’s age at the time of the firefight raises a number of additional issues, further muddying the narrative.

The “Young Jihadist”

Khadr is also sometimes referred to as a “young jihadist.” Those defending him, similarly, often refer to him as a “child soldier”, and Khadr himself used that term in an editorial he wrote in late 2014. The issue of Khadr’s age is relevant to the upcoming hearing before the Supreme Court of Canada, in relation to the decision by the Alberta Court of Appeal to grant his habeas corpus petition, and to order his transfer to another prison facility, based on his age at the time of the Afghanistan incident (see 2014 ABCA 225).

The narratives surrounding his age continue to be as polarized as the issue of whether he is a “convicted terrorist”. What is often missing from these narratives, however, is the possibility that Khadr was, in reality, an abused child.

At the age of 15, he was put in a battlefield situation, in another country, by his father – a fact that is apparently undisputed. He was an unemancipated minor. He did not choose to pick himself up and go to Afghanistan to fight with Al Qaeda, which is the type of conduct often associated with those referred to as jihadists. Rather, his parents brought him there at an age under which he was legally subject to their decisions.

While it is true that child soldiers are entitled to special legal protections, and that Khadr was not afforded any of those protections – but was abused instead – there is this preliminary issue regarding his status that is often overlooked. Generally, when a child is thrown into a dangerous situation by his parents, the State intervenes to protect the child, not to torture and demonize him. Dennis Edney, Khadr’s Edmonton lawyer, put it best when he said, after Khadr’s release on bail, “[w]hen you put your children to bed, ask yourself if you would like your children abused like Omar Khadr?”

Khadr also appears to have been tainted by the larger public dislike for his family, the so-called “first family of terror.” This mindset ignores the fact that the law does not generally hold people responsible for the criminal actions of relatives. Khadr was arguably a greater victim of that “first family” than most people. When his father endangered him, he should have been protected from this family, not blamed for their perceived wrongdoing. If a parent beats a child, that child is generally subject to protection from the parent, not blamed for the beating, and certainly not tortured and imprisoned because of the beating.

Doomsday Predictions About Khadr’s Release

The muddled narrative about Khadr took on a new layer with doomsday predictions, as the Government sought to block his ordered release on bail pending his appeal of his Military Commission ruling (see 2015 ABQB 261; 2015 ABCA 159). The Canadian Government argued that releasing Khadr would damage relations with the U.S. An official of the U.S. Government, however, quickly quashed that argument by saying that Khadr’s release was subject to Canadian law and would have no impact on U.S.-Canadian relations.

The Canadian Government, however, continues to claim that Khadr presents a threat to the safety of Canadians and continues to call him a “convicted terrorist”. Ignoring the actual facts of this case, Prime Minister Harper said about Khadr’s release, “Mr. Khadr, as we all know, pled guilty to very grave crimes, including murder …”

The Alberta Court of Appeal, in considering the Crown’s evidence regarding supposedly irreparable harm from Khadr’s release, saw it differently. In an already-famous line from the ruling, the Court said “… Mr. Khadr you are free to go” (2015 ABCA 159 at para 42).

Previously Missing from the Narrative: Khadr’s Own Voice

With the exception of the editorial Khadr published late last year, his voice has been conspicuously absent from the dramatically competing narratives about him. Once he was transferred to Canada, the Government fought hard to keep the media away from him, resulting in an unsuccessful court action, filed by various media groups, seeking access to interview him. (see Canadian Broadcasting Corporation v Warden of Bowden Institution, 2015 FC 173). Given the efforts the Canadian Government has undertaken to control the narrative around Khadr, it is perhaps not surprising that the Government also fought to keep the media away from him.

The public narrative, though, may have undergone a shift, based on Khadr himself. In an interview outside of his lawyer’s house, shortly after his release, Khadr presented as an affable young man, with no bitterness, no wish to cause any harm, and a compelling hope that his release signals the first step in the beginning of a new life. It is difficult to reconcile the image of that young man with the “unrepentant terrorist” at the center of so many dire Governmental warnings.

The facts of what happened should have been sufficiently compelling to change the narrative in favour of Khadr, but the mere invocation of labels was adequate for many people to overlook the reality of his case. Perhaps, in finally seeing Khadr’s face and hearing his words in his own voice, the misleading narrative that has been built around him may finally be shattered.

Khadr still has protracted legal proceedings ahead of him, including the appeal of his Military Commission judgment and his third Supreme Court of Canada case. His scheduled parole hearing was cancelled on May 12, 2015, since his sentence was claimed to be suspended while he is out on bail. With optimistic predictions as to the ultimate outcome of the Military Commission proceeding, it is entirely possible that Khadr will not be returned to prison.

In the meantime, it is time for the public narrative to shift. On the day of Khadr’s hearing before the Supreme Court, his attorney, Dennis Edney, will be speaking at Carleton University, in an event that is well named as “Omar Khadr: Facts Over Fear.” Khadr himself presented the best argument for a shift in public narrative, asking Canadians to “see who [he is] as a person, not as a name.”

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