By: Joshua Sealy-Harrington and David Rennie
PDF Version: Making Sense of Aboriginal and Racialized Sentencing
In R v Laboucane, 2016 ABCA 176 (CanLII), the Alberta Court of Appeal strongly criticizes the Ontario Court of Appeal’s decision in R v Kreko, 2016 ONCA 367 (CanLII), where the Ontario Court of Appeal allegedly approached the sentencing of Aboriginal offenders too leniently, and “almost” interpreted the Criminal Code as providing for automatic sentence reductions in all cases with Aboriginal offenders (Laboucane at para 67).
The Alberta Court of Appeal’s critique warrants a review not only of this alleged disagreement between appellate courts, but also of the lack of clarity in Aboriginal sentencing more broadly. In addition, following a summary of the principles underlying Aboriginal sentencing, we argue that many of those principles should be applied in the context of sentencing racialized communities in Canada, and in particular, in the context of Black offenders.
BACKGROUND: ABORIGINAL SENTENCING
Statutory Background: The Aboriginal Sentencing Provision
At its core, the disagreement between the Alberta Court of Appeal and Ontario Court of Appeal centres on the sentencing framework provided by the Criminal Code, RSC 1985, c C-46.
In a previous post, Joshua Sealy-Harrington and Joe McGrade summarized the Criminal Code’s general sentencing framework, including the fundamental principle that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (Criminal Code, s 718.1; the Proportionality Provision). Here, we will briefly discuss the specific provision that relates to Aboriginal sentencing (the Aboriginal Sentencing Provision).
The Aboriginal Sentencing Provision reads, in relevant part:
A court that imposes a sentence shall also take into consideration the following principles:
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
(Criminal Code, s 718.2; emphasis added).
In other words, the Aboriginal Sentencing Provision instructs courts to pay “particular attention” to the unique circumstances of Aboriginal offenders, and whether those circumstances merit “sanctions other than imprisonment”. The Supreme Court has considered the Aboriginal Sentencing Provision multiple times, a brief summary of which follows.
Jurisprudential Background: The Gladue–Ipeelee Test
Given that the core conflict between the Alberta Court of Appeal and Ontario Court of Appeal here centres on the proper analytical framework for applying the Aboriginal Sentencing Provision, we will concentrate solely on how that analytical framework has evolved (or, in our view, persisted) throughout its consideration by the Supreme Court.
The Supreme Court first considered the Aboriginal Sentencing Provision in R v Gladue,  1 SCR 688 (CanLII). The key principles flowing from Gladue in respect of the Aboriginal Sentencing Provision are the following:
With respect to the analytical framework, Gladue provides at least two distinct considerations for sentencing judges when adjudicating whether an offender’s Aboriginal heritage may justify a more lenient sentence:
(at para 93.6; the Gladue Test).
The Supreme Court next discussed the Aboriginal Sentencing Provision in R v Ipeelee, 2012 SCC 13 (CanLII). Ipeelee did not change the interpretation of the Aboriginal Sentencing Provision. Rather, it reaffirmed the principles established in Gladue and clarified how they operate (Ipeelee, at para 1).
With respect to affirming the principles established in Gladue, the Court restated in Ipeelee that:
In addition to reaffirming that the Aboriginal Sentencing Provision does not displace the Proportionality Provision, the Court explained that the Aboriginal Sentencing Provision does not displace the parity principle. The parity principle requires that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” (Criminal Code, s 718.2(b); the Parity Provision). The Court explained that this principle is not displaced by the Aboriginal Sentencing Provision because, when sentences imposed on Aboriginal offenders are more lenient, they will be “justified based on their unique circumstances … which are rationally related to the sentencing process” (Ipeelee, at paras 76-79).
Lastly, the Court in Ipeelee clarified that Aboriginal offenders need not “establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge.” Rather, those background factors need only be “tied in some way to the particular offender and offence” such that they “bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized” (at paras 81-83). This final point is, in our view, simply a rephrasing of the Gladue Test. Put differently, Ipeelee rephrases the Gladue Test in the following terms:
The Aboriginal Sentencing Provision will impact the sentence of an Aboriginal offender if their Aboriginal heritage either:
(the Gladue–Ipeelee Test).
The Gladue–Ipeelee Test is central to the conflict between the Ontario Court of Appeal and Alberta Court of Appeal discussed in this post. Indeed, their core disagreement distills to how the Gladue–Ipeelee Test should be applied.
ALLEGED APPELLATE CONFLICT OVER GLADUE–IPEELEE TEST
In Laboucane, the Alberta Court of Appeal narrowly distinguishes its approach to the Aboriginal Sentencing Provision from that taken by the Ontario Court of Appeal in Kreko (see Laboucane, at paras 65–73). This alleged distinction relates to how the Gladue–Ipeelee Test should be applied. Accordingly, we will only consider how Kreko and Laboucane address the Gladue–Ipeelee Test, since they agree on all other core principles flowing from Gladue and Ipeelee, including the points that:
Ontario Court of Appeal Approach in Kreko: More Lenient?
In Kreko, the Ontario Court of Appeal shortened a sentence because, in its view, the trial judge improperly required a causal connection for the Aboriginal Sentencing Provision to be triggered.
The trial judge in Kreko did expressly state that “a direct, causal link is not required” to trigger the Aboriginal Sentencing Provision (see Kreko, at para 15). However, the Ontario Court of Appeal held that the trial judge’s reasoning, despite this statement, “effectively requir[ed] a causal link between the appellant’s Aboriginal heritage and the offences” to trigger the Aboriginal Sentencing Provision (at para 20). Specifically, the Ontario Court of Appeal pointed to the following extracts from the trial judge’s reasons for sentence and his report to the Court of Appeal as demonstrating the trial judge’s requirement for a causal link (at para 20):
The Ontario Court of Appeal clarified that, to trigger the Aboriginal Sentencing Provision, a causal link between an offender’s Aboriginal heritage and the offence is not required (at para 21). Rather, the offender’s Aboriginal heritage need only be “tied to the particular offender and offence(s) in that [it] must bear on his or her culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing” (at para 23). In other words, the Ontario Court of Appeal, at least in principle, reaffirmed the Gladue–Ipeelee Test.
Alberta Court of Appeal Approach in Laboucane: More Strict?
In Laboucane, the Alberta Court of Appeal maintained a trial sentence because, in its view, the trial judge correctly determined that the offender’s Aboriginal heritage “did not bear on his culpability for the offences or indicate which sentencing objectives can and should be actualized” (at para 76). Accordingly, the Alberta Court of Appeal, like the Ontario Court of Appeal, reaffirmed the Gladue–Ipeelee Test.
However, despite both judgments affirming the same test for Aboriginal sentencing, the Alberta Court of Appeal strongly criticized the Ontario Court of Appeal’s judgment in Kreko. In essence, the Alberta Court of Appeal critiqued the Ontario Court of Appeal for diluting the Gladue–Ipeelee Test to a near automatic mitigating factor for all Aboriginal offenders. The Alberta Court of Appeal restates this basic critique in various ways, namely, that:
Interestingly, the Alberta Court of Appeal seems to agree with the Ontario Court of Appeal’s holding in Kreko—i.e. reducing Mr. Kreko’s sentence—because the facts in Kreko showed “a measurable connection” between the offender’s Aboriginal heritage and his offence (Laboucane, at para 66). Accordingly, the Alberta Court of Appeal appears to only be critical of how the Ontario Court of Appeal described the relevant legal principles, not how it applied those legal principles in this instance.
In our view, the Alberta Court of Appeal’s critique is likely misplaced, and certainly difficult to understand. On our reading, the problem is not that the Ontario Court of Appeal and Alberta Court of Appeal applied different tests, but rather, that the Gladue–Ipeelee Test is vague, making it difficult for courts to ensure that they are correctly applying the Aboriginal Sentencing Provision.
With that in mind, we will first explore the disagreement between these Courts of Appeal. We will then discuss the possibility of expanding the underlying concepts of Aboriginal sentencing to other racialized offenders in Canada.
Appellate (Dis)Agreement Regarding Gladue–Ipeelee Test
As stated above, it is not clear that there is much if any divide between Alberta and Ontario on the Gladue–Ipeelee Test. Indeed, our best explanation for the ostensible divide between Kreko and Laboucane is the different facts those decisions addressed, rather than the legal principles those decisions affirmed.
First, it is difficult to identify any difference between Alberta and Ontario with respect to the Gladue–Ipeelee Test because the Alberta Court of Appeal’s critique of Kreko is vague. The Alberta Court of Appeal claims that Kreko dilutes the Gladue–Ipeelee Test, but provides no pinpoint references to where the Ontario Court of Appeal’s ruling actually provides for such dilution. Rather, the Alberta Court of Appeal simply describes how “the position adopted in Kreko” (at para 67), “the decision in Kreko” (at para 67), a “probing analysis” of the decision (at para 67), and “the approach taken in Kreko” (at para 68), dilute the Gladue–Ipeelee Test.
Second, a “probing analysis” of Kreko reveals, in our view, the same trigger for the Aboriginal Sentencing Provision as that described in Laboucane (and Ipeelee), namely, the Gladue–Ipeelee Test (see Ipeelee, at para 83; Kreko, at para 23; Laboucane, at paras 55–59).
We appreciate that, when scrutinizing judicial reasoning, it is critical to analyze not only how the court describes the law, but also whether or not the court’s application of the law is faithful to that description (indeed, that is precisely how the Ontario Court of Appeal critiqued the trial judge in Kreko). For example, while the Ontario Court of Appeal undoubtedly affirmed the Gladue–Ipeelee Test (see Kreko at para 23), the Alberta Court of Appeal could be claiming that the Ontario Court of Appeal actually applied a diluted version of that test. But such a critique is difficult to understand in this case because the Alberta Court of Appeal appears to concede that the facts in Kreko—which involved a “measurable connection” between the offender’s Aboriginal identity and his offence—merited an appellate reduction in sentence (Laboucane, at para 66). In other words, it is difficult to characterize the Alberta Court of Appeal’s critique of Kreko as a critique of the Ontario Court of Appeal’s application of the law when the Alberta Court of Appeal appears to agree with how the law was applied in Kreko.
In sum, the Alberta Court of Appeal’s vague critique of Kreko leaves us guessing as to which passages it considers problematic.
Our best explanation is that the source of this vague critique is rooted not in any disagreement over the relevant legal principles, but rather (1) the distinct facts present in Kreko and Laboucane; and (2) the Gladue–Ipeelee Test itself being vague.
Distinguishable Facts in Kreko and Laboucane
The distinct facts in Kreko, which more appropriately justified leniency in light of that Aboriginal offender’s identity, may partially explain the alleged divide between Alberta and Ontario. Indeed, the Alberta Court of Appeal itself appears to admit this, to our confusion (Laboucane, at para 66).
In Kreko, the Aboriginal offender pled guilty to possession without lawful excuse of a loaded prohibited firearm, robbery with a handgun, and intentional discharge of a firearm while being reckless as to the life or safety of another person, contrary to ss 95(2) and 343(d) of the Criminal Code (at para 2). The Trial Judge gave Mr. Kreko a 13-year sentence (Kreko, at para 1).
Mr. Kreko was adopted into a non-Aboriginal family at a young age because his birth mother could not adequately care for him. His Aboriginal grandparents struggled with alcoholism and were unable to parent their children (Mr. Kreko’s mother). This resulted in his mother being placed in various foster homes before becoming a Crown ward at age 11. She gave birth to Mr. Kreko while still a Crown ward at the age of 15 (at paras 4-6).
Mr. Kreko grew up not knowing he was adopted, and assumed his heritage was Finnish and French. However, when he learned of his Aboriginal heritage (around the age of 17), he experienced feelings of abandonment, resentment, and a sense that he was unwanted (at paras 8-9). In particular, Mr. Kreko struggled with his identity and adoption, and the “identity crisis” that followed the discovery of his Aboriginal identity and adoption “coincided with his involvement in the criminal justice system” (at para 14).
In Laboucane, the offender pled guilty to assault on a cabdriver, possession of a stolen taxicab, and refusing to provide a breath sample. Mr. Laboucane was further convicted of one count of break and enter and commit assault, one lesser offence of assault, and uttering threats. Mr. Laboucane was sentenced to two years’ imprisonment (at paras 8-9).
At the time of these offences, Mr. Laboucane was 38 years old, with 36 prior criminal convictions including five assaults, one break and enter, and numerous breaches. These were Mr. Laboucane’s sixth, seventh and eight convictions for violent offences (at para 34).
Mr. Laboucane’s Gladue report found that he had a “good and normal” childhood, free from familial substance abuse and domestic violence. Mr. Laboucane himself considered his parents to be “good parents” and never experienced or witnessed domestic abuse. His father (the only Aboriginal parent) was not raised in the Métis culture. Similarly, his family did not participate in Aboriginal culture and none of his relatives attended residential schools. Mr. Laboucane visited paternal relatives at a Métis settlement, but his cultural involvement was limited. Mr. Laboucane struggled to stay employed due to his personal relationship issues and only experienced domestic violence in his own intimate relationships and his older half-sister’s relationship (at paras 40-45).
In our view, these distinguishable facts explain why the courts in Kreko and Laboucane reached opposing conclusions, despite correctly applying the same legal test.
In Kreko, the Ontario Court of Appeal reduced an Aboriginal offender’s sentence because aspects of his Aboriginal heritage—his dislocated identity that traced back to the discovery of his Aboriginal roots and the factors that led to his adoption—bore on his culpability. Indeed, the Ontario Court of Appeal referenced statistics highlighting how adopted Aboriginal children are more likely to suffer from a sense of dislocation (at para 24).
In contrast, the Alberta Court of Appeal in Laboucane maintained an Aboriginal offender’s sentence because his Aboriginal heritage did not appear to bear on his culpability or inform a suitable sanction. In particular, his upbringing was considered very ‘normal’ and he did not appear to experience the same intergenerational or systemic issues as Mr. Kreko, which could have affected Mr. Laboucane’s culpability (at paras 74-80). Moreover, Mr. Laboucane was a repeat offender who did not take responsibility for his actions (at paras 34 and 46), whereas Mr. Kreko, by the time of the appeal, had found his birth mother, successfully completed a number of rehabilitative Aboriginal programs, and embraced his Aboriginal heritage (at para 12). Given these distinct facts, the Alberta Court of Appeal’s critique of Kreko seems ill-founded, as the same test was applied in both cases, and led to different outcomes that appear responsive to the facts in both cases.
The Gladue-Ipeelee Test is Vague
A further cause of confusion between the Alberta and Ontario Courts of Appeal regarding Aboriginal sentencing is the vagueness of the Gladue–Ipeelee Test itself. The Supreme Court has consistently instructed what the Gladue–Ipeelee Test is not. But it has failed to provide adequate guidance regarding what the Gladue–Ipeelee Test is in a positive sense, i.e. by elaborating on Contributory Mitigation and Suitability Mitigation and providing instructive examples of each.
As we summarized above, ever since Gladue, the Supreme Court, and other appellate courts, have been clear about two extremes, neither of which reflect the proper approach to Aboriginal sentencing:
In this way, courts have been clear in negatively defining Aboriginal sentencing. But a clear positive definition for Aboriginal sentencing remains elusive. At best, the Supreme Court has positively defined Aboriginal sentencing as requiring that an offender’s Aboriginal heritage be “tied in some way to the particular offender and offence” such that it “bear[s] on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized” (Ipeelee, paras 81–83). But what does it mean for an offender’s Aboriginal heritage to be “tied in some way” to an offender or their offence? And what does it mean for an offender’s Aboriginal heritage to “bear” on their culpability? These general terms, without instructive examples, make it difficult for courts to know the threshold at which leniency is warranted in the context of Aboriginal sentencing. Indeed, we suspect that the Alberta Court of Appeal’s alternate and broad language (“a measurable connection”; see Laboucane at para 66) is yet another indicator of these courts not really understanding the type of connection required to warrant leniency in Aboriginal sentencing.
For example, in Kreko, the trial judge acknowledged that the law does not require a causal link (which would be too strict), but still described, in various alternative phrasings, that no leniency was warranted because Mr. Kreko’s Aboriginal heritage did not tie to or bear on his culpability (Kreko, at para 20). Those phrasings included that “there was nothing tied to his Aboriginal genetic heritage”, that his offences “do not relate to his Aboriginal background”, that his “Aboriginal connection had been irrelevant to his offences”, and that “his Aboriginal heritage could not be linked in any meaningful way to these current offences” (at para 20; emphasis added). In other words, even the trial judge in Kreko, like the Alberta Court of Appeal and Ontario Court of Appeal, applied the Gladue–Ipeelee Test (albeit conservatively). With three courts all at least describing the same legal test (see Kreko, at paras 15 and 21–24; Laboucane, at paras 50–63), the only logical source of confusion is the vagueness of the test itself. In particular, the test lacks clarity regarding what it means for an Aboriginal offender’s heritage to tie to or bear on their culpability or to inform the sentencing objectives that should be emphasized in a given case.
Implications for Sentencing Racialized Offenders
In our view, aspects of the sentencing principles discussed above could (and should) be applied in the context of other racialized communities. We say this because many, though not all, of the principles underlying cultural sensitivity with Aboriginal sentencing apply in other contexts. We will discuss the context of Black offenders here.
To be clear, the Aboriginal Sentencing Provision only requires courts to give “particular attention” to Aboriginal offenders. But that does not remove the court’s duty to impose proportional sentences on other racialized offenders. And the unique experiences of other communities—including Black offenders—may inform that proportionality.
Recent commentary argues that systemic and intergenerational factors should be considered for other racialized groups, including Black offenders. This argument has gained momentum in Nova Scotia, where Blacks have a deep history of dislocation and oppression that dates back to the 1770s, when an influx of African-American loyalists and former slaves fled the United States and settled in Canada. In fact, there is an ongoing case in Nova Scotia in which a judge has accepted a cultural assessment similar to a Gladue Report for a Black offender.
In a similar case in Ontario, instead of sentencing a young Black man to the 6-12 month jail term sought by the Crown for drug dealing, Justice Edward Morgan instead issued a conditional sentence (see R v Reid, 2016 ONSC 954 at para 31). In issuing that sentence, Justice Morgan considered both the Black offender’s personal circumstances and societal forces, including anti-Black racism and the over-incarceration of Black citizens (at paras 21-27). In particular, Justice Morgan cited a finding by the Office of the Correctional Investigator, which found that the number of federally incarcerated Black inmates has increased by 80 per cent over the last decade (at para 22).
These cases demonstrate that judges are becoming increasingly willing to consider systemic factors when sentencing members of racialized communities. In our view, this is a welcome development. We appreciate the Supreme Court’s remark in Ipeelee that “no one’s history in this country compares to Aboriginal people’s” (at para 77). But the pursuit of a proportional sentencing process that is sensitive to cultural differences and every offender’s individual culpability should not be blind to other forms of systemic inequality.
The principles underlying sentencing make it clear that the background of racialized offenders should be considered in the sentencing process. For example, it would be difficult to claim that systemic discrimination and intergenerational struggle (experienced in varying ways by different communities) informs proportional sentencing of Aboriginal offenders, but not Black offenders. Even though these communities are very different, certain similarities between those communities (like overrepresentation in the criminal justice system and prejudicial treatment by law enforcement) could surely inform proportional sentencing for Black offenders.
Further, any claim that only Aboriginal offenders should benefit from such considerations because of the phrasing of the Aboriginal Sentencing Provision should be dismissed. First, the Aboriginal Sentencing Provision calls for “particular attention” in the context of sentencing Aboriginal offenders—it does not mandate a complete absence of attention in the context of Black offenders, especially when those circumstances are “rationally related to the sentencing process” (Ipeelee, at paras 76-79). Second, the Aboriginal Sentencing Provision expressly provides that background circumstances mitigating against incarceration should be considered “for all offenders”—which obviously includes Black offenders. Lastly, the Proportionality Provision requires that any sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. Accordingly, if, for example, a Black offender’s background circumstances inform that proportionality, it would be an error not to weigh those circumstances in determining a fit sentence on the basis that such weighing, despite its contribution to proportionality, somehow violated a provision calling for “particular attention” in the context of Aboriginal offenders.
Sentencing is a notoriously complex area of criminal law. And this complex area requires clearer appellate guidance in the context of sentencing Aboriginal and racialized offenders.
The Gladue–Ipeelee Test is well-established, and courts appear to be consistently alluding to its general principles and key terms. However, those principles and terms lack the specificity needed to predictably guide the process of Aboriginal sentencing. In particular, greater positive definition of when Contributory Mitigation and Suitability Mitigation may be triggered will bring much needed clarity to this area of the law. Requiring that Aboriginal heritage tie “in some way” to proportionality is simply too vague.
Recently, the Alberta Court of Appeal released another decision addressing the framework for Aboriginal Sentencing (see R v Okimaw, 2016 ABCA 246 (CanLII)). Okimaw also affirms the Gladue–Ipeelee Test for Aboriginal sentencing (at para 58). However, in our view, the confusion surrounding Aboriginal sentencing persists despite this recent decision. In Okimaw, the Court concedes that the background factors at issue—including the legacy of residential schools, domestic violence, substance abuse, physical and mental health, low income, and unemployment (see paras 26-45)—had “an obvious and profoundly adverse and harmful impact” on the offender (at para 67). In consequence, this relatively ‘clear case’ does not confront the ambiguity caused by the general language consistently used by the Supreme Court in the context of Aboriginal sentencing. Indeed, the Court of Appeal relies on how these many background factors “bear” on the offender’s culpability and appropriate sentencing procedures (at paras 64, 75, and 87)—the same general language we critique above. A later, tougher case may be required before the Court is compelled to provide greater clarity to Aboriginal sentencing.
Additionally, courts should continue to explore the boundaries of how systemic factors inform the proportional sentencing of racialized offenders. Sentencing is a multi-faceted process, and reserving systemic considerations to one community in Canada (albeit an incredibly significant and unique one, particularly in the context of criminal justice) disregards the requirement that every sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing is, and must remain, an individual process. But the diversity of individuals whose backgrounds may inform proportional sentencing should not be arbitrarily limited because those groups lack a specific remedial provision in the Criminal Code. To the contrary, the Supreme Court’s own pronouncements that proportional sentencing demands an exploration of each individual offender’s culpability requires that courts pay attention to racialized offenders and how their background, history, and relationship with the criminal justice system may inform the proportionality of their sentence. Some will confuse such considerations with playing “the race card”. But, in actuality, such considerations will simply ensure that all offenders come before the criminal justice system with an even deck.
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By: Kyle Gardiner
Research Commented On: Shea Nerland Law LLP Fellowship Project on Tax Law and Equality, Summer 2016
On 2 May, 2016, I began a research project with Jonnette Watson Hamilton, Jennifer Koshan and Saul Templeton examining the role section 15 of the Charter plays in tax law. Over 50 variables were recorded from each of the 134 equality challenges to tax law that we analyzed. To read my post on one of these cases, Grenon v. Canada, 2016 FCA 4 (CanLII), see here. The data promises to be a rich tool for examining equality in the realm of tax law.
When I was conducting a literature review for this project, I reviewed Kathleen Lahey’s “The Impact of the Canadian Charter of Rights and Freedoms on Income Tax Law and Policy” in David Schneiderman & Kate Sutherland, eds, Charting the Consequences: The Impact of Charter Rights on Canadian Law and Politics (Toronto: University of Toronto Press, 1997) 109. In that study, Lahey conducted a review of 300 cases in which Charter challenges were brought to various income tax provisions between 1985 and 1995. The current research extends Lahey’s study, systematically reviewing section 15(1) Charter challenges to tax law that have been brought since the conclusion of her study in October, 1995. While many taxation provisions outside of the Income Tax Act, RSC 1985, c 1 (5th Supp) have seen their share of section 15(1) challenges, the cases examined in our study were specifically section 15(1) equality challenges to a section or sections of the Income Tax Act. Our data awaits further statistical analysis beyond what has been done preliminarily here.
By way of background, section 15 of the Charter is an equality rights guarantee, and it allows claimants who believe they have been discriminated against on the basis of a personal characteristic by a government’s law, policy, or program to challenge that law, policy, or program. Section 15(1) protects against both direct discrimination and adverse effects discrimination. Direct discrimination is usually obvious on the face of the law and occurs where a law’s measures explicitly single out some people for specific treatment because they possess a particular trait. Adverse effects discrimination arises when a neutral rule, applied equally to everyone, has a disproportionate and negative impact on members of a group identified by a prohibited ground of discrimination (see here for a thorough discussion of this distinction). Section 15 reads:
15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Of the 134 decisions in our study, 114 were challenges heard in the Tax Court of Canada, and 20 were appeals heard by the Federal Court of Appeal. Of those 20 appeals, 13 were appealed from trial decisions that were included in this data set. No challenge succeeded in reaching the Supreme Court of Canada. Leave to appeal was sought in 12 of the 20 Federal Court of Appeal cases reviewed, and was refused by the Supreme Court in each case.
Figure 1 illustrates the chronological distribution of the cases:
Figure 1: Annual distribution of cases reviewed
A wide array of the Income Tax Act’s provisions was challenged in the cases studied. Personal exemptions, exemptions under the Indian Act, RSC 1985, c I-5, deductions for legal fees, childcare expense deductions, moving expense deductions, disability benefits and tax credits, special opportunity grants, various age restrictions, the inclusion/deduction system of child support, the Canada Child Tax Benefit, eligibility for the GST credit, various credits under section 118(5) of the Income Tax Act (including the equivalent to spouse credit and the credit for a wholly dependent person), tuition credits, and tax rates under section 117 of the Income Tax Act were all challenged.
The two most common sections of the Income Tax Act to be challenged were section 118(5) and section 118.2. These sections were followed in popularity by section 56(1)(b), involving the inclusion/deduction of child support payments.
Section 118(5) is a provision that disallows various deductions under section 118(1) to a taxpayer who is obligated to pay support in respect of a child to whom the credit applies. These two sections combine to allow a recipient of child support to claim the relevant credits in subsection (1), while disallowing a payor from claiming the same credits. This provision was challenged 17 times, 15 of which were by male claimants with an obligation to pay child support. The grounds argued here under section 15(1) of the Charter were most commonly family status or sex.
The challenges to this section provide a good example of cases where judges reworked the claimant’s grounds into characteristics that are not protected by the Charter — in these cases, “having an obligation pay child support” or “being a parent who pays child support” (see e.g. Giorno v The Queen, 2005 TCC 175 (CanLII), Calogeracos v The Queen, 2008 TCC 389 (CanLII), and Sears v The Queen, 2009 TCC 22 (CanLII)).
Section 118.2 was also challenged 17 times. These challenges involved the medical expenses credit, 9 of which were specific challenges to section 118.2(2)(n), or the requirement that medications be “recorded by a pharmacist” in order for the claim for a credit to succeed. The section 15(1) Charter grounds most common in these challenges were physical disability, or the type or severity thereof. Female claimants were overrepresented in this category of challenge (9 males to 8 females or 47% females— compared to the 30% of females in the general sample of cases).
Enumerated or analogous grounds refer to those personal characteristics that, if found to be the basis of the discrimination, render the discrimination unconstitutional (if not saved under section 1 of the Charter). Enumerated grounds are those specified in the text of section 15(1), and analogous grounds are those personal characteristics that have been found by the courts to be similarly immutable or constructively immutable (i.e. changeable only at great personal cost). Sexual orientation, marital status, and citizenship are a few examples of analogous grounds.
Of the 134 cases reviewed, 36 contained challenges upon enumerated grounds, 32 upon analogous grounds, and 12 upon both enumerated and analogous grounds. The grounds of the remaining 54 cases consisted mainly of those that were neither enumerated nor found to be analogous to date, or grounds that were not specified. It is important to note that of all challenges reviewed, the “grounds” stage of analysis was the most common point of failure of the section 15(1) claim.
Of the protected grounds, the most common that were argued as the basis for the section 15(1) challenge were family status (21), physical disability (15), age (12), and “other” (22). Common grounds within the “other” category were income sources or level (which we counted separately given our prediction that numerous challenges would be based on this ground), employment status, and inmate status. Fourteen, or 50% of the challenges brought on “other” grounds failed at the grounds stage of section 15(1) analysis. Figure 2 illustrates the grounds argued by claimants in the cases reviewed:
Figure 2: Grounds argued by claimants in the cases reviewed
It is important to note that two of the claimed grounds that appear in Figure 2, income level and employment status, have not been recognized as analogous grounds in Canadian law to date. Because these grounds appeared so often in the cases reviewed, though, they have been given their own categories for display.
Certain claimants brought challenges via multiple grounds under section 15(1) of the Charter. No notable trends appear between the “Grounds” and “Second Grounds” categories, though certain groupings are apparent. For example, age (12) was the most common ground to be coupled with others, namely family status (2), marital status (2), and sex (1). Further analysis of grounds and corresponding second grounds may yet yield useful data or uncover further trends.
Direct Versus Adverse Effects Discrimination
Cases of adverse effects discrimination were more than twice as prevalent as cases of direct discrimination, a divide of roughly 70 to 30 cases. Common issues of adverse effects discrimination were those regarding section 118(5) of the Income Tax Act, where credits could not be claimed for a child because the taxpayer was paying child support in respect of that child, the deductibility of legal expenses (section 60(o)), medical expenses credits (section 118.2(2)), and issues surrounding childcare expenses (section 63). Claims of adverse effects discrimination also appear to be more prevalent among income tax appeals, as only 9 of the 67 section 15(1) discrimination claims heard by the Supreme Court were adverse effects discrimination claims (see Jonnette Watson Hamilton and Jennifer Koshan, “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter” at Appendix 1, as updated to reflect the Supreme Court’s most recent Section 15(1) decision, Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 (CanLII).
Among adverse effects discrimination cases, the most common grounds argued were family status (14), physical disability (12), “other” (9) and sex (8, 5 males to 3 females). The 12 physical disability cases claiming adverse effects discrimination comprise the entire subset (12) of physical disability cases in our sample. Many of these challenges were to failed claims for medical expense credits under the Income Tax Act.
In direct discrimination cases, “other” grounds were most common (9), followed by age (5) and family status (4). Among the “other” grounds were inmate status (2), sibling status (2), province of residence, cultural rights, and being a receiver of support. The proportion of these grounds within direct discrimination challenges can be compared to the grounds’ prevalence in the greater sample. For example, age represents 17% of all direct discrimination cases, but only 9% of cases in the overall sample were based on the ground of age. As might be expected given that taxation lines are often explicitly drawn on the basis of age, that ground is overrepresented in the direct discrimination category.
The Failure of all Section 15 Claims
The backbone of the section 15 test requires a claimant to prove a distinction based on an enumerated or analogous ground that results in discrimination. While the framework for section 15 analysis has been in a state of flux since its initial development in Andrews v. Law Society of British Columbia, 1989 1 SCR 143 (CanLII), those core elements have remained.
As noted above, the most common stage of failure in our sample was the “grounds” stage (41), where judges often reasoned that the grounds argued were neither enumerated nor analogous. This result was followed by the “no discrimination” stage (28), and the “no distinction” stage (21). Forty-seven decisions were written by judges who failed the challenge at a second stage, either pointing out multiple stages where the test failed, or proceeding to rule that in the event of an error in the judge’s reasoning, the test would still fail at a later stage.
Anecdotally, “no discrimination” was cited commonly as a “catch-all” reason for failure. See, e.g. Fontaine v. The Queen, 2003 TCC 662 at 10:
The Charter of Rights and Freedoms does not assist the Appellant in any way. He is not discriminated against pursuant to subsection 15(1) or any other section. His Charter argument is frivolous.
Within a 13-paragraph decision in Fontaine, McArthur J.A. disposed of the claimant’s Charter argument in one paragraph. See also Pate v. The Queen, 2004 TCC 190 (CanLII) at 25.
Figure 3 reveals the most common stages of failure of the section 15(1) challenge:
Figure 3: The eight most common stages of failure among cases reviewed.
Among the 134 cases reviewed, only one case was successful at trial, but even this modest success was overturned on appeal (see Wetzel v The Queen, 2004 TCC 767 (CanLII)). In 1984, the federal government and the Conne River Band were negotiating criteria for band membership. In a 1984 order-in-council that included the Band under the Indian Act, the criterion of “Canadian Micmac ancestry” was included, effectively excluding Michael Wetzel— a Micmac of American ancestry— from Band membership and from the tax exemptions that go along with such membership. The Tax Court of Canada ruled that this exclusion was a clear violation of Wetzel’s section 15(1) Charter rights. The remedy granted by the Tax Court was to vacate the tax assessments at issue, a personal remedy under section 24(1) of the Charter. The decision of the Tax Court contains no section 1 analysis of whether the government’s actions were reasonable and justifiable.
This case is anomalous, however. Wetzel involved a remission order, a special remedy under the Financial Administration Act, RSC 1985, c F-11, for waiver of tax when it is unquestionably mandated by tax legislation. Instead of challenging a provision of the ITA, Wetzel’s section 15(1) challenge was brought against an order-in-council. On appeal, the issues were characterized as having more to do with “administrative law wrongs” (see Canada v. Wetzel, 2006 FCA 103 (CanLII) at para 23). Sexton J.A. continued with a section 15(1) Charter analysis, concluding that Wetzel was not treated differently from “all the other residents of Conne River Reserve ‘of Indian Ancestry’”. He concluded on this basis that Wetzel’s section 15(1) Charter rights had not been violated (para 30).
Because the cases reviewed in our study are those containing challenges to provisions of the Income Tax Act, Wetzel does not fit cleanly within our data set. The success that this section 15(1) challenge had at first instance may be attributable to its anomalous nature, but this observation is speculative, and the case was overturned on appeal in any event. That result means that no claimants in our overall sample were successful in their section 15(1) challenges.
Turning briefly to section 15(2), the Charter’s affirmative action provision, it was not determinative in any of the cases reviewed. Because section 15(2) protects ameliorative government laws, policies and programs from section 15(1) challenge, it might have formed another basis for the failure of challenges by taxpayers under section 15(1), but this was not borne out in our sample.
Not only were no cases successful in arguing discrimination under the Charter, no case even succeeded in reaching section 1 analysis— the section of the Charter which allows governments to attempt a justification of Charter violations, if they are found. All of the challenges considered in our sample therefore failed because the section 15(1) arguments were unsuccessful.
The challenges reviewed in this study were heard at first level by 40 different Tax Court judges. Seven judges heard 49 of the 113 Tax Court of Canada cases. This means that 43% of the cases were decided by just 7 judges. Eighteen cases were heard by 18 different Tax Court of Canada judges who heard only that case during the period under review. That is, there were 18 “one-off” judges.
Lawyers represented claimants in only 29 cases of the 134 cases reviewed. This is an average representation rate of 22% across both levels of court. Nine claimants were represented by agents, all of whom were law students. One claimant was represented by a relative. The lack of legal counsel across these cases illuminates possible access to justice issues that require deeper exploration.
One other potential access to justice issue is that of cost awards, whereby claimants are either ordered to pay some costs or may have some of their costs of litigation covered (see sections 18.26 and 18.3007 of the Tax Court of Canada Act, RSC 1985, c T-2, under which the court has discretion to award costs). Costs were awarded from the taxpayer in 29 cases, and awarded to the taxpayer in 16 cases. Other arrangements were made in 4 cases, and in the remaining 84 cases cost awards were not specified in the text of the decision.
Claimants were characterized on the face of the decision as “frivolous” 9 times, and “vexatious” 4 times. Frivolous and vexatious claimants never had lawyers and were always male. In the overall sample, claimants were male in 93 cases, and female in 40 cases. In one case the claimant was a corporation. This gender distribution is an exact replication of that found by Lahey in 1997— 70% of the claimants are men. Six claimants were Aboriginal and seeking exemption from payment of taxes under the Indian Act, of which one was Wetzel, the only claimant to succeed in the Tax Court.
While some applications for intervener status were made prior to certain cases being heard, no intervener succeeded in participating in a claimant’s hearing. See e.g. Tall v. The Queen, 2005 TCC 765 (CanLII), where an application for intervener status by the Chinese Canadian National Council (CCNC) was denied in a case involving a section 15(1) challenge based on religion and national or ethnic origin. The claimant in that case sought to claim certain Traditional Chinese Medicine expenses that were not “recorded by a pharmacist” as required by section 118.2(2)(n) of the Income Tax Act. The CCNC intended to offer its unique perspective on issues of equal benefits raised by the claimant’s case.
Finally, 24 cases cited a second Charter section as the basis for the challenge, most commonly section 7 (19 times) and section 6 (5 times). Section 7 protects an individual’s life, liberty and security of the person from government interference that is contrary to the principles of fundamental justice. Section 6 guarantees mobility rights, including the right to move to and take up residence in any province, and to pursue the gaining of a livelihood in any province. Seven cases cited two Charter sections in addition to section 15(1).
The Supreme Court has not heard any section 15(1) challenges in tax cases since the mid-1990s (see Symes v. Canada,  4 SCR 695 (refusing a claim that the non-deductibility of a woman’s child care expenses as business expenses was discriminatory); Thibaudeau v. Canada,  2 SCR 627 (refusing a claim that child support payments count as taxable income to the payee was discriminatory)). It was a discouraging surprise to learn that there has not been a single successful section 15(1) claim to the Income Tax Act since then. Nevertheless, the data provides rich opportunities for analysis of section 15 jurisprudence and tax law. I am grateful for the funding received by Shea Nerland Law LLP and for my opportunity to work on this project.
Research for this blog post was made possible by a generous fellowship received from Shea Nerland Law LLP. For more information on the projects funded by this fellowship, see here.
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By: Hasna Shireen
PDF Version: Human Rights Cannot Be Renounced or Waived
Case Commented On: Webber Academy Foundation v Alberta (Human Rights Commission), 2016 ABQB 442 (CanLII)
The Court of Queen’s Bench of Alberta recently upheld a human rights decision that found Webber Academy, a private school in Calgary, had unlawfully discriminated against two Muslim high school students by prohibiting them from performing certain prescribed Sunni prayers at school. Dr. Webber, President and Chairman of Webber Academy, said that bowing and kneeling was too overt and such prayers would be not allowed on campus. The Alberta Human Rights Tribunal in 2015 found that Webber Academy discriminated against the two students and awarded the students $12,000 and $14,000 respectively as damages for distress, injury and loss of dignity (see 2015 AHRC 8 (CanLII)). The Academy did not explicitly claim that the complainants had waived their rights prior to enrollment. However, on appeal Justice GH Poelman addressed the issue of waiver, as the pre-enrollment discussions between the students and staff were discussed at length by the Tribunal. Justice Poelman held that waiver is not a possible defence in any case, as human rights are a matter of public policy and protect the inherent dignity of every individual; thus they “cannot be waived or contracted out of” (at para 106).
Complaints at the Alberta Human Rights Commission
On February 13, 2012, Ms. Farhat Amir and Dr. Shabnam, on behalf of their sons Sarmad Amir and Naman Siddique, made a complaint to the Alberta Human Rights Commission against Webber Academy for discrimination on the ground of religious beliefs in the area of services or facilities customarily available to the public (section 4 of the Alberta Human Rights Act, RSA 2000, c. A-25.5 (AHRA)). The students are Sunni Muslims and need to pray five times a day. According to their personal Sunni religious beliefs these prayers are mandatory and at least one and not more than two prayers must be performed during school hours (depending upon the time of year). The parents and their children requested a space that would accommodate the students’ need to stand, bow and kneel safely, but not a dedicated prayer space. The Academy facilitated their prayers until December 17, 2011. On that date and in subsequent meetings, Dr. Webber advised the parents that bowing and kneeling was “too overt” and this form of prayer was forbidden on the school’s campus, as the Academy is a non-denominational school (paras 5 – 6).
Tribunal’s Findings and Decision
One issue before the Tribunal was whether the complainants were asking for a designated prayer space as per the Webber Academy’s submission, or their request was to be able to pray, with flexibility as to where that occurred, as per the Director’s and the complainants’ submission (at para 13).
The Tribunal perceived that the prayer space required was only a bit larger than the space required to be occupied by a person and rejected the Academy’s framing of the issue as a request for “prayer space”. It found that the students were requesting the Academy to permit them to honour their religious beliefs on praying (at para 16).
The Tribunal was presented with conflicting evidence regarding the discussion at the pre-enrollment meeting about whether prayers are allowed on school campus. The Tribunal found the testimony of the students and their mothers to be “more accurate and consistent with the balance of the evidence as a whole” (at para 19) and that a positive indication of acceptance to praying on campus was given by Academy staff at the pre-enrollment meeting.
Dr. Webber stated that Webber Academy is a non-denominational school and there had been no approval to have prayer space at school; since the policies were disregarded, the students would not be accepted for enrollment the following year (at para 23).
The Tribunal characterized “the service and facility customarily offered by Webber Academy” to encompass “educational programs and other supportive services and facilities including the use of Webber Academy campus and Facilities”, and defined the “public” as the “student body” (at para 26). The Tribunal considered the scope of services and facilities, and found the students were dependent upon the school to meet their needs during school hours, as they were minors and attended school for full days. Thus, the Tribunal disallowed the Academy’s argument that it did not fall under the AHRA because prayer space is not a service it customarily makes available to its public—prayer space was not the service being offered; rather, the service was education and other supportive services and facilities allowing meaningful access to education (at paras 26 – 27).
The Tribunal used the Moore test for discrimination, which is as follows:
(1) The complainant must have a characteristic that is protected from discrimination;
(2) The complainant must have experienced an adverse impact; and
(3) The protected characteristic must have been a factor in the adverse impact
(at para 49, citing Moore v. British Columbia (Ministry of Education), 2012 SCC 61 (CanLII)).
Applying this test, the tribunal found prima facie discrimination contrary to section 4 of the AHRA for the following reasons:
After finding prima facie discrimination, the Tribunal considered the defence of whether the Academy’s actions were reasonable and justifiable under section 11 of the AHRA. Here, the Tribunal applied British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC) (commonly known as “Grismer”), which involves three steps that must be proven by a defendant in order to rely on section 11. As applied to Webber Academy, these criteria were as follows:
The Tribunal held that the first two criteria were met by Webber Academy. The Academy’s standard was articulated as “no overt prayer or religious activities on school property” (at para 71) and the purpose for the standard “was to foster a non-denominational identity that ensures Webber Academy’s students are placed in a learning environment that is ‘free of religious influence’’’ (at para 71). Next, the Tribunal identified the Academy’s ‘function being performed’ as educational services and facilities (at para 73). The Tribunal decided that the Academy had established a rational connection between the Academy’s purpose and the function it performed (at para 74). It also found that the Academy had adopted its position in good faith (at para 75).
However, the Academy did not meet the third criterion from Grismer. There was no evidence that the students’ prayer practices would have a religious influence on other students, other overt religious observances were permitted, initial allowance of prayers had been easily accommodated, and Webber Academy had not undertaken any assessment of whether allowing the students’ prayers would amount to a hardship for the Academy (at para 31). Thus, the Tribunal found against Webber Academy and awarded Mr. Amir $12,000 and Mr. Siddique $14,000 as damages for distress, injury and loss of dignity.
Standard of Review: Court of Queen’s Bench of Alberta
Justice GH Poelman of the Court of Queen’s Bench of Alberta relied on Association of Professional Engineers and Geoscientists of Alberta v Mihaly, 2016 ABQB 61 (CanLII) for the standards of review to apply to various questions on appeal (at para 34). These will be identified for each of the issues discussed below.
Characterizations: Students’ Request and Services Customarily Available
Both parties agreed that the “public” for the purposes of section 4 of the AHRA is the student body of the Academy as per the Tribunal decision and University of British Columbia v Berg, 1993 CanLII 89 (SCC). However, the parties differed on whether there was discrimination with respect to any services or facilities “customarily available to the public” (at para 36). Justice Poelman determined that this inquiry required a characterization of what the students were seeking and how that related to the services offered to Webber Academy’s “public”—the student body (at para 36).
Justice Poelman held that determining what was requested by the students is primarily a factual matter and thus was reviewable on a reasonableness standard. The Tribunal factually disallowed the Academy’s characterization of the students’ request as being for “prayer space”. There was ample evidence the students were not asking for dedicated space but only for somewhere they could perform prayers for five to ten minutes in a discreet manner (at paras 37 – 38).
Justice Poelman then focused on determining whether what the students requested was a service or facility customarily available to the Academy’s public. On appeal, the Academy did not clearly express how its services and facilities should be described. Rather, the Academy argued that if the specific thing requested—namely the provision of prayer space—is not customarily available to the student body, and it is not therefore protected under section 4 of the AHRA (at para 40).
Justice Poelman agreed that the Tribunal was correct in using the Berg and Moore cases. In applying these two cases to the matter before the Court, Justice Poelman found that the services and facilities the Academy customarily made available to its public were non-denominational educational programs and other supportive services and facilities incidental to those programs (at para 44). To apply the language of Moore, incidental supportive services and facilities include “the means by which those programs could be accessed by students” (at para 44). To apply the language of Berg, Webber Academy has “discretion in the types and scope of incidental services and facilities it offers” (at para 44). However, the “discretion must not be exercised on prohibited grounds of discrimination” (at para 44, citing Berg at para 75). Accordingly, the Tribunal was accurate in concluding “that Webber Academy, as a private school offers services and facilities customarily available to the public and does not have an ‘unfettered discretion’ to summarily refuse a student’s request to perform a religious obligation on its campus” and the Academy’s discretion to set policies regarding student conduct “does not give a private school license to exercise their discretion in denying the services or use of facilities in a discriminatory fashion” (at para 45).
Prima Facie Discrimination
On appeal, the Academy submitted that the Moore test used by the Tribunal was inadequate because it failed to incorporate a “comparator analysis” as per Kelly v B.C. (Ministry of Public Safety and Solicitor General) (No. 3), 2011 BCHRT 183 (CanLII). The Court held that as it was the most recent relevant Supreme Court of Canada authority, the Tribunal was correct in identifying the Moore test as applicable (at para 49).
Application of the Test
Characteristic Protected from Discrimination
As noted above, the Tribunal found that the students had a characteristic protected from discrimination under the AHRA, because of their sincerely held religious beliefs. The Academy argued that the Tribunal gave inadequate consideration to their expert testimony because leading and majority opinion among the four major Sunni schools of Islamic law consider attendance at school is a valid reason to delay or skip prayer (at para 52). The Tribunal’s decision on religious beliefs was based upon its finding that the students personally believed it was necessary to conduct their prayers during scheduled times and it would be sinful to miss them, based on the Qur’an and the sayings of the Prophet as conveyed to them by their parents. Moreover, the Tribunal accepted the testimony of the principal of Rundle College (where the students attended after Webber Academy) that the students practiced their prayer without significant disruption for the two years they attended that school. This was strong evidence of a genuine belief and commitment by the students to their prayer practices (at paras 52 and 54).
Justice Poelman found that the Tribunal appropriately followed the approach established in Syndicat Northcrest v Amselem, 2004 SCC 47 (CanLII). Amselem holds that for complainants relying upon freedom of religion, it is not necessary to prove their beliefs are objectively recognized as valid by coreligionists, nor is it appropriate for courts to inquire into that question. Rather, a person must show sincerity of belief, not validity of a particular belief. Amselem does not support the reliance placed by the Academy on expert evidence, because, as stated by the Court, “[r]eligious belief is intensely personal and can easily vary from one individual to another. Requiring proof of the established practices of a religion to gauge the sincerity of belief diminishes the very freedom we seek to protect” (at para 60, citing Amselem at para 54). Thus, the Court ruled that the Tribunal properly focused on a determination of whether the students sincerely held their religious beliefs regarding the form and times of prayer and found ample evidence from the students, their mothers and their coreligionists to support the Tribunal’s finding that the religious beliefs were sincerely held (at paras 59 and 60).
On appeal, the Academy maintained its argument that the students had requested a designated prayer space. The Court noted that this argument was “premised on a mistaken characterization” and that the students desired to be allowed to conduct private prayers “in whatever unobtrusive place was available” (at para 64). The Academy denied their right to pray and treated them “differently from other students whose religious beliefs in the form of head coverings and facial hair were permitted during their attendance at school, even advertised by Webber Academy, despite the fact that those observances were contrary to the usual policies applicable to Webber Academy students” (at para 64). Thus, there was plenty of evidence showing that the students experienced an adverse impact as a result of the Academy’s actions (at para 65).
Religious Belief a Factor in Adverse Impact
The Tribunal found the students were denied meaningful access to the Academy based on their religious belief, which clearly connects the protected ground of religion to the adverse impacts (of refusing to allow prayer and denial of re-enrollment) (at para 66). The Court of Queen Bench found that based on the evidence, the Tribunal’s findings were reasonable.
The Tribunal’s findings with respect to rational connection and good faith were not challenged on appeal (at paras 74-75). As for the third criterion, the Tribunal made note of the following: the Academy’s public information in the Parent-Student Handbook stated that “at Webber Academy, we believe in,” among other things, “creating an atmosphere where young people of many faiths and cultures feel equally at home”; the Academy’s website page for “Admissions” prominently showed a student with a turban, mustache and beard, along with two other students, conveying the acceptance of students of many backgrounds and faiths; the “Webber Academy information package” contained the statement that the Academy is “non-denominational” (at para 77, citing the Tribunal decision in general). However, the Tribunal rejected Dr. Webber’s view, expressed in his testimony, “that a non-denominational school can reasonably be interpreted as meaning that no prayer or religious practice would be allowed” (at para 79). Justice Poelman found that the tribunal’s finding that the standard imposed by the Academy “was not reasonably necessary to accomplish its purpose of fostering a non-denominational identity” was a reasonable one “founded on the evidence” (at para 83).
As noted above, the third aspect of the Grismer test also requires the respondent to establish that it could not accommodate persons with the characteristics of the claimant without incurring an undue hardship. The Tribunal found that “[t]he evidence overwhelmingly supports that accommodation of the prayer was possible and it would not have been an undue hardship to accommodate the Students’ requests to pray on campus” (at para 81). The Court held that the Tribunal applied the correct legal test under section 11 of the AHRA and its conclusions were reasonable based on the evidence (at para 87).
Webber Academy made submissions on the conflicting evidence on the content of the pre-enrollment meeting and school tour, and also argued that the Tribunal had incorrectly refused to accept evidence of one staff person’s version of the meeting. Justice Poelman held that the Tribunal’s explanations about its conclusions on credibility were unreasonable (at para 100) and not adequately transparent and intelligible (at para 104). However, Justice Poelman concluded that even if Webber Academy’s evidence was accepted, and the Tribunal had found that there had been a clear warning that no prayers would be allowed, this conclusion would also have led to an analysis of whether there was discrimination and whether it was reasonable and justifiable (at para 105). This brings into play the point that one cannot waive one’s rights under human rights law.
Justice Poelman noted that the Academy did not argue waiver, but nevertheless found that a defence of waiver by the complainants of their human rights would not be available (at para 106). As a general rule, any person can enter into a binding contract to waive the benefits conferred on them by legislation, or in other words, can contract out of legislation, unless it can be shown that it would be contrary to public policy to allow such an agreement. In the context of human rights law, “It has been well established that human rights are a matter of public policy, created for the benefit of the community, inherent to the dignity of every individual, and cannot be waived or contracted out of” (para 106, citing Ontario (Human Rights Commission) v Etobicoke (Borough), 1982 CanLII 15 (SCC) at paras 8 to 9; Central Okanagan School District No. 23 v Renaud, 1992 CanLII 81 (SCC) at paras 23 to 25; and Dickason v University of Alberta, 1992 CanLII 30 (SCC) at para 116). As noted in Dickason, human rights legislation is quasi-constitutional, and rights generally cannot be renounced or waived.
After upholding the Tribunal’s finding of discrimination, Justice Poelman also upheld the Tribunal’s damages awards (at para 119).
Justice Poelman’s concluding remarks emphasize that this case was not “precedent-setting with far reaching implications” as argued by Webber Academy (at para 120). Public and private schools have long been required to adhere to human rights law when offering educational services to the public (at para 121). Webber Academy had discriminated against the Sunni students, and could not defend its practices as reasonable and justifiable. Perhaps the most interesting aspect of this decision is the discussion of waiver. Although waiver was not clearly argued, the Tribunal spent a fair bit of time analyzing the pre-enrollment discussions between the school and the students. Presumably, the Tribunal concluded that Webber Academy was arguing that the students waived their human rights based on the pre-enrollment discussions. However, as noted by Justice Poelman, one cannot contract out of human rights legislation. What is interesting is that Justice Poelman does not completely rule out waiver, as the stated conclusion is “it is highly unlikely that waiver would be made out on these facts, even if it was open as a possible defence” (at para 106, emphasis added). To date though, contracting out arguments have only been successful in limited circumstances (see e.g. Dickason, dealing with a mandatory retirement clause in a collective agreement where the parties had equal bargaining power).
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By: Alena Storton
Case Commented On: R v Hamiane, 2016 ABQB 409 (CanLII)
Recent appeals by self-represented litigants (SRL) often focus on the extent of a trial judge’s duty to assist the self-represented litigant. Trial judges are expected to assist SRLs throughout a trial, but the scope of assistance is left to their discretion (R v Hamiane, 2016 ABQB 409 (CanLII); Cold Lake First Nations v Alberta (Minister of Tourism, Parks & Recreation, 2012 ABCA 36 (CanLII); Malton v Attia, 2016 ABCA 130 (CanLII); for earlier posts discussing Malton v Attia see here and here). From the appeals, however, it is clear that SRLs do not feel sufficiently supported or informed to meaningfully participate in a trial. To remedy this issue, trial judges should consider altering the way in which they approach assisting SRLs in the trial process. Judges already explain procedural steps during a trial, as seen in Hamiane. By providing that same assistance at the outset of a trial in accordance with an established set of guidelines, however, trial judges could streamline the process and ensure that all SRLs receive consistent information sufficient to allow them to meaningfully and fully participate in a trial.
This method of assisting SRLs was discussed in Hamiane, an Alberta Court of Queen’s Bench decision. In this case, Mr. Justice Graesser heard an appeal of a summary conviction for dangerous driving. Mr. Hamiane represented himself with the help of a French translator at trial. On appeal, Mr. Hamiane asked for a new trial because he said that the trial judge did not adequately inquire as to whether he wished to retain a lawyer, explain the trial process, instruct him on the applicable law or the permissible nature and extent of cross-examination, or satisfy herself that Mr. Hamiane had the necessary linguistic abilities to understand the proceedings (at para 3).
Justice Graesser determined that the extent to which a trial judge must inquire whether a SRL wishes to retain counsel, or explain the trial process, are matters for the judge’s discretion. That discretionary decision should be based on the circumstances, including the seriousness of the charge (at para 78). In this case, Justice Graesser focused quite extensively on the seriousness of the charge and the potential consequences for the accused. He concluded, “These were not ‘serious’ charges” (at para 55) and the potential consequences for Mr. Hamiane were minimal. Specifically, Mr. Hamiane was not at risk of being sent to jail and “there was no indication at the trial that a criminal record would affect Mr. Hamiane differently than other people convicted of such [driving] offences” (at paras 51-52). In addition, Justice Graesser noted that the case was not complex and did not give rise to any difficult legal issues or obvious Charter arguments (at para 53). Overall, Justice Graesser found that the trial judge exercised her discretion properly and adequately assisted Mr. Hamiane (at paras 60 & 94).
In reaching this decision, Justice Graesser also rejected Mr. Hamiane’s argument that, at the outset of a SRL’s trial, the judge should describe the trial process, the presumption of innocence, the burden of proof, the specific elements of a charge that the Crown must prove, possible defences, the purpose and technique of cross-examination, and various aspects of calling a defence (at para 79). In Justice Graesser’s view, these explanations may be necessary to ensure a fair trial in cases that include a serious charge and potentially serious consequences (at para 80). In less serious cases, however, Justice Graesser held that a trial judge could choose to give only some of this information. He also went on to say, “But in less serious cases, such as this one, a reviewing Court should be slow to fetter the discretion given to trial judges to assess the situations unfolding before them and to determine the best course of action” (at para 80).
It seems unreasonable, however, to base the amount of assistance to be provided to a SRL primarily on the particular charge or other circumstances of a case, as SRLs generally face the same challenges when navigating the Canadian legal system no matter how serious or seemingly inconsequential the charge or claim. The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants interviewed SRLs from a range of legal areas and found that SRLs consistently felt overwhelmed and identified a need for orientation and education, as well as one-on-one assistance to help with their case and understand what is involved in representing themselves (“Final Report” at p 11). The study also indicated that the information that SRLs were able to access before the trial varied and was inconsistent. SRLs’ primary source of information was court staff, but some of the respondents could not find information on these resources online or in the courthouses and, as a result, missed out on this important source of information (at p 10). Information sheets created by the courts also may not help some self-represented litigants because, as Justice Graesser pointed out, these documents are only available in English (Hamiane at para 82). In addition, guidance on procedural matters, a critical topic for participating in a trial, was generally missing from informational sources for SRLs (at p 67).
In light of these common challenges, providing information on the trial process and its requirements at the outset of a trial may be an effective method of fulfilling a judge’s duty to assist SRLs to ensure that all SRLs have access to a basic level of information necessary to participate in a trial, regardless of the seriousness of the charge or any language or knowledge constraints. In addition, creating guidelines for this assistance would provide judges with a useful framework for the type and scope of information to be discussed at the beginning of a trial. An explanation given at the beginning of trial would also help to make trials more efficient because judges would not need to stop at each new step to explain what is required, as in Mr. Hamiane’s trial. Overall, giving SRLs an explanation of trial process and requirements at the outset of trials in accordance with established guidelines would likely improve SRLs’ participation in trials by ensuring that all SRLs have consistent access to sufficient information.
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By: John-Paul Boyd
On 20 June 2016, the Canadian Research Institute for Law and the Family began a study on Canadian perceptions of polyamory, advertised with the assistance of the Canadian Polyamory Advocacy Association, gathering preliminary data with a public survey. The information gathered thus far, from the 547 people who answered our survey, paints a nuanced picture of polyamorous individuals and their family arrangements.
The polyamorous families we are looking at are those created by three or more freely consenting adults, in distinction to faith-based, and often patriarchal, forms of polygamy that exist in much of Africa, the Middle East and North America, the latter of which have been popularized in shows like Big Love and Sister Wives. The polyamorous population we are studying places a high value on equality and honesty, and the rights of individuals to leave a relationship when and how they wish.
The majority of survey respondents live in British Columbia (35.6%), Ontario (28.7%) and Alberta (17.6%) (see Figure 1), and are between 25 and 44 years old (74.4%) (see Figure 2). Respondents tend to be younger than the Canadian population as a whole, with 75% of respondents being between the ages of 25 and 44 (see Figure 2.1) (Canadian population data: Statistics Canada 2011 Census, catalogue no. 98-311-XCB2011025).
Most respondents had completed some form of post-secondary education, most commonly undergraduate degrees (26.3%), followed by post-graduate or professional degrees (19.2%) and college diplomas (16.3%) (see Figure 3). Respondents reported significantly higher levels of educational attainment than most Canadians: 37% of respondents reported holding an undergraduate university degree, compared to 17% of the general population, and 19% of respondents reported holding a post-graduate or professional degree, compared to 8% of the general population (see Figure 3.1) (Canadian population data: Statistics Canada estimate for June 2016, CANSIM table 282-0003).
Although almost half of respondents had annual incomes of less than $39,999 (46.8%) (see Figure 4), almost two-thirds of respondents were not the sole income-earner in their household (65.4%) and more than three-fifths of respondents’ households (62.3%) had incomes between $80,000 and $149,999 per year (see Figure 4). Compared to the Canadian population, fewer respondents (47%) had incomes less than $40,000 per year than the general population (60%), and more respondents (31%) had incomes of $60,000 or more per year than the general population (23%) (see Figure 4.1) (Canadian population data: Statistics Canada estimate for 2014, CANSIM table 206-0051).
Slightly less than one-third of respondents identified as male (30%) and almost three-fifths identified as female (59.7%); the rest identified as genderqueer (3.5%), gender fluid (3.2%), transgender (1.3%) or “other” (2.2%). A plurality of respondents described their sexuality as either heterosexual (39.1%) or bisexual (31%) (Figure 5).
More than three-fifths of respondents (68%) said that they are currently in a polyamorous relationship. Almost two-fifths of the respondents who said that they are not currently in a polyamorous relationship (39.9%) said that they had been in such a relationship in the last five years.
Most of respondents’ polyamorous relationships involved three adults (50.4%) (see Figure 6), but only a fifth of respondents said that the members of their relationship lived in a single household (19.7%). Where the members of a polyamorous family lived in more than one household, most lived in two households (44.3%) or three households (22.2%) (see Figure 7).
Where the members of a polyamorous family live in one household, three-fifths of respondents’ households involved at least one married couple (61.2%), and there was only one married couple in those households. Where the members of a polyamorous family lived in more than one household, almost half involved at least one married couple (45.4%), and 85% of those households involved one married couple while the remainder involved two married couples (12.9%), three married couples (1.4%) and more than three married couples (0.7%).
In the past five years, 53.4% of respondents said that one or more individuals had been added to their family. Women and men tend to join and leave ménages in roughly equal numbers (see Figures 8 and 9).
Almost a quarter of respondents (23.2%) said that at least one child under the age of 19 lives full-time in their household, and 8.7% said that at least one child lives part-time in their household under the care of at least one parent or guardian (see Figure 10).
Slightly less than one-third of respondents (32.2%) said that they had taken legal steps to formalize some aspect of the rights and responsibilities of the members of their family. Most of these respondents had signed emergency authorizations (57.4%), followed by relationship agreements (34.7%) and powers of attorney for medical matters (22.7%) (see Figure 11).
Most respondents said that they support the equality of members of their relationships, regardless of gender or parental status (see Figure 12), and that members have the obligation to be honest with each other and the right to have a say in changes to their relationship (see Figure 13). When asked about the extent to which they agreed that everyone in a polyamorous relationship should be treated equally regardless of gender or gender identity, for example, 82.1% strongly agreed and 12.5% agreed with that statement. More than half (52.9%) strongly agreed and 21.5% agreed with the statement that everyone in a polyamorous relationship should be treated equally regardless of parental or guardianship status. Most (89.2%) strongly agreed and 9.2% agreed with the statement that everyone in a polyamorous should have the responsibility to be honest and forthright with each other.
Although 82.4% of respondents agreed or strongly agreed that the number of people who identify as polyamorous is increasing, and 80.9% agreed or strongly agreed that the number of people who are openly involved in polyamorous relationships is increasing, respondents had mixed views about public attitudes toward polyamory (see Figure 14).
Despite concern about the impact of the prohibition against polygamy in section 293 of the Criminal Code on public acceptance of their relationships, the prohibition does not deter respondents from pursuing the relationships they choose (see Figure 15).
The growing popularity of polyamory suggests that the meaning of “family” continues to evolve in Canada. The traditional model of the western nuclear family, consisting of married heterosexual parents and their legitimate offspring, has undergone enormous change in the last two hundred years – attaching family status to unmarried partnerships and legalizing same-sex marriage are only the most recent changes. Perhaps expectations as to exclusivity and the dyadic nature of committed relationships are next.
The Institute’s complete report on this study, including the text of the survey, will be available on its website by December 2016.
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By: Joshua Sealy-Harrington and Marita Zouravlioff
Case Commented On: Trinity Western University v The Law Society of Upper Canada, 2016 ONCA 518 (CanLII)
Two days before Canada Day, the Ontario Court of Appeal upheld the Law Society of Upper Canada’s decision to not accredit the proposed law school at Trinity Western University—a private Christian university in British Columbia which requires all prospective law students to abstain from gay sex. Many progressives hailed the decision as a victory for equality, and it undoubtedly was. But while the outcome was progressive in this case, its reasoning need not result in progressive outcomes in future cases. For this reason, we critique the Court’s reasons for failing to discuss the appropriate approach to balancing conflicting Charter rights.
Two aspects of the background to the Trinity Western University v The Law Society of Upper Canada, 2016 ONCA 518 (CanLII) decision (TWU ON) enable a fully informed discussion of the contentious issues at play, namely:
We note parenthetically that Nova Scotia’s legal regulatory body—the Barristers’ Society—decided, like LSUC, to not accredit TWU (The Nova Scotia Barristers’ Society v Trinity Western University, 2016 NSCA 59 (CanLII) at para 2; “TWU NS”). However, interestingly, the Nova Scotia Court of Appeal, unlike the Ontario Court of Appeal, overturned that regulatory decision on the basis that it fell outside the scope of its statutory mandate, which is to regulate legal practice in Nova Scotia, not legal education in British Columbia (TWU NS at para 4). As its decision turned on the scope of the Barristers’ Society’s mandate, the Nova Scotia Court of Appeal expressly abstained from discussing the issue of balancing conflicting Charter rights—the focus of this post.
1. LSUC Mandate
LSUC holds exclusive authority over prescribing qualifications to practice law in Ontario (TWU ON at para 34; see also the Law Society Act, RSO 1990, c L.8, the “LSA”). It wields this authority by maintaining the “standards of learning, professional competence and professional conduct” that lawyers must attain (the “Regulatory Standards”). Specifically, the LSA provides the following with respect to LSUC’s Mandate to administer those Regulatory Standards:
Critically, reading sections 4.1(a) and 4.2.3 together provides that LSUC’s Mandate involves maintaining the Regulatory Standards with a view to “protecting the public interest”. The core issue on appeal was whether LSUC’s decision to deny TWU’s accreditation appropriately balanced conflicting Charter rights in light of LSUC’s mandate to maintain its Regulatory Standards for the “public interest.”
2. Decision Under Review
On April 24, 2014, the LSUC benchers voted 28–21 against accrediting TWU’s proposed law school (at para 10). This is the Decision under review.
First, TWU and a prospective TWU law student—Mr. Volkenant—applied for judicial review of the Decision in front of a three-judge panel of the Ontario Divisional Court. On July 2, 2015, that panel dismissed the application (see 2015 ONSC 4250 (CanLII)).
Second, TWU appealed the Divisional Court’s decision to the Ontario Court of Appeal (at para 12)—the subject of this post.
ONTARIO COURT OF APPEAL JUDGMENT
The Ontario Court of Appeal held that the Decision was reasonable, and accordingly, upheld the Decision (at para 145).
This post focuses on how the Court grappled (or rather, failed to grapple) with the balancing of conflicting Charter rights. To that end, our analysis is limited to two parts of the Court’s judgment:
1. Identifying the Charter Rights Conflict (The Easy Part)
The Court held—and we agree—that this case is a clear instance of genuine conflict between Charter rights.
First, the equality rights of LGBTQ students are undeniably violated by TWU’s Community Covenant, which requires all students to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman” and states that “according to the Bible, sexual intimacy is reserved for marriage between one man and one woman”—thus prohibiting gay sex in all circumstances (see paras 23–24 and 115). At one layer (and there are many; see Saul Templeton’s post on the Covenant’s implications for trans and intersex students), lesbian, gay, and bisexual students may only attend TWU Law at “considerable personal cost” (at para 116). This is because, to attend TWU Law, lesbian, gay, and bisexual students must either:
The discrimination is clear: the Covenant uniquely and adversely affects sexual minorities. Equality discourse in Canada is far past the days where arguments claiming that discrimination against pregnant people “is not created by legislation but by nature” (at p 190) should actually persuade anyone. And yet, that the Covenant discriminates against sexual minorities is still somehow disputed (by some). To be frank, antiquated and unpersuasive arguments that assert the absence of discrimination on the basis of formal equality need to stop. The Supreme Court has clearly and repeatedly affirmed that equality rights seek to achieve substantive equality (i.e. treating people with a view to promoting equality of result), not formal equality (i.e. treating people the same)—see e.g. Withler v Canada (Attorney General), 2011 SCC 12 (CanLII) at para 43; Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37 (CanLII) at paras 38–40; and R v Kapp, 2008 SCC 41 (CanLII) at paras 14–16. Indeed, the Supreme Court has rejected a purely formal understanding of equality ever since its first section 15 decision where it held that “identical treatment may frequently produce serious inequality” (see Andrews v Law Society of British Columbia,  1 SCR 143 (CanLII) at 164). Accordingly, if you want to effectively advance freedom of religion, arguing that discrimination founded in religious doctrine treats everyone “equally” is, quite rightly, a recipe for defeat. Religious freedom is important, and balancing Charter rights is complex. But being disingenuous about obvious discrimination does not move our dialogue about balancing Charter rights forward, it simply avoids the conversation altogether.
Second, the religious freedom of TWU and Mr. Volkenant is clearly violated by the Decision (see para 101).
The legal test for a violation of religious freedom under the Charter involves two steps, namely:
(at para 88, citing Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 (CanLII) at para 86).
Both of these steps were met here, though with less clarity in the institutional context of TWU than in the individual context of Mr. Volkenant.
With respect to Mr. Volkenant:
With respect to TWU:
The Court also noted that, while the extent to which religious institutions can independently seek Charter protection in respect of their religious freedoms is inconclusive in the case law, such protection is available in this case because the religious activity at issue—accrediting a Christian law school—cannot be pursued without the vehicle of a collective institution like TWU (at paras 93–94).
In sum, the TWU dispute provides a clear example of two Charter rights in conflict. But how does the Court reconcile those conflicting Charter rights?
2. Reconciling the Charter Rights Conflict (The Hard Part)
The Court’s analysis of whether the Decision was reasonable turned on whether it appropriately balanced, on one hand, TWU and Mr. Volkenant’s freedom of religion, and on the other hand, the equality rights of LGBTQ students (at paras 112–13).
The Court ultimately held that the Decision was “clearly” reasonable (at para 129) because it appropriately balanced these conflicting Charter rights (at para 145). The Court reached this conclusion following what it describes as five reasons, but which, on our reading, are actually nine discrete observations (The “Observations”):
Following the Observations, the Court briefly remarked that the Decision represents a “reasonable balance” between the conflicting Charter rights at issue because (at para 143):
Lastly, the Court noted that the Decision followed a 28-21 vote at Convocation, suggestive of this particular Charter rights reconciliation “giv[ing] rise to a number of possible, reasonable conclusions” (at para 144).
We are generally happy with the outcome in this appeal. However, we have some concerns with the reasons underlying that outcome, namely:
1. they fail to adequately discuss the appropriate approach to balancing Charter rights;
2. they have been received as progressive, but are in fact, largely neutral with respect to social justice; and
3. they support a surprisingly broad scope of indirect regulatory intervention in the context of legal education.
1. Insufficient Discussion of How to Balance Charter Rights
Our first concern is that the Court inadequately discusses the proper approach to balancing competing Charter rights. In the end, the Court held that “LSUC’s decision in this case required a careful analysis and balancing of the appellants’ Charter rights with other Charter values” (at para 68). And yet, the Court rarely (if ever) points to how the benchers (or the Court) substantively performed that purported balance in this case. Rather, the focus of the judgment is on the benchers’ “excellent” process in reaching the Decision and how LSUC was entitled to make (but not necessarily reasonable in making) the Decision. A review of the Observations—summarized above—makes the absence of substantive discussion regarding balancing Charter rights clear.
The Court’s first observation—that LSUC’s decision-making process was excellent (at para 122)—is procedural, not substantive, and therefore fails to outline any framework for substantive Charter rights balancing. Admittedly, a robust process that consults relevant stakeholders is more likely to fairly balance the conflicting interests of those stakeholders (and is therefore more likely to manifest in a reasonable decision). But this observation still falls short of explaining how that balancing process actually functions in general, or functioned in this case.
The Court’s second observation—that the benchers’ speeches reflected a “fair balancing of the conflicting rights” (at para 125)—is simply false. Any evidence of a “fair balancing” is conspicuously absent from the excerpts of speeches provided by the Court (which, if anything, should have been particularly persuasive in demonstrating the balancing process of the benchers given that it was a Court-curated selection of excerpts meant to advance the Court’s view that a fair balancing occurred). Specifically:
In sum, while these excerpts show that the benchers were aware that Charter rights were in conflict, and that this conflict should be resolved in favour of equality, the middle step—reasonably balancing those rights—appears to be absent, no matter how “thoughtful, respectful, and even eloquent” the speeches were (at para 124).
The Court’s third and fourth observations—that the benchers’ speeches were complemented by formal legal opinions provided to them (at para 126) and a robust democratic process (at para 127)—would be persuasive if the Court actually supplemented the speeches with portions of the legal opinions or democratic process which evidence the balancing of Charter rights absent from those speeches. Other than a cursory reference to the areas explored in those opinions (at para 44) and a “democratic process” with a nebulous “record” (at para 127), the Court provides no detail regarding how those opinions or that process resulted in a surrogate balancing of Charter rights on LSUC’s behalf. Indeed, the Court’s affirmation of the Divisional Court’s holding that “[t]he Benchers were all well aware of the clash between religious rights and equality rights that the question before them presented” (at para 126) simply shows that the benchers were, as we noted in the preceding paragraph, aware of the Charter rights conflict, not reasonably balancing those rights.
The Court’s fifth, sixth, and ninth observations—that LSUC is entitled to scrutinize admissions processes (at paras 130–32), weigh its human rights obligations (at para 133), and take positions on policy disputes with a religious dimension (at paras 141–42)—merely show that LSUC would have been permitted to consider those factors in conducting its fair balancing, not that such a balancing actually occurred.
Lastly, the seventh and eighth observations—that limiting religiously motivated discrimination is less problematic than infringing religious belief itself (at paras 134–38) and that international treaty obligations favour the Decision (at paras 139–40)—admittedly show that the decision may have been reasonable in outcome, but nevertheless fail to show how such a balance was actually considered by the benchers in practice.
In sum, largely absent from all of the Observations is a meaningful balancing of the Charter rights in issue. Specifically, there is little evidence of discussion by the benchers, or the Court (other than its brief remarks at para 143), of assigning weight to the relative harms to religious freedom and equality rights in this instance, and how best to reconcile those conflicting harms. Absent such a framework, future similar conflicts are seemingly immune from review as long as decision-makers adopt similar procedures as LSUC did here.
To be clear, we appreciate that reasonableness review refers “both to the process of articulating the reasons and the outcome”, such that some of the Observations support the reasonableness of the outcome in this case (see Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII) at para 47; “Dunsmuir”). Regardless, in our view, the Court’s reasonableness review is lacking because it dodges the core issue in dispute, namely, the balancing of conflicting Charter rights. Put differently, the Court spends inadequate time on the proper approach to balancing Charter rights to be able to claim that its analysis demonstrates the “justification, transparency and intelligibility” of the Decision (Dunsmuir at para 47).
2. Judgment Does Not Guarantee Progressive Balancing of Charter Rights
Our second concern is that the Court’s judgment does not guarantee progressive Charter rights balancing in future decisions (a guarantee that the authors recognize is their personal preference, and not necessarily an “error” of the Court). In particular, our concern is that this judgment will be misconstrued as progressive. Rather, it is deferential. And deference on appeal is only as progressive as the decision-maker below.
The Court arguably held that a decision about balancing conflicting Charter rights is immune from review if representatives selected through a mostly democratic process conduct broad consultations before making that decision. In other words, the Court held that, if LSUC had voted in favour of accrediting TWU, judicial review would have similarly upheld the decision. In this way, TWU ON stands as a precedent that could simultaneously preserve Alberta’s decision to grant TWU accreditation and Ontario’s decision to deny it. Indeed, the Court alluded to the fact that it would have upheld the reverse decision in its concluding remarks, when it described the decision not to accredit TWU as a “reasonable conclusion” (at para 145), and the dispute over TWU’s accreditation as one of those “questions that come before administrative tribunals [which] do not lend themselves to one specific, particular result” (at para 144).
This deference flows primarily from the Court’s lack of guidance regarding how to review proportional balancing of conflicting Charter rights. The Court’s review is largely process-oriented, which provides limited substantive guidance with respect to the actual process of balancing Charter rights, and in particular, limited guidance regarding: (1) how adjudicators should assign weight to conflicting Charter violations so that they can balance those violations proportionately; and (2) the degree of disproportionality required in that balancing process to justify appellate intervention. Without such guidance, and given the Court’s emphasis on process, it is unclear how disproportionate balances could be overturned when an adjudicator’s processes are sound. For example, based on TWU ON, how would a Court review a decision (albeit unlikely) of a law society, after broad consultation, deciding to accredit a religious university that excludes black students? Based on much of the Court’s reasons, it is not clear that such a decision could be overturned. In other words, the acute progressive victory that TWU ON represents today is an unpredictable precedent that may result in regressive and disproportionate Charter rights balancing in the future.
3. Broad Scope of Indirect Regulatory Intervention in Legal Education
Our third concern—which goes beyond the rights balancing issues addressed earlier—is that the Court’s judgment supports a surprisingly broad scope of indirect regulatory intervention, particularly in the context of legal education. The breadth of this intervention is, in our view, best illustrated by the hypothetical example of a law society denying accreditation to a law school on the basis that its tuition is too high. In TWU NS, the Nova Scotia Court of Appeal quoted the lower court’s decision to point out that the Nova Scotia Barristers’ Society:
has no authority whatsoever to dictate directly what a university does or does not do. It could not pass a regulation requiring TWU to change its Community Covenant any more than it could pass a regulation purporting to dictate what professors should be granted tenure at the Schulich School of Law at Dalhousie University, what fees should be charged by the University of Toronto law School, or the admissions policies of McGill (at para 32; emphasis added).
However, select portions of TWU ON leave the opposite impression.
When discussing the scope of LSUC’s Mandate, the Court described how “LSUC over its long history has strived to remove discriminatory barriers to access to the legal profession” and affirms that LSUC has “acted to remove all barriers to the legal profession except one – merit” (at para 109). Given increasingly high rates of tuition, we beg to differ.
Further, when describing LSUC’s important gatekeeping role, the Court affirmed Dickson CJ’s remarks from a 1986 speech that:
[I]t is incumbent upon those involved in the admission process to ensure equality of admissions. […] Canada is a country which prides itself on adherence to the ideal of equality of opportunity. If that ideal is to be realized in our profession then law schools, and ultimately the legal profession, must be alert to the need to encourage people from minority groups and people from difficult economic circumstances to join our profession (at para 131; emphasis added).
The Court claims that “all law schools currently accredited by [LSUC] provide equal access to all applicants in their admissions processes” (at para 132). But, from a financial standpoint, this is surely not the case.
Economic class is a significant barrier to accessing legal education in Canada—one that continues to grow. In particular, tuition fees have risen precipitously in the last 20 years. For example, the fees for a first year of study at the University of Toronto Faculty of Law now sit at $34,734.82. Osgoode Hall Law School is not far behind —in the 2015–2016 school year fees totaled $24,745.44, up more than $2000.00 from the year before. These climbing prices have grave consequences for those seeking to become lawyers who do not come from affluent families. Indeed, such a price is prohibitive to accessing legal education for many students, thus reserving legal education to the economic upper class.
Given the above, could an argument be made for LSUC denying accreditation to schools like the University of Toronto and Osgoode Hall on the basis of their significant tuition fees? In our view, based on the Court’s deferential reasoning in TWU ON, it could.
First, these law schools would have no religious freedom argument to use as a means of justifying the arguably discriminatory impact of their high tuition. Second, the decision to deny their accreditation—if it followed the right procedures—could presumably meet enough of the criteria outlined in TWU ON. In particular, with broad consultations, commissioned opinions regarding financial barriers to accessing legal education and whether softening those barriers is in the “public interest” (surely it is), and the unqualified recognition in TWU ON that LSUC is entitled to scrutinize how a school’s policies adversely affect certain minority groups, there is at least a defensible argument pursuant to TWU ON that such a decision by LSUC would merit deference. Our point here is not that LSUC should deny accreditation to law schools with high tuition. Rather, our point is that the Court’s ruling in TWU ON gives rise to a much broader scope of regulatory intervention than we imagine was initially intended (a problem that can go unnoticed when that arguable regulatory overreach results in a politically favourable outcome like the denial of accreditation to a discriminatory law school like TWU).
The Court opened its judgment in TWU ON with two critical questions: in the context of conflicting Charter rights, “[w]ho strikes the balance and what is it?” (at para 14). In our view, those questions remain largely unresolved. Even worse, the failure to adequately resolve those questions creates the risk that regressive and disproportionate balancing of Charter rights will survive judicial scrutiny in the future.
The accreditation of TWU is undoubtedly an issue of significant national importance, as the myriad ongoing appeals across Canada demonstrate. With any luck, a further appeal to the Supreme Court will provide greater guidance in the complex terrain of balancing Charter rights. Progressives may have won the battle for the Charter in this case. But without clearer principles animating the judicial approach to balancing Charter rights, the war for the Charter continues.
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By: Amy Matychuk
Case Commented On: Canada v Ewert, 2016 FCA 203 (CanLII)
Prisons use psychological tests to determine if inmates are likely to reoffend, but are the tests accurate for Aboriginal inmates? In a recent Federal Court of Appeal case, the court found that there was not enough evidence to prove the tests are biased. However, the analysis overlooked a few important factors.
In Canada v. Ewert, 2016 FCA 203 (CanLII) (Ewert FCA), Justice Dawson overruled a Federal Court decision that Correctional Service Canada’s (CSC’s) tests are unreliable when used to assess Aboriginal inmates. She held that Mr. Ewert, a 53-year-old Métis offender serving two life sentences in federal prison, did not provide enough evidence that the tests generate “false results and conclusions” due to cultural bias against Aboriginal people (at para 34). Mr. Ewert argued that these psychological tests do not take Aboriginal cultural differences into account. He alleged that his test scores affected “[his] eligibility for parole, his security classification and his ability to be granted escorted temporary absences” (at para 7). Because the tests generate inaccurate results for Aboriginal inmates, he said, relying on his scores to restrict his freedom was a violation of his rights. Justice Phelan of the Federal Court agreed, finding a section 7 Charter breach and a breach of the Corrections and Conditional Release Act, SC 1992, c 20 (see 2015 FC 1093 (CanLII) (Ewert FC)). However, the Federal Court of Appeal overturned that decision, and ruled that Mr. Ewert had not established on a balance of probabilities that the tests were unreliable.
Justice Dawson’s main reason for overturning the Federal Court ruling was that Justice Phelan failed to require that Mr. Ewert meet the necessary burden of proof (at para 15), which was to establish his claims on a balance of probabilities (at para 19). Justice Phelan ruled that after Mr. Ewert raised a reasonable challenge, the burden shifted to Correctional Services to show they had taken reasonable steps to fulfill their statutory duty to ensure the accuracy of the test. (Ewert FC at para 82). Justice Phelan did not address whether Mr. Ewert had proven his claim on a balance of probabilities.
Mr. Ewert provided expert evidence which suggested that the tests were likely (though not certainly) biased, and Justice Phelan found that this evidence was enough to present a reasonable challenge to the tests’ validity. He held that CSC had breached sections 4(g) and 24(1) of the Corrections and Conditional Release Act by, respectively, failing to make correctional policies responsive to the special needs of Aboriginal persons and failing to ensure that information about an offender is as accurate, up to date, and complete as possible. He also held, based on the same evidence, that the CSC breached Mr. Ewert’s section 7 Charter rights (Ewert FC at paras 75, 113).
Justice Phelan ordered that CSC respond to Mr. Ewert’s challenge of the tests’ accuracy by assessing the tests to ensure their fairness; he also ordered that until CSC assessed the tests’ fairness, CSC could not use the tests on Aboriginal inmates (paras 114-116). In contrast, Justice Dawson held that Mr. Ewert had not established on a balance of probabilities that the tests suffered from cultural bias, and therefore a ruling requiring CSC to ensure the tests’ fairness was not required.
As Justice Phelan had recognized, the available evidence was “a thin record” on which to decide this case (Ewert FC at para 3). Out of the three expert witnesses, the Federal Court largely dismissed two of them for being too narrow and lacking objectivity. Justice Phelan relied on one psychologist, Dr. Hart, for all of the expert evidence in his judgment. Justice Phelan called Dr. Hart’s evidence “balanced, objective, and despite the Defendant’s criticism that he cited no studies, credible” (at para 26). Dr. Hart gave evidence about the types of cross-cultural bias likely to affect CSC’s tests, testifying that they are “more likely than not to be ‘cross culturally variant’” (at para 28). He referred to the “pronounced differences between Aboriginal and non-Aboriginal groups” and said that personally, he would not trust the tests to accurately assess Aboriginal inmates (at para 31.) Dr. Hart concluded that the tests “are not sufficiently predictably reliable for Aboriginals because of the cultural variance or bias of the tests.” (at para 41)
Justice Dawson quoted excerpts from Dr. Hart’s direct examination before the Federal Court, in which he said, “[the bias] may be relatively small and it may be tolerable. But it could actually be large and it may be intolerable. . . . my own professional opinion would be, it would be more likely than not that there is some kind of bias.” (Ewert FCA at para 25) Justice Dawson was not persuaded by this evidence because of the possibility that the tests’ bias against Aboriginal people might be small and inconsequential. Evidence that adequately supported Mr. Ewert’s claim, she held, would have been evidence showing that “cultural bias affected or is more likely than not to affect test usage or the reliability and validity of the resulting test scores in a material way” (at para 27). Dr. Hart’s evidence that bias likely affected the tests in some way was not enough; Justice Dawson wanted proof not only that bias existed, but that the bias was substantial and affected Aboriginal inmates in a negative way.
From a purely technical standpoint, Justice Dawson’s ruling that Mr. Ewert had not established his claim on a balance of probabilities was fair, given the single reliable expert witness and the lack of other evidence. However, before ruling against Mr. Ewert, she ought to have considered the lack of additional evidence available to him. In order to present more evidence to support his claim, he would need an assessment of the psychological tests at issue. As Dr. Hart testified, no research exists that has assessed these tests for cross-cultural bias (Ewert FCA at para 23). Dr. Hart discussed the three ways of assessing these tests, but added, “[i]t is hardly practical for an individual litigant to engage in this type of analysis. Given the CSC’s legislated mandate . . . it is an activity more appropriately commissioned by CSC.” (Ewert FC at paras 34 and 35).
The only way Mr. Ewert could obtain evidence to better support his claim was to wait for CSC, his adversary, to assess the psychological tests for cross-cultural bias and to provide him with the results. To date, CSC has not performed these assessments, which leaves Mr. Ewert in a difficult position: Justice Dawson ruled that he needed more evidence, and the only way he can obtain more evidence is to wait for CSC to perform assessments on its own psychological tests. CSC has very little incentive to perform these assessments because to do so would be to risk creating evidence to support Mr. Ewert’s case.
Justice Dawson should have considered that it would be near impossible for Mr. Ewert to obtain better evidence against CSC than he already had. Justice Phelan recognized this evidentiary difficulty in his Federal Court ruling; he ordered that CSC perform the test assessments before using the tests on Aboriginal inmates. He did not declare that the tests are cross-culturally biased; he only required that CSC produce evidence that would establish whether or not Mr. Ewert’s claim was legitimate. Justice Dawson, conversely, did not require CSC to do anything, leaving Mr. Ewert and other Aboriginal inmates no better off with respect to potentially culturally biased psychological testing. As discussed above, CSC is unlikely to feel motivated to perform these test assessments without a court order: if the assessments show that the tests are biased, CSC will have invited a suit against itself.
However, in an interesting turn of events, CSC is supposedly already assessing the tests for bias. Justice Phelan referred to two previous challenges Mr. Ewert made to the tests’ validity, Ewert v Canada (Attorney General), 2007 FC 13 (CanLII), and Ewert v Canada (Attorney General), 2008 FCA 285 (CanLII). In the 2007 ruling, Justice Beaudry noted that CSC told Mr. Ewert “the study undertaken by its Research Branch in 2003 regarding applicability of the actuarial assessment tools to its Aboriginal inmate population” was still incomplete, and they could therefore not respond to his complaint (at paras 62 and 66). Justice Beaudry urged CSC to, when the research was complete, “explain to the Applicant the initiative undertaken by the Research Branch and the results obtained, if any” (para 67). Neither Justice Phelan nor Justice Dawson’s ruling mentions this study. Based on these previous cases, when Justice Phelan ordered that “the Defendant [conduct] a study that confirms the reliability of [the tests] in respect to adult Aboriginal offenders,” he was ruling that CSC perform research it had already alleged to be ongoing (para 114).
In normal circumstances, a case with so little evidence and so few witnesses to support the plaintiff’s claim should not succeed, and Justice Dawson’s ruling would have been both reasonable and justified. However, this is a case involving a vulnerable prison inmate attempting to enforce his rights against a powerful government actor. In order for Mr. Ewert to successfully challenge the tests’ validity, he needs evidence about cross-cultural bias that requires assessments that only CSC is capable of generating or providing. Justice Phelan’s ruling would have put pressure on CSC to complete assessments of tests that it alleged were ongoing as long ago as 2003 (2007 FC 13 at para 62). If these assessments established that the tests are fair, as CSC argues, Justice Phelan’s judgment would not have prevented CSC from continuing to use the tests on Aboriginal inmates. Justice Dawson’s judgment, however, removes this judicial pressure and allows CSC to continue using potentially biased psychological testing on Aboriginal inmates rather than holding CSC accountable to ensure Aboriginal inmates are treated fairly. Though Justice Dawson’s judgment may be technically correct, it is unfortunate that Mr. Ewert’s claim failed based on a lack of evidence that only his adversary, CSC, was capable of remedying.
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By: Elliot Holzman
Case Commented On: R v Nuttall, 2016 BCSC 1404 (CanLII)
On July 1, 2013, John Nuttall and Amanda Korody placed three pressure cooker bombs in the bushes next to the British Columbia Parliament Buildings (“the Legislature”) in Victoria, B.C. The contents of the explosive devices included nuts, bolts, nails, washers and other materials intended to kill or maim people. Luckily, the bombs never detonated. It became public knowledge immediately after the incident that the devices were inert and were manipulated by the RCMP before Nuttall and Korody got their hands on them. The RCMP clarified that while the threat was real the public was never at risk as the threat was detected early and disrupted.
The initial reports indicated that Nuttall and Korody were a couple living in Surrey in the Lower Mainland and were converts to Islam who were self-radicalized. Over the following weeks, more details began to emerge about an elaborate RCMP and CSIS led investigation – Project Souvenir – that had been involved with Nuttall and Korody in the months, weeks, days, and hours leading up to the bombs being planted.
On June 2, 2015, Nuttall and Korody were convicted by a jury of a number of terrorism offences, but their convictions were not entered as they immediately applied for a stay of proceedings based on the conduct of the RCMP during its undercover investigation. This is known as entrapment. As I will describe below, entrapment occurs when someone is induced to commit a criminal offence as a result of unfair law enforcement practices such as trickery, persuasion or fraud.
In Canada, in a trial for a terrorism related offence, an accused person cannot put the defence of police entrapment before a jury and so Nuttall and Korody bore the burden of proving entrapment, on a balance of probabilities, in front of Madam Justice Catherine Bruce of the British Columbia Supreme Court in Vancouver, who was also the presiding judge during the jury trial. In a 288-page opinion, Justice Bruce found that, for the first time in Canadian history, defendants had been entrapped by the RCMP into committing a terrorist act.
In this post, I will first lay out the underlying facts of the RCMP’s involvement with Nuttall and Korody, and then examine the existing law of entrapment and how it was applied by Justice Bruce to the facts of this case.
Underlying Facts of Project Souvenir (from paras 15-471)
The RCMP became involved with Nuttall in February 2013 when they received a tip that he was attempting to purchase potassium nitrate, a precursor to an explosive substance, at local pharmacies in Surrey. The RCMP had previously received tips in July and October 2012 from a neighbour who overheard Nuttall speaking on the phone espousing violent Islamic beliefs following his conversion to Islam in 2011.
A psychiatric nurse attended Nuttall’s residence and concluded he was not suffering from a mental illness, though he might be developmentally delayed. At this time, the RCMP began Project Souvenir after CSIS passed on information that Nuttall constituted a “threat to public safety” (at para 20). The concern was that Nuttall might be a recent Muslim convert who was attempting to recruit others and might be capable of violence.
The RCMP surveillance on the pair began on February 2, 2013, when two officers attended the Nuttall residence on the pretext of a domestic complaint in the neighbourhood. While they didn’t find anything suspicious in the residence, they continued enhanced surveillance over the following months, including direct contact with the pair through scenarios where an undercover officer (“Officer A”) would make up a scenario that would bring him into direct contact with Nuttall and attempt to get Nuttall’s assistance in completing a task. The first task was an attempt to find Officer A’s niece, who in the scenario was someone who ran away from home due to her family’s strict adherence to conservative beliefs about Muslim women. This scenario was intended to play on Nuttall’s increasingly radicalized Islamic beliefs.
The scenarios gradually ratcheted up to plans to get Nuttall to devise a terrorist plan and execute it (with the idea being that the RCMP would intervene at the last minute and arrest the pair). Officer A told Nuttall that he was now part of Officer A’s “organization”, which was a jihadist organization, planning a large scale attack on the West. But Nuttall had to come up with the plan for the attack. These ranged from an attempt to blow up the naval base in Esquimalt Harbour, to hijacking a passenger train in Victoria, to the eventual plan to plant pressure cookers on the grounds of the Legislature, similar to the tactics used in the Boston Marathon bombing in 2013.
Unfortunately for the officers involved in Project Souvenir, Nuttall proved to not be particularly competent, organized, or able to devise a plan and come up with the details to execute it. Frequently he would concoct wild and unrealistic plans, including: firing Qassam rockets over the Legislature in Victoria, freeing Omar Khadr from prison, launching some sort of attack on the Vancouver Sun Run, and freeing prisoners from Guantanamo Bay.
Following a few months of failed plans and a lack of hard evidence to tie Nuttall and Korody to violent jihad, the members of Project Souvenir changed tack to attempt a more traditional “Mr. Big” style operation on the pair. In this scenario, Officer A would introduce Nuttall to another undercover officer, who would be a fictitious leader of a jihadist organization and he would press Nuttall to choose a target and execute a terrorist attack.
Officer A began to turn up the heat on Nuttall by getting mad at him and threatening to expel him from his organization, unless Nuttall could come up with a workable plan for an attack. Officer A promised to finance the plan if Nuttall could come up with a realistic plan of attack.
Eventually, a plan came together about planting pressure cookers on the grounds of the Legislature in Victoria. Nuttall demonstrated time and time again that he had no idea how to make an explosive. The RCMP took the pair to Kelowna in order to have Nuttall plan out the attack. It became clear that he had no idea how much black powder or C4 (a form of plastic explosive used in the making of bombs) he would need for his rockets. He had no idea where to get explosives. However, Officer A again eliminated Mr. Nuttall’s lack of knowledge and resources as obstacles by promising to provide him with all the C4 that he would require. In fact, during the Kelowna trip Nuttall and Korody told the fictitious leader of the jihadist organization that they felt pressured by Officer A to support a plan that was quick and that he was not interested in helping them with their long-term plan to build rockets, which was their dream.
At para 375, Justice Bruce summarized many of the things Officer A did for Nuttall and Korody in the days leading up to the pressure cookers being planted:
Officer A systematically eliminated all of the obstacles that Mr. Nuttall had previously placed in his own path towards executing a plan for jihad. In particular, Officer A said that he would take care of the explosives and the guns; he would drive them around to shop for anything they required to build the bombs; he would give them the tools they needed; he had already found them a place where they could construct the devices; he would take them to Victoria a day prior to locate targets and transport them to the location where they would place the bombs. He would also provide them with a safe place to test their bombs. In addition, Officer A said he would do whatever he could to ensure that the defendants stayed alive after they planted the bombs. It was not going to be a suicide mission.
Law on Entrapment
The Supreme Court of Canada (SCC) developed the doctrine of entrapment in three major decisions: R v Amato  2 SCR 418 (CanLII), R v Mack,  2 SCR 903 (CanLII), and R v Barnes,  1 SCR 449 (CanLII), though Mack remains the leading case. In Mack, the police engaged a known drug dealer to act as their agent in the investigation of Mr. Mack for drug trafficking because he was someone previously known to Mack. The drug dealer repeatedly solicited Mack’s participation in drug transactions, and eventually an undercover officer offered Mack $50,000 in clandestine circumstances at which point Mack agreed to arrange a drug transaction and was arrested upon delivery.
Justice Lamer, writing for the Court, concluded that entrapment occurs in circumstances where:
At paragraph 557 of Nuttall, Justice Bruce interpreted the principles from Mack to mean that the police are not entitled to embark on an investigation into criminal activity that includes providing a person with “an opportunity” to commit an offence unless they are acting on a reasonable suspicion that this person is already engaged in the type of criminal misconduct under investigation. Reasonable suspicion means more than mere suspicion but is less than reasonable and probable grounds. As explained in Mack, the absence of a reasonable suspicion may indicate that the police are engaged in random virtue-testing or, worse, acting in bad faith based on improper motives (Mack, at para 112).
Importantly, the second part of the entrapment defence outlined in Mack states that even where the police have reasonable suspicion that a person is already engaged in the type of criminal misconduct under investigation, the police may not induce the commission of an offence.
Application of Law to the Facts of this Case
On the first part of the entrapment argument, Justice Bruce found that the police had very little evidence at the commencement of Project Souvenir to support any reasonable suspicion that Nuttall and Korody were already engaged in criminal activity of any type (at para 615). Justice Bruce found that the expression of radical beliefs, without more, is not enough to provide police with a reasonable suspicion that such a person is involved in criminal activity (at para 617).
At para 622, Justice Bruce held:
An opportunity is a situation in which something one wants to do is made possible; however, a possibility is not an opportunity, it is only something that might happen sometime in the future…. The question is when or if any of the statements made by Officer A amounted to a true opportunity to commit a terrorism offence.
The Defence argued that when Officer A committed unconditionally to provide C4 to Nuttall in June 2013, the pair was induced into committing a terrorist offence. The question then turned to whether, at that point, Nuttall and Korody were already engaged in criminal activity. The Crown argued that even this offer of C4 did not constitute the provision of an opportunity to commit an offence.
At para 631, Justice Bruce held that:
In my view, Officer A’s offer was not merely an inquiry into whether the defendants were willing to engage in a terrorist act or some other type of preliminary step in the investigation. Nor was the offer necessary to perpetuate contact with the defendants who were by this time desperate to be with Officer A. It was a firm and specific opportunity and not a mere possibility that was communicated to the defendants. Accordingly, I find the RCMP presented the defendants with an opportunity to commit a terrorism offence when Officer A committed unconditionally to provide the C4 for the pressure cooker devices on June 16, 2013.
Justice Bruce was satisfied that, by June 2013, Nuttall had proven his ineptitude, his “scatterbrained character”, and his inability to remain focused on a task, which would be “essential to the articulation and execution of a terrorist plot” (at para 634). She found that, at the time of the offer of C4, there “was little objective evidence to support a reasonable suspicion that Mr. Nuttall was already engaged in criminal activity related to terrorism.” (at para 648)
Justice Bruce also addressed the inducement issue, in case she was wrong that the RCMP lacked reasonable suspicion that Nuttall and Korody were already engaged in criminal activity.
In Mack, Lamer J. outlined a series of factors relevant to the assessment of whether police went beyond opportunity and strayed into inducement. These include: deceit, fraud, implied threats, exploitation of vulnerabilities and friendship, any police conduct that undermines constitutional values, and whether police conduct was persistent and proportional, and whether it included any illegal acts (Mack at para 125). Justice Bruce found that all these factors were engaged in this case. At para 769, she found that:
Based on the evidence before me, I am satisfied that the RCMP knowingly exploited the demonstrated vulnerabilities of the defendants in order to induce them to commit the offences. They adopted a multi-faceted approach that included most of the factors in favour of a finding of entrapment articulated in Mack, including the use of trickery, fraud and reward; the use of persistent direction to become more organized, focused and realistic in their jihadist ideas; the use of persistent veiled threats to adopt the pressure cooker plan as their own and to abandon the grandiose ideas that the police knew the defendants could never accomplish; the exploitation of the defendants’ social isolation and desperation for friendship with Officer A, as well as their ongoing search for spiritual meaning in their lives; the creation of an elaborate ruse that led the defendants to fear for their lives if they failed to satisfy this sophisticated international terrorist organization; the repeated angry encounters with undercover officers who played roles as terrorists; and the decision to play the role of the defendants’ spiritual advisor and exploit the influence Officer A had secured over them to direct their actions towards the use of violence to accomplish religious and political objectives.
The Court’s Conclusion
Finding that the test laid out in Mack for raising the defence of entrapment was met, Justice Bruce held that this was a case where a stay of proceedings was warranted due to an abuse of process by the RCMP. She found that this was truly a case where the RCMP manufactured the crime: “[t]he police took two people who held terrorist beliefs but no apparent capacity or means to plan, act on or carry through with their religiously motivated objectives and they counselled, directed, urged, instructed and moulded them into people who could, with significant and continuous supervision and direction by the police, play a small role in a terrorist offence.” (at para 775)
In overturning the jury’s verdict, this case became the first instance in Canada where the defence of entrapment succeeded in a terrorism-related offence. Justice Bruce delivered a scathing critique of the RCMP’s conduct in this case. She said, “Simply put, the world has enough terrorists. We do not need the police to create more out of marginalized people who have neither the capacity nor sufficient motivation to do it themselves.” (at para 836) The Crown immediately announced that they would appeal Justice Bruce’s decision to the British Columbia Court of Appeal.
It will also be interesting see what impacts the amendments to the Criminal Code, RSC 1985, c C-46 through the passing of Bill C-51 will have on future cases where entrapment is argued in a terrorism context. The new section 83.221 of the Code states:
Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general — other than an offence under this section — while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed, as a result of such communication, is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.
The Crown raised this section of the Code but Justice Bruce dismissed its application, seeing as this section of the Code was not in existence at the time of Project Souvenir or the planting of the pressure cookers by Nuttall and Korody.
Whether or not the Crown’s appeal succeeds, we truly are in a watershed moment with respect to police actions in the context of home-grown terrorism.
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By: Linda McKay-Panos
Case Commented On: Pham v Vu’s Enterprises Ltd, 2016 AHRC 12 (CanLII)
On some occasions, there is an Alberta Human Rights Tribunal (AHRT) case where the respondent may have been far better off settling the complaint in private, instead of steadfastly denying discrimination occurred, or refusing to settle even after an investigation, thereby experiencing what should be embarrassing publicity inherent in a reported AHRT decision against them. This may be one of those cases. The Director of the Alberta Human Rights Commission (AHRC) had carriage of the complaint before the AHRT (at para 6), which indicates that the AHRC had previously determined that the complaint had merit and that the parties were unable to settle or unwilling to accept the terms of a proposed settlement.
The complainant was Thu Hien Pham (Pham), and she was employed by La Prep (formerly La Pasta) owned by Vu’s Enterprises Ltd., which operated in the University of Calgary Food Court. She filed a complaint with the Alberta Human Rights Commission on October 9, 2012, alleging Mr Son Vu (Vu) discriminated against her on the grounds of gender (sexual harassment) contrary to s 7(1)(b) of the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA). Pham alleged she had to quit her job due to “sexual harassment that included jokes, comments, physical touching and threats” (at para 1). The respondent Vu stated in his defence that he and Pham had a consensual sexual relationship away from the business and that she was paid for sexual services over a two-year period (at para 2). Pham testified that she did not have a relationship with Vu outside of the business (at para 36).
As a preliminary matter, the Director of the AHRC noted that the respondent company was actually solely owned by Vu and his spouse. The Director applied to have Vu added as a party to the complaint in his personal capacity (at para 13). Section 28 of the AHRA allows the AHRT to add a party in order to provide effective remedies to the complainants and to attach liability to the people who have contravened the AHRA (at para 21). It should be noted that under human rights law, employers and owners are statutorily liable for the conduct of their employees in the course of their employment (Robichaud v Canada (Treasury Board),  2 SCR 84 (CanLII)). In the human rights setting, the preferable situation from the complainant’s perspective is to obtain systemic remedies against the employer (e.g., an order that a sexual harassment policy be implemented, reinstatement, etc.), as well as personal remedies against the person who discriminated against them (e.g., an apology, damages for pain and suffering, etc.). Tribunal Chair Jean Munn allowed Vu to be added as a personal respondent (at para 27).
Pham testified through a sworn interpreter (at para 28). She had worked for Vu since 2007 at La Pasta, which closed and re-opened as La Prep in October 2011. She prepared food and was the cashier. She provided a number of examples of sexual harassment. For example, Vu followed Pham into the storage room, manoeuvred her into a corner and touched her breast and buttocks (at para 31). She told him to stop, pushed him away and ran out of the room. There were other similar incidents recalled by Pham. In addition, Vu made comments to Pham about paying prostitutes, having sexual relations with his wife and his sexual medication (at para 33). He proposed sex to her a few times, and the last time he did, she quit. She left her employment in September 2012, and made her complaint the next month (at para 33). She testified that she did not quit after the incident in the storage room because she needed the job. Her husband was ill and was not working (he later passed away) (at para 34). She also testified that she was only with Vu outside of work two times, when she and her husband attended a wedding with Vu and his spouse, and when she and her husband attended the Vu’s home for dinner (at paras 36 and 37).
Vu testified that Pham had attended alone to his home in addition to the times she attended with her husband. He said that on August 29, 2010, Pham went to his house and had consensual sex with him for $1,000 (at para 43). He denied all incidents of sexual harassment at the workplace (at para 48). He sometimes characterized the relationship with Pham as a boyfriend/girlfriend relationship (at para 49), but also denied that same relationship (at para 47).
Tribunal Chair Jean Munn relied on the leading case of Janzen v Platy Enterprises,  1 SCR 1252 (CanLII) (Janzen) to hold that sexual harassment is a form of gender discrimination (at para 51). She noted that the onus is on the complainant to prove discrimination on a balance of probabilities, and indicated that the complainant had made out her case of prima facie discrimination, demonstrating she had suffered adverse effect and that her gender was a factor in the adverse effect she experienced (at para 52). She also noted that the credibility of the complainant and the respondent was central to the determination of the issues in the case (at para 56). She held that here were significant internal inconsistencies in the testimony of the respondent (at para 68).
Thus, the complaint was made out against both Vu personally and the corporate employer. Because the case was “particularly egregious”, both respondents were held jointly and severally liable to pay the complainant $15,000 (at para 76). Munn indicated she would have been inclined to award more, but $15,000 was the amount requested by the Director (at para 76).
It should be noted that Vu no longer owns La Prep (at para 9). It is perhaps ironic that such an example of sexual harassment could occur in a private business located at an institution that has sexual harassment policies and works very hard to educate staff, students and faculty about rights and responsibilities in this area. This is, again, a case that the respondents should have settled in private. It certainly must be very difficult for Vu’s spouse to know that the facts (and the details of Vu’s defence) are in the public realm.
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By: Sharon Mascher
Case Commented On: Gitxaala Nation v. Canada, 2016 FCA 187 (CanLII)
On June 20, 2016, the majority of the Federal Court of Appeal (FCA) quashed Order in Council P.C. 2014-809 requiring the National Energy Board (NEB) to issue Certificates of Public Convenience and Necessity to Northern Gateway on the basis that Canada had not fulfilled the duty to consult it owed to Aboriginal peoples affected by the Project. Concluding that “Canada offered only a brief, hurried, and inadequate opportunity in Phase IV – a critical part of Canada’s consultation framework – to exchange and discuss information and dialogue” (at para 325), the Court identifies several ways in which the consultation process fell “well short of the mark”. Marking a crucial step in the “Northern Gateway legal saga” (for a list of previous ABlawg posts, going as far back as 2012, see here), the FCA has remitted the matter to the Governor in Council for redetermination. While entitled to make a fresh decision, the FCA has made clear that should it decide to do so the Governor in Council may only issue Certificates for the Project after Canada has fulfilled its duty to consult with Aboriginal peoples (at para 335).
Needless to say, the substantive guidance provided by the majority’s decision will be important whenever the duty to consult is engaged going forward. In the immediate future, attention will be focused on what this means for the Northern Gateway Project and the Trans Mountain Expansion Project consultations currently underway in accordance with the Federal Government’s interim measures.
The Majority of the FCA’s Duty to Consult Analysis
Throughout the Northern Gateway approval process, Canada acknowledged its duty to engage in deep consultation with the First Nations potentially affected by the Project “owing to the significance of the rights and interests affected” (at para 187). The First Nations agreed that deep consultation was owed but disagreed that the consultation process undertaken was sufficient to meet this duty, pointing to a number of deficiencies in the process (at para 191). This blog post will highlight, in turn, the majority’s analysis relating to: (1) Canada’s failure to share its assessment of the strength of the First Nations’ claims to Aboriginal rights and title; and (2) Canada’s execution of Phase IV of the consultation process.
Canada’s Failure to Share Its Strength of Claim Assessments of First Nations Claims to Aboriginal Title and Rights
While concluding that Canada was not obliged to share with affected First Nations “its legal assessment” of the strength of their claims, the majority of the FCA held that Canada must disclose information on its strength of claim assessment and discuss that assessment with the affected First Nations. Why? As we have known since Haida Nation, the extent and content of the duty to consult lies on a spectrum (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII)at para 39; see also Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 (CanLII) at para 36). When a claim is weak or the potential infringement is minor, the content of the duty to consult lies at the low end of the consultation spectrum. However, “[w]hen a strong prima facie case for a claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high, the duty of consultation lies at the high end of the spectrum” (Gitxaala Nation at para 174).
While Canada said it accepted an obligation to engage in deep consultation, its failure to share these assessments meant that no dialogue could take place as to what that meant – what subjects were on the table, how deep did, and must, the consultation or accommodation go? As the Gitxaala argued – and the majority accepted – Canada’s failure to disclose information relating to strength of claim assessments wholly undermined the consultation process (at para 219) and, as discussed below, exacerbated the failure in the Phase IV consultations.
Failures in Execution of Phase IV of the Consultation Framework
The consultation framework established by Canada for the Northern Gateway Project provided for five phases of consultation throughout the regulatory process. Phases I – III allowed for consultation on the Joint Review Panel (JRP) agreement, the provision of information in the pre-hearing stage and participation in the JRP hearings. Phase IV provided for additional, direct consultations between Canada and Aboriginal groups after the JRP Report and before the Governor in Council considered the project, with Phase V contemplating further consultation during the regulatory and permitting processes after project approval. The court was satisfied that “[o]verall, the parties had ample opportunity to participate in the Joint Review Panel process and generally availed themselves of it” (at para 48). However, it was Phase IV of the consultation process – representing as it did Canada’s first and last opportunity to discharge its obligation to engage in direct consultation and dialogue with Aboriginal groups on matters of substantive concern related to the Project – on which the majority focused its attention. While further consultation in the regulatory and permitting processes following project approval was contemplated, because the Governor in Council’s decision is a “high-level strategic decision that sets into motion risks to the applicant/appellant First Nations’ Aboriginal rights” (at para 237), the majority held that the duty to consult had to be discharged before the Governor in Council’s decision approving the Project.
While careful not to hold Canada “to anything approaching a standard of perfection” (at para 185), the majority concluded that the Phase IV consultations were “unacceptably flawed” and “failed to maintain the honour of the Crown” (at para 230). The flaws were many.
The Phase IV consultations were rushed. Affected First Nations were given only 45 days to advise Canada in writing of their concerns and thereafter only 45 days were allocated to meet with all affected Aboriginal groups (at para 245). Requests to extend the time-lines for consultation (which were designed to meet the decision-making timeframe established by the National Energy Board Act, RSC 1985 c N-7), were ignored (at paras 247-249). No evidence was provided that Canada gave any thought to asking the Governor in Council to extend the deadline, despite the fact that the “importance and constitutional significance” of the duty to consult would have provided “ample reason” to do so (at para 251).
The information gathered during this phase of the consultations and put before the Governor in Council did not accurately portray the concerns First Nations had expressed. And not only was “Canada…less than willing to hear the First Nations on this and to consider and, if necessary, correct the information” (at para 255), it also did not explain what effect, if any, the errors had on the Governor in Council’s decision.
The lack of meaningful dialogue during the Phase IV consultations was also of significant concern to the majority of the FCA (at para 263). First Nations were repeatedly told during the Phase IV consultation process that Canada’s representatives were tasked with gathering information, were not authorized to make decisions and were required to complete the Crown Consultation Report by April 16, 2014 as the Governor in Council needed to make a decision by June 17, 2014 to meet timelines in the National Energy Board Act (at para 264). Not surprisingly, this meant that concerns raised by First Nations – which the majority of the FCA considered central to their legitimate interests – were left both unconsidered and undiscussed (at para 265). In short, the majority was persuaded that Canada had failed in its Phase IV consultations to engage “in a real and sustained effort to pursue meaningful two-way dialogue” or “grapple with the concerns expressed in good faith by all of the applicant/appellant First Nations” (at para 279). And “generic” and in some cases error-ridden letters sent to affected First Nations “summarizing at a high level of generality the nature of some of the concerns expressed” (at para 281) did little to further Canada’s assertion that it had fulfilled its obligation to enter into meaningful dialogue.
These failures were exacerbated by Canada’s unwillingness to disclose its strength of claims assessments – a matter fundamental to identifying the relevant impacts the Project might have on the affected First Nation and communicating those findings to the First Nations. The majority held that it was not consistent with the duty to consult for Canada to simply assert that the Project’s impact would be properly mitigated, without first discussing the nature and extent of the rights impacted. And in cases where a strong prima facie claim exists and the potential for significant infringement of those rights exists, deep consultation also requires written explanation demonstrating how the Aboriginal group’s concerns were considered and explaining the impacts of those concerns on the resulting decision. As the majority emphasizes, this becomes particularly important when the Crown is balancing multiple interests: “[i]n the absence of this safeguard, other issues may overshadow or displace the issue of the impacts on Aboriginal rights” (at para 315).
Finally, “and most importantly, on the subject of reasons” the majority noted that the Order in Council included only a single mention of the duty to consult (at para 320). The Governor in Council did not “express itself” as to whether Canada had fulfilled its duty to consult, raising the “serious question” (at para 321) of whether it actually concluded that it was satisfied that impacts of the Project – some of which were identified in the Report of the Joint Review Panel, and some not – “were left undisclosed, undiscussed and unconsidered” (at para 325).
Overall, therefore, the majority of the FCA concluded that “during the Phase IV process, the parties were entitled to much more in the nature of information, consideration and explanation from Canada regarding the specific and legitimate concerns they put to Canada” (at para 287). Moreover, the Phase IV consultations “did not sufficiently allow for dialogue, nor did they fill the gaps” (at para 327).
So What Does Discharging the Duty to Consult Look Like Going Forward?
Of course, this decision does not mark the end of the administrative approval process for Northern Gateway. Rather, the FCA has directed the matter back to the Governor in Council for redetermination – with all the same powers as immediately before the first Order in Council was issued. The majority of the FCA is clear, however, that Canada must first fulfill its duty to consult with Aboriginal peoples before the Governor in Council could order the issue of Certificates for the Project. This would mean, at a minimum, that the Phase IV consultation must be re-done (at para 335).
It is worth noting that the key flaws in the Phase IV consultation identified by the majority – a lack of information, consideration and explanation – arose largely in the context of the environmental impacts and risks associated with the Project. For example, some of the concerns that the consultation process was rushed centered on the need for more time to conduct scientific studies, and particularly adequate spill modeling (at paras 249-250). The errors and omissions in letters sent to First Nations and put before the Governor in Council included the failure to identify concerns relating to the lack of baseline work and spill modeling in the open water area (at para 258) and the failure to respond to concerns regarding the risk of oil spills in their territory (at para 261). Failures in the Phase IV consultations to engage, dialogue and grapple with the concerns expressed in good faith by the First Nations and to respond in a meaningful way were exemplified by reference to environmental concerns and particularly by “missing information” in the JPR Report relating to spill modeling and assessment. It was Canada’s response (or lack thereof) to the Kitasoo Nation’s submissions that the Project’s impacts could not be assessed without information regarding “spill modeling and assessment, the behavior (or fate) of bitumen in water, a baseline marine inventory and what the spill recovery would look like” that demonstrated to the majority “just how short of the mark the Phase IV consultation was” (at paras 266 and 267). This point was also made by reference to Canada’s failure to adequately respond to the Heiltsuk Nation’s Phase IV submissions that additional information was needed regarding the risk of an oil spill on their Aboriginal right to fish on a commercial basis (at para 268-270); to the Haisla Nation’s evidence that errors in the Report of the JRP relating to impacts on hundreds of culturally modified trees at the proposed terminal site (at para 273); and to the Gitxaala concerns relating to oil spills (at para 277). The majority also viewed the generic letters sent by Canada, including the generic response to concerns raised by First Nations about the consequences of an oil spill (at para 282), the general references to the “rigorous science-based review” of the JRP (at para 284) and the failure to engage with the specific express concerns relating to the insufficiency of evidence to allow informed dialogue about the potential impacts of the Project on Aboriginal and treaty rights (at para 286) as inadequate to discharge the obligation to enter into meaningful dialogue.
Yet, these concerns were not raised solely in the context of Canada’s failure to discharge its duty to consult. The FCA was also asked to consider several applications by First Nations and environmental NGOs to judicially review the Report of the JRP for the Northern Gateway Project on the basis that the environmental impacts and risks associated with the Project were not properly considered (see West Coast Environmental Law’s summary of legal challenges here). However, as my colleague Martin Olszynski discusses here, the FCA dismissed these challenges. It did so on the basis that when the NEB is the “responsible authority” under the new CEAA, 2012, as is the case for pipelines proposed after that Act was brought into force, the legislative scheme assigns environmental assessment a different role – “a much attenuated role” – from that which it plays under other federal decision-making regimes (at para 123). Based on its analysis of the legislative scheme, which my colleague argues is not actually applicable to Northern Gateway, the FCA concluded that it is for the Governor in Council alone to determine “whether the process of assembling, analyzing, assessing and studying is so deficient that the report submitted does not qualify as a ‘report’ within the meaning of the legislation” (see para 124).
Nevertheless, to successfully discharge the duty to consult – especially at the deep end of the spectrum – Canada must fill the information gaps and then allow for dialogue and consideration of the potential environmental impacts and risks associated with the Project on Aboriginal title and rights. Thus, while the majority of the FCA offers the opinion that this process “if well-organized and well-executed, need not take long” (at para 335), I would suggest that the basis for this assertion is not at all clear. Presumably, time must be allowed to conduct scientific studies, including adequate spill modeling and baseline work. Existing errors and/or gaps in the evidence referenced in the JRP Report, at least as it relates to First Nations, must also be addressed. Where knowledge gaps otherwise cannot be filled, Canada must engage with the specific concerns relating to the insufficiency of information and explain to affected First Nations how the Project’s environmental impacts on their rights can be assessed. In other words, the actual and potential environmental impacts, at least as relevant to the affected First Nations, must be fully disclosed, discussed and considered before Canada can be said to have properly discharged its duty to consult.
Is Fulfilling the Duty to Consult Enough?
Before commencing its duty to consult analysis, the majority provides a brief discussion of the existing jurisprudence (paras 170-185). Drawing on the Haida Nation decision, the FCA states that “[t]he consultation process does not dictate a particular substantive outcome” and “does not give Aboriginal groups a veto over what can be done with land pending final proof of their claim (at para 179). However, the discussion does not further reference the principles of consent or the stringent justification test established by the Supreme Court of Canada in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII) (for my earlier ABlawg post on these principles see here). This is perhaps not surprising given that the First Nations who were parties to these proceedings had not finally proven claims to their territory and the FCA was therefore focused on discharging the duty to consult. However, when strong claims to Aboriginal title exist over lands that stand to be affected, I would argue that government decision makers need to pay attention to the Tsilhqot’in principles; merely satisfying the duty to consult it not enough. Rather, before approving a long-term project such as Northern Gateway, the government should seek the consent of those First Nations who assert strong title claims or at least satisfy itself that the infringement can be justified. Why? Because as the Supreme Court warned in Tsilhqot’in , “[i]f the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing” (at para 92). To begin a project without the consent of Aboriginal title holders, or ensuring that the incursion is not unjustifiably infringing, therefore risks its long-term viability.
This means that in addition to properly discharging the duty to consult before Northern Gateway, or any other pipeline project for that matter, is approved, the government should seek the consent of the First Nations who assert strong claims to Aboriginal title. Absent such consent, the government should ensure that the evidence is available to demonstrate: that the incursion will not substantially deprive future generations of Aboriginal title-holders of the benefit of the land (Tsilhqot’in, at para 86); that the project is necessary to achieve the government’s goal and goes no further than is necessary to achieve it; and that the benefits that may be expected to flow from that goal are not outweighed by adverse effects on the Aboriginal interest (Tsilhqot’in, at para 87).
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By: Lisa Silver
Case Commented On: R v Villaroman, 2016 SCC 33 (CanLII)
My past two blog posts have a thematic connection and this post is no exception. I have modernity on the mind and so, apparently, do the courts. You may recall that theme in my discussion of the DLW decision (2016 SCC 22 (CanLII)) in which the Supreme Court of Canada, in the name of the “modern,” or the “modern approach” to be exact, entered into the time-honoured process of statutory interpretation only to come to the decision that the 2016 concept of bestiality under s 160 of the Criminal Code was no different than the common law concept of bestiality as subsumed into our codified criminal law in 1892. Justice Abella, hoping for a more modern approach, disagreed. Then, in my last blog post, I discussed the “smart” use of technological evidence to weave a persuasive narrative at trial. In the Didechko case (2016 ABQB 376 (CanLII)), the Crown relied, to great effect, on evidence emanating from the technological traces left by the accused to construct a case based on circumstantial evidence. Didechko serves as an exemplar of a thoroughly modern approach to another centuries-old process. Now, in this post, I will make another case for the modern as the Supreme Court of Canada in Villaroman (2016 SCC 33 (CanLII)) clarifies a very old rule on circumstantial evidence, one predating our Criminal Code, found in the English 1838 Hodge’s Case (168 ER 1136).
First, a few words on circumstantial evidence. We are all probably aware, contextually, of the difference between circumstantial and direct evidence. The most popular explanation in jury instructions and the best understood example involves rain and goes as follows: Imagine we wake up in the morning and when we peek out of the window to look at the weather for the day (this example is obviously pre smart phones) we notice the road, the sidewalk, and the ground is wet and rain is falling from the sky. We accept, therefore, that it is raining, and if we have been in Calgary all summer, we might even say “it is raining again.” A similar example was used in the Villaroman charge to the jury (at para 23). This is an example of direct evidence which, according to Watt’s Manual of Evidence 2016, page 49 at para 8.0, “is evidence which, if believed, resolves a matter in issue…the only inference involved in direct evidence is that the testimony is true.”
Circumstantial evidence is trickier and involves a more complex thought process. It differs from direct evidence as its probative value is found in the inferences to be drawn from the facts. Returning to our example, if we look out of our window and we see the road is wet but the sky is clear, we cannot directly aver to what the weather was like before we woke. We can, however, draw a “rational” or “reasonable” inference from the state of wetness and say “it was raining sometime before” but we did not observe that happen. We are not “direct” witnesses to this assumed event. In fact, we could be very wrong about our inference. For instance, if the road is wet but the sidewalk and ground is not, then we cannot safely assume it rained. A more “rational” or “reasonable” explanation may be that the City of Calgary street cleaners came by and washed the road. According to Watt’s Manual of Evidence 2016, page 50 at para 9.01, “it is critical to distinguish between inference and speculation.” An inference is “logical” (R v DD,  2 SCR 275, 2000 SCC 43 (CanLII) at para 18), “justifiable” (R v Charemski,  1 SCR 679, 1998 CanLII 819 (SCC) at para 33), “common sense” (Justice Moldaver in R v Walle,  2 SCR 438, 2012 SCC 41 (CanLII) at para 63), “rational” (R v Griffin,  2 SCR 42, 2009 SCC 28 (CanLII) at para 34) or, as preferred by Justice Cromwell writing for the Villaroman court, “reasonable” (at para 30). Conversely, speculation can lead to erroneous inferences. Speculation is tenuous as opposed to probative. Mere speculation strikes at the heart of the criminal justice system as it can ultimately lead to miscarriages of justice. It can cause the trier of fact to make an improper “leap” unsupported by the evidence.
To be cognizant of these improper “leaps” as a trier of fact is vitally important. As seen in Didechko, circumstantial evidence may be the only evidence of guilt or innocence. It is therefore essential, as a defence lawyer, to be able to argue persuasively that the circumstantial evidence does not amount to proof beyond a reasonable doubt as it is not reasonably sufficient to infer guilt. It is this argument, that the circumstantial evidence is “equally consistent with the innocence as with the guilt of the accused” (Fraser et al. v The King,  SCR 296, 1936 CanLII 25 (SCC) at page 301), which was at issue in Villaroman but, as we will see, with a modern twist.
Mr. Villaroman was charged with various pornography related offences as a result of images found on his laptop computer, including a charge of possession of child pornography pursuant to s. 163.1(4) of the Criminal Code. As with most other possession offences, the possession element of the offence is where the circumstantial evidence was key to the prosecution’s case. The elements of possession are a curious mixture of statutory requirements and judicial interpretation, requiring proof of knowledge, consent, and control. Although section 4(3) of the Criminal Code clearly identifies knowledge and consent as elements of possession, the additional element of control is not found in the section. Rather, control is a judge-made requirement based on case authorities.
Thus in the Villaroman scenario, the prosecutor would have to prove Mr. Villaroman was aware of the child pornography on his computer, that he consented to the pornography being there, and that he had a measure of control over those images. The mere fact the images were found on his computer is not enough evidence of those essential elements. The Crown would need to figuratively, if not literally, place Mr. Villaroman’s fingers on the computer keys, at the time the prohibited images were knowingly captured by his computer, in order to prove possession. To do so, the Crown must rely on circumstantial evidence. In response, the defence must persuade the trier of fact that there are other reasonable or rational inferences which do not lead to guilt. As an aside, in Villaroman, Justice Cromwell equated “reasonable” with “rational” but, as mentioned earlier in this post, favoured the descriptor “reasonable” as the correct legal nomenclature (at paras 32 to 34).
The twist in Villaroman involves the source of those reasonable inferences or alternatives which lead to innocence. Traditionally, case authorities required that the inferences arise from the facts. In other words, there must be an evidential foundation for the defence’s position. However, by 2009 in the Khela decision ( 1 SCR 104, 2009 SCC 4 (CanLII) at para 58), the Court found such a requirement effectively reverses the burden of proof by necessitating the defence “prove” facts in support of inferring innocence. Justice Cromwell in Villaroman makes it perfectly clear that this modern take does not invite speculation as long as it is within the range of reasonable inferences (at paras 35 to 38). He gives two examples: one old and one new. In the 1936 case of Martin v. Osborne,  HCA 23; 55 CLR 367, the High Court of Australia considered the admissibility of similar fact evidence as circumstantial evidence that the respondent, who was driving a commercial vehicle, was transporting people for pay contrary to legislation. In allowing the appeal against acquittal, Justice Dixon noted at page 375 (see para 40 of Villaroman) that “in the inculpation of the accused person the evidentiary circumstances must bear no other reasonable explanation” and further found (at page 378) that the innocent inference was simply “too improbable.”
In the newer example from 2014, Justice Cromwell cited the Alberta Court of Appeal decision in Dipnarine (2014 ABCA 328 (CanLII), 584 AR 138) in which the court explained that circumstantial evidence need not “totally exclude other conceivable inferences” (at para 22) and that “alternative inferences must be reasonable and rational, not just possible” (at para 24). However, as the court further explained, “the circumstantial evidence analysis” (at para 25) is not a separate venture but is, in essence, the application of proof beyond a reasonable doubt. Ultimately, the trier of fact must “decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt” (at para 22). These reasonable alternate inferences can arise from either the presence of evidence or an absence of evidence. For instance, taking possession as an example, if there is no evidence of one of the necessary elements of knowledge, consent or control, the Crown has not proven the case and the accused must be acquitted. This re-affirmation of the power of none is a step in the modern direction.
So what of Mr. Villaroman? The trial judge convicted Mr. Villaroman on the basis of the circumstantial evidence while the Alberta Court of Appeal set aside the conviction and entered an acquittal for the very same reason. The Supreme Court of Canada found the trial judge’s analysis was reasonable while the Alberta Court of Appeal’s position relied too heavily on “hypothetical alternative theories” (at para 67) which were “purely speculative” (at para 70). In other words, the appellate court “retried the case” (at para 69) by making that impermissible “leap” from the “reasonable” to the “improbable.”
The final nod to modernity in Villaroman is Justice Cromwell’s consideration of the form of the jury instruction on circumstantial evidence (at paras 17 to 24). In this discussion, Cromwell J sits firmly in today as he quotes approvingly from a passage written by Charron JA, as she then was, writing for the Ontario Court of Appeal in the Tombran decision (2000 CanLII 2688). There (at para 29), she rejected the traditional “formulaic approach” to jury instructions in favour of “the modern approach to the problem of circumstantial evidence” which discusses all of the evidence, including circumstantial, within “the general principles of reasonable doubt.”
In modern terms this case suggests the jury need not be instructed in a finely constructed manner. Indeed, the Court, in a very modern turn, reiterates a theme they have been pursuing for years – that there are no “magic incantations” (WDS,  3 SCR 521, 1994 CanLII 76 (SCC) at page 533) or “foolish wand-waving or silly incantations” (a shout out to Professor Snape in Harry Potter) needed to “appeal-proof” jury instructions. The charge to the jury must remain nimble, tailored to each individual case and created by the judicial gatekeeper who is expected to weave a legal narrative for the trier of fact. Should there be no jury, then it is incumbent on the judge to be mindful in their approach to the evidence. To be modern, therefore, requires mental acuity and agility, not pondering recitations of old rules but fresh iterations, perhaps on an old theme, but yet thoroughly modern.
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By: Jennifer Koshan
PDF Version: Section 7: Superhero, Mere Mortal or Villain?
Comment On: Section 7 of the Canadian Charter of Rights and Freedoms
Many people love superheroes. My favourite was always Spider-Man – he had the most interesting back story, the coolest superpowers, and the grooviest soundtrack and visuals (at least in the cartoon of my youth). Section 7 could easily be seen as the superhero of the Charter. It has the power to strike down laws and government policies that increase the risk of death and bodily or psychological harm, as well as those that deprive people of the ability to make fundamental personal decisions free from state interference. Those powers have been used by the Supreme Court of Canada in ways that may make the members of the Court the actual superheroes in the eyes of many individuals and groups who are vulnerable to the effects of state (in)action (for recent examples see Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 (CanLII), Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII), and Carter v Canada (Attorney General), 2015 SCC 5 (CanLII)).
But the courts do not always embrace the role of superhero. They can be timid Peter Parkers who are afraid to use their powers under section 7, especially when the use of those powers is seen as imposing positive obligations on governments. Conversely, section 7 powers may sometimes be used in ways that usurp the role of other Charter sections such as section 15, leaving equality rights and the individuals and groups who are the intended beneficiaries of that section in the dust. Alternatively, the courts, like Spider-Man, may be seen as villainous, fully intending to protect society but, by overextending their powers, harming society instead. Indeed, Asher Honickman, in The Case for a Constrained Approach to Section 7, argues that the Supreme Court has expanded section 7 beyond its proper limits.
My own view is that section 7 of the Charter should be given a robust interpretation by the courts that provides a strong check on government action and inaction. To use the examples I began with, in PHS, the Supreme Court ordered the Minister of Health to extend an exemption under the Controlled Drugs and Substances Act to Vancouver’s Insite safe injection site, where the refusal to grant the extension was found to be an arbitrary and grossly disproportionate violation of the right to access lifesaving medical treatment and health-protecting services. In Bedford, the Court struck down three prostitution-related laws that were found to increase the risk of harm to the bodily and psychological integrity of sex workers in a manner that was overbroad and grossly disproportionate. In Carter, the Court declared void the Criminal Code sections prohibiting medically assisted dying, which were found to increase the threat of premature death, to deprive persons of control over their physical and psychological integrity, and to interfere with fundamental personal choices, all in ways which were overbroad.
These decisions altered the law or government policy in fundamental ways, based on strong evidence of how the underlying laws and policies impacted the marginalized individuals and groups who the Charter is intended to protect (although some people may disagree with the extent to which these decisions actually do promote the interests of vulnerable groups; see for example the facta of interveners representing prostituted women in Bedford and some disability rights groups in Carter).
For all their seeming breadth, however, these decisions also contain carefully crafted limits, and maintain a strong role for legislators in responding to the Supreme Court’s rulings. In this sense, the Court can be seen to abide by the wise words of Spider-Man’s Uncle Ben that “with great power there must also come great responsibility.” In PHS, the Court was very clear to indicate that its remedy did not “fetter the Minister’s discretion with respect to future applications for exemptions, whether for other premises, or for Insite” (at para 151). Following PHS, the federal government passed Bill C-2, An Act to amend the Controlled Drugs and Substances Act, which makes it much more difficult for other cities to open safe sites for drug consumption. The amendments enacted by Bill C-2 affirm the ability of the legislature to respond to section 7 rulings that it might believe to be too expansive. The same is true with the federal government’s follow-up to Bedford. The Supreme Court’s remedy delayed the striking down of the relevant sections of the Criminal Code, allowing the unconstitutional provisions to remain in effect for one year. According to Schachter v Canada,  2 SCR 679 (CanLII), the suspension of a striking down remedy should be granted only in exceptional cases, as it allows the rights violation to persist for a period of time. In spite of Schachter, the Supreme Court has been fairly liberal in granting suspensions, thereby showing deference to government. Post-Bedford’s one year delay, Parliament ultimately enacted a law that was more restrictive than the Court’s ruling, given the continued criminalization of sex workers in some circumstances (see Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford). And in Carter, the Court was careful to restrict its decision to competent adults who clearly consent to the termination of life and have a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition (at para 127). It also declined to grant constitutional exemptions while giving the government time to develop its legislative response, until it extended, at government request, the suspended declaration of invalidity for four months in Carter v Canada (Attorney General), 2016 SCC 4 (CanLII). The debate over Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), shows that both chambers of Parliament have an important role to play in developing policy that responds to the Supreme Court’s section 7 rulings. Like Bill C-36 post-Bedford, Bill C-14 also exemplifies the government’s ability to narrow the scope of the Court’s rulings, as Parliament added reasonable foreseeability of death to the eligibility requirements for medically assisted dying.
In my view, we must be mindful of the fact that while the Charter binds all branches and levels of government, the government sometimes fails to give adequate consideration to its Charter obligations when crafting laws and policies. In Schmidt v Canada (Attorney General), 2016 FC 269 (CanLII), the Federal Court upheld the standard of the federal Minister of Justice under which proposed legislation need not be reported to Parliament where there is a “credible argument” that it is not inconsistent with the constitution. As noted in commentary on this decision, the credible argument standard “equates to a low probability, or ‘faint hope’, of less than 5% confidence that the relevant legislation is consistent with the Charter”. Given this low standard for examination and reporting of proposed laws for their constitutionality, courts must continue to act as guardians of the constitution. The courts’ duty of constitutional review ensures that governments don’t simply kowtow to majoritarian interests that disregard the needs and experiences of disadvantaged individuals and groups. As noted in Reference re Secession of Quebec,  2 SCR 217 (CanLII), the fundamental constitutional principle of democracy requires more than adherence to majority rule, and includes consideration of the impact of laws and government policies on minorities. The same can be said of the rule of law, which “provides a shield for individuals from arbitrary state action” (Reference re Secession of Quebec at para 70). Most superheroes do use their powers for overall social good, and the Supreme Court’s exercise of section 7 powers are no different in this respect.
In the context of responding to judicial decisions legislatively, governments can also invoke the ultimate superpower of the Charter, section 33, although much has been written on the political consequences of doing so, perhaps making section 33 the Charter’s kryptonite rather than superpower (and I do realize that I am mixing superhero metaphors here).
As for the contention that an expansive reading of the Charter may lead to uncertainty in terms of legal rights and obligations, I would note that the scope of the rights to life, liberty and security of the person have been interpreted fairly consistently over the years and are relatively predictable in their application. This is especially so if one considers the breadth of these rights, even in textual terms. PHS, Bedford and Carter do not add much that is new to the scope of liberty and security of the person when compared to R v Morgentaler,  1 SCR 30 (CanLII). And in Carter, the Court declined to rule on whether the right to life protects a more qualitative right, once again showing restraint in deciding only what was necessary for the resolution of the issues in that case. If our concern should be more focused on the uncertainty of the principles of fundamental justice, and in particular the application of arbitrariness, overbreadth and gross disproportionality, it is significant that the Court recently ruled in Bedford and Carter that violations of section 7 can be saved under section 1 where societal concerns merit such an outcome.
In addition, it must be noted that many of the laws that the Court has struck down under section 7 were themselves uncertain in ways that rendered them unconstitutional. In Morgentaler, for example, the unpredictable application of the “health” criterion in the Criminal Code abortion provisions led, in part, to their demise. The same concerns arise for the reasonable foreseeability of death requirement for access to medically assisted dying in Bill C-14. Section 7 must be interpreted broadly enough to protect against laws that violate life, liberty or security of the person by virtue of being unduly vague.
What about the Supreme Court’s use of section 7 in cases involving government inaction? Although, as Honickman notes, the Court left open the possibility of doing so in Gosselin v Québec (Attorney General), 2002 SCC 84 (CanLII), it has not taken this path in subsequent cases. The most recent example of this reticence can be seen in Tanudjaja v Canada (Attorney General), 2013 ONSC 5410 (CanLII), aff’d 2014 ONCA 852 (CanLII), where the Supreme Court denied leave to appeal on the question of whether section 7 protects a right to adequate housing (see also Canadian Bar Association v Her Majesty the Queen in Right of the Province of British Columbia, Attorney General of Canada and Legal Services Society, 2008 CanLII 39172 (SCC), denying leave to appeal on the scope of government obligations to provide legal aid under section 7; both cases also involved section 15 arguments). I believe the Court is not using section 7 powers to the extent that it should in these kinds of cases. Canada is bound by international human rights obligations to give effect to social and economic rights under the International Covenant on Economic, Social and Cultural Rights, and the Court’s failure to consider so-called government inaction under section 7 does not give adequate effect to these obligations. Moreover, the distinction between action and inaction (or negative versus positive rights and obligations) is not a compelling one (see here at note 112). For example, the government’s refusal to extend an exemption for Insite could be characterized as either action or inaction; the Court’s order requiring the government to extend the exemption in PHS could be seen as imposing a positive obligation or as requiring the state to refrain from prosecuting Insite’s clients, a more negative conception of its section 7 duties. To the extent that this purported distinction forestalls legitimate section 7 claims, it is itself productive of uncertainty and undermines the rule of law.
There could be a role to play for section 15 of the Charter in cases where section 7 is (mis)interpreted to include only exercises of state power that actively interfere with the rights of disadvantaged individuals. But the Supreme Court’s reliance on section 7 at the expense of section 15 in cases such as Carter has deprived section 15 of some of its powers. David Lepofsky gave a persuasive presentation at Osgoode’s Constitutional Cases conference in April 2016 arguing that Carter was a missed opportunity for the development of the disability equality guarantee under section 15. Indeed, section 7’s protection against laws that are grossly disproportionate largely replicates section 15’s protection against adverse effects discrimination, and the way that arbitrariness has crept in to section 15 analysis also shows the influence of section 7 on equality rights (see for example Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 (CanLII), where the Court repeatedly referred to discrimination as “arbitrary disadvantage”). The problem here is that the Court’s restrictive interpretation of section 15 has made it harder to succeed in Charter claims where section 7 is not available on the facts. In Taypotat, for example, a residential school survivor was unsuccessful in his claim that his First Nation’s requirement of a minimum level of educational attainment to run for election as Chief or band councillor amounted to discrimination under section 15. As I have argued previously, framing government (in)action as a violation of life, liberty or security of the person is a promising strategy for some Charter claimants, but not all government harms can be captured under section 7, and the particular harms protected against by section 15 must be given their due. To return to my metaphor, section 7’s superpowers should not be used so as to undermine the power of other Charter sections. Real superheroes may legitimately battle for control of who gets primacy in fighting for the good (see Batman versus Superman: Dawn of Justice), but this should not be taken as a script for how the courts should interpret and apply the Charter in cases of social injustice.
In conclusion, I stand proudly on the side of those who argue for an expansive interpretation of section 7 of the Charter for the reasons articulated here. To return to my Spider-Man analogy, despite his flaws and occasional missteps, he ultimately provides for a better society, as does a broad interpretation of section 7 powers by the courts. To paraphrase another superhero, this – more so than a restrictive, originalist application of section 7 – is the path of truth, justice and the Canadian way.
This post originally appeared in the Canadian Bar Association Alberta Branch publication Law Matters: Sex, Drugs & Assisted Dying: How free should we be? (Summer 2016), edited by ABlawg contributors Joshua Sealy-Harrington & Ola Malik).
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By: Drew Yewchuk
PDF Version: Ostensible Consent: Reality and Legal Reality
Case Commented On: R v Hajar, 2016 ABCA 222 (CanLII)
R v Hajar, 2016 ABCA 222 (CanLII) is an appeal of a sentencing for sexual offences against a minor. Hajar was convicted of sexual interference and luring a child (respectively s 151 and s 172 of the Criminal Code) and was given a global sentence of 18 months imprisonment followed by three years probation. Both the Crown and Hajar appealed, arguing the sentence was unfit. This post focuses on the majority’s rejection of the relevance of the ostensible consent of the minor to the sexual activity that was the subject of the charge, and their consequent rejection of the position that the offence was a legal technicality.
Facts and Issues
Hajar’s conviction for sexual interference involved his having a 14 year old perform fellatio on him; he was 20 at the time of the offence. At sentencing, the de facto consent of the complainant was said not to be a defence, and not to be considered a mitigating factor in sentencing (R v Hajar, 2014 ABQB 550 (CanLII) at paras 28, 31). The global sentence of 18 months imprisonment followed by three years probation was appealed, and the Court of Appeal sat as a five-justice panel. The majority decision was written by Chief Justice Fraser, Justice Paperny, and Justice Watson. Justice Bielby wrote a decision concurring in the result, and Justice Slatter wrote a dissent.
A central issue on appeal was whether a starting point for sentencing for major sexual interference should be established, and what it should be. The majority decided that a starting point was needed, and set it at three years imprisonment (at paras 71-81). Ultimately, the majority determined that a fit sentence for Hajar would have been three and a half years imprisonment. However, in light of the lengthy process delay, the majority elected not to impose that sentence and left the original sentence in place (at para 169).
The Court’s Decision
The majority recognized that there has been an unjustified disparity in sentences for sexual interference where the child was considered to have willingly participated (at para 72) and they described the treatment of de facto consent to be the major cause of this problem:
 We turn now to the one issue that largely explains the significant differences amongst judges in sentencing for the crime of sexual interference. Parliament left absolutely no doubt that consent is not a defence to the crime of sexual interference under s 151 of the Code. But what frequently causes judges to stumble and thereby subverts sentencing is the concept of de facto consent. De facto consent connotes two separate ideas: (1) that there was actual consent, but (2) it was ineffective only because of the law. Therefore, despite the law, de facto consent should mitigate sentence on the basis that the sexual activity that occurred is not deserving of serious sanction. This thinking has found favour in more than one courtroom in this country. The result – an invisible finger has often pressed down hard on the sentencing scale to diminish the gravity of the offence of sexual interference or the offender’s mens rea degree of responsibility or both.
 Using de facto consent as a mitigating factor in sentencing for sexual interference is based on a fundamental flaw. That is the erroneous notion that an adult’s sexual activity with a child who gives his or her de facto consent is legally a crime but does not rise to the level of overall seriousness deserving of an unambiguous denunciation. This thinking is wrong – on many levels and for many reasons. (at paras 82-83, footnotes omitted)
The majority proceeded to list four problems with using the ‘willing participation’ of the child as a mitigating factor: (1) Parliament has clearly recognized that children in the specified age groups are incapable of consenting to the sexual activity (at paras 84-93); (2) it undermines the protection Parliament sought to ensure for children under 16 (at paras 94-96); (3) the de facto consent of the child is often intentionally cultivated by the offender to manipulate the child and conceal the crime (at para 97); (4) it shifts the blame to the child victim (at paras 98-100). The majority flatly rejected that the ‘absence of exploitation’ can be a mitigating factor in sentencing (at para 105), and dismissed that approach (which is central to the approach of the concurring justice and the dissent) as being merely “a proxy for de facto consent” (at para 111). The majority decision is forceful, clear, and unequivocal – de facto consent is never a mitigating factor in sentencing for sexual interference.
In her concurring judgment, Justice Bielby took the position that where the accused rebuts the presumption of exploitation, the sentencing judge should not apply the three-year starting point (at para 204). The presence of ostensible consent would not be relevant to the finding of whether or not exploitation was present. Justice Bielby found that there are circumstances where sexual interference occurs absent exploitation (at para 177); the majority held that sexual interference is inherently exploitative, but that similar considerations could lower the appropriate sentence (at para 131).
Justice Slatter, in a dissenting judgment, found that willing participation was one of many things to be considered by a sentencing judge and that it could speak to the degree of exploitation present (at para 239). He considered that some sexual interference may be non-exploitative, and believed that no starting point should be set for sentencing:
Parliament has declared all the conduct covered by s. 151 to be criminal, but that does not mean it is all exploitative, or exploitative to the same degree. A three year starting point for non-exploitative conduct is not proportionate, and indeed may in some cases be grossly disproportionate. For non-exploitative conduct the one-year minimum sentence is likely to be the appropriate place to start the sentencing analysis. (at para 270)
Legal, De Facto and Ostensible
In addition to rejecting the application of de facto consent in sentencing and rejecting it in principle, the majority also rejected it as a meaningful legal term:
The concepts we employ and the words we use to describe them matter. We prefer to use the term “ostensible consent” to describe those situations where a child “appears” to consent to sexual activity, but does not consent either in fact or in law. For obvious reasons, ostensible consent does not constitute a mitigating factor in sentencing either. (at para 103)
De facto means ‘in fact’ or ‘in reality’, and the use of it to describe the minor’s apparent willingness is extremely misleading. The term ‘de facto consent’ gives an unwarranted importance to the willing participation of the child – it is not consent in fact, it is a false imitation of consent. To appreciate the importance of the majority’s rejection of the term, consider a portion of the decision from Hajar’s initial sentencing:
Consequently, given that s 150.1 deems there to be the absence of consent where the complainant is more than five years younger than the accused, the act of fellatio in this case must also be considered a “non-consensual” act. Simply put, the 14-year-old victim in this case did not consent to the act regardless of what she may have said or done. She was legally incapable of consenting. (2014 ABQB 550 at para 30)
That is a correct statement of law, but it holds a strange implicature. The sentencing justice used the words ‘legally incapable’ in the last sentence of the quote, and this would cause the average English speaker to think that the Justice was delineating ‘legally incapable’ from something else – the most likely candidate being “factually incapable”. The term creates the false impression discussed earlier – it reduces the crime to a legal technicality. The problem with sexual interference where the child is found to be a willing participant is not the lack of legal consent; it is the lack of consent in reality. If it is accepted that the victim in a sexual interference case was able to consent in reality, then the portion of the offence that makes it morally blameworthy – sexual contact without consent – disappears. Even where it is not used to acquit or to lighten the sentence of an offender, the acknowledgement of de facto consent undermines the purpose of the criminalization of the behaviour – it removes the moral blameworthiness of the act.
The law concerning sexual interference specifically, and concerning sexual offences generally, cannot become an area where the public is encouraged to consider legal findings as being mere technicalities, where sentences are handed down for technical violations that cause no actual harm and where the offences are not truly deserving of serious denunciation. The changes to the law of consent in the past decades have not established legal barriers disconnected from reality around Canadians – they have changed the law’s understanding of consent to better accord with the reality of consent and sexual interactions. The law of consent is an area of law formerly based on, or at least susceptible to the application of, myths and stereotypes, which has gradually been brought into accordance with reality. Appreciating that the changes to the law regarding consent have their basis in fact is central to the cultural change this area of law is seeking to engender.
The Hajar decision rejects the idea that the absence of legal consent is the central aspect of the offence of sexual interference – it was the absence of consent in reality. Hopefully Hajar will become a marker for when Alberta courts ejected de facto consent from the law, as R v Ewanchuk,  1 SCR 330 (CanLII) has become the marker for when implied consent was denounced (though see the recent R v JR, 2016 ABQB 414 (CanLII) for a reminder that the myth that underlies implied consent persists). I conclude with the words of the majority from Hajar at paragraph 170:
One final point about the evidence and circumstances of this case. There is a durability to rape myths and the predatory behaviour which spawns them that undermine fundamental norms and values in our society. Firmly rooted in ingrained inequality, these pernicious attitudes fuel the continuation of child sexual abuse. The problem is compounded when the attitudes are fertilized from outside the zone of protection our courts can create. That said, it falls to each generation of judges to ensure that equality principles flourish and strengthen and that rape myths not be allowed to poison the fair and impartial application of the criminal law. But the courts cannot do it alone. It also takes the commitment of society and political leaders to do so as well. Our children deserve no less.
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By: Nigel Bankes
Decision Commented On: Award on the Merits of the Annex VII Tribunal, In the Matter of the South China Sea Arbitration, The Republic of the Philippines v The People’s Republic of China, 12 July 2016
The Annex VII Tribunal in the South China Sea Arbitration handed down its decision on the merits in the dispute between the Philippines and China on 12 July 2016. The dispute between the parties involves China’s extensive maritime claims in the South China Sea (many within the context of China’s so-called nine dash line); claims in relation to fishing activities by Chinese flagged vessels; and claims in relation to China’s dredging and construction activities associated with reclamation activities on a series of maritime features in the South China Sea. The Tribunal ruled in favour of the Philippines on almost all issues in its 479 page unanimous and comprehensive decision. There are already a number of posts on the Award; see, for example the useful first thoughts offered by Doug Guilfoyle on the blog of the European Journal of International Law.
This post examines the Tribunal’s approach to some of the interpretive issues raised in the course of its decision on the merits. For the last nine months or so I have been examining the interpretive approaches of the three main types of tribunal that may have jurisdiction to consider disputes under section 2 of Part XV of the Law of the Sea Convention (LOSC) (Compulsory Procedures Entailing Binding Decisions). The three types of tribunals are: (1) ad hoc arbitral tribunals under Annex VII of LOSC, (2) the International Tribunal of the Law of the Sea (ITLOS), and (3) the International Court of Justice (the ICJ). As part of that research, one line of inquiry was to examine how closely the different tribunals adhere to the interpretive approach demanded by Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT). I am also interested in the question of whether it is possible to identify distinctive interpretive approaches as between the different types of tribunals (see Joost Pauwelyn and Manfred Elsig, “The Politics of Treaty Interpretation: Variation and Explanations Across International Tribunals” in J Dunoff and M Pollack, eds, International Law and International Relations: Taking Stock (Cambridge: Cambridge University Press, 2013) 445). One of my hypotheses is that one might expect “new” tribunals (e.g. ITLOS) and tribunals where jurisdiction is contested (and especially to the point of non-appearance as in Arctic Sunrise (Jurisdiction and Merits) and South China Sea) to be particularly concerned to establish and maintain their legitimacy. This might lead them not only to extend all possible procedural protections to the non-appearing party (which was certainly the case here), but also to hew closely to the interpretive rules of the VCLT insofar as they demand, whether by treaty or by custom, a particular methodological approach to the exercise of treaty interpretation.
Until this Award my general assessment was that it was very difficult to discern any difference in the manner in which any of these three types of tribunals applied articles 31 and 32 of the VCLT. Of course, all three types of tribunals refer from time to time to these articles of the VCLT (both in majority and separate opinions) and in some very few cases (e.g. ITLOS, Sea Bed Disputes Chamber, Advisory Opinion on the Area, esp at paras 57 et seq.) somewhat systematically, but there was certainly no consistent self-conscious practice of applying the provisions and no consistency of practice within any of the three categories of tribunal. To take but one example, this same Annex VII Tribunal in its Award on Jurisdiction and Admissibility only refers to the VCLT at paras 176 and 182 in the context of emphasising that while the Tribunal could have no jurisdiction with respect to an alleged breach of the Convention on Biological Diversity (CBD) it could resort to the CBD (applying article 31(3)(c) of the VCLT) for assistance in interpreting articles 192 and 194 of LOSC. The arbitral award in the modern era dealing with law of the sea issues which (until this Award) perhaps most systematically applied the VCLT interpretative rules was the non-Annex VII ad hoc arbitral award in Filleting in the Gulf of St. Lawrence (La Bretagne (Canada\France) Arbitration) (the official French version is available here, an English translation is reproduced in (1986) 82 ILR 590).
In this post I will comment on the manner in which this Annex VII Tribunal approached the interpretive issues with which it had to grapple, and in particular its interpretation of article 121, dealing with the Regime of Islands. It is, I think, the most sophisticated example of the application of the VCLT rules to the Law of the Sea Convention that we have seen to date. That this should be so is hardly surprising since the interpretation and application of this article was the lynchpin on which the tribunal’s jurisdiction and thus its substantive rulings on the merits turned. For the sake of completeness I will also comment on the manner in which the Tribunal applied other articles of the VCLT in the course of its award.
Treaty Interpretation and the Preservation of Historic Rights
The Tribunal first refers to articles 31 and 32 of the VCLT in the context of the Philippines’ Submissions 1 and 2. In these submissions the Philippines sought to have the Tribunal declare that China could claim no maritime entitlements beyond those accorded by LOSC and that any claims of historic rights, including those related to the nine dash line that extended beyond rights accorded by LOSC were without lawful effect. The principal interpretive issue therefore (at para 234(a)) (all subsequent paragraph references in square brackets as follows [234(a)]) was whether there was any room to contend that the provisions of the LOSC, and in particular those dealing the exclusive economic zone (EEZ) and continental shelf, allowed for the preservation of historic rights (as opposed to title) to extended maritime zones that were at variance with those provisions.
The Tribunal began by acknowledging that the text of the Convention did not expressly address the issue with the result that the question for the Tribunal was “whether the Convention nevertheless intended the continued operation of such historic rights, such that China’s claims should be considered not incompatible with the Convention.”  The Tribunal concluded that such claims of historic rights (as distinct from historic bays and title) did not survive the adoption of the Convention. In reaching that conclusion the Tribunal referred to both “the text and context of the Convention” (implicitly but not explicitly recalling the language of article 31 of the VCLT) and then the supplementary means of interpretation (and here explicitly referring to article 32 of the VCLT).
As for the text and context, the Tribunal referred to the main EEZ provisions of LOSC (articles 56, 58 & 62) pointing both to the language of exclusivity and noting that these provisions expressly address the circumstances in which other states might have access to the living resources of the EEZ as well as the degree of respect to be accorded to habitual fishing practices. Based on this the Tribunal concluded “as a matter of the text alone” that 
… the Convention is clear in according sovereign rights to the living and non-living resources of the exclusive economic zone to the coastal State alone. The notion of sovereign rights over living and non-living resources is generally incompatible with another State having historic rights to the same resources, in particular if such historic rights are considered exclusive, as China’s claim to historic rights appears to be. Furthermore, the Tribunal considers that, as a matter of ordinary interpretation, the (a) express inclusion of an article setting out the rights of other States and (b) attention given to the rights of other States in the allocation of any excess catch preclude the possibility that the Convention intended for other States to have rights in the exclusive economic zone in excess of those specified.
The text of the LOSC continental shelf provisions (article 77) equally, and even more so, confirmed the exclusive nature of the rights of the coastal state.
Moving from text to context (and thus still within the framework of article 31, VCLT) the Tribunal concluded that various provisions of the LOSC confirmed that the “system of maritime zones created by the Convention was intended to be comprehensive and cover any area of the sea or seabed.” This was:
… apparent in the Preamble, which notes the intention to settle “all issues relating to the law of the sea” and emphasises the desirability of establishing “a legal order for the seas.” The same objective of limiting exceptions to the Convention to the greatest extent possible is also evident in Article 309, which provides that “[n]o reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.” 
All of this led to the conclusion that any claims by China to historic rights (as opposed to rights based upon China’s own EEZ and shelf) to living or non-living resources within the exclusive zones of the Philippines were inconsistent with the Convention:
The Convention does not include any express provisions preserving or protecting historic rights that are at variance with the Convention. On the contrary, the Convention supersedes earlier rights and agreements to the extent of any incompatibility. The Convention is comprehensive in setting out the nature of the exclusive economic zone and continental shelf and the rights of other States within those zones. China’s claim to historic rights is not compatible with these provisions. 
For the Tribunal that was all clear enough; there was no ambiguity here that required it to have recourse to the supplementary means of interpretation but, given “the sensitivity of the matters at issue in these proceedings, the Tribunal considers it warranted to recall the origin of and purpose behind the Convention’s provisions on the exclusive economic zone and continental shelf.”  Under the rubric of article 32 the Tribunal then referred to the general background to the Third UN Conference on the Law of the Sea to emphasise that the EEZ emerged as a compromise between the claims to greater control by coastal states and the interests of long distance fishing states. The rights accorded were deliberately framed as exclusive rights and not just as preferential rights [250 – 251]. Furthermore, the Convention was a consensus package and while some reservations to the dispute settlement scheme were permissible, a state:
… is not entitled to except itself from the system of compulsory settlement generally. In the Tribunal’s view, the prohibition on reservations is informative of the Convention’s approach to historic rights. It is simply inconceivable that the drafters of the Convention could have gone to such lengths to forge a consensus text and to prohibit any but a few express reservations while, at the same time, anticipating that the resulting Convention would be subordinate to broad claims of historic rights. 
While this was evidently a reasonably systematic application of the methodology prescribed by the VCLT for discerning the intentions of the parties, the Tribunal’s discussion of the interpretation of article 121 is even more so, and certainly much more searching and detailed, taking up close to 30 pages of text.
Treaty Interpretation and Article 121
The critical interpretive issue within article 121 related to paragraph (3) which provides that “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” Having quoted that paragraph the Tribunal immediately referenced articles 31 and 32 of the VCLT as follows [476 & 477]:
Under the heading of text the Tribunal examined the component words and phrases of article 121(3). Using this approach, and with frequent reference to the Oxford English Dictionary, or the Shorter Oxford, the Tribunal concluded that the word rock did not import any geological or geomorphological criteria and thus a rock for the purposes of article 121(3) need not necessarily be composed of “rock” but might for example, consistent with dictionary definitions, be composed of coral or clays [479 – 482]. As for “cannot” (as in “cannot sustain”), this word refers to the capacity to sustain rather than whether or not the subject feature does in fact sustain habitation or economic life; however the historical fact (or not) of human habitation would clearly be relevant evidence in any such inquiry [483 – 484]. “Sustain” in its ordinary meaning has a number of components: support of essentials, a temporal (continuing element) and a sense of a minimal standard [485 – 487]; similarly, the term “habitation” implies a “non-transient presence of persons … in a settled manner” and “persons” rather than an individual because “humans need company and community over sustained periods of time” [488 – 492]. The Tribunal preferred a disjunctive reading of the word “or” thus recognizing that a feature that could sustain either human habitation or an economic life of its own would be entitled to both an EEZ and a continental shelf [493 – 497]. Finally, the combination of “economic” and “life” suggested a community activity, a level of viability and ongoing activity, while “of their own” indicated that the feature (or an associated group of features) must “have the ability to support an independent economic life, without relying predominantly on the infusion of outside resources or serving purely as an object for extractive activities, without the involvement of a local population.”  And in making that assessment the Tribunal was firmly of the view that it could not consider economic activity associated with a possible EEZ or shelf since that would be circular. 
The Tribunal summed up its textual assessment in a number of propositions  but also acknowledged that there remained uncertainties , especially with respect to the degree of economic activity which might suffice. With that acknowledgement the Tribunal turned to context and the objects and purposes of the Convention (all part of article 31, VCLT).
“Context” for the Tribunal required it to recognize that rocks and fully entitled islands are part of a classifications system of different maritime features in the Convention. Thus, it was important to consider how the rock/island categories fit within this scheme as well as the provisions of the Convention which refer to other objects within this classification scheme including low-tide elevations (article 13) and submerged features. Furthermore, since classification as a rock serves to deny that feature EEZ and shelf entitlements, it was also important to assess this categorization system in light of the purpose of these entitlements, and especially the introduction of the EEZ .
Consideration of the classification system for marine features as a whole led the Tribunal [508 – 511] to emphasise that the classification of all features within the system must be based on natural conditions drawing upon the best available evidence; and, just as a low tide elevation or a submerged maritime feature could not be turned into an island via human intervention, neither could a rock be turned into an island via human intervention. As for the link between article 121(3) as a provision of limitation or disentitlement and the purpose of the EEZ zone, the Tribunal delved [512 – 520] into the travaux to emphasise that the EEZ was created to benefit the peoples and communities of coastal states and that article 121(3), which precluded barren rocks from any entitlement to an EEZ, was part of the balancing of interests (coastal states vs distant water fishing fleets referred to earlier). This in turn led the Tribunal to opine that the quality of habitation demanded before a feature might avoid classification as a rock should be “habitation of a feature by a settled group or community for whom the feature is a home.” 
While the Tribunal necessarily reached beyond the text of article 121(3) to identify the purpose of the EEZ (as part of ascertaining and assessing context), the Tribunal also went on to consider the travaux more systematically for the “light it sheds on the purpose of the provision itself” (i.e. article 121(3)) . The Tribunal’s review of the background to article 121(3) extended as far back as a British Imperial Conference of 1923 while recognizing that the entitlements associated with maritime features assumed far heightened significance with the expansion of the maritime claims of coastal states and the recognition of a common heritage area [522 – 529]. The Tribunal noted that paragraph (3) emerged as part of the compromise that was part of the Informal Single Negotiating Text (1975). While there is no detailed record of the elements of the compromise the Tribunal considered that the record would support the following conclusions [535 – 537, references to the detailed travaux omitted]:
Ultimately, acknowledged the Tribunal, size could not be dispositive of a feature’s status “although size may correlate to the availability of water, food, living space, and resources for an economic life”.
In the end, the Tribunal’s analysis of text, content, object and purpose, and the drafting history of article 121(3) led it to some nine conclusions which I reproduce here in slightly abbreviated form [540-548]:
This will particularly be the case as the relevant threshold may differ from one feature to another.
The Tribunal continued with some evidentiary observations, noting that historical use will likely provide the most reliable evidence as to the capacity of features and that “a purely official or military population, serviced from the outside, does not constitute evidence that a feature is capable of sustaining human habitation.” 
That was not quite the end of the Tribunal’s efforts to apply articles 31 and 32 of the VCLT since article 31(3) also refers to subsequent practice amounting to an agreement. But here the Tribunal observed (following the jurisprudence of the ICJ and that of the WTO’s Appellate Body), that the threshold for establishing an agreement on interpretation derived from state practice is high, and in this case there was no evidence of such an agreement that would lead the Tribunal to diverge from the interpretation that it had already settled on and recorded in the above nine propositions or conclusions. 
The Tribunal then went on to apply these propositions to the various maritime features with respect to which the Philippines sought declarations (including the Spratly Islands “as a whole”) concluding that none of the high tide features in the Spratly Islands were capable of sustaining human habitation or a life of their own ; the same conclusion prevailed with respect to other contested high tide features including the Scarborough Shoal and other reef features [643 – 646]. As a result, none of these features could generate an EEZ or a continental shelf thereby justifying the further conclusion that there could be no overlapping maritime entitlements as between China and the Philippines that would have precluded the Tribunal from exercising its jurisdiction pursuant to China’s declaration under article 298(1)(a).
In sum, this Award represents a sophisticated application of the interpretive rules of the VCLT to the construction of article 121(3). One gap in the Tribunal’s reasoning is that while it identifies both the EEZ and the shelf provisions of LOSC as part of the interpretive context for article 121(3), in the end it only analyzes the EEZ provisions. It is not clear that including the shelf provisions in the analysis would have changed the conclusions. The principal difference between the two sets of provisions is that while LOSC undoubtedly created or crystallized the concept of an EEZ, the doctrine of the continental shelf was already part of customary international law long before the Third Law of the Sea Conference began.
Article 33: Multiple Language Versions of LOSC
In addition to articles 31 and 32, the Tribunal also referred to article 33, the third and final provision in section 3, of Part III of the VCLT. Article 33 deals with treaties like LOSC which are concluded in multiple language versions and provides that where a comparison of the different authentic texts discloses a difference of meaning, the interpreter should adopt the meaning “which best reconciles the texts, having regard to the object and purpose of the treaty …”. There has been little consideration of article 33 in the context of LOSC although there is some discussion of the multiple language versions of LOSC in the ITLOS, Sea Bed Disputes Chamber, Advisory Opinion on the Area, esp at paras 57 et seq and in several separate opinions of ITLOS judges in prompt release proceedings where the issue has been the proper interpretation of the term “reasonable bond” in Article 73(2) (“garantie suffisante” in French).
The Tribunal considered the applicability of this provision as part of interpreting the scope of China’s declaration under article 298(1)(a). The Philippines took the view that article 298(1)(a) could only serve to allow a state to opt out of compulsory dispute resolution with respect to disputes concerning “historic bays or titles” to the extent that such disputes were delimitation disputes. The Tribunal acknowledged that the English text might be somewhat ambiguous but concluded [215 – 216] that the non-English texts supported the broader interpretation to the effect that a state could exclude compulsory jurisdiction to all disputes involve historic bays or titles; regardless of whether the dispute involved an issue of delimitation.
Other VCLT Issues: Article 26
In addition to the interpretation provisions of the VCLT the Tribunal also had cause to refer to article 26 (good faith performance) and article 30 (successive treaties relating to the same subject matter). The Tribunal relied on article 26 as part of its discussion of the Philippines’ request that the Tribunal rule that China was in breach of its obligations not to aggravate or extend the dispute between the parties once the Philippines had commenced its action. While LOSC does not specifically address this duty (other than in the context of a provisional measures order and the Philippines had made no such application) the Tribunal concluded that such a duty could be derived from consistent judicial practice  but was also supported by article 26 of the VCLT. The Tribunal put the point this way :
… such a duty [i.e. the duty not to aggravate or extend a dispute] is inherent in the central role of good faith in the international legal relations between States. Article 26 of the Vienna Convention on the Law of Treaties recognises this when it provides that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.” This obligation is no less applicable to the provisions of a treaty relating to dispute settlement. Where a treaty provides for the compulsory settlement of disputes, the good faith performance of the treaty requires the cooperation of the parties with the applicable procedure. Compulsory settlement is also premised on the notion that the final result will be binding on the parties and implemented by them as a resolution of their dispute. The very purpose of dispute settlement procedures would be frustrated by actions by any party that had the effect of aggravating or extending the dispute, thereby rendering it less amenable to settlement.
Other VCLT Issues: Article 30
No less interesting was the Tribunal’s discussion of article 30. The Tribunal referred to article 30 as part of its assessment of whether or not historic rights could survive the adoption of LOSC. Article 30 of the VCLT deals with the relationship between successive treaties dealing with the same subject matter. Paragraph 2 of that article sets up a presumption to the effect that a later treaty will ordinarily prevail over an earlier treaty unless the later treaty stipulates that it is subject to that earlier treaty.
The Tribunal took the view that article 311 of LOSC and article 30 of the VCLT were parallel provisions each of which contemplated that a later treaty would prevail over an earlier treaty. That however was not precisely the issue before the Tribunal since the Tribunal was not faced with a scenario of competing treaty texts but rather a potential conflict between a claim based on state practice and a treaty text (LOSC) that implicitly (as already noted above, there was no explicit provision) extinguished claims of historic rights. Nevertheless the Tribunal was clearly of the view that both article 311 of LOSC and article 30 of the VCLT should be read as addressing both conflicts between agreements and conflicts between older customary claims and more recent treaties. As already noted above, the Tribunal was firmly of the view that claims of historic rights could not have survived the adoption of LOSC.
This blog will be cross-posted on the JCLOS Blog, the blog of the K.G. Jebsen Centre for the Law of the Sea, the University of Tromsø.
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By: Jonnette Watson Hamilton
Case Commented On: Jordan v Skwarek, 2016 ABQB 380 (CanLII)
As Master John T. Prowse noted, the facts of this case are not unusual: “A family member, often a son, works on a family farm on the understanding that he will inherit it when the owner, typically his father or grandfather, dies. If he does not inherit the farm the son brings a claim for the farm, or in the alternative a claim for compensation based on the doctrine of unjust enrichment” (at para 2). As in similar cases, the understanding in this case appeared to be unenforceable because it was an unwritten one and therefore did not meet the requirements of section 4 of the Statute of Frauds. The decision is interesting because it points to disagreements among the Canadian courts of appeal about the correct test for part performance, what that test demands, and what evidence may be relied upon to prove acts of part performance to get around the requirements of section 4 of the Statute of Frauds.
The family farm at issue in this case was near Nanton, Alberta. It was initially owned by the mother’s father, and then by the mother’s mother, and now by the mother, the defendant Esther Skwarek. Her son, the plaintiff Glenn Jordan, worked on the family farm for more than 30 years. Mr. Jordon alleged that he had the following unwritten understanding, first with his grandfather, then with his grandmother, and finally with his mother:
1) He would rent the farm on a crop share basis, 2/3 to him and 1/3 to them. While the crop input expenses were borne in the same 2/3 to 1/3 ratio while his grandfather was alive, after his grandmother inherited the farm and moved into town to live with his mother, he agreed to pay all the crop input expenses in return for living in the farm house for free.
2) He would ultimately be given ownership of the farm.
Mr. Jordan also acquired his own nearby 480-acre farm in 1987. He had begun work on a residence for himself on that farm in 2009.
When Mr. Jordan’s mother asked him to sign a lease for the family farm in 2013, contrary to the unwritten understanding, he left the family farm and sued his mother for enforcement of the unwritten understanding or, in the alternative, for unjust enrichment. His mother applied for summary dismissal of both of her son’s claims. Mr. Jordan relied upon the doctrine of part performance to exclude the operation of the Statute of Frauds and allow him to enforce the unwritten understanding.
This post will focus on the doctrine of part performance and ignore the unjust enrichment claim. I will first discuss the case and its application of the doctrine of part performance. Then I will comment on three aspects of that doctrine that appear to be unsettled in Canada among different courts of appeal.
The Statute of Frauds
The first basis on which the mother asked the court to summarily dismiss her son’s claim was the Statute of Frauds: An Act for the prevention of frauds and perjuries, 29 Charles II, c 3 (1677, UK). In Jordan v Skwarek, section 4 was the relevant provision of that statute, and its relevant portions read as follows:
No action shall be brought whereby to charge … upon any contract or sale of lands…unless the Agreement upon which Action shall be brought or some Memorandum or Note thereof shall be in writing and signed by the party to be charged therewith… (emphasis added).
Section 4 of the Statute of Frauds basically requires that a contract involving land be in writing and be signed by the party to be sued. Unless both requirements are fulfilled, the contract is not enforceable.
The purpose of the 339-year-old Statute of Frauds was to eliminate the fraud and perjury in proving claims to land that was widespread in England in the 17th century. Most Canadian provinces have re-enacted the Statute of Frauds. A number of provinces have relatively recently affirmed the continued relevance of the statute and recommended retention of the requirements for writing for contracts for the sale of interests in land. See, for example, Manitoba’s Report on the Statute of Frauds at 26, Alberta’s The Statute of Frauds and Related Legislation at 2, and Saskatchewan’s The Statute of Frauds: Report to the Minister at 4. In Alberta, it is the original English statute of 1677 that is in force.
Mr. Jordan agreed that section 4 of the Statute of Frauds applied to the unwritten understanding to give him ownership of the farm. However, he said his claim to the farm was enforceable because of the doctrine of part performance.
The Doctrine of Part Performance
The doctrine of part performance is an exception to section 4 the Statute of Frauds. Shortly after the statute was enacted in the 17th century, the courts of equity decided that they would not permit the statute to be used to commit injustice. In other words, “[i]f one party to an agreement stands by and lets the other party incur expense or prejudice his position on the faith of the agreement being valid he will not then be allowed to turn around and assert that the agreement is unenforceable”: Steadman v Steadman,  AC 536 at 540 (HL).
Section 4 of the Statute of Frauds is not easy to get around, however. The doctrine of part performance requires two things. The first is detrimental reliance by the party wishing to enforce the contract. The second is acts of part performance which, to use the oft-quoted formulation of Lord Selborne in the House of Lords decision in Maddison v Alderson (1883) 8 AC 467 at 479 (HL), “must be unequivocally, and in their own nature, referable to some such agreement as alleged”.
Proof of detrimental reliance is usually not too difficult to establish. In this case, Master Prowse found that detrimental reliance was too complicated and fact-specific to be determined except by a trial. This was the only point on which Master Prowse held that the mother’s application failed (at para 15).
The second part, the “unequivocally referable” test, can be demanding. I write “can be” because there is quite a lot of disagreement in Canada today about what Maddison v Alderson requires to meet the test that the acts “must be unequivocally, and in their own nature, referable to some such agreement as alleged.” I will return to the controversies about the meaning of that test later in this post. Suffice to say that in this case, Master Prowse adopted (at para 11) the interpretation of Lord Selborne’s words that was summarized in one paragraph by the Alberta Court of Appeal in B & R Development Corp v. Trail South Developments Inc, 2012 ABCA 351 (CanLII) at para 35:
To invoke the doctrine of part performance, the party claiming to have performed a valid contract must demonstrate: (1) detrimental reliance and (2) that the acts of part performance sufficiently indicate the existence of the alleged contract such that the party alleging the agreement is permitted to adduce evidence of the oral agreement: Erie Sand & Gravel Ltd. v. Seres’ Farms Ltd., 2009 ONCA 709 (CanLII), 312 D.L.R. (4th) 111 at para 79. Acts of part performance must be “unequivocally” referable to the alleged oral agreement: Erie at para 32; Deglman v. Guaranty Trust Co. of Canada, 1954 CanLII 2 (SCC),  S.C.R. 725 at 733,  3 D.L.R. 785 (S.C.C.).
Unfortunately, in B & R Development Corp the Alberta Court of Appeal did not address its mind to the controversies surrounding the test for part performance and Lord Selborne’s requirement that the acts “must be unequivocally, and in their own nature, referable to some such agreement as alleged.” Part performance was only one of several issues in B & R Development Corp (discussed in only 6 of 80 paragraphs) and the test for applying the doctrine did not seem to be questioned. The better precedent, given its grappling with conflicting authorities, would have been the Alberta Court of Appeal decision in Haan v Haan, 2015 ABCA 395 (CanLII) — a decision released five months before Jordan v Skwarek was heard.
In any event, by relying on B & R Development Corp, Master Prowse adopted the strictest and most demanding interpretation of Lord Selborne’s “unequivocally referable” test. Master Prowse required that the acts of part performance relied upon by Mr. Jordan to prove the existence of the unwritten understanding he alleged be “unequivocally referable to the promise that he would ultimately receive the farm” (at para 16). Mr. Jordan’s acts had to be “part performance of an agreement to acquire the farm” (at para 18). In other words, it was not enough if Mr. Jordan’s deeds proved the existence of an agreement dealing with the land. Under this interpretation of the test, Mr. Jordan’s actions had to prove the exact contract that he alleged: the transfer of the ownership of the farm to him.
That version of the test has been called “overly stringent” (Mountain v Mountain Estate, 2012 ONCA 806 (CanLII),  OJ No 5452, at para 88). After all, as is noted in Snell’s Principles of Equity, 27th edition (1973) at 587, “few acts of performance point exclusively to a particular contract, least of all a multi-term contract.” Not surprisingly, Mr. Jordan failed to show that the doctrine of part performance applied to his actions to allow him to exclude the operation of section 4 of the Statute of Frauds.
Only Mr. Jordan’s acts were scrutinized. His farming expenditures were held to be “just as consistent with the acts of a long time tenant” (at para 21), his capital and maintenance expenditures for the home were held to be “equally consistent” — i.e., not “unequivocal” — with a long term tenancy as with a prospective home owner (at para 23). Because the unwritten understanding that Mr. Jordan was trying to prove was what Snell’s called a “multi-term contract” ? in this case including a lease of the farm, as well as a promise to transfer ownership ? it is not surprising that his deeds looked like those of a long-term tenant as much as they looked like those of a prospective owner. He was both under the terms of the alleged agreement.
But matters were much worse than equivocal in Master Prowse’s estimation. He found it “extremely significant” that when Mr. Jordan left his mother’s farm in 2012 “the outbuildings were no longer usable and the farm house was tired and worn” (at para 25). His farming, capital and maintenance expenditures — which, over his 30 years on the land, included things like drilling two new water wells, adding new plumbing and sewer lines and weeping tile, and replacing the hot water tank and roof and fireplace — were judged to have “resulted in no residual benefit to the land.” After initially characterizing the farm house as “tired and worn” while acknowledging that it could have been brought back into service with relatively minor expenditures (at para 25), Master Prowse concluded that by the time Mr. Jordan left the farm in 2013 “the outbuildings were unusable, and the farm house was uninhabitable” (at para 29). Just what these points had to do with whether the acts were referable to an agreement to convey the farm to him was not said. Neither was the age of the outbuildings or the farm house noted or whether it was reasonable for a future owner (and especially one with a new house on a nearby farm) to have maintained them considered. The context and circumstances of Mr. Jordan’s deeds were not discussed.
In the end, the mother’s application for summary dismissal of both of her son’s claims — for part performance and for unjust enrichment — succeeded. Her success was abetted by the fact the test for summary judgment was changed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 (CanLII),  1 SCR 87 in order to allow for quicker dispositions of cases. Instead of the old test of “discloses no triable issue,” courts now decide whether there is a meritorious issue that genuinely requires a trial or whether the claim or defence is so compelling that the likelihood it will succeed is very high: Whitecourt Power Limited Partnership v. Elliott Turbomachinery Canada Inc., 2015 ABCA 252 (CanLII) at para 9. Because there was no real dispute about the facts in this case, aside from whether or not the unwritten understanding existed, Master Prowse decided that a trial was not required to decide that Mr. Jordan’s claims had no merit and his mother’s defences were highly likely to succeed.
Comments on the Test for Part Performance
There appears to be at least three contentious aspects of the test for part performance within Canada. The first is whether to abandon the traditional test set out in Maddison v Alderson in favour of the more liberal test later adopted by the House of Lords in Steadman v Steadman. The second concerns the interpretation to be given to the Maddison v Alderson test and, specifically, to the requirement that the acts of part performance “must be unequivocally, and in their own nature, referable to some such agreement as alleged.” The third is whether the acts of part performance must be the acts of the plaintiff, or whether the acts of the defendant can be relied upon as well.
1) Maddison v Alderson or Steadman v Steadman?
The House of Lords reconsidered its formulation of the test for part performance in Maddison v Alderson in the 1974 case of Steadman v Steadman,  AC 536 (HL). The test from Maddison v Alderson requires that the acts of part performance “be unequivocally, and in their own nature, referable to some such agreement as alleged” (at 479 per Lord Selborne; at 491 per Lord Fitzgerald). Even more explicitly, an act “must have relation to the one agreement relied upon, and no other” (at 485 per Lord O’Hagen).
In Steadman v Steadman (at 546 per Lord Reid; at 553 per Viscount Dilhorne; at 559-62 per Lord Simon of Glaisdale; at 569 per Lord Salmon), the House of Lords relied upon the judgment of Upton LJ in Kingswood Estate Co v Anderson,  2 QB 169 and his adoption of the following rule from Fry on Specific Performance, 6th ed, at page 278:
The true principle, however, of the operation of acts of part performance seems only to require that the acts in question be such as must be referred to some contract, and may be referred to the alleged one; that they prove the existence of some contract, and are consistent with the contract alleged.
The Steadman v Steadman test is much less demanding and easier to satisfy than the test in Maddison v Alderson.
Whether the correct test in Canada is from Maddison v Alderson or Steadman v Steadman is an open question because the Supreme Court of Canada has not directly confronted it. The Supreme Court has disapproved of the formulation in an earlier edition of Fry on Specific Performance on which the test in Steadman v Steadman is based. They have also adopted aspects of Steadman v Steadman that are related to the purpose of the doctrine, its historical development, and the relevance of payment as an act of part performance. However, the highest court has not directed its focus on the test for part performance since Steadman v Steadman was decided in 1974.
There are three important Supreme Court of Canada cases dealing with part performance or oral contracts dealing with land: McNeil v Corbett (1907), 1907 CanLII 45 (SCC), 39 SCR 608; Deglman v Brunet Estate, 1954 CanLII 2 (SCC),  SCR 725; and Hill v. Nova Scotia (Attorney General), 1997 CanLII 401,  1 SCR 69. Of these three, the leading case, which included a thorough review of Maddison v Alderson, is Deglman. The adoption of the stricter Maddison v Alderson test in both McNeil v Corbett and Deglman is unambiguous. Indeed, in Deglman, the test articulated in Fry on Specific Performance and quoted above was urged upon the Supreme Court and specifically rejected by the majority: Deglman at 733 (per Cartwright J). Instead, the majority relied upon the articulation of the test in McNeil v. Corbett at 611-12, which demanded “acts unequivocally referable in their own nature to some dealing with the land which is alleged to have been the subject of the agreement sued upon”, explaining that meant there has to be something in the nature of the acts which bears the necessary relation to the interest in land said to have been the subject of the agreement.
In Hill the Supreme Court relied upon Steadman v Steadman for a number of principles. They relied upon it for a statement of the purpose of the Statute of Frauds (at 558). They also quoted from Steadman v Steadman (at 558) for a history of the evolution of the doctrine of part performance. However, the Court did not comment on Steadman v Steadman’s consideration of the test from Maddison v Alderson or its adoption of a more liberal test. No test was articulated in Hill.
Because the Supreme Court of Canada has yet to expressly consider and choose between the different tests in Maddison v Alderson and Steadman v Steadman, cases from different provinces disagree on which of those two House of Lords cases represents the law in Canada. As Professor Joseph T Robertson noted, in his Discussion Paper on the Statute of Frauds, 1677 (St. John’s, Nfld: Newfoundland Law Reform Commission, 1991) at page 22, “ambiguity provides the basis on which trial and appellate courts in each province can reformulate the proper test without disregarding the principle of stare decisis.” Twenty-five years later, his assessment appears to continue to be accurate.
At least three provincial courts of appeal have looked favourably on the more lenient test. The Steadman v Steadman test was acknowledged as “the leading authority” by the British Columbia Court of Appeal in Currie v Thomas, 1985 CanLII 769 (BCCA) at para 28, but without reference to the prior Supreme Court of Canada decisions. However, British Columbia’s Law and Equity Act, RSBC 1996, c 253, s 59(3) has subsequently replaced the doctrine of part performance with a new statute-based test. The Saskatchewan Court of Appeal has also favoured the Steadman v Steadman test, but only in the most general of terms, without actually articulating or applying a test. They indicated in Bell, Sokalski and Ross v Guaranty Trust Company of Canada, Prudential Trust Company Limited, Ashland Oil Canada Limited and Ashland Oil and Gas Limited, 1984 CanLII 2422 (SK CA) at para 3 that “Deglman must be read in the light of the comprehensive judgment of the House of Lords in Steadman v. Steadman . . .”, and in Tiringer v. Tiringer, 1998 CanLII 12304 (SK CA) at para 2, that, had the Statute of Frauds applied, “the principles articulated in Steadman v. Steadman,  2 All E.R. 977 (H.L.) are apposite to this case.” Finally, the Court of Appeal in Newfoundland and Labrador more recently canvassed the competing tests in King v. Cleary, 2014 NLCA 33 (CanLII) and approved the trial court’s adoption of the test in Steadman v Steadman.
In contrast, most Canadian courts of appeal have seen themselves bound by the Supreme Court of Canada decision in Deglman. The courts of appeal in Nova Scotia and Alberta have recently reiterated that the test in Maddison v Alderson is still the leading authority, based on Deglman. For example, the Nova Scotia Court of Appeal in Brekka v. 101252 P.E.I. Inc., 2015 NSCA 73 (CanLII) at para 32, upheld the trial judge’s application of the stricter Maddison v Alderson test as reflecting the current law in that province.
Over the past 15 years the Alberta Court of Appeal has twice opined at length on the test for the doctrine of part performance. The first time was in 2002 in Booth v. Knibb Developments Ltd., 2002 ABCA 180 (CanLII) at paras 19 and 25, where the Court of Appeal affirmed that “[t]he leading decision on the doctrine of part performance is Maddison v. Alderson …” and that “[n]o lesser standard will suffice.” They held that the acts had to be “unequivocally referable to the oral contract alleged by the Booths” (at para 28) and noted that the acts relied upon “cannot be said to be referable to a contract for purchase and sale and nothing else” (at para 29).
In 2015, the Alberta Court of Appeal reaffirmed its commitment to the test in Maddison v Alderson in Haan v Haan, 2015 ABCA 395 (CanLII). They stated that “part performance must be ‘unequivocally’ related to the alleged contract” (at para 11; see also para 15). They quoted with approval from both McNeil v Corbett and Deglman and their adoption of the test in Maddison v Alderman (at paras 12-13). McNeil v Corbett was relied upon for requiring “acts unequivocally referable in their own nature to some dealing with the land which is alleged to have been the subject of the agreement” (at para 12, quoting McNeil v Corbett at 611-12). They also quoted a passage from Deglman, which quoted with approval from In re Meston, Meston v Gray, 1925 CanLII 179 (SK CA),  4 DLR 887 at 888, explaining “…[t]he acts performed must speak for themselves, and must point unmistakably to a contract affecting the ownership or tenure of the land, and to nothing else.” (at para 13) Therefore, in Alberta there is no question that the “unequivocally referable” test from Madison v Alderson is the authoritative test, given its adoption after detailed discussion of the law in both Booth and Haan.
The Ontario Court of Appeal stands apart. In Erie Sand & Gravel Ltd. v. Seres’ Farms Ltd., 2009 ONCA 709 (CanLII), it adopted what it called the “Deglman test” ? referring to the majority judgment of Cartwright J in Deglman ? and rejected what it calls the “Rand test” from Deglman. It stated that the Rand test is the stringent one, requiring the acts to be referable only to the alleged contract and no other (at paras 86 and 92, citing Deglman at 728). The Ontario Court of Appeal read the Deglman test as requiring only that the acts be referable to “some dealing with the land” (at paras 87 and 92, citing Deglman at 733 and its reliance on quotes from McNeil v Corbett). The Ontario Court of Appeal therefore appears to follow the Maddison v Alderson test by referring to the majority judgment in Deglman, but by only requiring that the acts of part performance be referable to “some dealing with the land”, they seem to be adopting a test that is even more lenient than that in Steadman v Steadman (lacking the requirement that the acts be consistent with the alleged contract).
In the more recent Mountain v Mountain Estate, 2012 ONCA 806 (CanLII),  OJ No 5452, the trial judge had required acts “that are only consistent with part performance of the alleged contract” (at para 53). The Ontario Court of Appeal stated (at para 82) that Erie Sand & Gravel had been clear that the acts need not be referable only to the contract alleged. They only had to be “unequivocally referable in their own nature to some dealing with the land”. (at para 82)
The Ontario Court of Appeal therefore appears to follow the Maddison v Alderson test by adopting Cartwright J’s majority judgment in Deglman, but their understanding of that test is very different from that of the Alberta Court of Appeal. Indeed, the test in Ontario appears to be even more lenient than the test in Steadman v Steadman, as I will discuss in the next section.
2) Interpreting Maddison v Alderson’s “unequivocally referable to … some such contract as alleged”
It appears from the Canadian case law that there are three ways to interpret the Maddison v Alderson requirement that the acts of part performance must be “referable to some such agreement as alleged.” One requires the acts of part performance to be unequivocally referable to the exact contract alleged. The second requires them to be referable to the type of contract alleged. The third merely requires them to be referable to a contract related to the land at issue.
The first — the most demanding and the one used by Master Prowse in Jordan v Skwarek — requires that the acts be referable to the exact contract that the plaintiff alleges. As we saw when it was applied in Jordan v Skwarek, it is almost impossible to fulfill, especially given the alleged multi-term contract in that case. The first interpretation ? referable to the exact contract alleged ? is the traditional understanding of Maddison v Alderson. It appears to be the one adopted by the Alberta Court of Appeal in B & R Development Corp at para 35, requiring the acts to “sufficiently indicate the existence of the alleged contract” and to be “’unequivocally’ referable to the alleged oral agreement” (emphasis added).
The second possibility is that the acts must be referable to the type of contract the plaintiff alleges (e.g., a sale, a lease, an easement, etc). That seems to be the test adopted by the Alberta Court of Appeal in both Booth and Haan. Booth at para 27 relied upon Cartwright’s judgment in Deglman at 734 which they characterized as “clearly” setting out the test and interpreting “some such agreement as that alleged” as follows:
In order to exclude the operation of the Statute of Frauds, the part performance relied upon must be unequivocally referable to the contract asserted. The acts performed must speak for themselves, and must point unmistakably to a contract affecting the ownership or the tenure of the land, and to nothing else. (emphasis added by Alberta Court of Appeal)
The Alberta Court of Appeal went into more detail on this aspect of the test very recently in Haan at paras 14-15, confirming their interpretation in Booth. There the Court specified that “the claimant has to prove that the part performance was “unequivocally” related to the very type of contract alleged. Part performance that is “consistent with” several different types of contractual arrangement is insufficient” (Haan, at para 15). How specific does that “type” have to be? Haan answers this question with an example: “Thus, for example, the test is not met if the part performance is equally consistent with a transfer of ownership, a lease for a term of years, or a loan with the land given as security.” Those three examples are all examples of “some dealing with the land” but they make it clear that is not enough: the type of contract has to be unequivocally referenced by the acts. Although this understanding of the Maddison v Alderson test is less strict than the first, it is quite likely that, had Master Prowse adopted this interpretation in Jordan v Skwarek, Mr. Jordan’s claim would still have failed due to the multi-term nature of the contract that he alleged.
A third possible interpretation is that the acts must be referable to a contract dealing with the relevant piece of land, based on the Ontario Court of Appeal case in Erie Sand & Gravel. This interpretation is arguably even more liberal than the test in Steadman v Steadman, which not only demanded that the acts indicate some contract between the parties, but also required they be consistent with the oral contract alleged. It is certainly no more demanding.
In Erie Sand and Gravel Ltd, the Ontario Court of Appeal considered the test set out by Cartwright J in Deglman at some length. They held (at para 94) that the majority in Deglman at 732-33 required only that the acts be referable to “some dealing with the land.” This interpretation was re-affirmed in Mountain v Mountain Estate at para 82, where the Ontario Court of Appeal held that the “the acts of part performance need not be ‘referable only to the contract alleged’ [but rather] the test as established by the majority judgment of Cartwright J. in Deglman … is that it is sufficient if the acts are ‘unequivocally referable in their own nature to some dealing with the land’. The Ontario Court of Appeal emphasized “some dealing with the land.” There is nothing to tie “some dealing with the land” to the type of contract, although it must be tied to the land in issue. The Court then broke the test down into two steps: “the first step is to determine whether the acts of part performance are connected to the land” (at para 89), and the second step is to determine if the conduct, in and of itself, indicates that there had been “some dealing with the land”. (at para 90)
It therefore appears that the test for part performance is more demanding in the province of Alberta than in Ontario. Ontario merely requires that the acts point to a contract concerning the land in dispute. Alberta requires that they refer to the type of contract alleged. But neither is as demanding as the test applied in Jordan v Skwarek, which required the acts of part performance refer to the exact contract alleged.
3) Whose acts? The plaintiff’s only or acts of both the plaintiff and the defendant?
Prior to 1997 it was agreed that the acts relied on must be the acts of the plaintiff. Indeed, the requirement that the acts be those of the party who relied on the existence of the contract to his or her detriment is usually tied to the purpose of the doctrine of part performance; see, for example, Steadman v Steadman at 558 (per Lord Simon of Glaisdale). However, the Supreme Court decision in Hill v. Nova Scotia considered the acts of the defendant. They did so without noting that what they were doing appeared to change the law. Indeed, in Hill (at 558), the Supreme Court’s only statement of the law ? a quote from Steadman v Steadman ? required the acts be those of the plaintiff. The concluding words of that quote are: “the ‘part’ performance being that of the party who had, to the knowledge of the other party, acted to his detriment in carrying out irremediably his own obligations (or some significant part of them) under the otherwise unenforceable contract”. The Court therefore stated one principle and applied a different one. One has to wonder whether this was done per incuriam.
Nonetheless, the Ontario Court of Appeal has taken the Supreme Court’s actual reliance on the acts of the defendant to be a change in the law. In Erie Sand & Gravel, they concluded (at para 75) that “given the decision of the Supreme Court in Hill, it is now settled law in Canada that the acts of both parties to an alleged oral agreement may be considered when a court is called on to determine if sufficient acts of part performance take an alleged agreement outside the operation of the Statute of Frauds.” The Court offered additional reasons, beyond the precedent in Hill, for taking this position (at paras 76-79), but it did assert that the law was settled on this point by Hill.
The Ontario Court of Appeal’s position that the acts of part performance can be those of both the plaintiff and the defendant was re-asserted more recently. In Mountain v Mountain Estate, the trial judge had required that the acts be those of the plaintiff and the Ontario Court of Appeal held that that he erred in doing so (at paras 79 and 81).
The position is different in Alberta, however. In Booth, the trial judge had considered only the acts of the plaintiff when determining if the test has been met and the Court of Appeal did not find this to be an error (Booth, at paras 31, 39). Indeed, in Wasylyshyn v. Wasylyshyn, 2008 ABQB 39 (CanLII) at para 40, Justice E.A. Marshall explicitly interpreted Booth to require that the acts relied upon be carried out by the plaintiff.
Therefore, despite the Ontario Court of Appeal’s insistence that the new principle of law was settled by the Supreme Court in Hill, the Alberta Court of Appeal appears to differ.
In conclusion, it should be noted that there is no uncertainty in the Alberta Court of Appeal’s understanding and application of the doctrine of part performance, based on the authority of Booth and Haan. The same could be said about the Ontario Court of Appeal, based on Erie Sand & Gravel and Mountain v Mountain Estate. They both seem quite certain in their statements of the law. But those two courts of appeal ? and others more briefly mentioned ? are not in agreement with each other, and the principles for application of this equitable doctrine vary depending on which province hears the case for enforcement of an oral promise with respect to land. It will take another Supreme Court of Canada decision – hopefully one conscious of the controversies this time ? to harmonize the law.
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By: Nigel Bankes
The origins of the Power Purchase Arrangements (PPAs) “termination” saga are discussed in detail in a previous post and readers may wish to refer to that post for the necessary background. In an interesting development the Attorney General has commenced an application seeking a declaration that the amendments that were made to the PPAs after the public review process conducted by the then Alberta Energy and Utilities Board (AEUB) had concluded are unlawful. The crucial amendment was to a clause in the PPA which allows the buyer to transfer responsibility for the PPA to the Balancing Pool when a change of law makes the PPA not just unprofitable but “more unprofitable”. In my previous post I suggested that
It is evident that this clarification which was “attached to and forming part of each PPA” considerably enhances the power of the buyer to terminate without liability. On its face it seems to suggest that even if market conditions are the principal cause for the unprofitability of the PPA from the buyer’s perspective, then any change of law, however small, which makes the PPA just that bit more unprofitable allows the buyer to terminate. This hardly seems to be a commercially reasonable conclusion – let alone the “obvious” intent of all of those interested in the structure of the PPAs. Nevertheless, the AEUB under the terms of Order U2000-190 did endorse the IAT’s conclusions.
The Attorney General has now taken the extra step and alleges that the AEUB exceeded its authority in approving the amendment and also followed an incorrect procedure; and that therefore the amendments are unlawful. Although late in the day this is a powerful argument since if the province can kick-out the amendment, PPA buyers will have a much harder time establishing that it is the province’s price on carbon that renders the PPAs unprofitable – rather than market conditions more generally. The Attorney General is also taking the view that the Regulations approving the PPAs were unlawful – perhaps because she is concerned that if she only attacks the AEUB decision then she will be found to be out of time because of the limitation period in the AEUB’s statute (see Alberta Energy and Utilities Board Act, RSA 2000, c. A-17, s.26, now repealed). However, if the Regulations are void ab initio (as the application argues) then it would seem that the PPAs themselves are also unlawful – which perhaps proves too much, and will, to say the least, require a lot of unravelling!
The Attorney General is also taking a run at the Balancing Pool’s (BP) decision to accept Enmax’s notice to terminate. The BP made that decision on January 27, 2016 (and it is the only PPA the termination of which the BP has to date accepted) so the AG has filed this application just within the time limits established by the Rules of Court. In essence the AG argues that the BP wrongly proceeded on the basis of the PPA arrangements as amended (as above); but in the alternative argues that the BP unreasonably looked at profitability only over the remaining term of the PPA, unreasonably based its decision on prices at a single point in time, and unreasonably failed to inquire as to whether unprofitability was self-induced (the argument here is that Enmax is in part responsible for low power prices by commissioning the 800 MW Shepard facility). The precise basis on which the BP proceeded may not be completely known, but to address that the AG is demanding that the BP produce the record. A “win” on these latter arguments will not be a complete victory because it will merely require that the BP makes its decision afresh. For this reason alone the much more significant claim made in these proceedings is the claim that the amendment was unlawful.
This will no doubt be one of the more complex and high profile judicial review proceedings ever heard in the province – and the stakes are high. The province has selected Joe Arvay from Vancouver\Victoria as its lead lawyer for its application, one of the best constitutional and administrative lawyers in the country. That is no doubt a very good choice, but I suspect that there would have been few major law firms in Alberta with expertise in this area who would not already have been conflicted out. The respondents listed in the application (in addition to Enmax and the BP) include various ATCO companies, TransCanada Energy, Capital Power, Alberta Power, and the Utilities Commission (as the successor to the AEUB).
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By: Joshua Sealy-Harrington and Evan Choate
Case Commented On: R v DLW, 2016 SCC 22 (CanLII)
In R v DLW, 2016 SCC 22 the Supreme Court of Canada split on whether the criminal offence of bestiality requires “penetration.” The majority judgment held that bestiality requires penetration and, on that basis, held that a dog licking a vagina is not bestiality. In contrast, the dissenting judgment held that bestiality does not require penetration and, accordingly, held that a dog licking a vagina is bestiality. In this post, we first summarize the factual and legislative background in DLW and the reasons of the majority and dissenting judgments. Second, we critique the majority judgment for: (1) its unpersuasive reliance on judicial deference; and (2) its overstated claim that “buggery” (the precursor to bestiality) had a clear meaning. Lastly, we critique both the majority and dissenting judgments for their reliance on: (1) imprecise sexual terms which fail to bring clarity to bestiality law; and (2) an unimaginative privileging of cisgender, procreative heterosexuality that perpetuates harmfully conservative understandings of human sexuality.
Before discussing the majority and dissenting judgments in DLW and our concerns with respect to those judgments, we briefly discuss two areas of background, namely:
1. the facts in DLW; and
2. the bestiality offence’s history.
In particular, establishing these two pieces of background at the outset facilitates a tidy summary of the judgments since the facts (which do not involve penetration by or of an animal) and the bestiality provision’s history, are central to both judgments.
The facts in DLW relate to a step-father and his two step-daughters whom he sexually abused over the course of 10 years (at para 5).
This step-father’s sexual abuse gradually progressed in severity as his step-daughters grew in age:
1. 12 – Fondling: By the time they reached the age of 12, he sexually fondled them (at para 5).
2. 14 – Sex: By the time they reached the age of 14, he forced them to engage in oral sex and sexual intercourse, and encouraged them to perform sex acts with each other (at para 5).
3. 15/16 – Bestiality?: By the time the older step-daughter reached the age of 15 or 16, he attempted to make the family dog have intercourse with her, and when that failed, he spread peanut butter on her vagina for the dog to lick off (at paras 5–6).
Critically, the sexual activity between the family dog and the older step-daughter did not involve penetration. This absence of penetration was central to the split at the Supreme Court in respect of whether the act that transpired—a dog licking a vagina—qualifies as “bestiality”.
To be clear, whether the step-father was ultimately incarcerated did not depend on whether a dog licking a vagina constitutes bestiality. Indeed, the step-father was convicted for “numerous other sexual offences” against his step-daughters, and was sentenced to 14 years in prison for those offences. The bestiality conviction, which was the subject of the DLW appeal, only impacted whether the step-father was sentenced to a further 2 years in prison as a result of the sexual activity he orchestrated between the family dog and his oldest step-daughter (at para 5).
Bestiality Offence History
An instructive definition of bestiality has never been provided by any of the statutes that have prohibited it since its genesis as a criminal offence in 1869 (at para 128). Instead, those statutes have simply prohibited acts described by vague phrases relating to “buggery with an animal” or “bestiality”, neither of which explain whether penetration is a required element of the offence (see para 43).
As a consequence, despite multiple amendments the bestiality provision has failed to provide clarity with respect to bestiality’s definition. Rather, it began and remains a statutorily undefined sexual crime, involving some form of sexual activity between humans and animals.
Still, two historical amendments to the bestiality provision provide subtle insights into its meaning:
1. The “1955 Amendments” – Adding Bestiality: In 1955, the Criminal Code was amended, with the English version of the buggery provision changing from “buggery, either with a human being or with any other living creature” to “buggery or bestiality”, and the French version remaining unchanged and continuing to prohibit “sodomie” and “bestialité” (at paras 72–74).
2. The “1988 Amendments” – Separating/Expanding Bestiality: In 1988, the Criminal Code was amended again, separating buggery (now, anal intercourse) and bestiality into distinct provisions (Criminal Code sections 159 and 160, respectively), and expanding the scope of the bestiality provision by including as criminal offences compelling another to commit bestiality and committing bestiality in the presence of a child (at paras 102–03).
(Collectively, the “Key Amendments”).
With the facts from DLW and history of the bestiality offence established, the Supreme Court judgment may now be discussed with greater ease.
SUPREME COURT JUDGMENTS
The Supreme Court issued two judgments in DLW:
1. the majority judgment authored by Justice Cromwell and concurred in by Chief Justice McLachlin and Justices Moldaver, Karakatsanis, Côté, and Brown, which held that bestiality requires penetration (the “Majority”); and
2. the dissenting judgment authored by Justice Abella, which held that bestiality does not require penetration (the “Dissent”).
Majority: Bestiality Requires Penetration
The Majority held that bestiality requires penetration (at para 4). As a consequence, the Majority acquitted the step-father (of bestiality, not the other offences) because the sexual activity at issue—a dog licking his step-daughter’s vagina—did not involve penetration (at paras 123–24).
The Majority reached this conclusion relying on the principle that if a word has a well-understood legal meaning, it should be given that meaning when used in a statute (at para 20). In consequence, the Majority held that Parliament’s use of the word “bestiality” in the 1955 Amendments should be interpreted as matching bestiality’s historical meaning, which required penetration (at para 99).
Given the above logic, the Majority’s reasoning involved two inquiries:
1. The “Historical Inquiry”: whether bestiality historically required penetration before the Key Amendments; and
2. The “Contemporary Inquiry”: whether bestiality requires penetration today, after the Key Amendments.
With respect to the Historical Inquiry, the Majority held that the relevant statutes predating the Key Amendments all required penetration, namely:
1. the 1861 English The Offences against the Person Act (at paras 29–30); and
2. the 1892 Canadian Criminal Code (at para 47).
With respect to the Contemporary Inquiry, the Majority held that neither of the Key Amendments signalled the unambiguous intent needed to substantively modify criminal law (see paras 54–56) that Parliament sought to remove penetration as a requirement of bestiality. Specifically, the Majority held that:
1. The 1955 Amendments did not remove the penetration requirement. Arguably, the change to the English version of the Criminal Code (changing “buggery with an animal” to “bestiality”) could be interpreted, in isolation, as making substantive changes to the scope of bestiality. But the French version (“bestialité”) remained the same throughout, demonstrating that no substantive revision could have been intended (at paras 79–80) and that the change to the English version alone was a “benign housekeeping” exercise merely seeking greater consistency between the English and French versions of the Criminal Code (at paras 95–96).
2. The 1988 Amendments also did not remove the penetration requirement. These amendments included a “virtually complete overhaul” of various sexual offences with no similar change to the bestiality provision. The only change to the bestiality provision involved expanding it to include compelling another to commit bestiality and committing bestiality in the presence of a child. The continued use of the word “bestiality” in these new provisions in no way signalled Parliamentary intent to remove penetration as a requirement of bestiality (at para 116).
By combining these two holdings—(1) bestiality historically requiring penetration; and (2) Parliament never changing that requirement—the Majority held that bestiality still requires penetration and, accordingly, acquitted the step-father of bestiality (at paras 123–24).
Dissent: Bestiality Does Not Require Penetration
The Dissent reached the opposite conclusion of the Majority, and held that bestiality does not require penetration (at para 127). As a consequence, the Dissent would have convicted the step-father (at para 153) because the sexual activity at issue—a dog licking his step-daughter’s vagina—need not involve penetration to qualify as bestiality.
The Dissent disagreed with the Majority about both of the key inquiries mentioned above.
With respect to the Historical Inquiry, the Dissent held that it was “far from clear,” particularly given the scarcity of cases dealing with bestiality, that penetration was required before the Key Amendments (at paras 134–35). Specifically, the Dissent noted that while penetration between a human and animal may have been sufficient to prove bestiality, it is unclear that penetration was necessary to prove bestiality (at para 135).
With respect to the Contemporary Inquiry, the Dissent held that, after the Key Amendments, penetration was not required for bestiality (at para 127). The Dissent admitted that “a good case can be made” for the Majority’s interpretation that bestiality retained penetration as a requirement following the Key Amendments (at para 126)—that is, assuming that penetration was ever a requirement (at paras 134–35). However, the Dissent had “a great deal of difficulty” accepting that Parliament “forgot to bring the offence out of the Middle Ages” and retained the penetration requirement (at para 126). Specifically, the Dissent held that:
1. If bestiality historically required penetration, the 1955 Amendments removed that requirement. First, by separating bestiality and buggery the 1955 Amendments permitted bestiality to abandon constituent elements—like penetration—related to buggery (at para 136). Similarly, the Dissent held that changing the English version from only prohibiting “buggery” to prohibiting “bestiality and buggery” shows that Parliament intended the two terms to have distinct meanings with possibly only buggery requiring penetration (at para 143; emphasis in original). Second, the 1955 Amendments enhanced protections for animals under the Criminal Code, reflecting an increased recognition of animal welfare, and further signalling Parliament’s intent to approach the bestiality offence more broadly (at para 141). In particular, the 1955 Amendments broadened the scope of the animal cruelty offence from “cattle, poultry, dog, domestic animal or bird, or wild animal or bird in captivity” to all birds and animals (at paras 140 and 142). The Dissent reasoned that it would be inconsistent for Parliament to expand the animal cruelty offence to include all birds and animals, but to limit the bestiality offence to those animals whose anatomy permitted penetration (at para 142).
2. If bestiality historically required penetration, the 1988 Amendments confirmed Parliament’s intent—initially signalled in the 1955 Amendments—to remove the penetration requirement from bestiality. First, the 1988 Amendments placed “buggery” and “bestiality” into separate provisions, confirming Parliament’s intent to treat them as two separate offences (at para 144), such that bestiality no longer had to share buggery’s penetration requirement. Second, the 1988 Amendments expanded the bestiality offence in a manner inconsistent with retaining the penetration requirement. For example, the bestiality offence was expanded to include committing bestiality in the presence of a child, and it would be absurd to think that Parliament sought to prevent children from being exposed to sexual activity with animals only when that sexual activity involves penetration (at paras 146–47). Third, the 1988 Amendments introduced multiple new offences directed at protecting minors from sexual abuse that were also inconsistent with retaining the penetration requirement for bestiality. For example, the new sexual exploitation offence did not require penetration, making it “anomalous” to require penetration when such exploitation happens to involve an animal (at para 148).
Lisa Silver posted a doctrinal commentary on the Supreme Court’s divide with respect to statutory interpretation. In this post, we will instead provide commentary on other aspects of the judgments, namely:
1. The Majority’s unpersuasive reliance on judicial deference as the basis for a narrow interpretation of bestiality; and
2. Various flaws in the Court’s interpretation of sexual terminology that reflect a series of erroneous and harmful ideas about the nature of sexuality and sexual practice.
Judicial Restraint: How Is “Interpreting” Bestiality Different from “Expanding” It?
The Majority’s reasoning is predicated on the principle that “changes to the scope of criminal liability must be made by Parliament” (at para 3). However, in our view, justifying a narrow interpretation of bestiality based on this principle is legally unpersuasive for two reasons:
1. Changes to the scope of criminal liability are inherent to the Court’s role of interpreting the Criminal Code, and accordingly, such changes are an unavoidable consequence of judicial interpretation. For example, in R v JA, 2011 SCC 28 the Court held that de facto consensual sexual activity constitutes sexual assault if one partner is deliberately unconscious (at para 3). By holding that an entire category of sexual activity which is consensual in fact is non-consensual in law, the Court, in effect, expanded the scope of criminal liability. If one were to respond that the Court did not “expand” criminal liability in JA but rather merely “interpreted” the meaning of consent, then Justice Abella’s holding that bestiality does not require penetration should similarly constitute a mere “interpretation” of the meaning of bestiality. Given the lack of clarity in the original terms in the law, all possible “interpretations” of the law will necessarily change its scope.
2. The Court has admitted in previous cases to unilaterally expanding the scope of criminal liability, thus contradicting its claim in DLW that such changes are impermissible. Specifically, in R v Jobidon,  2 SCR 714 the Court held that, during a consensual fistfight, an accused cannot rely on the Criminal Code defence of consent if bodily harm is intended and caused (at 766; see also Professor Sankoff’s video blog on DLW at 6:38–9:01). In our view, a coherent framework for how the philosophy of judicial restraint predictably limits the scope of legitimate judicial interpretation is lacking. Absent such a framework, judicial interpretations relying on judicial restraint are unpersuasive as they are functionally discretionary.
Sexual Terminology: The Court’s Flawed Interpretation of Sexuality
In addition to the legal problems with the Court’s standards of “interpretation,” there are a number of significant issues with their interpretations themselves. In our view, the judgments of the Court (i.e. both the Majority and Dissent) inadequately interpret sexual terminology in three ways:
1. Persisting current ambiguity: The terms used by the Court to clarify the ambiguity of the term “bestiality”—“penetration” and “sexual intercourse”—retain much of the ambiguity of the original term, and fail to achieve the Court’s goal of outlining predictable boundaries of “bestiality.”
2. Disregarded historical ambiguity: We agree with the Dissent that the terms “sodomy,” “buggery,” and “carnal knowledge” on which the Majority’s definition of “bestiality” depends do not have the historically specific definition that the Majority attributes to them, and are instead tied to sets of sexual mores which change not only over time but among people.
3. Difficulty of specifying forms of sexual expression: The Court claims to conduct an objective analysis of sexual terminology, but its analysis actually reflects a conservative philosophy that validates the naturalness of certain forms of sexuality over others. In consequence, the Court implicitly legislates sexual mores and, in turn, codifies conservative sexual norms about gender roles and propriety that police the behaviour and expression of Canadians without recourse to any demonstrable harm.
1. What is “Penetration?”: Persisting Current Ambiguity
The Court seeks to clarify the ambiguity of “bestiality” by limiting the set of potential acts it indicates to those involving “penetration” (and, interchangeably, “sexual intercourse”). Both the Majority and the Dissent simply assume that “penetration” and “sexual intercourse” themselves have well-understood legal meanings. Both opinions concur, no doubt to the surprise of many women, that penetration is “physically impossible” for “more than half the population” (see para 27 of the Majority and para 149 of the Dissent)—presumably the female half, who by this logic (and to Freud’s posthumous glee) seem to have no physical attributes beyond the absence of a penis. The biggest problem with such a specification is its limited imagination with respect to the potential diversity of meanings that “penetration” and “sexual intercourse” make available to enterprising Canadians. Many possible cross-species sex acts are either not definitively accounted for by the judgment or accounted for in ways the Court is unlikely to have intended. As a result, the Court merely defers the ambiguity created by the term “bestiality” to new terms that share its lack of clarity. To correct for the ambiguity generated by the substitution of one set of euphemisms for another, the next few paragraphs do not contain any euphemisms.
Throughout the Majority we are told that there are essentially two options for any given prospective penetrator: “vaginal” (sometimes “coital”) or “anal” (at paras 49, 89, and 91). While this seems specific enough, it is insufficient for defining bestiality. For instance, there is not a single bird, reptile, or amphibian that possesses either a vagina or an anus. Instead, these animals (and some mammals too) possess a single orifice called a cloaca. As it currently stands, the Supreme Court has seemingly ruled that Canada’s bestiality laws permit the penetration of ostriches, crocodiles, tortoises, two-toed amphiumas, and anything else without an anthropomorphic genital configuration.
If we assume that the Court intends for bestiality laws to prohibit sexual interaction between humans and more than just a small subset of vertebrates, we might reasonably amend this definition to include something like “any orifice fulfilling the general function of a vagina or an anus.” While this is better than the definition provided by the Court, its lopsided insistence on a gendered paradigm for penetration still leaves some legal grey areas for the enterprising penetrator. For instance, penetrative acts such as “sounding” (the penetration of a urethra) are genitally based but only ambiguously addressed by the ruling. Even if we assume that the Court means to prevent Canadians from penetrating golden moles, frogs, and parakeets (which is not obvious as the judgment stands), there are still unresolved questions that demand answers. Is it currently legal for Canadians to penetrate an elephant’s penis? Do we deem all intersex Canadians to have a vagina-for-legal-purposes, or are we fine with them being penetrated by as many willing animals as they can find? The fact is that the majority of potential penetrative acts involving animals simply do not fit within the missionary heterosexual paradigm that seems to limit the Court’s imagination.
Even more problematic than their heteronormative, anthropocentric fixation on vaginas and anuses, the Court fails to address what is being used to penetrate the vaginas and anuses in question. Presumably the Court assumes this is obvious, but there are, indeed, a wide range of potential means of penetration belying this assumption. At one point, and only one point, a translated French text informs us that there must be penetration “by the male organ” (at para 89). The bizarre conclusion flowing from this is that the Court is fine with Canadians engaging in brachioanal penetration (commonly known as “fisting”) with a donkey, or inserting an elongated clitoris into a rabbit’s vagina. Similarly, it would seem that a Canadian would be prohibited from inserting an entire garter snake into their rectum if and only if the snake was male and the person in question was therefore also, technically, being penetrated by a “male organ.”
While the Court never specifies, we can safely assume from the heteronormative paradigm active throughout the judgments that “male organ” refers to male genitals, but, even with this assumption, some ambiguity remains. Most animals, including humans, do not just have a single reproductive “male organ.” We are left wondering if it is, for instance, legal for a Canadian to “penetrate” a dog’s anus with their testicles as long as their penis remains outside. We imagine the Court would not convict a Canadian of bestiality for rubbing the tip of their penis between a cat’s labia, but how deeply must they penetrate the cat in order for it to count? Is foreskin sufficiently a part of the penis to count? The fact that the court imagines a kind of abstract Lacanian phallus as the single-use tool for all acts of penetration is an insufficient specification of the ranges of ways in which actual penises can be employed, the variety of sexual organs that males possess, and the variety of means of penetration at the disposal of each and every Canadian, regardless of their genital endowments. If the Court means to replace non-specific, antiquated terminology in the Criminal Code, there is no point doing so by half-measures.
2. What Was “Buggery?”: Disregarded Historical Ambiguity
The claim that the Majority reflects the original intent of buggery laws is the main object of Justice Abella’s dissent, which gives a persuasive account of the capaciousness of historical understandings of “buggery,” “sodomy,” and “carnal knowledge”—which tended, broadly, to include all non-procreative sex acts. This is, interestingly, the same understanding of “sodomy” implicit in the Supreme Court of the United States’ rulings in Bowers v Hardwick, 478 US 186 (1986), and Lawrence v Texas, 539 US 558 (2003), both of which seem to interpret sodomy as including oral sex between gay men. In her dissent, Justice Abella also provides a good analysis of how best to interpret the distinct lack of actual case law for bestiality, which appears to have been prosecuted only a few times per century, and even then only opportunistically. In our view, the reasonable response to this lack of authorities is to err on the side of breadth rather than allowing a tiny number of examples to stand in for the totality of sexual experience envisioned by an offence whose ambiguity is “self-evident” (see para 138).
In addition to the Dissent’s historical analysis, many of the Majority’s own authorities appear to only demonstrate that “penetration” is sufficient for bestiality, not necessary, as it asserts (see Dissent, at para 135). For example, the Majority’s most prominent recurring example is an 1828 statute specifying “that ‘actual Emission of Seed’ was not an essential element of the offence, and further that ‘carnal Knowledge’ would be ‘deemed complete upon Proof of Penetration only’” (at para 28). However, contrary to the Majority’s interpretation (which holds that the “only” at the end of the quote implies that penetration is necessary), in our view, the “only” is more sensibly interpreted as ‘without the additional need to prove ejaculation.’ Indeed, that is precisely the clarification made by specifying that ‘actual Emission of Seed’ is not a required element of the offence. Rather than supporting the relatively strong claim that penetration alone counts as “carnal knowledge,” the statute is making the much weaker, common sense claim that penetration is sufficient to constitute carnal knowledge, regardless of whether ejaculation occurs.
That sodomy would be defined through certain ‘sufficient’ examples rather than ‘necessary’ requirements is consistent with the nature of sodomy as an offence, which is inherently elastic and, by design, less exhaustive than we typically expect modern legal statutes to be. Indeed, people have been confused about the meaning of sodomy from the start. Samuel Pepys, a seventeenth-century English Member of Parliament, famously wrote in his diary “blessed be God, I do not to this day know what is the meaning of this sin, nor which is the agent, nor which the patient” (Pepys, Samuel. The Diary of Samuel Pepys. Ed. Robert Latham and William Matthews. Volume 4. London, 1971 at 209–10). If a prominent Member of Parliament during the era of the law’s most stringent enforcement had no idea what it meant, it seems doubtful that the term actually possessed the universal common meaning the Majority asserts.
In sum, it is likely that sodomy and buggery lacked the universal clarity claimed by the Majority. As the Dissent observes, sodomy and buggery “emerged in full moral force from the Church’s hegemonic jurisdiction over sexual offences and its abhorrence for non-procreative sexual acts, which were condemned as being ‘unnatural’” (at para 132). In other words, the origins of sodomy were based on a moral proscription of certain forms of sexuality associated with broad ecclesiastical categories of sin like Lust rather than specific sets of acts. Sodomy was a category used to mark all illicit sexual practices, and was indexed against a wildly variable set of mores. Even during the sixteenth century, puritan reformers would have understood sodomy as something vastly different from catholic monarchs such as Mary I, who actually repealed Henry VIII’s 1533 statute after her coronation in 1553. Legal historian William Eskridge writes that “the vagueness of the crime against nature, and its central role in this normative regime, rendered it elastic and mobile, so that it might include other non-procreative sexual activities” (Eskridge, William N., Jr. Dishonorable Passions: Sodomy Laws in America 1861–2003. New York: Viking, 2008 at 2). Similarly, historian Jonathan Goldberg sums up the scholarly consensus in writing that “sodomy […] identifies neither persons nor acts with any coherence or specificity. This is one reason why the term can be mobilized—precisely because it is incapable of exact definition” (Goldberg, Jonathan. “Sodomy in the New World: Anthropologies Old and New.” Social Text 29 (1991) at 46). Accordingly, sodomy does not, and has not, ever just meant “penetration” for the simple reason that it has always been a paradigmatically vague term. In their historical use, “sodomy” and “buggery” mark the relation of any given act to a prevailing set of attitudes toward sexuality in general. As a consequence, they are not, and have never been, consistent over time in the way that would support the definition advanced by the Majority.
3. What is “Sex?”: Difficulty of Specifying Forms of Sexual Expression
The Court purports to objectively delineate the scope of prohibited sexual activity with animals. But, to the contrary, this claim to objectivity masks a conservative sexual rhetoric that does not take into account the myriad ways that sexuality is actually experienced. The only neutral or objective definition of sex, a purely biological one such as “acts resulting in reproduction,” would exclude all forms bestiality entirely. Like pornography, the designation of “bestiality” requires subjective evaluation; you know it when you see it.
The Majority’s claim to articulate a “well-understood legal meaning” for bestiality relies on at least five related assumptions (at para 48):
1. that the Court both can and does know what Henry VIII, noted bigamist and religious zealot, was picturing (probably the appropriation of church assets by prosecuting monks, actually) when he banned sodomy in 1533 (at para 27);
2. that they know what members of the British Parliament were picturing in 1828 when they used the term “carnal Knowledge” (at para 28);
3. that they know what “any lawyer who was asked in 1892” was picturing when they said “buggery” (at para 48);
4. that they know what everyone pictures today when they hear the terms “penetration” or “sexual intercourse” (see above, they do not); and
5. that all of these actors are picturing the same thing.
As we have demonstrated, none of these assumptions hold. There is no single definition of any of these terms for the Majority to parse in a way that preserves its assumed mandate “not to change the elements of crimes in ways that seem to them to better suit the circumstances of a particular case” (at para 3). Sexual terminology always depends on the circumstances of particular cases. The ambiguity surrounding the term “bestiality” is not simply a consequence of Henry VIII forgetting to be more specific in laying out his sodomy statutes. Rather, such ambiguity is inherent to the issue of legislating sexuality in general.
The Court’s assumption that greater clarity is achieved by substituting “bestiality” with “intercourse” stems from the idea that sex is a certain, specifiable thing rather than an attitude that may or may not be associated with a given act. You cannot know precisely which acts constituted sex because it is different for everybody, and social ideas about what constitutes sexuality change over time. Some things we do with our genitals are not sexual, and we do some sexual things without using our genitals at all. Cleaning a house can be sexual, and digitally penetrating an anus can be nonsexual. There is no specifiable set of acts that are always sex to all people, including coitus.
Every time you interpret a sexual term you are making a judgment about the domain of possible activities that it encompasses. Failing to specify the precise boundaries of what that judgment includes—especially when you assume that these boundaries are obvious—reinforces harmful cultural hierarchies of gendered and sexual expression in which the fictions of a natural, normative, cisgender heterosexuality are institutionalized and perpetuated. We recognize that, for greater certainty, the law must strive for as much clarity and predictability as possible. But pretending that terms like “penetration” and “intercourse” achieve that clarity is not the means to do so, and admitting the subjectivity inherent to sexual terms does not undermine the Court’s objective of striving for clarity in the criminal law. Rather, it introduces the nuance necessary to adequately explore law’s intersection with sexual expression.
Insisting on the intelligibility of a term like “sexual intercourse” reinforces the pernicious conservative notion that non-procreative sexuality, such as homosexuality, is a “deviation” from the eternal, natural truth of procreative heterosexuality. These are the same attitudes that lead to views like homosexuality being a newfangled “lifestyle” that sexual perverts cooked up in the late 60’s and the rest of society is now obliged to tolerate. To be clear, tangible harm follows from the perpetuation of dismissive attitudes towards “alternative” sexual practices and orientations (especially when those attitudes are disseminated from Canada’s highest court). For example, this same attitude is present in the shockingly homophobic Republican party platform, which, among other things, expresses support for the idea that gay people might be “converted” back to an original, natural heterosexuality, from which homosexuality is really just a kind of misdirection. Similarly, the harmful insistence on specifying gender on government identification, the opposition to commonsense protections of transgender rights, and the increasingly vitriolic arguments over segregated washrooms, all stem from such an insistence on the reality of a sexual order that is purportedly destabilized by what are perceived to be “new” forms of sexual expression and identity.
Absent the sorts of concrete notions of harm around which we build laws like sexual harassment laws, animal abuse laws, and child abuse laws, it seems strange to be attempting to legislate sexuality at all. If, as the majority alleges, “there were (and still are) other provisions in the Criminal Code which may serve to protect children (and others) from sexual activity that does not necessarily involve penetration” (at para 116), then surely we also have laws to protect these same actors from sexual activity that does involve penetration. If it is redundant in one instance, then it is unclear why it is not redundant in the other. Though no one was arguing to strike down bestiality laws in this case, so far as we can see, there is no reason to uphold sexual prohibitions divorced from harm other than the belief in a transparent and legible sexuality that, frankly, does not exist. Even further, though it is beyond the scope of this post, we would argue that any law limiting sexual expression without a foundation in tangible harm unnecessarily restricts sexual liberty and relies on the outdated and pernicious notion that an orderly society can only be achieved through prohibitions that, in origin and substance, impose conservative sexual limitations on fulfilling expressions of sexual autonomy.
Despite the Court’s recent ruling in DLW, bestiality law in Canada remains at least partially inscrutable. Although we now know that Man’s Best Friend (with benefits) may legally lick genitals, we remain uncertain about how far our relationships can legally develop with some of Man’s Other Good Friends, like emus and pythons. In the end, “Bestiality” retains the imprecision of expressions like “Netflix & Chill”—little more than a euphemism that captures an undefined set of acts.
The judicial deference that the Majority bases its decision on is flawed. That deference, in this context, depends on the pretence that sexual terms have readily objective, transhistorical meanings. In other words, the Court’s ability to limit its role to ascertaining Parliamentary intent depends on the terms Parliament uses to express this intent remaining stable across time and among people. In this case, the Majority was so confident about buggery’s established meaning—both through time and among people—that it: (1) makes the surprising claim that “any lawyer who was asked in 1892 whether the offence of buggery with an animal required penetration would have replied in the affirmative” (at para 48); and (2) holds that this understanding of buggery persisted for decades and was retained by Parliament in 1955. However, as we have shown, these stabilities are absent with buggery. Without those stabilities, the Court cannot adhere to its own principles of statutory interpretation.
Further, the Court’s reasoning reinforces the pernicious belief in the supremacy of “traditional” sexual identities. In particular, the Court’s assumption that “penetration” and “intercourse” are clear objective terms reflects conservative sexual attitudes which prioritize procreative, heterosexual, and cisgender understandings of sexuality. While we recognize the historical limitations placed on the Court when ruling on such a “centuries old” offence (at para 126), its understanding of sexuality need not be “centuries old” as well. Indeed, if it recognizes the limited intelligibility of one set of terms, why cling to another, equally limited vocabulary?
Ultimately, we hope that when the Court next explores bestiality (and other sexual offences), it acknowledges the complexities of these offences’ histories, while advancing an understanding of sexuality that is inclusive of diverse sexual practices, and recognizes the “evolving social landscape” always necessarily informing contemporary sexual practice (at para 127). We do not claim that the Court need necessarily adopt a maximally inclusive understanding of sexuality whenever it delineates the scope of criminal law. Rather, we claim that accurately deferring to Parliament, even when interpreting potentially conservative legislation, requires a more nuanced understanding of the elasticity of sexual terminology and sexuality in general. That such an understanding would have been helpful here is amply attested to by the absurdity of the scenarios the judgment fails to account for, as well as the incredulity of media coverage about the judgment (see for example, “Most animal sex acts not against Canada’s bestiality law: court”; “Most bestiality is legal, declares Canada’s Supreme Court”; and “Canada’s Ridiculous Ruling That Oral Sex with Animals Is Legal Shows Need for New Bestiality Laws”).
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By: Kyle Gardiner
On June 30th, 2016, the Supreme Court of Canada denied leave to appeal in the case of Grenon v. Canada, 2016 FCA 4 (CanLII), which was heard in Calgary at both trial and on appeal. The Appellant Grenon was seeking to challenge certain aspects of tax law and policy under section 15 of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has only heard two previous challenges to tax law based on the equality rights guarantee in section 15 of the Charter. In Symes v. Canada,  4 SCR 695, 1993 CanLII 55, a challenge based on the inability to deduct childcare expenses as business expenses was unsuccessful. In Thibaudeau v. Canada,  2 SCR 627, 1995 CanLII 99, a provision requiring custodial parents to include child support payments in their income was also found not to violate section 15. It has been 21 years since the Supreme Court of Canada last heard an equality challenge to tax law. This post will focus on the missed opportunities resulting from the Supreme Court’s refusal to hear the Grenon appeal and some of the issues that have arisen in the past 20 years which it could have confronted.
After receiving a Shea Nerland Calnan LLP Research Fellowship in Tax Law, my research this summer for Professors Jennifer Koshan, Jonnette Watson Hamilton, and Saul Templeton involves analysis of the nearly 250 cases where section 15 Charter challenges have been brought to various aspects of tax law and policy since October of 1995. As mentioned, none of these challenges have succeeded in reaching the Supreme Court, now including Grenon v. Canada. Since Thibaudeau, the analytical approach to section 15 claims has been “continually reinvented” by the Court as Jennifer Koshan and Jonnette Watson Hamilton point out here. The section 15 framework’s ambiguities that have manifested since Thibaudeau are in need of clarification by the Supreme Court.
Mr. Grenon and his former spouse separated in 1998. They had two children who were minors at the time of separation. Mr. Grenon incurred legal expenses in proceedings contesting the amount of child support to be paid to his ex-wife. Mr. Grenon asked the Minister of National Revenue to adjust his 1999 income tax return to allow for a deduction of $11,816.21. This request was denied. When Mr. Grenon filed his 2000 income tax return, he deducted $165,187.70 for legal expenses incurred with respect to the child support proceedings. After the Minister denied this deduction as well, Mr. Grenon appealed the denial of those deductions to the Tax Court of Canada (2014 TCC 265 (CanLII)) and then to the Federal Court of Appeal (2016 FCA 4 (CanLII)).
There are three legislative provisions that have the combined effect of allowing the deduction of legal fees and costs incurred by a taxpayer (Ms. Grenon in this case) in obtaining, enforcing or varying child support payments, and simultaneously denying the deduction of the expenses incurred by taxpayers who pay child support (Mr. Grenon in this case).
Rennie J.A. summarized these provisions in the Federal Court of Appeal decision (at para 3):
Paragraph 18(1)(a) of the Income Tax Act (R.S.C., 1985, c. 1 (5th Supp)) (ITA) allows a taxpayer to deduct an expense if it “was made or incurred for the purpose of gaining or producing income from the business or property.” Subsection 248(1) defines property as including “a right of any kind whatever, a share or a chose in action.” To round out the legislation in issue, section 60 prescribes certain expenses which, in addition to those that fall within the ambit of paragraph 18(1)(a), are also permissible deductions.
“Property” in section 248(1) has been interpreted to include the right to receive child support. In Nadeau v. M.N.R., 2003 FCA 400 (CanLII), Noël J.A. noted (at para 28) that “the right to support is ‘property’ under the Act…and it is hard to dissociate this ‘property’ from the income which flows from the exercise of this right.”
The Statutory Interpretation Argument
Mr. Grenon made two arguments. Prior to making his Charter argument, he advanced a statutory interpretation argument submitting that he was entitled to deduct his legal fees because they were incurred for the purpose of gaining or producing income from property. As part of the settlement of the family law proceedings, Ms. Grenon agreed that she would reimburse Mr. Grenon when he spent money for the benefit of the children that she was otherwise required to spend under the terms of their agreement. Mr. Grenon submitted that this right to reimbursement was “property” within the meaning of section 248(1) of the ITA (at para 9, TCC). If this argument that “legal expenses incurred to resist a demand for child support…serve to increase or preserve his income” (at para 25) had been accepted, Grenon would have been able to deduct his legal expenses because those expenses would have then been incurred to gain or produce income, as required by paragraph 18(1)(a) of the Income Tax Act.
At the Federal Court of Appeal (at para 24), Rennie J.A. relied on Nadeau. Because Mr. Grenon had neither a right to child support nor a stream of income stemming from a property interest, and because his legal expenses were not incurred to “gain or produce” income from business or property, his argument was rejected (at para 26).
This result of allowing a child support recipient to deduct legal expenses and not permitting a payor to do so for the same proceeding is based on an odd and antiquated characterization of child support payments (as income from property in the hands of the recipient) that can have the effect of being unfair to payors. Mr. Grenon’s counsel characterized Nadeau as standing for the proposition that “child support payments are income from property, not because of any current logical basis for reaching that conclusion, but rather because the system has treated them as being income from property for so long that it is no longer feasible to treat them in any other manner” (at para 18, TCC). In the Tax Court of Canada decision, Graham J. stated that he was “sympathetic to this characterization of Nadeau,” and perhaps would have reconsidered that case if he were not bound by its reasoning (at para 18).
In my view, if the tax system has “effectively read in to section 60 of the Act a paragraph that permits recipients of child support to deduct their legal fees irrespective of whether those fees are actually laid out to earn income from property,” as Graham J. suggests it has (at para 18 TCC), the Supreme Court could have considered overruling Nadeau on this basis. Updating what seems to be outdated jurisprudence with no logical foundation could have lent some much needed clarification to the issue of whether or not child support recipients should be entitled to the deduction. This potential for clarification is one of the opportunities missed by the Supreme Court of Canada in their denial of Grenon’s leave to appeal.
The Section 15 Charter Argument
Turning to Mr. Grenon’s section 15 argument, he laid the evidentiary groundwork for this claim at the Tax Court of Canada level. At trial he made substantially the same Charter argument as was made at the Federal Court of Appeal. Graham J. had reviewed the expert evidence submitted by Mr. Grenon with a likely appeal in mind (at para 18 TCC). Unfortunately for Mr. Grenon though, the expert evidence was largely found to be less than robust and in some instances, biased. The most troublesome testimony came from Professor Paul Millar, an assistant professor of Criminology and Criminal Justice at Nipissing University. Taking Professor Millar’s report “with a significant grain of salt” (at para 21 TCC), Graham J. found that Professor Millar “cited studies performed by others without drawing my attention to various weaknesses of those studies, made significant logical leaps in his own report without clearly highlighting them for me, used the term “custody” to mean different things in different parts of his report” (at para 21 TCC).
While Graham J. was unable to give weight to much of the evidence introduced by Mr. Grenon, he did accept (at para 25 TCC) what would become a crucial piece of evidence on appeal, a Department of Justice statistic that 92.8% of child support payors are men.
Mr. Grenon argued that child support payors and payees are treated differently under the Income Tax Act, and that this distinction results in discrimination on the basis of sex and family status in violation of his section 15 Charter rights. For this argument to succeed, Mr. Grenon was required to show, as articulated by the Supreme Court in Withler v Canada (Attorney General), 2011 SCC 12 (CanLII), first, that the law in question created a distinction based on a ground enumerated in section 15 (i.e. sex), or a ground analogous thereto (i.e. family status). Second, Mr. Grenon was also required to show that this distinction created a disadvantage by perpetuating prejudice or stereotyping (Withler at para 54). Withler, the leading Supreme Court of Canada case on section 15 at the time, provided the framework for analysis used by the trial judge (at para 12, TCC) and the Federal Court of Appeal (at para 32).
The Federal Court of Appeal considered Mr. Grenon’s claim both as a claim of direct discrimination and adverse effects discrimination. Dealing first with the direct discrimination claim, the Federal Court of Appeal did not apply the Withler test for discrimination upon the ground of family status, as was advanced by Mr. Grenon (at para 6). Instead, the analysis proceeded on the basis of “those who have income from property”, the distinction drawn in the challenged provisions (at para 34). Because the foundation of this distinction was “the nature and source of income and the means of which it is produced” (at para 34) the distinction was not based on an enumerated or analogous ground. Mr. Grenon’s direct discrimination argument therefore failed.
The ITA provisions at issue were also characterized by the Federal Court of Appeal as “neutral on their face” (at para 33). Because laws which are facially neutral may “unintentionally have a disproportionate or adverse effect on a group or individual” (at para 36), the Federal Court of Appeal proceeded, where the trial judge did not, to consider “whether the provisions of the ITA, while not directly discriminating on the basis of gender and family status, did so indirectly and unintentionally” (at para 36).
For the adverse effects discrimination argument, the grounds of discrimination the Court used for analysis were sex and family status. For Mr. Grenon to have succeeded here, he was required to show that the cumulative effect of paragraph 18(1)(a) and the definition of property in subsection 248(1) limited his ability to deduct legal expenses on the basis of a personal characteristic, albeit indirectly. Rennie J.A. found that the provisions of the ITA at issue “affect men far more than they do women” (at para 38). Nevertheless, Grenon’s Charter argument failed “because it confound[ed] the underlying social circumstances with the consequences of the law” (at para 43).
I would suggest that Rennie J.A.’s assertion (at para 42) that paragraph 18(1)(a) of the ITA “does not affect men differently than women” illustrates the failure of the court to apply the concept of adverse effects discrimination. He writes, in the next two sentences, that “[w]omen payees are affected in the same manner and to the same extent as male payees. The impact of the law is, in terms of its effect, neutral” (at para 42). By switching focus to women payees and male payees, the Court is no longer proceeding with an analysis of adverse effects discrimination, the appropriate ground for which would be sex. Instead of focusing on substantive equality, which ought to be the goal of section 15 (see Withler, at para 2), a formal equality analysis is what results. Any chance of adverse effects discrimination being found is effectively derailed when the analysis switches (at para 42) to those who are similarly situated, as male and female payees purportedly are.
Consequently, Grenon v Canada becomes yet another case in which a claim for adverse effects discrimination was unsuccessful. For a thorough discussion of the Supreme Court’s approach to adverse effects discrimination under section 15 of the Charter, see Jonnette Watson Hamilton and Jennifer Koshan’s paper on the topic here. The adverse effects analysis in Grenon purportedly failed for causal-connection reasons, with Rennie J.A. stating that “while it is true that virtually all payors are men, and that it is mostly men that are denied the deduction, it is not a consequence of the legislation. There is no nexus between what the ITA requires and the consequence” (at para 39, FCA).
Beth Symes faced a similar challenge in Symes v Canada, where she was unable to prove a causal connection between the effect of section 63 of the ITA and the costs of childcare that women incur. Her challenge was similarly dismissed, Iacobucci J. stating that “[i]n order to demonstrate a distinction between the sexes within an adverse effects analysis, one therefore needs to prove that section 63 disproportionately limits the deduction with respect to actual expenses incurred by women” (at para 142). Like Grenon, she was unable to demonstrate a nexus between the legislation and the consequence. If an admissible finding that 92.8% of payors are men is not enough to support a successful finding of adverse effects discrimination, what would be? A useful clarification that the Supreme Court could have made if it had granted leave is the extent of the causal connection required between provisions of the ITA and the adverse impact it has on a particular group in order to make out an adverse effects discrimination claim.
Furthermore, the test for discrimination has been repeatedly modified since Symes and Thibaudeau, as alluded to earlier in this post. The framework was recently changed again with the decisions of Quebec (Attorney General) v. A, 2013 SCC 5 (CanLII) and Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 (CanLII). In these cases, it appears that the Supreme Court has shifted its definition of discrimination from the perpetuation of prejudice and stereotyping (see Withler at para 37) to the perpetuation of disadvantage. As Abella J. wrote in Quebec v A (at para 325), prejudice and stereotyping should be seen simply as “two of the indicia” relevant to whether there is a violation of substantive equality. The focus now appears to be on disadvantage. In Taypotat, the Court also seemed to suggest that the claimant must belong to a historically disadvantaged group in order to mount a successful discrimination claim (Taypotat at para 21). That is, a finding of discrimination seems to require proof of the law’s perpetuation of that historic disadvantage for the group in question.
If proof of historical disadvantage is required for a finding of discrimination, one must ask if men could ever mount a successful claim. Because it seems unlikely that men, as a group, would ever be convincingly characterized as historically disadvantaged in a general way, Grenon is a case where the Supreme Court could have clarified if the test has in fact changed to require proof of historical disadvantage or not. Limiting section 15 claimants to those who are historically disadvantaged would also raise questions about previous cases such as Trociuk v. British Columbia (Attorney General), 2003 SCC 34 (CanLII). In that case, a male complainant successfully argued that sections of the British Columbia Vital Statistics Act that allowed for the permanent exclusion of his particulars from his child’s birth certificate violated his section 15 equality rights, without a need to prove that he was a member of a historically disadvantaged group.
Graham J. did discuss, to a limited extent, one stereotype that may be active in the tax provisions challenged by Grenon: “the classic “deadbeat dad” stereotype” (at para 36, TCC). The context in which this stereotype was mentioned involved a discussion of the tax system, not the section 15 test for discrimination. Section 15’s analytical framework still includes stereotyping as one way to prove discrimination, but the “deadbeat-dad” stereotype is unique because it pertains to a non-disadvantaged group, namely men. The Grenon case would have been an ideal opportunity for the Supreme Court to clarify if use of such a stereotype, applied to a non-historically disadvantaged group, would have been enough to satisfy the test for discrimination under section 15.
Concerns About the State of the Law
It is worth pointing out that in addition to the Charter issues I have discussed here, Graham J. discussed some of his concerns about the current state of the law (para 33 TCC). In his view, “there are serious inequities that can arise when child support recipients are permitted to deduct the legal fees that they have laid out to establish child support payments and child support payors are not permitted the same deduction” (at para 33, TCC).
Whatever policy objective may exist to justify this outcome, it would not be, as Graham J. lamented (at para 33, TCC) “to give a financial break to the party with the greater financial need,” because a child support recipient with greater than 60% access will still receive the deduction even if she earns substantially more income than the payor. The objective could not be to “ensure the financial security of the children” because children in any case would benefit more from having both parents receive the deduction. The objective could also not be to “ensure access to justice because the subsidy is given to one parent and denied to the other regardless of their individual financial resources.” These are but some of the inequities that Graham J. indicated are “aching to be addressed by Parliament” (at para 33, TCC).
The Supreme Court’s refusal to hear Grenon’s appeal means that a number of issues will continue to need clarification. I confined my discussion here almost exclusively to Charter issues, but there are many others raised by the facts of this case that the Supreme Court could have addressed. Until such time, a great number of individuals will continue to be affected by them.
Research for this blog post was made possible by a generous fellowship received from Shea Nerland Law. For more information on the projects funded by this fellowship, click here.
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By: Amy Matychuk
Case Commented On: Voisey v Canada (Attorney General), 2016 ABQB 316 (CanLII)
In Voisey v Canada (Attorney General), 2016 ABQB 316, Justice Crighton of the Alberta Court of Queen’s Bench rejected an application for habeas corpus and awarded $1000 in costs to the respondent. Mr. Voisey, a federal prison inmate, tested positive for drug use and was subsequently involuntarily transferred from a minimum to a medium security prison. He challenged the transfer based on several grounds, alleging it violated sections 1, 7, 12 and 15 of the Charter (at para 10), it was unreasonable because he was not violent, it was based on unproven suspicion, and he should have received the least restrictive measures possible (at para 20). The court found that all his claims were meritless, though it did acknowledge that a few of them met the minimum threshold of being “legitimate grounds” for claiming his reclassification was arbitrary. The court concluded, following Justice Shelley in Rain v Canada (Parole Board), 2015 ABQB 747 that the respondent “incurred significant expenditure for no valid purpose. That makes this a case where a substantial cost award is justified.” (at para 34) It awarded $1000 in costs against Mr. Voisey, to be paid in $5 increments out of his biweekly paycheques of $15, and the remainder to be payable immediately upon his release.
This case raises questions about the fairness and effectiveness of awarding costs against self-represented inmates on unsuccessful habeas corpus applications. Should a self-represented inmate be responsible for costs when he brings an unintentionally ill-conceived challenge against a decision affecting his liberty? Should the rules for costs apply where liberty, not money, is at stake? Or should inmates, as Mr. Voisey himself put it, “not be forced to pay costs for enforcing [their] rights” (at para 29)? Will a costs award against an inmate be effective at discouraging other inmates from making unmeritorious applications? Although Justice Crighton applied the Alberta Rules of Court and relied on precedent in awarding costs against Mr. Voisey, the unusually high amount of costs cannot be completely explained using the Rules and case law. It is possible that the higher amount is due to Mr. Voisey’s conduct in court. However, even if this is true, it is not clear that costs awards are a fair or effective way to deal with vexatious self-represented inmates on unsuccessful habeas corpus applications because the rules of costs contemplate represented litigants, not self-represented ones.
In a civil action involving a represented litigant where money, not liberty, was at issue, the court’s award of costs in Voisey would have been entirely reasonable. The Alberta Rules of Court, Alta Reg 124/2010 direct that the successful party to an application is entitled to a costs award against the unsuccessful party (Rule 10.29(1)). The Rules outline the criteria the Court may consider when contemplating a costs award. These include “the conduct of a party that tended to shorten the action,” conduct by either party that “lengthened or delayed the action,” as well as whether an application or some part of it was “unnecessary, improper or a mistake” (Rule 10.33 1(f), (2)(a), and (2)(d)). Justice Crighton noted that the Rules also contemplate an increased award of costs in complex matters (at para 31; Schedule C, Column 1, s 8 of the Rules). Aspects of Mr. Voisey’s conduct certainly meet these criteria. He submitted “voluminous” and “not particularly well focused” materials (at para 31). The unfocused nature of his application presumably prolonged the amount of time the Court and the Respondent required to properly understand his complaint, and so may have lengthened the action as in Rule 10.33 (1)(f) and (2)(a). The extraneous portions of his “meritless” (at para 34) application were also unnecessary, as in Rule (2)(d). Although Mr. Voisey’s conduct meets criteria in the Rules that justify a higher costs award, he is in a situation where his liberty is at stake and he has very few legal resources at his disposal. As a self-represented litigant, he cannot be expected to draft materials with the same clarity as a lawyer, and so applying the Rules to him as they would be applied to a represented litigant seems unfair.
However, it is important to note that Justice Crighton’s decision did not only follow the Alberta Rules of Court, but also relied on Alberta precedent for awarding costs against an unsuccessful self-represented habeas corpus applicant. Even so, the costs awarded in Voisey exceed the costs awarded in the preceding case, Rain. In Rain v Canada, the inmate was ordered to pay $500 in costs after the court declined jurisdiction and found Mr. Rain’s application was neither reasoned nor well argued. But Rain can be distinguished from Voisey. The Rain court declined jurisdiction because there were other avenues of resolution and there was no deprivation of liberty. Conversely, the Voisey court took jurisdiction and held that Mr. Voisey’s transfer from a minimum to a medium security facility did constitute a deprivation of liberty. Although Justice Crighton ruled that Mr. Voisey’s application was “entirely unsuccessful,” she found some of his grounds for the complaint legitimate, though weak (at para 32). Mr. Voisey’s claim met more of the criteria required for a successful habeas corpus application than did Mr. Rain’s. Yet Mr. Voisey was ordered to pay double Mr. Rain’s costs. Given that parts of Mr. Voisey’s claim were legitimate, the higher costs award may be due to the aspects of his conduct that were objectionable under the Alberta Rules of Court. But as discussed above, the Rules are not designed for people like Mr. Voisey who challenge a limitation on their liberty without representation.
In New Brunswick, where the Rules of Court (NB Reg 82-73, Rule 59.02) outline similar criteria for a costs award, courts also order costs against self-represented inmates who unsuccessfully apply for habeas corpus. However, even this precedent does not fully explain the high costs award in Voisey. Two of the NB cases do mention aspects of the applicants’ conduct, but they do not expressly link the nature of the conduct to the costs. Firstly, in Wood v Canada (Atlantic Institution), 2014 NBQB 135 (Wood) the court held that there was no deprivation of liberty but that the inmate did raise legitimate grounds for his complaint, and costs were $750. The Wood court noted, “the applicant conducted himself in a respectful manner and mounted thoughtful arguments” (at para 67). Secondly, in Bird v Canada (National Parole Board), 2007 NBQB 96 (Bird) the court declined jurisdiction because the inmate had not exhausted alternative remedies, and costs were $950. The applicant in Bird asked for a number of strange forms of relief that could be characterized as improper (Rule 59.02(g)), such as “change of name, relief from taxation, forgiveness from God, title to land, title to and the right to occupy the Rodd Inn” (at para 31). Lastly, in Cain v. Canada (Attorney General), 2011 NBQB 47 (Cain) the court declined jurisdiction, and costs were $1000. The Cain court did not discuss whether or not the applicant’s conduct affected the costs award. In contrast to all of these, the court in Voisey not only took jurisdiction over the case but ruled that there was a deprivation of liberty and some grounds for the complaint were legitimate. In other words, Mr. Voisey’s argument was better than in any of the cases above, but the costs ordered against him were the same amount as in Cain, where the court declined to even take jurisdiction. Therefore, even in comparison to NB cases, $1000 still seems an unusually high award of costs.
It seems likely that Mr. Voisey received a higher costs award partially due to aspects of his conduct: his application was difficult to read, and his arguments were generally weak. If this is true, the question becomes whether or not imposing costs on inmates for ill-conceived habeas corpus applications is an effective way to discourage further unmeritorious actions. Understandably, courts wish to deal with as few badly drafted applications as possible. As the court in Wood notes, habeas corpus applications have a wide scope of review, which means there is very little disincentive for inmates to challenge administrative decisions affecting their liberty (at para 66). The threat of costs, from the court’s perspective, may be the only thing keeping habeas corpus applications to a manageable number. Indeed, in a normal civil action, the purpose of a costs award is to discourage vexatious litigation. The threat of being financially penalized should make those without a good argument think twice about wasting the court’s time and taxpayers’ money.
However, the logic of discouraging vexatious litigation through costs may not apply to inmates. First, inmates may not be aware of the way courts react to meritless habeas corpus applications. Their access to information is limited to whatever materials are available in prison libraries, and they cannot use the Internet or read CanLII. They are typical of self-represented litigants in that they struggle to navigate a complicated, unfamiliar procedural forum; their conduct may not reflect a desire to be vexatious, just an unfamiliarity with the legal system. Second, even if inmates did have access to cases, courts often use language that is difficult for a layperson to comprehend. Many inmates have not completed high school and do not have the skills necessary to wade through legal jargon. Even simple phrases such as “costs to the respondents” are opaque and confusing for those unfamiliar with legal language; to the untrained reader, it is not even clear whether the phrase means the respondents must pay costs or will be receiving costs. Third, inmates who must represent themselves because they cannot afford a lawyer have no way of knowing how to formulate and write a good habeas corpus application, and the steepest of costs awards will not help to enlighten them. Last, most civil proceedings involve situations where money, rather than liberty, is at stake. Using a costs award to discourage unnecessary litigation over money between represented parties is one thing, but using a costs award to discourage a habeas corpus claim involving a self-represented litigant amounts to financially penalizing Mr. Voisey’s attempted enforcement of his own human rights, which seems unnecessarily severe.
Another factor that should perhaps give courts pause about awarding costs against inmates is their severely reduced ability to pay. Indeed, Mr. Voisey advised the court that he earns $15 every two weeks, and now he must pay costs at a rate of $5 out of each paycheque: 1/3 of his entire income. In addition, the remainder of his costs will be payable immediately upon his release. Prison inmates often experience poverty, so it is unlikely he currently has the funds to pay the rest of his costs or will have them when he is released at the end of his 34-month sentence. In order to pay the rest of his costs, he will need to find a job—another difficult task for a recently released inmate because of the stigma of a criminal record. By reducing his current income and requiring him to pay the remainder of his debt immediately upon release, this costs award may prevent Mr. Voisey and other inmates in similar situations from successfully reintegrating into society and may also make them more likely to reoffend.
Justice Crighton’s decision to award $1000 in costs to the respondent cannot be fully explained either by reference to the Alberta Rules of Court or to case law in Alberta and New Brunswick. The decision as to costs seems targeted to discourage habeas corpus litigation that uses court time ineffectively. But given the importance of the liberty interest at stake, inmates’ lack of access to information and representation, and inmates’ doubtful capacity to actually pay a costs award, perhaps costs are not an effective way of discouraging frivolous habeas corpus applications. A more effective solution would be to ensure that inmates are able to access representation so that they are not responsible for drafting their own documents. If inmates had access to legal counsel, they would be able to both protect their liberty when necessary and refrain from burdening the court with vexatious litigation, enforcing their rights while also ensuring that only coherent complaints receive time in court.
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By: Jeremy Barretto
Decision Commented On: AUC Decision 3329-D01-2016, E.ON Climate & Renewables Canada Ltd., Applications for the Construction and Operation of the Grizzly Bear Creek Wind Power Project, May 19, 2016.
According to Alberta’s Climate Leadership Plan, renewable sources are expected to account for up to 30% of the province’s electricity generation by 2030—approximately triple today’s renewable generation. The provincial government is developing a competitive process to bring new renewable generation capacity to the grid, based on reports from an expert panel and the Alberta Electric System Operator. The first competition will be in Q4 2016.
As I’ve previously written, wind projects will likely obtain most government financial incentives, provided that such incentives are offered through a competitive auction for utility-scale renewable energy projects. That’s because upfront costs for wind energy projects are typically lower than other forms of renewable energy. The rapid development of wind energy in Ontario and recent Alberta decisions foreshadow potential vigorous opposition, and key process differences, for the anticipated flurry of new wind energy projects.
Seven years ago Ontario’s Green Energy Act, SO 2009 c 12 was introduced to increase renewable energy production, encourage energy efficiency and create green jobs. In Ontario most renewable energy projects must apply for and receive a Renewable Energy Approval (REA) from the Director, Ministry of the Environment and Climate Change (Ontario Regulation 359/09). Certain concerns can be raised by members of the general public in relation to a REA by appealing to the independent and quasi-judicial Environmental Review Tribunal (ERT). Before the ERT, appellants must establish that engaging in the renewable energy project, as approved, would result in serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment (see section 142.1 of the Environmental Protection Act, RSO 1990 c E.19). If the ERT makes such a determination it may revoke or alter the decision of the Director.
The Green Energy Act led to the rapid development of wind projects in populated rural areas. Residents in the vicinity of proposed wind projects in Ontario raised noise, health or environmental-related objections to some projects. For example, among the first ERT appeals of a wind project was Erickson v. Director, Ministry of the Environment, ERT Decision 10-121/10-122 (July 18, 2011). The appellants sought to have the REA for the Kent Breeze Project revoked on the basis that the project would cause serious harm to human health. The appellants raised numerous health concerns related to noise emitted from the proposed wind turbines, including noise annoyance and purported related symptoms such as insomnia, headache and dizziness. The ERT stated that, while there were legitimate concerns and uncertainties about the effects of wind turbines on human health, it could not conclude that the project as approved would cause serious harm to human health.
Alberta has decades of experience with wind energy, Canada’s first commercial wind farm was installed at Cowley Ridge in southern Alberta in 1993. The Alberta Utilities Commission (AUC or Commission) is the province’s independent, quasi-judicial electricity regulator. The Commission more recently considered a variety of health and related objections to proposed wind projects that previously appeared Ontario. The primary trigger for an AUC hearing occurs when a landowner, or other rights-holder, within close proximity to a proposed project objects to its AUC application. A number of Alberta wind projects have been approved by the AUC but are not yet built, awaiting details such as certainty regarding government policies or interconnections.
In Alberta, the AUC conducts the initial regulatory review of applications for new power generation plants and issues approvals. Under its legislation, the Commission must consider whether construction or operation of the proposed power plant is in the public interest, having regard to the social and economic effects of the plant and the effect of the plant on the environment (see section 17 of the Alberta Utilities Commission Act, SA 2007, c A-37.2). The Commission’s public interest determination involves a broad consideration of potential burdens and benefits of the project. This stands in contrast to the ERT’s narrower review of a REA based on serious health or environmental harms. Appeals of AUC decisions to the Alberta Court of Appeal are limited to issues of law or jurisdiction (see section 29 of the Alberta Utilities Commission Act, SA 2007, c A-37.2). This means that the initial AUC approval will typically involve a robust regulatory review of various project-related issues with limited avenues of appeal.
To determine whether a project is in the public interest, the Commission considers and balances the adverse and beneficial impacts of the project. In its previous Bull Creek Wind Project decision (AUC Decision 2014-040), the Commission said that a project will largely be in the public interest if the applications are in compliance with existing provincial health, environmental and other regulatory standards, in addition to the public benefits outweighing negative impacts.
The AUC hearing for the Grizzly Bear Creek Project, proposed by E.ON Climate & Renewables Canada Ltd., was conducted over two weeks in April 2016. It involved several interveners, including approximately 30 landowners who formed the Grizzly Bear Coulee Protection Group (GBCPG) to object to the project. On May 19, 2016, the AUC approved the project, with conditions, pursuant to the Hydro and Electric Energy Act, RSA 2000 c H-6.
The Commission deferred to environmental standards in its Grizzly Bear decision. The AUC stated that sign-off by Alberta Environment and Parks (AEP), which was previously obtained by the applicant, indicates that the impact to the environment, and specifically to wetlands, was acceptable to AEP. The Commission stated that it considers sign-off from AEP to be strong evidence that the project’s environmental effects will be acceptable.
In response to intervener concerns regarding noise related to the Grizzly Bear project, the Commission concluded that the results of the applicant’s noise assessment were reasonable and consistent with the requirements set out in the AUC’s own Rule 012. This rule applies to construction and operation noise from wind turbine facilities and requires that noise be within a permissible cumulative level (rather than a project-level only), including existing and approved third-party facilities. In the AUC’s view, the permissible sound level in Rule 012 is consistent with the World Health Organization guidelines.
The proponent and GBCPG’s experts disagreed on whether the permissible sound levels under Rule 012 would be protective of health. The AUC found that the evidence presented did not support the proposition that audible, low-frequency noise and infrasound from the proposed project will result in health effects. Furthermore, the Commission was satisfied that adherence to Rule 012 and the project’s nighttime permissible sound level will protect nearby residents from sleep disturbance and other potential health effects that could be related to turbine noise.
There are important differences between the ERT and AUC evidentiary processes. The Ontario ERT requires that experts be qualified by the Tribunal before their opinion evidence can be admitted. The ERT typically hears evidence from individual witnesses, with a focus on health, noise and environmental issues. The AUC assigns the appropriate weight to a witness’ opinion evidence and has not qualified expert witnesses in several recent facility hearings. The AUC formalized its practice of forgoing expert witness qualification in Bulletin 2016-07.
In its Grizzly Bear decision, the AUC said that if a witness provides evidence in areas outside his or her area of expertise this evidence is given the weight of a lay witness rather than the weight of an expert (citing its Heartland Transmission Project, AUC Decision 2011-436). Witnesses appear before the AUC as a panel, including representatives from the proponent, and these panels can cover a broad range of issues (e.g. health, noise, environmental, property valuation and public engagement, etc.). For the Grizzly Bear hearing, nine witnesses appeared for the proponent and the GBCPG put up eight landowners and five experts as witnesses.
The AUC’s consideration of a broad range of issues under its statutory public interest mandate means that wind developers may need to hire numerous experts to address any concerns raised by interveners in the regulatory process. Proponents may also be responsible for the reasonable costs of a local intervener’s participation (including legal counsel, expert witnesses and reasonable personal expenditures). The Grizzly Bear decision suggests that in response to objections to wind energy projects the AUC will: (i) give deference to existing standards (such as AEP sign-off); (ii) rely on its own Rule 012 as mitigation against noise and health-related concerns; (iii) consider a broad range of issues and evidence raised by intervenors; and (iv) potentially conduct multi-week hearings with large witness panels for both the applicant and intervenors.
It remains to be seen whether the AUC’s vigorous hearing process will result in public confidence in its decisions and avoid a groundswell of opposition and appeals against new wind energy developments.
Cassandra Richards provided research assistance for this article.
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