By: Nickie Nikolaou
Case Commented On: Denesik v Verhulst Estate, 2016 ABQB 36
Acquiring title through adverse possession in Alberta is difficult and successful cases are rare. For co-owners seeking to acquire shares of their fellow co-owners, making out a claim will be even more difficult and success even rarer. This is the message from the recent case of Denesik v Verhulst Estate, 2016 ABQB 36.
This case concerned an application for a declaration for title to three parcels of land through the doctrine of adverse possession (also known as “prescriptive title” or “squatter’s rights” in other jurisdictions). The land consisted of a 159 acre “home quarter” and two river lots totalling 96 acres. The home quarter and river lots were approximately 6 km apart.
The land had been acquired as part of a joint venture between the applicant, Mr. Denesik, and the late Mr. Verhulst. They had bought the land to harvest the timber on it and divide the profits. By 1995, operations had ceased. In 1996, Mr. Denesik moved on to the home quarter and lived there until the date of his application in late 2015. He lived in a trailer with a home-made water system and no electricity or gas. Mr. Denesik argued that his occupation of the land continuously over this time period had “ripened into ownership” (at para 5).
The application was brought against the Estate of Mr. Verhulst, who had passed away in 2008. Mr. Denesik sought title to the land pursuant to Alberta’s Limitations Act, RSA 2000, c L-12 (“LA”) and section 74 of the Land Titles Act, RSA 2000, c L-4. Verhulst’s Estate cross-applied, asking for an order for partition and sale under sections 15 to 17 of the Law of Property Act, RSA 2000, c L-7. The matter was heard before Master W.S. Schlosser in chambers.
Decision & Commentary
Master Schlosser began his analysis by noting that adverse possession is an “important but rarely used way of acquiring title to land” (at para 9). The required elements are that: (1) the true owner of the land must be out of possession of the claimed lands; (2) the claimant must be in use and occupation of the claimed lands; (3) the claimant’s use and occupation must be exclusive, continuous, open or visible and notorious for the requisite 10 year period, and (4) the fact of use and occupation by the claimant must be the only determinant while the belief, ignorance, mistake or intention of the claimant is immaterial.
Master Schlosser noted that a claim for adverse possession is based, in part, on the passage of time and the effect of limitation statutes. In essence, adverse possession arises as a way to claim title to land where someone has taken possession of land and the owner of the land has failed to respond within the statutory time period for bringing an action to recover the land. It is, as Master Schlosser remarked (at para 10), a significant exception to the principle of indefeasibility in Alberta’s land titles system.
Although the passage of time involved in this case spanned more than one limitation regime, Master Schlosser held that the language of the current LA applied. Through a combination of sections 3(1)(b), 3(3)(f), 3(4) and 3(6) of that Act, the time limit for someone to bring an action to recover land is “10 years after the claim arose”. More specifically, section 3(3)(f) states that a claim for an order to recover possession of real property arises “when the claimant is dispossessed of the real property”. In short, the “dispossession” must have lasted longer than 10 years.
So when is a claimant “dispossessed” of real property? Master Schlosser correctly noted that “dispossessed” is not defined in the LA and therefore resort must be had to the common law. Citing case law and scholarly commentary on the doctrine of adverse possession, he concluded that “mere use or occupation is not enough” (at para 15) and that “physical possession alone may not be enough” (at para 18). Moreover, not every type of possession will necessarily amount to a dispossession; at the same time, however, an “ouster” (or illegal dispossession) is not required. Instead, “the quality of possession must be such that the owner (or reasonable person in the position of the owner) realizes that he [sic] should assert his [sic] right or risk losing the land.” (at para 18). As stated by Professor Bruce Ziff, and cited by Master Schlosser, the type of use “must be such as to put the proper owner on notice that a cause of action has arisen” (at para 16).
So can a co-owner like Mr. Denesik dispossess a fellow co-owner like Mr. Verhulst for purposes of making out a claim for adverse possession? The short answer is, as Master Schlosser’s decision implies, yes, as matter of theory, but in practice, it will be very rare.
As Master Schlosser explained, as tenants in common, Mr. Denesik and Mr. Verhulst had equal rights to use and possess the entire property with no right of survivorship to the other’s interest. Citing case law, he noted that possession is not adverse to the extent that it refers to lawful title. Because a co-owner has lawful title, the burden on a co-owner to establish a claim for adverse possession “is much heavier” than in cases where “the adverse possessor has no [such] underlying right” (at para 22). According to Master Schlosser, the circumstances will have to be exceptional for one co-owner to “dispossess” another. The onus is on the applicant, here Mr. Denesik, to show the requisite level of dispossession.
Moreover, Master Schlosser referred to case law to conclude that it is irrelevant that the co-owner seeking title through adverse possession has only dispossessed the co-owner of uses the co-owner never intended or desired to make of the land. A co-owner’s lack of interest in a jointly-owned property is similarly not relevant. On the facts of this case, Mr. Verhulst had been indifferent to the land once the timber operations ceased. But this indifference to the property, or to the enjoyment of it by his co-owner, was not “in itself (…) enough to give Mr. Denesik title” (at para 24).
Mr. Denesik’s application was thus dismissed. Master Schlosser held on the facts that at no time was Mr. Verhulst dispossessed of his land, or “dispossessed to the point where he should have realized that he had to seek a remedial order to recover possession, or lose title” (at para 26). A co-owner putting a trailer on part of the land and living there was not enough to establish a claim to the entire home quarter, let alone to the river lots that were 6 km away.
Instead, Master Schlosser ordered partition and sale of the lands. The Verhulst Estate was ordered to sell its ½ interest in the home quarter to Mr. Denesik for $1, and Mr. Denesik was ordered to sell his ½ interest in the two river lots to the Verhulst Estate for an amount which equalled ½ of the difference in value between these two lots and the home quarter.
There is no doubt that Master Schlosser reached the right conclusion in this case. As first-year property law students will know, tenants in common like Mr. Denesik and Mr. Verhulst are entitled to exclusive use and occupation of their land vis-à-vis third parties, but they have no right to exclude one another from the land. Unity of possession characterizes all forms of co-ownership. This means that even though co-owners have a percentage share of ownership, they have a right to undivided possession of the whole. A co-owner cannot exclude another co-owner from a certain part of the land or restrict the use of any part of the land even if s/he has a larger share than the others.
Any reasonable person in Mr. Verhulst’s shoes would have simply assumed that Mr. Denesik was using the land as any co-owner would. Mr. Denesik had a legal right to be there and to use and enjoy the land. Master Schlosser is correct that for a co-owner to dispossess another, the circumstances will have to be exceptional. It is hard to think of examples, and Master Schlosser offers none. Ultimately, while it may be theoretically possible for a co-owner to make a claim to a co-owner’s share through adverse possession, as a matter of practice, success will be very rare.
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By: Jonnette Watson Hamilton
PDF Version: “On Its Own Motion”: Section 23.1(1) Judicature Act
Case Commented On: Lymer v Jonsson, 2016 ABCA 32 (CanLII)
This very short decision by the Alberta Court of Appeal made an easy, but very important, point in the process of allowing an appeal. Pursuant to section 23.1(1) of the Judicature Act, RSA 2000, c J-2, a judge can make an order that prohibits a litigant from commencing or continuing court proceedings without first obtaining the permission of the court. Such an order is commonly known as a “vexatious litigant order.” The judge can make such an order “on application or on its own motion, with notice to the Minister of Justice and Solicitor General.” The question on this appeal concerned the scope of the phrase “on its own motion” in section 23.1(1). The specific issue was whether litigants have the right to receive notice and be heard before vexatious litigant orders are made against them on the court’s own motion. Justices Peter Costigan, Marina Paperny and Thomas W. Wakeling determined that potential vexatious litigants did indeed have that right.
Vexatious litigant orders are made under the Judicature Act’s Part 2.1: Vexatious Proceedings. The procedures for making such orders and appealing from them are found in section 23.1 of that statute, the relevant portions of which are as follows:
23.1(1) Where on application or on its own motion, with notice to the Minister of Justice and Solicitor General, a Court is satisfied that a person is instituting vexatious proceedings in the Court or is conducting a proceeding in a vexatious manner, the Court may order that
(a) the person shall not institute a further proceeding or institute proceedings on behalf of any other person, or
(b) a proceeding instituted by the person may not be continued, without the permission of the Court.
. . .
(3) The Minister of Justice and Solicitor General of Alberta has the right to appear and be heard in person or by counsel on an application or a Court’s motion under subsection (1) or (4).
. . .
(5.1) Subject to the Alberta Rules of Court, any party to a proceeding under subsection (1) . . . before the Provincial Court, the Court of Queen’s Bench or a single justice of the Court of Appeal may appeal an order under subsection (1) . . . to the Court of Appeal.
This was an appeal from an order made by Justice Donald Lee in Lymer (Re), 2014 ABQB 696 (CanLII). Justice Lee was the case management justice for Mr. Lymer’s bankruptcy proceedings. At the time the vexatious litigant order was made, Mr. Lymer was self-represented (although he was represented by counsel on this appeal). Justice Lee prohibited Mr. Lymer from continuing or commencing proceedings in the Court of Appeal, Court of Queen’s Bench or the Provincial Court of Alberta without first obtaining the permission of the court in which the proceedings were to be conducted. His order was reasoned; it provided examples of seven different indicia of vexatious litigation that had characterized Mr. Lymer’s proceedings before the Court of Queen’s Bench over the past two years, including collateral attacks, persistent unsuccessful appeals, and allegations of conspiracy, fraud and official misconduct. However, Justice Lee’s order was not only made on his own motion, it was made without notice to Mr. Lymer or anyone else, and without giving Mr. Lymer or anyone else an opportunity to be heard. Justice Lee did not expressly address his authority to make a vexatious litigant order without giving the person to be affected by the order an opportunity to be heard. He merely stated that he was declaring Mr. Lymer to be a vexatious litigant on his own motion, noting that no application — perhaps read by him to include no notice — was necessary (2014 ABQB 696 (CanLII) at paras 9 and 57).
Because Justice Lee’s vexatious litigant order existed, Mr. Lymer needed permission to appeal that order. That permission was granted on two grounds: (1) whether Justice Lee failed to comply with the principles of natural justice, and (2) whether a reasonable apprehension of bias arose from the circumstances surrounding the making of the order. However, the Court of Appeal only considered the first ground in its decision.
The Court of Appeal agreed that a court could make a vexatious litigant order on its own motion (at para 3), as provided for in section 23.2 of the Judicature Act. However, that section does not expressly give a court the authority to dispense with notice to the litigant. The Court of Appeal affirmed that the rules of natural justice require a court to provide an opportunity to be heard to those who will be affected by the court’s order, and that failure to provide that opportunity is “fatal to the decision” (at para 3).
Most importantly, the Court of Appeal affirmed that these principles of natural justice apply in the context of vexatious litigant orders (at para 4). They relied upon the Ontario Court of Appeal decision in Kallaba v Bylykbashi, 2006 CanLII 3953 at paras 49-51, holding that because no meaningful opportunity was provided to the appellant in that case to be heard on the issue of a vexatious litigant order, the appellant’s right to hearing fairness was compromised and for that reason alone the vexatious litigant order could not stand.
While the sufficiency or meaningfulness of notice may be an issue in other cases, in this case it appears there was no opportunity to be heard at all. There was nothing in the record to suggest that Mr. Lymer was notified that Justice Lee was thinking about issuing a vexatious litigant order. As a result, Mr. Lymer’s appeal was allowed and Justice Lee’s vexatious litigant order was set aside.
However, it appears that Justice Lee continues to be the case management justice for Mr. Lymer’s bankruptcy proceedings. While the Court of Appeal did not address the second ground of appeal — whether a reasonable apprehension of bias arose from the circumstances surrounding Justice Lee’s making of the vexatious litigant order — no one should be surprised if the issue of bias is raised again by Mr. Lymer.
Neither did the Court of Appeal comment on the fact that Justice Lee did not give the Minister of Justice and Solicitor General notice that he was thinking about issuing a vexatious litigant order, as required by section 23.1(1) of the Judicature Act. Justice Lee instead stayed his order for thirty days to allow the Minister of Justice and Solicitor General to make submissions to change or vary the already-granted order. It appears that this way of proceeding is becoming more common in Alberta, even though there is no authority for it in section 23.1 of the Judicature Act. See, for example, R v Fearn, 2014 ABQB 233 at para 54 and Chutskoff v Bonora, 2014 ABQB 389 at para 138. Notice to the Minister of Justice and Solicitor General has been seen to have several purposes. The Minister of Justice and Solicitor General is a non-partisan third party who might want to speak to the purpose of the vexatious litigant provisions, or who might see a public interest that needs protecting in a particular proceeding, or who might want to keep a close eye on how the vexatious litigant provisions are being understood and applied in practice (Law Reform Commission of Nova Scotia, Vexatious Litigants (Final Report, April 2006) at page 26). Unfortunately, the Court of Appeal did not comment on the propriety of this way of proceeding and so the issue remains for another day.
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By: Shaun Fluker
Case Commented On: Canadian Parks and Wilderness Society v Maligne Tours, 2016 FC 148
In a decision issued February 8, 2016, the Honourable Mr Justice James Russell denied an application by the Canadian Parks and Wilderness Society and the Jasper Environmental Association for judicial review of a decision made by the Superintendent of Jasper National Park to approve in concept a new accommodation facility for the shores of Maligne Lake. The Applicants argued that the Superintendent acted unlawfully by making this decision outside of his authority and in contravention of the park management plan, and moreover that the decision is contrary to the overall first priority of maintaining or restoring ecological integrity in Canada’s national parks. The legality of the Superintendent’s decision in this matter rests on two determinations: (1) the legal status of the 2010 Jasper National Park Management Plan; and (2) whether the decision is in accordance with the legislated first priority of ecological integrity for the park.
This comment reviews the decision by Justice Russell in an imagined space. In a stunning political move, the Trudeau government has amended the Federal Courts Act, RSC 1985, c F-7 to establish the High Court of Environmental Justice. The mandate of this new Court is to hear de novo appeals from decisions by the Federal Court of Canada on environmental law issues. The Supreme Court Act, RSC 1985, c S-26 was also amended to remove any appellate jurisdiction by the Supreme Court of Canada over the High Court of Environmental Justice, with the exception of environmental cases where a constitutional issue is raised by a party. In announcing the creation of this new Court, the Minister of Justice and the Minister of Environment and Climate Change stated that ABlawg has been selected as the Court’s official reporter.
The Canadian Parks and Wilderness Society (CPAWS) and the Jasper Environmental Association (JEA) seek to have this Court quash the decision made by the Superintendent of Jasper National Park to approve in concept a new accommodation facility for the shores of Maligne Lake and prohibit the Superintendent from any further consideration of the proposal. The proponent of this new facility is Maligne Tours, a registered Alberta corporation with an existing lease on the shores of Maligne Lake to operate a day lodge, gift shop, and boat tours on the lake. In 2013 the Superintendent invited Maligne Tours to file a conceptual proposal for new facilities to enhance the visitor experience at Maligne Lake. The proposed new facilities included a 66 room hotel to be built on lands covered by the existing lease and a group of rustic tent cabins located on lands outside the existing lease. This latter fact is relevant to the legal dispute here. Parks Canada solicited public comment on this proposal, and received 1842 submissions. Only 19 of these submissions were in support of the new accommodation facilities.
In July 2014 the Superintendent issued a decision that rejected the hotel proposal and approved the tent cabin proposal in concept. The Superintendent rejected the hotel proposal on the basis that it was inconsistent with the ecological objectives for the region set out in the 2010 Jasper National Park Management Plan and would contravene guidelines that prohibit the construction of new overnight commercial accommodation in the park. Similar concerns were identified by the Superintendent in relation to the tent cabin proposal, however, the cabins were approved for further consideration because the scale of physical development and intensity of use was much lighter than with respect to the hotel. However a key aspect of this decision is that the tent cabin proposal, if approved, would require Parks Canada to release new lands to Maligne Tours.
The primary issue raised by the parties in this matter is that the 2010 Jasper National Park Management Plan (the Plan) expressly prohibits the release of any new land for overnight commercial accommodation outside of the town of Jasper. Section 4.7.1 of the Plan states that “[n]o new land will be released for overnight commercial accommodation outside the community.” CPAWS and the JEA argue that this section of the Plan is binding direction on the Superintendent such that he is unable to approve a conceptual proposal he knows the Plan does not allow to be constructed. CPAWS and the JEA moreover argue that by making his decision contingent on a possible future amendment to the Plan which would allow for construction, the Superintendent acted unlawfully by effectively usurping the statutory authority of the Minister to amend the Plan and table such amendments before Parliament. The Superintendent acknowledges that the Plan must be amended in order for shovels to hit the ground with respect to the tent cabins, but nonetheless he argues that (1) the July 2014 decision is not the final approval and only a decision to give the tent cabin proposal further consideration and subject it to an environmental impact assessment; and (2) the Plan is simply guidance and not binding on the Superintendent. In either or both ways, the Superintendent argues his July 2014 decision is not unlawful.
Justice Russell agreed with both of the Superintendent’s arguments concerning the Plan. He found that the Superintendent’s July 2014 decision does not approve the tent cabin proposal but rather is merely a decision to give the proposal further consideration, and accordingly there is no decision to release new lands contrary to section 4.7.1 of the Plan (2016 FC 148 at paras 76-78, 87). The ratio decidendi of Justice Russell’s judgment is that prohibitions in the Plan do not apply to these so-called preliminary or contingent decisions to give further consideration to a land-use proposal in a national park. Justice Russell states the law does not preclude Parks Canada or a parks superintendent from considering a proposal that does not comply with a park management plan (at para 92).
Justice Russell also throws a bucket of cold water on the Applicants’ position that a park management plan constitutes a legally binding document as subordinate legislation (at paras 88-91). While this aspect of Justice Russell’s ruling seems like obiter dicta and perhaps not worthy of close scrutiny, his reasoning is nonetheless problematic. Justice Russel does not apply the Supreme Court of Canada authority on the test for determining when a plan or policy document in form is legally binding subordinate legislation in substance (See Greater Vancouver Transportation Authority v Canadian Federation of Students, 2009 SCC 31 at paras 50-66). Justice Russell also seems to contradict himself by, on the one hand, acknowledging in several places of his judgment (see e.g. at paras 77 and 87) that the Plan will have to be amended and thus by implication does set out binding rules on the Superintendent, while on the other hand questioning the binding nature of the Plan itself.
In the opinion of this Court, these arguments and findings on the legal character of the Plan are fascinating legal fodder but they obscure the real problem here which is that the Superintendent failed to meet his burden to demonstrate that any consideration of this tent cabin proposal is consistent with the legislated duty in section 8(2) of the Canada National Parks Act, SC 2000 c 32 that maintenance or restoration of ecological integrity be his first priority when considering all aspects of the management of parks (emphasis added). In order to fully understand what this duty or obligation requires of the Superintendent and to illustrate why his decision is unreasonable, it is necessary to set out some context.
Maligne Lake was known as Chaba Imne by the Stoney and Cree peoples before it was given its colonial name in 1908 (Pearlann Reichwein and Lisa McDermott, “Opening the Secret Garden” in Ian Maclaren, ed, Culturing Wilderness in Jasper National Park (University of Alberta Press, 2007) at 155). The euro-american discovery of Maligne Lake is credited to Mary Schäffer, a wilderness romantic from the eastern United States who travelled west to escape the shackles of eastern civilization in her mid to late 40s by exploring in the Canadian Rocky Mountains. Schäffer documented her explorations and search for this elusive lake over the summer months of 1907 and 1908 in Old Indian Trails of the Canadian Rockies, a book published in 1911 as she was preparing to conduct an official survey of Maligne Lake for the Geological Survey of Canada. Schäffer found the lake using a hand drawn map provided to her by Sampson Beaver, a Stoney hunter from Morley (“Opening the Secret Garden” at 160-161). Some of the peaks surrounding this majestic glacial lake are named after members of Schäffer’s exploration party in 1908, including Mts Unwin and Warren, and Sampson’s Peak is named after the fellow whose sketch she followed in her 1908 expedition.
There is considerable irony in this story. Mary Schäffer was determined to find an undisturbed and wild Maligne Lake ahead of the railroad’s arrival and the extensive human development which would accompany these steel veins of progress, yet the publication of her explorations and her official survey of Maligne Lake almost certainly helped pave the way for the commercial tourism that arrived at the lake during the 1920s (See Gabrielle Zezulka-Mailloux, “Laying the Tracks for Tourism” in Culturing Wilderness in Jasper National Park at 233). The law and policy framework enacted over the following decades embraced a ‘parks for people’ ideology that would not be challenged until the rise of an ecocentric vision for protected areas in late stages of the twentieth century that called for non-human nature to be protected for its own sake and the realization that the western mountain parks are the last stand for some of North America’s most symbolic species including the grizzly bear.
Preservationists such as the Applicants in this case thought the tide had finally turned in their favour when Parliament enacted section 8(2) of the Canada National Parks Act in early 2001. Section 8(2) reads as follows:
Maintenance or restoration of ecological integrity, through the protection of natural resources and natural processes, shall be the first priority of the Minister when considering all aspects of the management of parks.
This enactment followed on the heels of a two year study commissioned by the federal Minister responsible for parks in 1998 to make recommendations on how to strengthen an environmental protection mandate for Canada’s national parks. The panel expressly recommended that the Canada National Parks Act be amended to ensure the maintenance or restoration of ecological integrity be the overriding priority in all parks management. The panel found that a stronger legislative mandate was needed to give Parks Canada the authority to say ‘no’ to development in the parks. Section 8(2) was Parliament’s response.
To say that section 8(2) has not lived up to this promise is an understatement (see Shaun Fluker, “Ecological Integrity in Canada’s National Parks: The False Promise of Law” (2010) 29 Windsor Rev Legal Soc Issues 89. A shorter and earlier version of this piece is available on SSRN). Environmental groups have been unsuccessful at every turn in having a parks decision overturned in judicial review on the ecological integrity mandate. The Federal Court has always deferred to how the Minister or a parks superintendent reads his or her mandate, which has oscillated between asserting ecological integrity and promoting commercial tourism over the years. In recent times, the balance has tipped heavily in favour of new commercial development to attract tourism in the western mountain parks. This so-called balancing act is more or less the same approach to governance that has existed in Canada’s national parks since inception in 1885, which is fine except that today this approach requires that the Minister and Parks Canada completely disregard the legislated ecological integrity mandate.
This of course raises a problem for the Federal Court, which had to find a way to defer to a Minister or government agency who disregards its legislated instruction from Parliament. The Federal Court established its method early on with its first ecological integrity case, where the Minister completely disregarded ecological integrity in her decision to approve a new road in Wood Buffalo National Park. The Federal Court held that the words ‘first priority’ in section 8(2) do not mean only or sole priority or even a determinative factor in parks decision-making (see Canadian Parks and Wilderness Society v Copps, 2001 FCT 1123 at paras 52, 53). This reading of the legislation lives to this day, and indeed in the present case the Superintendent once again provided Justice Russell with this tortured interpretation: “The Superintendent’s granting of first priority to the consideration of ecological integrity means that there are other priorities to be considered in the administration and management of national parks” (2016 FCA 148 at para 64). This Court fails to see how this reading of section 8(2) gives any meaning to the phrase “first priority”.
This Court agrees with the Applicants that the maintenance or restoration of ecological integrity as the first priority in the Maligne Lake region today means protecting the area as critical habitat for the Southern Mountain Caribou population that lives there. The caribou herd is protected as a threatened species under the federal Species at Risk Act, SC 2002 c 29 and Parks Canada itself acknowledges that maintaining what is left of the herd is one of the most pressing management challenges facing Jasper National Park. The evidence before this Court demonstrates that road mortality is already a problem for the caribou population at Maligne Lake in the absence of enhanced accommodation facilities which are likely to only exacerbate this issue. But the most persuasive evidence that the Superintendent did not give ecological integrity first priority in deciding to give further consideration to the tent cabin proposal is that the tent cabins would be constructed on lands which are presently being considered for designation as critical habitat for the Maligne herd in the Southern Mountain Caribou Recovery Strategy.
This Court finds that the Superintendent failed to demonstrate that ecological integrity was his first priority in approving the tent cabin proposal. The Court notes that the text in section 8(2) clearly indicates the provision applies to all aspects of parks management – interim or final decisions. The Superintendent’s approval of the tent cabin proposal in concept is hereby quashed. The Court also orders that the Superintendent is prohibited from any further consideration of the tent cabin proposal unless and until the Southern Mountain Caribou are no longer listed as threatened or endangered under the Species at Risk Act. In addition to seeking relief in relation to the tent cabin proposal decision, the Applicants have also asked this Court for a declaration on the ecological integrity mandate. The Court hereby declares that section 8(2) of the Canada National Parks Act requires that the Minister and her delegates (Parks Canada, the Superintendent or otherwise) make the maintenance or restoration of ecological integrity the determinative factor in parks management decisions. The intention of Parliament in enacting this provision was to ensure that ecological integrity trumps all other considerations in Canada’s national parks.
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By: Linda McKay-Panos
Report Commented On: Information and Privacy Commissioner, Public Interest Commissioner, Investigation Report on Alleged improper destruction of records by Alberta Environment and Sustainable Resource Development
On January 7, 2016, the Office of the Information and Privacy Commissioner of Alberta (OIPC) and the Public Interest Commissioner (PIC) released their Investigation Report on alleged improper destruction of records by Alberta Environment and Sustainable Resource Development after the 2015 Provincial Election (Investigation Report). When reading the highlights of the Investigation Report’s recommendations, one hopes that the current government might implement and retain some rules and practices that deter future events of this nature.
After the Alberta provincial election in May, 2015, there were a number of media reports about destruction of records during the transition to a new government (Investigation Report, at para 2). The OIPC issued a news release on May 7, 2015 to inform and remind Albertans of the provisions of the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIP Act) dealing with record destruction, while noting that some of the records were not subject to the same rules (Investigation Report, at para 6). On May 12, 2015, a disclosure of wrongdoing was made to the PIC under the Public Interest Disclosure (Whistleblower Protection) Act, SA 2012, C P-39.5, alleging that staff members of the Department of Sustainable Resource Development (ESRD) were instructed to move all briefing material into the Action Request Tracking System (ARTS), and all records would then be deleted (Investigation Report, at para 3). On May 13, 2015, the OIPC and the PIC announced that they would jointly investigate allegations that records within ESRD may have been destroyed in an unauthorized manner (Investigation Report, at para 9).
The joint investigation identified three issues:
The Investigation Report (at paras 23 to 67) describes the then existing Alberta Government’s rules regarding records retention and disposition schedule. Records in the custody and control of the government cannot be destroyed unless they can reasonably be identified as records that are in a pre-approved records schedule (Investigation Report, at para 24). Three types of records schedules govern records destruction and retention: operational (e.g., specific records of functions and activities of core services of a government department); administrative (e.g., housekeeping or administrative activities that support operational activities); and transitory (e.g., records that are not official records and have no further value or usefulness). The records held by Cabinet Ministers are also subject to rules, but they are divided into two categories: personal and constituency records not governed by the FOIP Act, and departmental and cabinet records, which are covered by the FOIP Act, but may be excepted from disclosure (Investigation Report, at para 36). The Investigation Report also analyzes the records management practices of the ESRD, both of the Department and the Minister’s office (at paras 39 to 45). The Investigation Report reproduced a Records Disposition Table of activity of ESRD from April to May 2015:
The Investigation Report also examines whether the rules for records disposition were applied consistently and whether the interpretation of the rules was sound and appropriate (at para 62). The destruction of 344 boxes of records from the Executive Office in May 2015 was examined to see if these records were destroyed following routine and authorized protocols. The Investigation Report (at para 114) was concerned about several aspects of this event. Some of the documents that were destroyed were not scheduled with proper approvals. Other records destroyed were not properly inventoried and did not contain any authorizations for the destruction protocol that was applied. In addition, the Investigation Report notes that the timing of the destruction of 344 boxes of executive records one day following the election raised questions about their destruction (at para 115).
While the Investigation Report noted that there was no evidence that records were destroyed to keep them from the incoming government, there was also no evidence to support the reasons for the change in the records retention disposition schedule that was applied to the records, which resulted in their destruction (at para 115).
The Investigation Report concludes on the first issue (at para 67) that the records destruction schedules are overlapping, confusing and difficult to interpret and apply to records generated by or for a Minister or Deputy Minister.
Compliance with Destruction Rules
To determine whether there was compliance with the destruction rules, the investigators looked at what directions were given from the Executive Council, Service Alberta, and department leaders about managing or destroying departmental ARTS records in preparation for the possible transfer of government. Further, they looked at the authorities and measures taken for managing retention and destruction of all records at ESRD, including those in ARTS (Investigation Report, at para 71). The Investigation Report concluded that the security arrangements made by SRD to protect against unauthorized destruction of records in ARTS were not reasonable (at para 91). However, no information was found to support the allegation that ESRD records were transferred to ARTS and then destroyed in this case. It was the general confusion surrounding ARTS records that directly contributed to the concern that the records may have been inappropriately destroyed (Investigation Report, at para 93).
Wilful Alteration, Falsification or Concealment of Records
Alberta Party’s MLA Greg Clark announced on May 8, 2015, that he was making several FOIP requests in an attempt to stop any shredding of government records (Investigation Report, at para 10). On the same day, Premier Notley directed all employees of Government of Alberta departments to suspend all document shredding (Investigation Report, at para 11).
To address allegations that there may be wrongdoing, the investigators reviewed the requests for access made to ESRD under the FOIP Act, and also reviewed the responses to the requests both before and after the May 5, 2015 election (Investigation Report, at para 96). The investigators determined that they did not find any indication that anyone in ESRD contravened subsections 92(1)(e) or 92(1)(g) of the FOIP Act (Investigation Report, at para 101). However, with respect to the records destruction process in general at ESRD, the Investigation Report (at para 112) concludes that program support, monitoring and accountability was inadequate, and presented an unreasonable level of risk that records may be destroyed in contravention of the Records Management Regulation.
Summary of Conclusions
The Investigation Report held that the destruction of 344 boxes of executive records was not in compliance with the rules that relate to the destruction of records under the Government Organization Act, RSA 2000, c G-10, and the Records Management Regulation, Alta Reg 224/2001 (at para 130). The investigators were unable to establish whether records were destroyed at the Minister’s office so they could not establish whether any records were destroyed in contravention of rules at that location after the May 5th election (at para 131).
Second, there was no evidence found of violations of FOIP Act subsections 92(1)(e) or 92(1)(g) with respect to FOIP requests received by ESRD in April and May of 2015 (Investigation Report, at para 132).
Third, security arrangements made by ESRD to protect against unauthorized destruction of records were not reasonable or sufficient (Investigation Report, at para 133).
Fourth, there was no evidence during the investigation of destruction of ARTS records during or following the current transition of government (Investigation Report, at para 134).
The Investigation Report made 16 recommendations to ESRD (and by Government of Alberta departments responsible) (at para 135):
While there was some notice of problems with records destruction protocols in this case, and there were some destruction practices that may raise eyebrows (e.g., 344 boxes in May), it seems that there is no one really being held accountable for the shortcomings of the process. Even if evidence of wilful destruction had been found by the investigation, the ultimately responsible persons are not in office any more and do not have to answer for their actions.
If the important philosophical purposes of the FOIP Act and regulations are to ensure transparency and accountability, it seems that at best we have closed the barn door after the horses have bolted. Perhaps the OIPC should consider investigating whether its recommendations are accepted and implemented throughout the Government of Alberta. It would seem that subsections 72(3) and 53(1)(b) of the FOIP Act authorize the OIPC to “investigate matters relating to the application of the Acts, whether or not a review is requested.” Hopefully, with the guidance and oversight of the OIPC, the current government can round up the horses and return them to their stalls.
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By: Alysia Wright
PDF Version: Access to Legal Services in Women’s Shelters
Report Commented On: Canadian Research Institute for Law and the Family, Access to Legal Services in Women’s Shelters
In December 2015, the Canadian Research Institute for Law and the Family (CRILF) published a new report, Access to Legal Services in Women’s Shelters, authored by myself and Dr. Lorne Bertrand, examining access to legal services among clients of women’s domestic violence shelters. The study sampled the views of staff and clients at three domestic violence shelters with the goals of improving understanding of clients’ legal service needs; examining the challenges clients attempting to access legal services encounter; and making recommendations for improvement. Although domestic violence affects both men and women, women are disproportionally victims of domestic violence compared to men and there are no shelters for male victims of domestic violence in Alberta.
We conclude that clients’ service needs are complex and often involve legal problems, yet shelters face specific organizational barriers to coordinating legal services. We recommend that a further Alberta-wide study be undertaken to examine the legal access patterns of women experiencing domestic violence, to assess the prevalence of the barriers identified in the study and to determine whether further barriers are present in other shelters.
As we were working with social service providers serving vulnerable populations, the methodology for this project was developed in a collaborative and participatory manner. The three agency partners worked with us to develop an 18-question client survey and distribute it to their clients. In addition to the survey, agencies made staff available to participate in agency-based focus groups. These groups were facilitated by myself and Dr. Bertrand and included a total of 15 staff members.
The client survey asked about how long the client had stayed at the shelter, which shelters they received help from, how many children they had with them during their stay, and numerous questions about their legal situation. Of 46 respondents, 36 had at least one legal issue while they stayed at the shelter, although the majority (n=24; 66.7%) had two or more legal issues. The purpose of the survey was to determine what legal issues were common among women who access shelters, what resources these clients access during their time at the shelter, and the client’s self-reported experience with using these resources.
The purpose of the staff focus groups was to identify how agency staff responded to legal issues presented by the shelters’ clients. To facilitate the focus groups, we developed a protocol that had areas of focus, which in turn informed the eight questions that guided the focus group. The areas of focus were based on existing literature and best practice standards in North American women’s shelters. Some of the focus areas were coordination protocols for providing holistic services to clients, community partnerships and resources used as referrals to legal services, staff engagement and training to respond to the complex socio-legal needs of clients, and follow-up strategies in order to track client outcomes after the client has left the shelter. The eight questions were then developed in order to flesh out these areas of focus, including engagement, exploration, and exit questions.
The approach used in this study allowed us to explore the intersections of staff and client perceptions. Both staff and clients recognized that the legal system is difficult to navigate, while the majority of clients expressed that navigating their legal issues was more difficult than they expected. When asked how clients would deal with their unresolved legal issues, many of the respondents said that they would access Legal Aid, followed by a preference for hiring a private lawyer. Staff were particularly concerned about the likelihood of clients accessing sufficient legal assistance through free or low-cost programs; staff and clients indicated that they are not satisfied with the legal assistance options available due to stringent eligibility guidelines, long application processing timelines and possibly with lawyer-client compatibility. Staff understood that hiring a private lawyer is a personal choice and that clients have the option to self-represent, but staff expressed concern that the complex nature of the legal system, client vulnerability, and lack of knowledge of the legal system may inhibit clients’ interest in or ability to self-represent.
The data show that clients often left the shelter with unresolved legal issues, possibly indicating that clients either do not expect that shelter services include legal assistance, or clients are not distinguishing their positive experience with the shelter staff from their legal issue. Clients reported feeling safe and secure in the shelters, and feeling particularly safe with staff. One staff member mentioned that clients may associate feeling emotionally safe in the shelter with feeling supported in their legal challenges; the staff member went on to explain that this can be a false sense of security and can be problematic when the client leaves the shelter and is working through her legal problems alone.
Both staff and clients reported that it would be helpful to have legal support onsite at the shelter. Non-traditional intervention strategies may provide clients with a safe and neutral place to access services, such as an agency that provides legal, social welfare, and childcare assistance in one place. The survey findings suggest that clients have multiple legal issues at the time of intake, particularly because many of the primary issues clients deal with, such as housing, income support, separation or safety concerns, involve a legal component. The findings from the survey suggest that staff need to be aware of the socio-legal challenges clients may encounter and the significant complexity these challenges may add to the client’s capacity to participate in their legal proceeding. Staff may also require more extensive legal education in order to efficiently assess their clients’ needs.
The comments of staff suggested that they felt it was the responsibility of shelters to provide or coordinate access to legal services for their clients. Staff agreed that legal issues were the thread of commonality throughout client management and safety planning, which supports the view that interpersonal violence (IPV) survivors may require immediate attention to their legal and social welfare needs in order to obtain safety and security for themselves and their children. Appropriate legal education training and strong relationships with legal professionals would increase the capacity of staff and management to adequately serve the complex socio-legal needs of their clients. In general, staff reported feeling responsible for the safety and well-being of their clients; this behavior can result in a form of gate-keeping between clients and resources, especially if a staff member is not confident or knowledgeable about the resources available. The process of providing numerous referrals to external services that do not result in a positive change or solution for the client is called referral fatigue. Referral fatigue can negatively impact a client’s well-being and staff are reticent to repeatedly refer clients to resources that may or may not prove beneficial.
In order to address referral fatigue and implement a coordinated strategy to provide legal services to clients in women’s shelters, staff and management have a responsibility to broker and foster relationships with legal service providers in their community. Management representatives in the focus groups reported that their agencies had difficulty brokering these relationships; it is apparent that the participating shelters are working at capacity and may not have the resources to develop these partnerships. Some staff said that they experienced referral fatigue due to perceived roadblocks to accessing external resources for their clients, which has the potential to prevent agencies from pursuing future relationships. Social service agencies and the justice system have numerous points of intersection; it is important that these systems participate in inter-agency collaboration.
While both staff and clients agreed on many points, one point of divergence was about working with police services. Of the ten clients who utilized the Calgary Police Service, the majority (n=7; 70%) said that CPS was helpful or very helpful and only 30% (n=3) said that CPS was unhelpful or very unhelpful. Staff reported that the relationship between shelter clients and police had been strained in the past; further, staff expressed concern with the level of compassion and appropriate response training police officers had with regard to domestic violence issues. The difference in opinion could be due to different interactions between police and staff members as compared to interactions between police and clients. There could also be a perceived power dynamic between clients and law enforcement that prevents clients from speaking negatively about police officers and other law enforcement officials. Whatever the cause, it was apparent that staff were skeptical of working with law enforcement and this may contribute to increased gate-keeping behaviors that exacerbate referral fatigue and reduced inter-agency collaboration.
This study required significant trust- and relationship-building due to its focus on vulnerable populations, and it was imperative that the project design address the resulting ethical and methodological issues prior to commencing the study. Despite the collaboration that was undertaken to prepare for this study, we experienced a number of challenges to getting the project off the ground.
The primary challenge involved recruiting agencies to participate in the project. IPV survivors are a group that researchers often want to work with. Unfortunately, research has become a process that many agencies do not have an interest in, particularly because of the frequently dehumanizing language used in social science research. Terms like subject, target demographic and data can cause agency misperceptions of the intentions of the researchers and consequently breed disinterest among potential partners. Trust and safety are cornerstones for work with vulnerable populations and should be applied in research practices. We were aware of this challenge and worked closely with potential agency partners to draft the survey tool.
Given the historical challenge of social service staff working over-capacity and doing a large amount of side-of-the-desk work, it is not surprising that management staff were skeptical of participating in a project that would require time or effort from already limited resources. As well, partnerships need to be brokered with the right staff in order to achieve the most positive outcomes.
Despite building rapport and trust with participating agencies, concerns were expressed about how the data would be used and reported. Data security is a priority for social service agencies working with vulnerable populations, as client safety and confidentiality is paramount to agency operations. Ethical research studies do not identify survey respondents or violate a client’s right to confidentiality. However, some agencies conflate the terms anonymity and confidentiality. Anonymity means that a research project either does not collect identifying information or that any identifying information collected will not be linked to responses. Confidentiality refers to collecting and retaining identifying information such as name, birthdates, phone numbers or other contact information in order to link responses to a specific individual but not divulging their information to third parties.
We had a responsibility to create a collaborative research framework that incorporated the characteristics of the participating agencies and was concise, clear and relationship-based. The results from this study suggest that social service organizations would benefit from creating a partnership strategy that supports social research and community relationship building. One agency said that while building partnerships with local legal professionals would be beneficial, there was no strategy in place to undertake the work, nor were there adequate human resources available to dedicate to the task of legal service coordination. Collaborative research may support the development of partnership strategies and fill the current gap between the social service sector and justice system.
The focus group discussions suggested that distrust of the justice system and its agents fosters an “us versus them” mentality between social service providers and the justice system. This gap could be mitigated by increased communication and establishing partnerships between the justice system and social services. Shelter staff are protective of their clients and resist referring clients to resources that they perceive will revictimize their clients; this gate-keeping behaviour could negatively affect a client’s ability to access resources or give credence to the perception that the justice system unnecessarily interferes with the client’s situation.
The findings from this study suggest that clients of women’s shelters in the Calgary area arrive with complex social service needs that often intersect with legal issues. It is apparent from the focus group findings and lack of internal legal supports that women’s shelters are facing organizational barriers to coordinating sufficient legal resources for clients. These barriers may include limited funding, lack of staff capacity and legal training, and limited to non-existent legal resource partnerships. Further research needs to be conducted to determine if these barriers are present in other Alberta shelters.
We also have to consider the importance of incorporating client and staff perceptions into service delivery models. Objective data collection and analysis may aid senior management in supporting their staff and clients in a holistic manner. It would be beneficial to work with regional shelter networks to complete a representative study of how clients are accessing legal services, what supports clients are seeking, how clients perceive the legal system, and how clients’ legal challenges intersect with other issues presented during their stay at the shelter.
In our view, there is significant value in studying the legal access patterns of women who experience intimate partner violence and the availability of legal assistance to vulnerable populations presenting with complex socio-legal needs. Further, there is value in working with social service agencies to identify systemic and organizational barriers that may contribute to staff referral fatigue, resistance to working with legal authorities, and reduced efficacy of service delivery to clients. Intimate partner violence is a wide-reaching issue that intersects socio-economic status across the province. Urban, rural and indigenous communities have both unique and shared needs that require significant study and planning to address. This work underpins the evidence-based approach that will inform collaborative practice between the justice system and women’s shelters to address the socio-legal issues that arise from IPV crisis.
This study provides data that support an Alberta-wide research project examining access to legal services among clients of women’s domestic violence shelters. There is a significant gap in the current literature about how women’s shelter clients are accessing legal services, particularly in the Canadian context. Social scientists and social service agencies have an opportunity to collaborate in the collection of original data that will support funding applications, improve existing service delivery models, and supplement staff training. A project of this scale requires the establishment of partnerships and the encouragement of trust within social service agencies. Although it is the responsibility of social scientists to foster these relationships, it is the responsibility of social service agencies to provide a space for conversation with researchers. It is also important to involve other partner agencies that work with clients experiencing IPV.
Finally, community-based lawyers and law practices have an opportunity to work with their local social service agencies and build collaborative relationships. Legal service coordination cannot and does not happen in a vacuum; it requires significant contributions from both lawyers and social agencies, including an awareness of the scope of work both groups undertake. This may require a reassessment of resource allocation, time management, or increasing staff capacity to facilitate these partnerships. While the current study did not survey or interview lawyers, it is our intention that a province-wide study will include the voices of lawyers and judges so that we can make more comprehensive recommendations for legal service coordination in women’s shelters.
The report is available for download, along with CRILF’s other recent work, in the Publications section of our website, here.
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By: Nigel Bankes
Decision Commented On: AUC Decision 20799-D01-2016, Finlay Group, Complaint Regarding FortisAlberta Inc, Distribution Line Rebuild Project, February 3, 2016
This decision of the Alberta Utilities Commission (AUC) involves the rebuild of a short 25 kV distribution by FortisAlberta Inc. Other than from the perspective of the landowners who owned property adjacent to the distribution line this could hardly be a matter of great moment, but the decision deserves a post because of what it tells us about what seems to be a gap in the regulatory rules governing the construction and operation of distribution lines in the province. The Commission does its best to fill that gap but it does seem odd that while a homeowner needs to “pull a permit” from the relevant municipal authority before doing electrical work in their home, there is no AUC permitting requirement that a distribution utility must satisfy prior to constructing new distribution lines or changes thereto. The absence of such a permitting requirement may make sense for a sophisticated entity operating a “behind the fence” generation and distribution system for a designated industrial system under s. 4 of the Hydro and Electric Energy Act (HEEA), RSA 2000, c H-16 (see generally, Nigel Bankes, Giorilyn Bruno and Cairns Price, “The Regulation of Cogeneration in Alberta” (2015) 53 Alberta Law Review 383) but it makes less sense when the distribution utility is providing an essential public service. On the other hand, the absence of a history of high profile complaints or adverse publicity for electric distribution utilities for their construction operations suggests that, in general, they have been doing a good job – and “if it ain’t broke don’t fix it.”
The Finlay Group objected to the way in which FortisAlberta was proposing to go about rebuilding the distribution line which was the subject of this inquiry, largely on the basis that the method of construction would involve cutting down trees which provided both privacy and noise reduction qualities for the Finlay Group landowners. The Finlay Group proposed other alternatives all of which were more expensive and would have involved disruptions in service. The Finlay Group brought their complaint to the attention of the Alberta Utilities Commission (AUC) which ultimately dismissed the complaint. My interest in the decision lies in the AUC’s assumption of jurisdiction and the basis of that jurisdiction.
The Law Pertaining to the Construction of Distribution Networks
Most electric distribution systems in Alberta are operated by utilities which have the exclusive franchise to operate those systems within a designated service area approved by the AUC under s. 25 of the HEEA. However, while the HEEA (ss. 14 & 15) requires AUC approval in the form of a permit and licence for the construction and operation of a transmission line, no similar AUC authorization is required for the construction, rebuild or operation of a distribution line, provided that the distribution line is within the utility’s designated service area. FortisAlberta therefore did not require AUC approval for its proposed rebuild. In fact as stated at para 32 “the AUC has no direct oversight or approval role for the routing, abandonment, removal or reclamation of distribution lines.”
How then did the AUC obtain jurisdiction to even consider the complaints of the Finlay Group? According to Commissioner Anne Michaud, the AUC has this jurisdiction by virtue of some combination of s. 8 of the Alberta Utilities Commission Act (AUCA), RSA 2000, c. A-37.2, ss. 85 and 87 of the Public Utilities Commission Act (PUA), RSA 2000, c. P-45, s. 6 of the HEEA and s. 105 of the Electric Utilities Act (EUA), SA 2003, c. E-5.1.
Section 8 of the AUCA provides as follows:
8(1) The Commission has all the powers, rights, protections and privileges that are given to it or provided for under this Act and under any other enactment and by law.
(2) The Commission, in the exercise of its powers and the performance of its duties and functions under this Act or any other enactment, may act on its own initiative or motion and do all things that are necessary for or incidental to the exercise of its powers and the performance of its duties and functions.
(3) In addition to the powers, duties and functions conferred or imposed on the Commission by this Act or any other enactment, the Commission may carry out any other powers, duties and functions determined by the Lieutenant Governor in Council.
(5) Without restricting subsections (1) to (4), the Commission may do all or any of the following:
(a) hear and determine all questions of law or fact;
(b) make an order granting the relief applied for;
(c) make interim orders;
(d) where it appears to the Commission to be just and proper, grant partial, further or other relief in addition to, or in substitution for, that applied for as fully and in all respects as if the application or matter had been for that partial, further or other relief.
The key subsection here must be subsection 2 which refers to other statutes which confer jurisdiction on the AUC and then refers to “all things that are necessary for or incidental to the exercise of its powers and the performance of its duties and functions.” But this cannot resolve the issue itself since, as already conceded, there is no express conferral of jurisdiction under the AUCA or the other statutes listed above with respect to distribution lines.
Sections 85 and 87 of the PUA provide as follows:
85(1) The Commission shall exercise a general supervision over all public utilities, and the owners of them, and may make any orders regarding extension of works or systems, reporting and other matters, that are necessary for the convenience of the public or for the proper carrying out of any contract, charter or franchise involving the use of public property or rights.
(2) The Commission shall conduct all inquiries necessary for the obtaining of complete information as to the manner in which owners of public utilities comply with the law, or as to any other matter or thing within the jurisdiction of the Commission.
87(1) The Commission may, on its own initiative, or on the application of a person having an interest, investigate any matter concerning a public utility.
(2) When in the opinion of the Commission it is necessary to investigate a public utility or the affairs of its owner, the Commission shall be given access to and may use any books, documents or records with respect to the public utility and in the possession of any owner of the public utility or municipality or under the control of the Alberta Energy Regulator or a board, commission or department of the Government.
(3) A person who directly or indirectly controls the business of an owner of a public utility within Alberta and any company controlled by that person shall give the Commission or its agent access to any of the books, documents and records that relate to the business of the owner or shall furnish any information in respect of it required by the Commission.
The PUA is a rate-making statute. It is certainly conceivable that the AUC could have the jurisdiction to order a regulated utility like FortisAlberta not to engage in more expensive re-build operations in order to meet the concerns of a small group of rate payers (unless they were prepared to cover the costs themselves). While this sort of issue might ordinarily arise in the context of disallowing costs at a rate hearing on the basis of a prudency analysis, the combination of these provisions plus s. 8 of the AUCA perhaps justifies the AUC inquiring into the matter on the basis of a complaint as to the utility refusing to incur certain costs; although if word gets out as to this possible avenue of complaint the Commission may be inundated!
Section 6 of the HEEA allows the AUC, of its own motion, to “inquire into, examine and investigate any matter referred to” in s. 2 which establishes the purposes of the Act. Those purposes are:
(a) to provide for the economic, orderly and efficient development and operation, in the public interest, of hydro energy and the generation and transmission of electric energy in Alberta,
(b) to secure the observance of safe and efficient practices in the public interest in the development of hydro energy and in the generation, transmission and distribution of electric energy in Alberta,
(c) to assist the Government in controlling pollution and ensuring environment conservation in the development of hydro energy and in the generation, transmission and distribution of electric energy in Alberta, and
(d) to provide for the collection, appraisal and dissemination of information regarding the demand for and supply of electric energy that is relevant to the electric industry in Alberta.
Both paragraphs (b) and (c) expressly refer to generation and ss. 2 and 6 read together must therefore allow the AUC to examine a matter relating to distribution if such a matter is drawn to its attention and the AUC concludes that it merits further inquiry.
Section 105 of the EUA, so far as relevant (and as quoted in the AUC Decision) provides as follows:
105(1) The owner of an electric distribution system has the following duties:
(b) to make decisions about building, upgrading and improving the electric distribution system for the purpose of providing safe, reliable and economic delivery of electric energy having regard to managing losses of electric energy to customers in the service area served by the electric distribution system;
(c) to operate and maintain the electric distribution system in a safe and reliable manner;
(m) to respond to inquiries and complaints from customers respecting electric distribution service;
While this section standing on its own can hardly be read as conferring any jurisdiction on the AUC (since it simply imposes duties on a utility), it can perhaps do so when read in conjunction with ss. 85 and 87 of the PUA quoted above.
All of this is to say that Commissioner Michaud is likely correct to conclude that the AUC has some complaint jurisdiction in relation to distribution lines by virtue of its general supervisory authority under these various statutes – but it sure is complicated! And it is also worth bearing in mind that the AUC’s general supervisory jurisdiction will only get it so far. Jurisdiction might have been far more contested if in this case the AUC had ordered FortisAlberta to adopt one of the solutions proposed by the Finlay Group. A set of cases that illustrates the distinction between general supervision and concrete relief is the line of AUC and Court of Appeal decisions dealing with the extent of the Commission’s regulatory authority over the Ventures pipeline: see posts here and here.
The current provincial government has lots on its agenda but in the course of crafting rules to encourage a diversity of generation to help the province meet its greenhouse gas emission reduction targets some thought might be given to re-writing the Hydro and Electric Energy Act and clarifying the relationship between this Act and the province’s main utility statutes. I made a similar comment in an earlier post dealing with the regulation of cogeneration in Alberta.
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By: Jennifer Koshan
PDF Version: Reflections on Week One of the Ghomeshi Trial
I posted on ABlawg last Monday on the legal consequences of choking in the sexual assault context, which I suggested would be a likely issue in the Jian Ghomeshi trial. The testimony at the first week of the trial indicates that the question of whether one can legally consent to sexual activity involving choking is less likely to be the focus than whether the sexual assaults actually occurred and / or whether there was consent to the sexual activity in fact. Much ink has been spilled on the scope of the cross-examinations of the two complainants (so far) by defence counsel Marie Henein and the consequences of her tactics for the rights of sexual assault victims and their willingness to come forward. I want to add my two cents worth by focusing on the scope of the rape shield provisions, the relevance of the relationship between the complainants and the accused, and the possibility of expert evidence in this trial.
Section 276 of the Criminal Code, RSC 1985, c C-46, is commonly known as the rape shield provision (along with section 277, which restricts evidence of sexual reputation), and provides as follows:
276. (1) In proceedings in respect of [a sexual offence] … evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
One important point to note is that although this section is often described as restricting “sexual history” evidence, it includes evidence of sexual activity that occurred either before or after the sexual activity that is the subject matter of the offence. If the defence intends to lead sexual history evidence, for example in cross-examining the complainant, they must apply to the court for permission to do so. The court may only admit such evidence where it relates to:
(a) … specific instances of sexual activity;
(b) is relevant to an issue at trial; and
(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice (s 276(2)).
The judge hearing the application must also have regard to several factors in deciding whether the sexual history evidence is admissible, including the right of the accused to make full answer and defence, society’s interest in encouraging the reporting of sexual assault offences, the need to reject discriminatory beliefs or biases, and the rights of the complainant to personal dignity, privacy, security of the person, and to the full protection and benefit of the law (s 276(3)).
Section 276 explicitly applies to “specific instances of sexual activity.” Whether the complainant has engaged in sexual activity before or after the alleged offence with the accused (or others) must not, “by reason of the sexual nature of that activity”, be considered relevant to whether she consented to the sexual activity in question or to whether she should be believed as a witness.
I would argue that the same rationale underlying this section should apply to communications and other conduct of a sexual nature in which the complainant engages, either before or after the alleged incident. For example, we should not consider her more likely to have consented on the occasion in question, or to be less credible, simply because she has engaged in sexualized communications with the accused after the fact. Our focus must still be on whether there was consent at the time of the alleged incident.
To hold otherwise would suggest that sexual assault is not possible in the context of an ongoing relationship – or at least that we should have heightened concerns about credibility and consent in that context. Take for example marriage, an example that one of the complainants, Lucy DeCoutere, raised in her testimony. In a spousal relationship, the parties may engage in consensual sexual activity or sexualized communications after an alleged incident of sexual assault, but this does not mean that a sexual assault did not occur. A complainant in this context may have all sorts of reasons for staying with her partner regardless of the assault, including dependency, fear, or even love. Nevertheless, we must still assess an alleged sexual assault by focusing on whether consent existed at the time of the incident, and to what specific sexual activity that consent existed, rather than drawing inferences of consent or lack of credibility based on the fact that the parties remain together and have sex or talk about sex. These are the requirements of section 276 of the Criminal Code, as well as consent provision in section 273.1 as interpreted in cases such as R v Ewanchuk,  1 SCR 330, 1999 CanLII 711 and R v JA,  2 SCR 440, 2011 SCC 28.
Unfortunately, courts in spousal sexual assault cases often allow sexual history evidence (including post-offence conduct) to “creep in” without application of section 276 of the Criminal Code (see Melanie Randall, Sexual Assault in Spousal Relationships, ‘Continuous Consent’, and the Law: Honest But Mistaken Judicial Beliefs (2008) 32 Manitoba Law Journal 144 at 158; Jennifer Koshan, The Legal Treatment Of Marital Rape And Women’s Equality: An Analysis Of The Canadian Experience at 44-45). But these instances are contrary to the requirements of the Criminal Code and should be resisted or appealed where they occur. The relationship between the parties – whether it is dependent, romantic or professional – should not attenuate the application of the rape shield provisions, and should not influence inferences about consent and credibility even where there is post-offence contact or communication of a sexual nature. Any other interpretation risks undermining the interests that courts must consider in sexual history applications, including society’s interest in the reporting of sexual assault offences, the need to remove discriminatory beliefs and biases from the fact-finding process, potential prejudice to the complainant’s personal dignity and privacy rights, and the right of the complainant to personal security and to the full protection and benefit of the law.
Another useful way to think about the problems with relying on post-offence conduct is to ask how we would treat this kind of evidence in a case involving a different offence – for example, assault rather than sexual assault, which also includes the element of lack of consent. As argued by UBC law prof Isabel Grant in an interview with the National Post, “We wouldn’t start questioning the victim about whether or not he likes being punched in the face. Was he dressed in a way that would invite punching in the face? Did he talk to the person after he was punched in the face? If you think about these arguments in other crimes, you start to see how absurd it is.”
And further to my point about the many reasons why complainants may stay with their partners, or maintain contact with professional colleagues following a sexual assault (even intimate contact), we must recognize that victims of sexual assault have a diverse range of responses to being violated. Lori Haskell gave an excellent interview on CBC’s The Current last week discussing the psychology behind reactions to sexual victimization. The Ghomeshi case may be an appropriate one for the Crown to call expert evidence to provide context to this issue. There are several examples of spousal sexual assault cases where expert evidence has been admitted by the court as useful to its understanding of the post-offence actions of the complainant (see The Legal Treatment Of Marital Rape And Women’s Equality: An Analysis Of The Canadian Experience at 43). While expert evidence of this kind may be thought more appropriate in a jury trial, we should recall that judges sitting alone may be influenced by myths and stereotypes about how sexual assault complainants should act before and after the alleged offence (see e.g. my post on R v Wagar, 2015 ABCA 327). This is not to say that expert evidence should be required; the word of the complainant should be enough. But we are not (yet) living in a world where we can be confident of that.
All of the attention on the fact that the first two complainants in the Ghomeshi trial had contact and communications with him after the alleged incidents is therefore misplaced, should not be seen as relevant to whether they are believable or whether they consented to the alleged sexual assault, and might usefully be contextualized by expert evidence so that rationales contrary to the rape shield provisions are not imputed to their behaviour.
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By: Erin Sheley
Case Commented On: R v Newborn, 2016 ABQB 13
The Court of Queen’s Bench has upheld the Alberta Jury Act’s exclusion from jury service of those criminally convicted or charged, in reasons that emphasize the conflict between the important goals of securing impartiality on individual juries and promoting racial representativeness in jury selection at the systemic level.
Jeremy Newborn, an aboriginal man charged with second degree murder in Edmonton, was granted an adjournment of jury selection after his counsel reported to the judge that none of the members of the jury array appeared to be of aboriginal descent. Mr. Newborn moved for a declaration invalidating s. 4(h) of the Jury Act, RSA 2000, c J-3, which provides that persons who have been convicted of a criminal offence for which a pardon has not been granted, or who are currently charged with a criminal offence, are excluded from serving as jurors. His argument turns on the fact that Aboriginal persons form a disproportionate percentage of the criminally accused, relative to their representation in the general population, and that the s. 4(h) exclusions therefore violate his right to a representative jury under ss. 7, 11(d) and 11(f) of the Charter.
In support of his motion, Mr. Newborn offered the testimony of sociologist Jacqueline Quinless, who testified that, given the aboriginal population of Edmonton, nine aboriginal persons would be the most statistically likely to be selected to compose Mr. Newborn’s 178-person jury array. She provided a sociological analysis of why that number was instead zero, including “the effects on indigenous Canadians of white race colonialism, racism and stereotyping, the residential schools experience, higher incidents of violence, higher rates of incarceration and involvement with the police, inferior educational opportunities and achievement, and higher mobility rates” (at para 20). She concluded that these factors, insofar as they have damaged the relationship between indigenous and non-indigenous Canadians, have resulted in indigenous Canadians being reluctant to serve as jurors (at para 20). Finally, she testified that while there are no definitive statistics on how many indigenous Canadians have criminal records, we can reason from their overrepresentation in the prison system (20% of the prison population, compared to the 2% they comprise of the general population) that they would form a significantly higher percentage of the 3.8% of Canadians who have criminal records (at para 21).
On the basis of this factual proffer, Mr. Newborn argued that the Alberta legislature must have been aware of the disproportionate effect s. 4(h) would have on the indigenous population and have intended to exclude members of that group from jury selection. To evaluate this contention the ABQB considered R v Kokopenace, 2015 SCC 28, decided by the Supreme Court while Mr. Newborn’s motion was pending. In Kokopenace, which also involved an appeal by an Aboriginal accused, the Court considered the appropriate constitutional test for representativeness under s. 11 of the Charter. In that case, the accused discovered that there might have been problems with including on-reserve Aboriginal residents on the jury roll.
Ontario compiles its jury rolls based on municipal assessment lists obtained from the Municipal Property Assessment Corporation (MPAC), which do not capture residents of First Nations Reserves (Kokopenace at paras 10-11). To compensate for this fact, s. 6(8) of the Ontario Juries Act, RSO 1990, c J.3, provides that the sheriff select names of eligible persons inhabiting each reserve and may obtain lists of names from any available records (at para 11). Because in practice this process is carried out by municipal authorities in the Court Services Division (CSD), the Ontario Ministry of the Attorney General provides guidance for its implementation (at para 16).
At the time of Mr. Kokopenace’s trial, the District of Kenora had been experiencing severe decreases in responses to jury summons from First Nations reserves, and the official tasked with compiling the jury list reported difficulties in obtaining updated lists of residents from the reserves. The record indicates her extensive efforts to update the jury roll, and the efforts of Ontario to provide its officials with the proper training necessary to do so (at paras 21-28). However, a 2013 report conducted by Justice Frank Iacobucci concluded that “the problem with the underrepresentation of on-reserve residents is deep-rooted and multi-faceted, and that it extends well beyond the difficulty of obtaining accurate source lists. It explains that the problem is linked to the long history of Aboriginal estrangement from the justice system and the mistrust of that system that has resulted” (at para 29).
To determine whether Mr. Kokopenace’s Charter rights were violated by a jury selected under these circumstances, the Supreme Court first needed to define representativeness and determine how it factored into the s 11 inquiry (at para 39). In defining representativeness, the Court focused on the fairness of the process rather than the production of a particular outcome (at para 39). The constitutional lodestar is the existence of “a representative cross-section of society, honest and fairly chosen” and with respect to the jury roll, “representativeness focuses on the process used to compile it, not the ultimate composition” (at para 40).
The Court then explained that the right to representativeness is tied to specific Charter rights: namely, the right to an impartial tribunal under s. 11(d) and the right to a jury trial under s. 11(f). Lack of representativeness will violate s. 11(d) only when it either (a) results in a deliberate exclusion of a particular group that would cast doubt on the integrity of the process and create an appearance of partiality, or (b) even in the absence of deliberate exclusion, the state’s efforts in compiling the jury roll are so deficient that they create an appearance of partiality (at para 50). However, the Court holds that lack of representativeness may violate s. 11(f) in a wider range of contexts, because the representativeness of a jury is a “key characteristic” of a jury itself (at para 52).
After Kokopenace, the test for whether the state has met its representativeness obligation is whether it “provided a fair opportunity for a broad cross-section of society to participate in the jury process,” which will be deemed to exist when the state makes reasonable efforts to “(1) compile the jury roll using random selection from lists that draw from a broad cross-section of society, and (2) deliver jury notices to those who have been randomly selected” (Kokopenace at para 61). The Court emphasizes that it is the process that determines the constitutionality, not the outcome, and notes “representativeness is not about targeting particular groups for inclusion on the jury roll” (at para 61). Specifically, the majority reasons reject the “results-based” approach advocated by Justice Cromwell in dissent, which would have looked beyond procedure to the actual representation of Aboriginal people on jury arrays. The Supreme Court therefore concluded that the state had made reasonable efforts to compile the jury roll and to deliver notices, and for that reason determined that Mr. Kokopenace’s Charter rights had not been violated (at para 106).
Applying Kokopeance to the facts of the Newborn case, the Court of Queen’s Bench pointed out that the Supreme Court’s reasons had specifically referred to the acceptable need to exclude certain groups of persons from jury rolls for practical reasons, including government officials and participants in the criminal justice system, both practitioners and accused (Newborn at para 44). Relying on the process-driven analysis of Kokopenace, the Newborn court held that the exclusion of the criminally convicted and accused is reasonable and acceptable because “a person who has been convicted of a crime, or is currently charged with a crime, is prima facie likely not to be impartial as between the Crown and the accused in a criminal proceeding” and the status “does not cease to be a reasonable basis for exclusion because of the ethnic origin of the person in question” (at para 30). The court explicitly stated that the exclusion does not become unreasonable on the basis that its effect is to exclude a proportionally greater proportion of Aboriginal persons from jury duty relative to persons of any other ethnic origin, even when such an effect would have been obvious to the legislature when it established the exclusion (at para 30).
Newborn, while logically coherent, points to a broader problem in jury selection generally. On the one hand, the ABQB’s decision flows fairly directly from the clear holding of Kokopenace. The Supreme Court explicitly rejected constitutional scrutiny of the results of a particular selection process. That being the case, the reasonableness of excluding potentially biased jurors, such as criminals, does not need to be constitutionally balanced against the substantive unfortunate outcomes such exclusions produce. The values that support the Crown’s position in Newborn relate to impartiality: to put it in plain English, we do not want accused like Mr. Kokopenace and Mr. Newborn, both of whom were on trial for homicides, getting off because a member of the jury was biased against the Crown for having been convicted of a crime him or herself. Yet they create a potential for systemic bias, if our jury arrays fail to adequately represent segments of the population.
These cases also raise even more pernicious concerns. The Supreme Court’s approach in Kokopenace does not take into account the cyclical relationship between substantive and procedural criminal law, or the relationship between law and society. In the first place, many legal scholars have observed that the justice system has the capacity to “silence” subordinate groups through its procedural rules, thereby denying their social power and contributing to the development of an underclass. (See Kimberly D. Bailey, “Deconstructing the Sound of Silence”,  BYU L Rev 1). While juror impartiality is important on a case-by-case basis, the principles of fundamental justice embodied in the Charter reflect not only the interests of the accused but broader social concerns: see R v Seaboyer  2 SCR 577, 1991 CanLII 76. The court should have considered the meaning of a fair cross-section in this light.
Even more subtly, the legitimacy of the criminal justice system to a given populace flows from its representation of socially shared norms of justice. For example, the body of scholarship on what has become known as the “utility of desert” shows that when the criminal justice system neglects shared social norms about justice—when it over or under punishes relative to what a community believes to be warranted—the system loses legitimacy. This loss of legitimacy results in an increased likelihood of law-breaking in the population at large (see Paul H. Robinson & John M. Darley, “Intuitions of Justice: Implications for Criminal Law and Justice Policy” (2007) 81 S Cal L Rev 1). The evidence presented by Mr. Newborn, not to mention the findings of the Iacobucci Report, suggest the criminal justice system lacks legitimacy among Aboriginal communities, a fact which impacts their complying with jury summons. But by allowing the group to remain silent in the actual process of criminal punishment, that illegitimacy will only take further hold. In other words, by failing to create procedures that make sure all social views about substantive outcomes are taken into account in assigning punishment, those excluded will be less likely to comply with the law in the first instance.
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By: Joshua Sealy-Harrington and Tara Russell
Case Commented On: Abbotsford (City) v Shantz, 2015 BCSC 1909
In Abbotsford (City) v Shantz, 2015 BCSC 1909 (Abbotsford), Chief Justice Hinkson of the British Columbia Supreme Court assessed multiple Charter challenges to various bylaws affecting individuals experiencing homelessness in British Columbia. Abbotsford continues a trend of recent Canadian decisions addressing the Charter rights of homeless individuals. While the Court in Abbotsford recognized a right for homeless individuals to camp overnight in parks when insufficient shelter space is available, that right is narrow since it can be eliminated through the expansion of homeless shelters (even though many homeless individuals legitimately prefer camping to a shelter). Further, that right rests upon an unclear foundation of legal reasoning that narrows the constitutional protections for homeless individuals without adequate justification.
A previous ABlawg post by Ola Malik and Megan Van Huizen provides a detailed summary of the facts in Abbotsford, so we will only provide a brief background here.
In essence, the Charter challenge in Abbotsford arose in response to a permanent injunction sought by the City of Abbotsford against a group of homeless individuals who formed a camp in Jubilee Park. Specifically, the four key events underlying the Abbotsford decision were as follows:
Abbotsford is one of many recent decisions implicating the Charter rights of homeless individuals, including:
While we were disappointed that the Supreme Court did not grant leave in Tanudjaja ONCA, as more cases involving the Charter rights of homeless individuals arise, the “public importance” of the nexus between homeless individuals and the Charter will hopefully justify judicial consideration by the Supreme Court (see Rule 25(1)(c)(i), Rules of the Supreme Court of Canada, SOR/2002-156; section 40(1), Supreme Court Act, RSC 1985, c S-26).
This post focuses on the Charter arguments raised in Abbotsford, namely, that the Bylaws and their corresponding enforcement violate:
The focus of Ola and Megan’s previous ABlawg post on Abbotsford mirrored the Court’s greater focus on section 7. In contrast, this post will focus on summarizing and critiquing the Court’s analysis of sections 2 and 15.
SUMMARY AND CRITIQUE OF DECISION
Violation of Rights to Liberty and Security of the Person (Section 7)
The Court held that the Bylaws and their corresponding enforcement violated section 7 of the Charter. Specifically, the Court held that:
The Court repeatedly qualified that the Bylaws deprived homeless individuals’ liberty and security only if there is insufficient shelter space to accommodate the homeless population (see e.g. paras 188 and 222). Further, the Court held that “there is insufficient accessible shelter space in the City to house all of the City’s homeless persons” (at para 82). In consequence, the constitutional right established under section 7 in Abbotsford is narrowed to a right to camp overnight in parks only if a municipality does not have sufficient accessible shelter space to accommodate them. We describe this constitutional right as narrow because it may, in effect, be overruled when cities respond to camping by homeless individuals with pledges expanding shelter space (a response which fails to take into account the various reasons why homeless individuals may legitimately prefer to sleep outside rather than in a shelter).
While the Court held that the Bylaws violated section 7 of the Charter, it held that the Bylaws and their corresponding enforcement did not violate the fundamental freedoms (section 2) or equality rights (section 15) of homeless individuals.
No Violation of Fundamental Freedoms (Section 2)
Insights from Free Expression Jurisprudence (Section 2(b))
While freedom of expression was not itself at issue in Abbotsford, the Court considered the free expression jurisprudence instructive to its analysis of other fundamental freedoms in the Charter, namely, free assembly and free association (see para 153). Undoubtedly, the Court’s observation that there is, apparently, “almost no case law on the nature or scope of the freedom of peaceful assembly in Canada” (at para 158) was part of its motivation for cross-pollinating the various freedoms in its analysis.
Specifically, the Court relies on the following three-part test for finding a violation of freedom of expression in its analysis of free assembly and free association:
Clearly, the Freedom Test is situated within the context of freedom of expression. However, the Court borrows from the established principles underlying this test in its effort to explore the nature of other less jurisprudentially developed freedoms under section 2 of the Charter.
No Violation of Free Assembly (Section 2(c))
The Court held that the Bylaws did not violate the freedom of homeless individuals to peacefully assemble.
Initially, the Court appeared to signal that the Bylaws may violate free assembly. The Court begins by stating that free assembly guarantees “access to and use of public spaces” (at para 158). Further, the Court is clear that public parks (the public space at issue here) are such a public space (at para 158). Accordingly, the Court appears to signal, at the outset, that free assembly may guarantee access to and use of Jubilee Park.
However, the Court then holds that free assembly is not “engaged” by the presence of homeless individuals in parks. The Court’s explanation on this point is lacking. The Court alludes to various concerns with interpreting homeless camping as a form of free assembly, namely:
But the Court fails to explain how these concerns relate to its holding that the Bylaws do not engage free assembly. Without more explanation, we are left guessing at the Court’s logic.
That said, when the Court’s “concerns” (the three points, above) are read in conjunction with the Court’s stated intent to borrow from the Freedom Test, the Court’s logic can be somewhat ascertained. Presumably, by saying that free assembly is not “engaged” in this case, the Court is saying that the conduct limited by the Bylaws (i.e. camping overnight in parks) fails the first part of the Freedom Test. Put differently, the Court is likely saying that camping overnight in parks is not protected because it is not the sort of free assembly intended to fall within the scope of section 2(c).
For example, when the Court states that public parks are not “generally intended” for residential purposes (the third “concern” listed above), the Court may be stating that the homeless individuals in this case are not protected by section 2(c) because their free assembly (camping) does not align with the historical and actual use of the location of that assembly (public parks). Indeed, many passages of the Court’s reasons suggest that the Court placed significant reliance on the fact that parks are not historically used for residential purposes in dismissing the free assembly claim:
These various passages suggest that the Court held that overnight camping in parks fails the first part of the Freedom Test because it is not the intended use of a public park and therefore not a constitutionally protected form of free assembly. However, the Court fails to articulate this clearly. It could be argued that relying on free assembly (under section 2(c)) to seek the basic necessities of life (which may fit best under a section 7 analysis) causes unnecessary overlap and confusion in Charter jurisprudence and fails to purposively interpret the Charter provisions at issue. But, again, the Court does not elaborate on these points.
In any event, the Court’s reliance on the “historical” uses of parks also fails to take account of how parks are now quite frequently used for residential purposes. Indeed, the Bylaws expressly permit individuals to stay overnight in parks with a permit (albeit with required fees and insurance inaccessible to homeless individuals; see Abbotsford, at para 22) and many recent cases demonstrate that homeless camping in parks is a growing phenomenon. If a precondition to free assembly rights is the intended purpose of the space in which a claimant seeks to assemble, courts will need to pay greater attention to how the intended use of different spaces evolves over time. This will be particularly important given that governments will presumably be more likely to resist the exercise of free assembly rights when individuals use spaces counter to their historically intended purpose (as this case illustrates).
In any event, the Court’s other concerns are even less clearly linked to the Freedom Test. For example, it is unclear how the Court’s concern that the Bylaws affect all citizens equally relates to free assembly. Indeed, a Federal law “equally” banning all citizens from ever protesting near Parliament would, at a minimum, “engage” section 2(c), even though that law applied to all citizens. In our view, the equal impact of the Bylaws more intuitively relates to discrimination under section 15 of the Charter than free assembly under section 2(c). Further, the fact that everyone’s right to free assembly has been infringed, if anything, amplifies the scope of infringement under section 2(c), rather than diminishing it. Accordingly, the other “concerns” the Court relies on to dismiss the free assembly claim cry out for elaboration (and, at first glance, appear flawed).
No Violation of Free Association (Section 2(d))
The Court’s freedom of association reasoning is much clearer.
Similar to its analysis of free assembly, the Court begins by describing free association in broad terms suggesting that it may be violated by the Bylaws. Specifically, the Court notes that free association “protects the choice to join with others, in spaces both public and private, recognizing the empowerment that comes from joining together in community and in pursuit of common goals” (at para 163). Further, the homeless individuals in Jubilee Park were making that very choice – joining one another in public space and in pursuit of common goals, including access to survival shelter, rest and sleep, community and family, and a safer living space (at para 25). Accordingly, the Court appears to signal, at the outset, that free association may protect the camp at Jubilee Park.
However, the Court then narrows the scope of free association to three discrete activities, namely, joining with others to:
(Abbotsford at para 167, citing Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 at para 66).
Based on this narrow scope, the Court denies the free association claim in this case because the Jubilee Park camp (allegedly) does not fall within any of the three forms of constitutionally protected association listed above (see para 168). Rephrased, the Court appears to hold that camping overnight in Jubilee Park fails the first part of the Freedom Test because such camping is not a form of constitutionally protected association.
The Court’s framework is analytically clear. But the Court appears to misapply that framework in its reasoning. The Court holds that associations formed in pursuit of other constitutional rights are protected by free association, and the Jubilee Park “association” was, arguably, such an association. The Jubilee Park camp was formed to access shelter, rest and sleep, community and family, and safety (at para 25), all arguably linked to life, liberty, and security of the person under section 7. Indeed, the Court held that the Bylaws violated the section 7 rights of homeless individuals. It follows that the Jubilee Park camp was, in effect, an association arguably formed in pursuit of other constitutional rights, and yet, the Court held to the contrary in dismissing the free association claim.
In addition, the Court erroneously reasons that there is no violation of freedom of association if individuals are able to freely associate in one permissible avenue of association, whether or not the government prohibits other legitimate avenues of association. Specifically, the Court holds that there is no violation of free association at Jubilee Park because those homeless individuals were able to freely associate in Court pursuant to their membership in DWS (at para 168). Surely a violation of free association cannot be cured simply because other associations more palatable to the government are capable of being formed. Indeed, extrapolating on this logic suggests that a claim of violated free association is automatically defeated once it is filed since its mere filing reflects the extent to which the individuals involved were still able to “freely associate” in advancing their legal rights. At the very least, the Court’s view that the capacity to associate in other forums precludes a violation of free association warranted more analysis.
Similar to its reasoning for freedom of assembly, the Court dismisses the freedom of association claim, in part, because public parks were not historically intended to be used as campsites (see paras 162 and 168). Presumably, the Court was of the view that all fundamental freedoms (expression, assembly, and association) are only protected when they are being exercised in a location where such exercise was historically anticipated to occur. But we can still only guess as the Court was not explicit on this point. And, as explained earlier, the Court failed to consider how the historical use of parks may not align with their current uses, particularly for homeless individuals.
In sum, the Court’s analysis of fundamental freedoms in Abbotsford was lacking, and amounts to a missed opportunity to develop the jurisprudence regarding fundamental freedoms in the Charter and to explore the constitutional rights of homeless individuals.
To be clear, our view is not that the fundamental freedoms should necessarily provide a right for homeless individuals to camp overnight in public parks. Rather, our concern is that the lack of analytical clarity in the Court’s reasoning deprives homeless individuals of that right without adequate justification. Section 7 may very well be the Charter provision most appropriate to addressing the concerns raised in Abbotsford. But section 2 may also apply, and its concurrent application with section 7 is material because section 7 only provides a right to camp when there is insufficient shelter space available – a limitation that may not apply to a violation of section 2.
No Violation of Equality (Section 15)
Lastly, the Court held that the Bylaws did not violate the equality rights of homeless individuals under section 15 of the Charter.
Three grounds of discrimination were alleged by DWS: two enumerated grounds (disability and race (i.e. Aboriginality)); and one analogous ground (homelessness).
The Court identified the two part framework for discrimination as follows:
(R v Kapp, 2008 SCC 41 at para 17).
Arguably, the second step was modified in cases subsequent to Kapp, and now looks more broadly at whether the distinction perpetuates prejudice, stereotyping or historical disadvantage (see Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 at paras 18-21). In any event, the Court erred in its analysis of part 1 of the equality framework. Specifically, the Court erred in its analysis regarding whether the Bylaws discriminated based on an enumerated or analogous ground; and whether the Bylaws created a “distinction”.
Misinterpretation of Analogous Grounds
The Court’s analysis of analogous grounds is inadequate because of its erroneous reliance on Tanudjaja ONSC.
The Court rejects the allegation of discrimination based on the analogous ground of homelessness because it rejects that homelessness qualifies as an analogous ground. It does so by relying entirely on the reasoning of Justice Lederer in Tanudjaja ONSC (Abbotsford at para 231), who held that homelessness cannot be an analogous ground because its members are a heterogeneous group. It is unfortunate to see other courts relying on Justice Lederer’s reasoning. As Joshua explained previously on ABlawg, Justice Lederer’s rejection of homelessness as an analogous ground was flawed because it:
A consideration of those factors discussed in the jurisprudence, in our view, should result in the characterization of homelessness as an analogous ground. In particular, as explained in Joshua’s earlier post, homelessness should be considered an analogous ground because of the difficulty in changing one’s status as homeless and the vulnerability and historical disadvantage the community has been subjected to and continues to be subject to.
In addition, the Court’s reliance on Tanudjaja ONSC in rejecting homelessness as an analogous ground in Abbotsford is also troubling because the definition for “homelessness” arguably differs in the two cases:
In effect, while Tanudjaja ONSC rejected homelessness as an analogous ground, the “homelessness” it rejected differed materially from the homelessness considered in Abbotsford. In consequence, it was likely inappropriate for the Court to simply rely on Tanudjaja ONSC, particularly given that Tanudjaja ONSC’s rejection of homelessness as an analogous ground turned on how the broader definition of homelessness it dealt with was too difficult to define (at paras 129 and 134).
Misinterpretation of Laws Creating “Distinctions”
The Court’s analysis of whether the Bylaws create a “distinction” is also inadequate because it fails to take “adverse effects discrimination” into account.
An understanding of four concepts is required to appreciate the errors made by the Court in its (lack of) analysis regarding adverse effects discrimination:
(See Jonnette Watson Hamilton & Jennifer Koshan, “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter” at pp 4-8 (“Adverse Impact”)).
An example from Adverse Impact clarifies the above concepts. Consider an office where all workers are required to work on Saturday, and which employs Seventh Day Adventists who, due to their religious beliefs, cannot work on Saturdays:
(See Ontario Human Rights Commission & O’Malley v Simpsons Sears Ltd,  2 SCR 536).
As the above example illustrates, the existence of adverse effects discrimination demands a more nuanced approach to anti-discrimination than merely ensuring that people are treated “equally” since treating people the same does not always promote substantive equality. The Supreme Court made this very point in its first section 15 decision where it held that “identical treatment may frequently produce serious inequality” (see Andrews v Law Society of British Columbia,  1 SCR 143 at 164).
The recognition of adverse effects discrimination is crucial to the realization of substantive equality (Adverse Impact at p 1). Indeed, the Court in Abbotsford acknowledged that the “past focus” on formal equality detracted from the focus of section 15, which is “the pursuit of substantive equality” (at para 227). Yet, despite this acknowledgment, the Court seems unaware of the adverse effects discrimination apparent in Abbotsford.
The Court’s two paragraphs devoted to analyzing whether the Bylaws create a distinction contrary to section 15 are a textbook example of a Court only considering formal equality (at paras 235-36, emphasis added):
The Impugned Bylaws are regulatory prohibitions, subject to exemptions, and are neutral on their face. While there has been historic mistreatment of Aboriginal people and the disabled, it does not follow that they, as compared to other groups, have been prejudiced in some manner that is connected to the Impugned Bylaws. Nor is the enforcement of the Impugned Bylaws against the homeless treatment that differs from the enforcement of the Impugned Bylaws against anyone else. While the effect of the Impugned Bylaws may have a greater impact on those who are homeless, that is not because they are being treated any differently than those who are not homeless, disabled or due to their racial backgrounds. DWS has not established that the Impugned Bylaws have the effect of perpetuating disadvantage or prejudice. I am not persuaded that an infringement of any of DWS’ members’ s. 15 Charter rights has been made out on the evidence before me.
Beyond a passing reference to the Bylaws not “perpetuating disadvantage or prejudice”, the above paragraphs repeatedly state the same basic point: the Bylaws apply equally to all citizens (i.e. the Bylaws satisfy formal equality). To be frank, how the Bylaws were enforced casts doubt on even formal equality being met in this case. In particular, it is unlikely that the “disgraceful” displacement tactics employed by the City against homeless individuals (which included the use of bear/pepper spray, damaging tents and personal property, and spreading chicken manure on a homeless camp; see paras 100, 105, and 115) would have been employed against other less marginalized populations. In any event, the neutral language of the Bylaws, at best, only shows that they meet the requirements of formal equality and do not directly discriminate against homeless individuals. This analysis, which disregards substantive equality, is therefore incomplete.
That the Court’s equality analysis is incomplete is reinforced by the Court’s factual findings that undeniably raise concerns about the Bylaws adversely impacting homeless individuals. In the Court’s own words:
Although it is strictly speaking correct that the Impugned Bylaws are not directed at group encampments as compared to individual encampments, the effect of their application affects the homeless far more than it affects others (Abbotsford, at para 223, emphasis added).
The disproportionate effect of the Bylaws on homeless individuals should come as no surprise. Parks are used by the general public for infrequent recreational purposes. In contrast, parks may be used by homeless individuals for daily shelter, community, safety, and even survival.
The Court affirmed (1) the centrality of substantive equality to section 15 and (2) the disproportionate impact of the Bylaws on one of the most marginalized communities in Canadian society. Yet the Court completely disregarded the presence (or even the possibility) of adverse effects discrimination. As a consequence, Abbotsford continues an unfortunate trend in Charter jurisprudence of:
(See Jennifer Koshan & Jonnette Watson Hamilton, “The Continual Reinvention of Section 15 of the Charter” (2013) 64 UNBLJ 19 at pp 21 and 49).
Abbotsford presents a limited victory for homeless individuals in British Columbia under section 7 of the Charter: the right to camp overnight in parks when there is insufficient shelter space available. But the Court’s summary dismissal of the claims based on sections 2 and 15 of the Charter is deeply troubling. In effect, once more shelter space is made available, homeless individuals will likely have no constitutional protection to camp in public parks. Given the many legitimate reasons why homeless individuals may prefer camping in parks to staying in a shelter, recent pledges to expand shelter space may, ironically, be a burden to homeless individuals whose constitutional right to camp in parks will be eliminated.
The Court’s judgment in Abbotsford is also troubling from a jurisprudential standpoint. The Court’s narrow (and, at times, analytically confusing) approach to sections 2 and 15 fails to provide greater clarity to these underdeveloped Charter rights. As neither side elected to appeal the decision in Abbotsford, appellate intervention is no longer possible. However, when the Charter rights of homeless individuals make their way back into the courts (which is likely, as disputes between municipalities and homeless individuals are ongoing), we sincerely hope a clearer and more expansive interpretation of the Charter will prevail. Until then, Canada’s constitutional promise of freedom and equality for homeless individuals will remain un-kept.
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By: Allan Ingelson
This is the fifth national environmental law symposium funded by Environment Canada (now Environment & Climate Change Canada), organized by the Canadian Institute of Resources Law (CIRL) in the Faculty of Law at the University of Calgary, and its partners. During the last four years, practitioners, judges, and academics from across Canada have attended either in person or online and have contributed questions and comments to the discussion of current important environmental law issues. Last year we had 299 registrants from across Canada and in the United States. This year one presenter (Jonathan Leo) will discuss the American experience with environmental inspections and enforcement actions. Registrants can obtain the symposium program and papers in both official languages. Symposium presentations will be in either French or English, depending on the speaker, and will address civil and/or common law perspectives. Attendees at previous symposiums have reported that the information that has been provided is both practical and useful. We encourage active audience participation in the panel discussions. Last year the symposium was held in the Faculty of Law at the University of Calgary. This year the national symposium has been organized by CIRL, the Faculty of Law at the University of Ottawa, and the Ontario Bar Association.
The free symposium will examine major issues that arise in the course of environmental inspections and enforcement actions, starting with the decision to prosecute and proceeding sequentially through key decision points, ending with available defences. The symposium will be conducted by some of the leading environmental law scholars and practitioners from across Canada, reflecting both civil law and common law perspectives. The papers to be presented and discussed will be posted on the CIRL website.
The key topics that will be considered include:
Janet Bobechko, Partner, Norton Rose Fulbright Canada LLP, Toronto
Dan Bunner, Principal, Ramboll Environ Canada, Inc., Mississauga
Jack Coop, Partner, Osler, Hoskin & Harcourt LLP, Toronto
Rosalind Cooper, Partner, Fasken Martineau DuMoulin LLP, Toronto
Jennifer Fairfax, Partner, Osler, Hoskin & Harcourt LLP, Toronto
James D. Flagal, Counsel, Ontario Ministry of the Environment and Climate Change, Toronto
Jonathan Leo, Attorney, State Bar of California, U.S.A.
Dr. Elaine MacDonald, Senior Staff Scientist, Ecojustice, Toronto
Fred Maefs, Counsel, Ontario Ministry of the Environment and Climate Change, Toronto
Heather McCready, Executive Director of Environmental Enforcement, Environment and Climate Change Canada, Gatineau
Paul McCulloch, Counsel, Ontario Ministry of the Environment and Climate Change, Toronto
Martin Olszynski, Assistant Professor, Faculty of Law, University of Calgary
Katia Opalka, Adjunct Professor, McGill School of Environment, Montreal
For those interested in attending in person, the symposium this year will be held at the University of Ottawa, DMS Desmarais Room 12102, 55 Laurier.
You can participate in the symposium online via live webcast. The symposium format will allow for questions from both audiences. In both cases, registration is required. A password for the webcast will be forwarded to registrants allowing access to conference materials.
Papers and Other Materials
Registrants can download papers and other materials that will be available in both official languages.
There is no registration fee, but participants must register online. A password will be supplied to registrants in order to access materials and recordings. To register, please visit the EventBrite conference webpage.
The time spent attending this program may be applied towards the annual CPD requirement in all mandatory continuing professional development jurisdictions.
Sue Parsons, Canadian Institute of Resources Law
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By: Jennifer Koshan
Case Commented On: R v White, 2016 ABQB 24
The Jian Ghomeshi trial gets underway today and there is likely to be intense coverage of this event in the media and blogosphere (for earlier ABlawg posts on Ghomeshi see here and here). Ghomeshi is charged with 4 counts of sexual assault as well 1 count of overcoming resistance by choking. Choking is not uncommon in sexual assault cases, although its legal significance is still somewhat murky. For example, in R v JA,  2 SCR 440, 2011 SCC 28, the Supreme Court declined to rule on whether choking that leads to unconsciousness amounts to bodily harm so as to vitiate consent (at para 21). A recent Alberta case, R v White, 2016 ABQB 24, considered the relevancy of choking in the context of sentencing for sexual assault offences. As I will discuss in this post, White suggests that choking should be seen as equivalent to bodily harm in this context, which may have implications for sexual assault matters more broadly.
First, a few words on what the Supreme Court did and did not decide in R v JA. As I noted in my earlier post on that case, it stands for the proposition that advance consent to sexual activity that takes place while the complainant is unconscious or asleep is outside the scope of the consent provisions of the Criminal Code (see RSC 1985, c C-46, sections 273.1 and 273.2). The facts of JA involved the complainant KD being choked into unconsciousness by her partner. The trial judge found that KD consented to erotic asphyxiation, and that she did not experience bodily harm because the unconsciousness “was only transient” (2011 SCC 28 at para 11). Nevertheless, she convicted JA of sexual assault because she found that KD had not consented to the sexual activity that occurred while she was unconscious, nor could she as a matter of law. At the Ontario Court of Appeal, the majority rejected the Crown’s argument that KD’s consent was vitiated by the intentional infliction of bodily harm through choking. Although it found that the trial judge had committed an error of law in her analysis of bodily harm, JA had only been charged with sexual assault simpliciter, and thus bodily harm could not be relied upon to vitiate consent (2011 SCC 28 at para 17). The Crown did not appeal this holding, so the issue of whether choking amounts to bodily harm and whether it vitiates consent was not before the Supreme Court. According to Chief Justice McLachlin, writing for the majority:
Since the issue of bodily harm is not before this Court, I take no position on whether or in which circumstances individuals may consent to bodily harm during sexual activity. In my view, it would be inappropriate to decide the matter without the benefit of submissions from interested groups (at para 21).
As a result, the issues of whether choking amounts to bodily harm, and whether choking should vitiate consent in sexual assault cases, are still outstanding. To put it another way, it is still an open question whether a person can consent to being choked into unconsciousness in the context of sexual activity. There have been other cases where lower courts have found that bodily harm in the sexual assault context vitiates consent (see e.g. R v Welch, 1995 CanLII 282 (ONCA)), and the Supreme Court itself has held that consent to sexual activity may be vitiated in cases involving significant risk of serious bodily harm (R v Cuerrier,  2 SCR 371, 1998 CanLII 796; R v Mabior,  2 SCR 584, 2012 SCC 47, both dealing with non-disclosure of HIV).
Choking to overcome resistance to the commission of an offence is also a discrete offence in the Criminal Code, RSC 1985, c C-46, section 246(a) of which provides that:
246. Every one who, with intent to enable or assist himself or another person to commit an indictable offence,
(a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle, attempts to render another person insensible, unconscious or incapable of resistance …
is guilty of an indictable offence and liable to imprisonment for life.
In R v White, 2016 ABQB 24, the accused was found guilty following a jury trial of 8 counts involving 3 complainants, all of whom were “young, drug-addicted prostitutes” working in Edmonton (at para 3). White was found guilty of robbery against SH, of sexual assault, unlawful confinement, and choking to overcome resistance against RH, and of robbery, choking, sexual assault, and unlawful confinement against TK. The offences followed a similar pattern: White picked up the victims, drove them to isolated areas, had them perform oral sex on him, choked them, and either demanded his money back and / or forced the victims into further sexual acts without their consent. As noted by Justice Robert A. Graesser, the victims “were clearly vulnerable to abuse by reason of their occupation and their drug-addicted states” (at para 3).
There were several interesting issues that arose during sentencing, including the credit that should be given for post-conviction / pre-sentence custody and restrictive pre-trial bail conditions, as well as the applicability of the maximum credit limits in the Truth in Sentencing Act, SC 2009, c 29. Also at issue was whether White’s size – he weighed over 400 pounds – should be seen as an aggravating or mitigating factor. The Crown argued that size was aggravating, as it allowed White to intimidate and overcome his victims (at para 76); the defence argued that it was mitigating as correctional facilities would have difficulty accommodating his needs (at para 77). Justice Graesser ruled that White’s size was a neutral factor, drawing an analogy to the irrelevance of skin colour that does not seem particularly apt here.
For the purposes of this post, the more germane sentencing issue is how Justice Graesser handled the fact that White choked each of the victims. Essentially, he treated the choking as an aggravating factor in relation to the sentencing for the other offences committed against each victim. For RH and TK, he applied the Kienapple principle and stayed the convictions for choking (as well as unlawful confinement) as a result of this approach. His reasoning was that “Imposing separate sentences seems artificial, although if I were to do so it would then be appropriate to impose consecutive sentences and then potentially reduce the sum of them appropriately under the totality principle” (at para 97). The focus was therefore on the robberies committed against SH and TK, and the sexual assaults committed against RH and TK.
As for the significance of choking as an aggravating factor, Justice Graesser noted that as a separate offence, it is subject to a maximum sentence of life imprisonment under section 246(a) of the Criminal Code. He compared this maximum to that which applies for sexual assault with a weapon, which is 14 years imprisonment. These maximum sentences suggest that sexual assaults including choking should be seen as being at least as serious as sexual assault with a weapon, “although of course each situation must be assessed on its own circumstances and having regard to the nature and extent of the choking and the nature and involvement of the weapon” (at para 96).
Justice Graesser also quoted from an Alberta Court of Appeal decision, R v Robinson, 1993 ABCA 91, at para 8, as to the gendered nature of choking:
[Choking] is a very serious offence. It is one to which women are particularly vulnerable, whether on the street or elsewhere, whether the intent of the offender was to commit a sexual assault or, as in this case, some other crime. Women must feel confident that this Court requires the trial courts in Alberta to impose sentences for such an offence which will deter other men from taking advantage of women in such a fashion, putting their lives in peril.
Justice Graesser found it appropriate to consider sentencing precedents from cases involving sexual assault with a weapon (at para 92). It is curious that he did not note that sexual assault causing bodily harm also carries a maximum penalty of 14 years (see Criminal Code section 272), and is thus equivalent to sexual assault with a weapon when it comes to the relevancy of precedents. Indeed, Robinson suggests that choking is more akin to aggravated sexual assault in terms of its seriousness, given that the maximum sentence for both offences is life imprisonment (at para 9; see also the arguments of LEAF in R v JA (at paras 18, 20)). Aggravated sexual assault is that which includes wounding, maiming, disfiguring, or endangering the life of the complainant (Criminal Code section 273). In any event, the implication of White is that sexual assault involving choking is analogous in its severity to sexual assault with a weapon (or causing bodily harm), at least for sentencing purposes.
Justice Graesser sentenced White to 5 years for the sexual assaults against RH and TK, and to 2 years for the robberies against SH and TK, all consecutive, taking choking into account as aggravating in each instance. He noted the vulnerability of the victims numerous times (at paras 75, 78, 106, 109, 149), but also found that White – in spite of being a “dangerous predator” – was “not beyond redemption” as a 34 year old single father with a good work history (at paras 75, 150). The 14 year sentence was reduced to a global sentence of 10 years pursuant to the totality principle, minus almost 2 years of credit for pre-sentence custody and bail restrictions (at para 151).
The decision in White makes it difficult to imagine that choking would be seen as anything but bodily harm. At the same time, the victims in White clearly did not consent to the choking, so the question of whether choking can vitiate consent was not relevant. This is likely to be what Ghomeshi argues, which brings us back to the Welch case, cited above. In Welch, the Ontario Court of Appeal rejected the defence argument of consensual sado-masochistic (SM) sex, holding that in the sexual assault context, “a victim cannot consent to the infliction of bodily harm upon himself or herself … unless the accused is acting in the course of a generally approved social purpose when inflicting the harm.” Following R v Jobidon,  2 SCR 714, 1991 CanLII 77 (SCC), socially acceptable instances of bodily harm included “rough sporting activities, medical treatment, social interventions, and “daredevil activities” performed by stuntmen” (Welch at para 87). This position has been critiqued on the basis that the courts’ views of approved social purposes are often heteronormative or otherwise majoritarian (see e.g. Ummni Khan, Vicarious Kinks: S/M in the Socio-legal Imaginary (University of Toronto Press, 2014). However, even those advocating in favour of a more expansive approach to consent to SM practices allow for some limits to legality, for example in cases involving grievous bodily harm (see e.g. Sharon Cowan, “The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic Assaults”, in Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh University Press, 2010), 135).
It is also the current position in England and Wales that one cannot consent to sexual activities that cause bodily harm (see R v Brown,  2 All ER 75). There, cases involving consensual SM sex have tended to come to the attention of the authorities via the complaints of persons other than the parties themselves (see e.g. Brown; R v Emmett,  EWCA Crim 1710). This differs from the situation in Canada, where Karen Busby’s research shows that complaints in cases of so-called “rough sex” are normally made by a party to the sexual activity who did not consent in fact (“Every Breath You Take: Erotic Asphyxiation, Vengeful Wives, and Other Enduring Myths in Spousal Sexual Assault Prosecutions” (2012) 24(2) Canadian Journal of Women and the Law, 328 at 346-347). Given that the Ghomeshi complainants came forward themselves, whether there was consent in fact will clearly be at issue in the case, in addition to the possible issue of whether one can consent to choking as a matter of law. The complainants will face intense questioning about issues of consent on the witness stand; to conclude on the same note as Joshua Sealy-Harrington did when this matter first came to light, “let’s hope that the courageous women coming forward … can blaze a trail for the many silenced voices that remain unheard.”
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By: Elliot Holzman
Case Commented On: Carter v Canada (Attorney General), 2016 SCC 4
On February 6, 2015, the Supreme Court of Canada handed down its much-anticipated decision in Carter v Canada (Attorney General), 2015 SCC 5 (Carter I), a landmark ruling where the criminal prohibition on physician-assisted dying was declared unconstitutional. Professor Jennifer Koshan wrote here about Carter I. In that decision, the Court did not immediately invalidate the relevant sections of the Criminal Code, RSC 1985, c C-46, rather the declaration of invalidity was suspended by one year, set to expire on February 6, 2016. Since February 6, a confluence of factors, including: Parliament not acting with much hurry on crafting new legislation to respond to Carter I, a historically long federal election that resulted in a change of government, and the four-month dissolution of Parliament, resulted in the Court once again hearing oral arguments in the case – this time an application by the Attorney General of Canada to extend the suspension of invalidity by another 6 months (see Carter v Canada (Attorney General), 2016 SCC 4 (Carter II)).
In Carter II, the Court had to grapple with new issues since the Carter I decision – Quebec’s National Assembly enacted its own legislation permitting physician assisted suicide – and the Court heard oral arguments from the Attorney General of Quebec seeking an exemption from the proposed extension. The Court granted the Attorney General of Canada a four-month extension, Quebec was given the green light to implement its legislation, and in the four-month window, individual patients can apply to the courts for a constitutional exemption to the suspension of invalidity. This comment will first look at the remedy the Court crafted in Carter I, and then move on to its decision in Carter II.
Carter I – February 6, 2015
After concluding that the relevant provisions of the Criminal Code infringed the petitioners’ Charter rights to life, liberty, and security of the person in a manner that was not in accordance with the principles of fundamental justice, and that the infringement was not justified under section 1 of the Charter, the Court determined that “it is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons” (Carter I at para 126).
The Court suspended the declaration of invalidity for 12 months, and denied any exemptions during the period of suspended validity (at paras 128-129). Suspensions are “extraordinary”, since their effect “is to maintain an unconstitutional law in breach of the constitutional rights of members of Canadian society” (Carter II, at para 2). However, the Supreme Court has granted similar suspensions of declarations of invalidity in other landmark Charter cases in recent years, to allow Parliament and provincial legislatures time to respond to complex policy contexts: (see e.g. Canada (Attorney General) v Bedford, 2013 SCC 72 (invalidating Canada’s prostitution laws) and Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 (invalidating legislation prohibiting the right to strike)).
Carter II – January 18, 2016
The questions before the Court in Carter II were: (1) should the declaration of invalidity be extended, and if so, for how long, (2) is Quebec exempted from this extension and free to continue to allow citizens to access physician assisted dying if they so qualify, and (3) should individual Canadians, outside of Quebec, be able to get relief from the courts to access physician assisted dying if they meet the criteria of being terminally ill and suffering from unbearable pain during any extension to the suspension of invalidity?
Should the declaration of invalidity be extended?
The Court unanimously rejected the Attorney General of Canada’s recommendation of a six-month extension, and granted four months instead. The Court’s rationale is summarized in para 2, where the majority states: “Parliament was dissolved on August 2, 2015 and officially resumed on December 3 of that year. This four-month delay justifies granting an extension of the suspension of the declaration of invalidity, but only for four months.”
I was left wondering why the Court did not simply grant the six-month extension as requested by the Attorney General. The Court inferred that Parliament was only ‘interrupted’ by four months due to dissolution of Parliament, the federal campaign period, and the swearing-in of the new Parliament. I was troubled by the SCC’s interpretation of the legislative process. The Court determined that Parliament resumed its legislative process on December 3, 2015, when the House of Commons first sat. It heard arguments that the new federal government constituted a Special Joint Committee on Physician-Assisted Dying and understood the Committee’s mandate to provide a recommendation to Parliament on a legislative response to Carter I. Shouldn’t the question have been: when was this Committee constituted rather than Parliament as a whole?
As this Committee did not exist in the last Parliament, there were various procedures it had to go through before being formally constituted. The first order of business was electing joint Chairs – one from the House of Commons and one from the Senate – and the joint Chairs were not elected until January 18, 2016. Thus, if the Court was focused on when the legislative process was back up and running, the January 18 date is more germane than December 3. It struck me as odd that the Court, which emphasized so strongly in Carter I that the legislative branch ought to have time to craft new legislation, hamstrung Parliament by not allowing the 6-month extension.
Should Quebec be exempted?
In June 2014, before the Supreme Court had even decided the Carter I case, Quebec’s National Assembly passed the Act respecting end-of-life care, RSQ, c S-32.0001 (“ARELC”), which offered terminally ill and suffering individuals the possibility of requesting a physician’s assistance in dying. The legislation did not take effect until December 2015 – after the Carter I case had been decided – and was immediately litigated in court.
On December 1, 2015, Justice Pinsonnault of the Quebec Superior Court suspended the implementation of the ARELC, finding that the law conflicted with sections 14 and 241 of the Criminal Code, which had been struck down in Carter I, but were still unchanged by Parliament: D’amico c Quebec (Procureure generale), 2015 QCCS 5556. The province appealed on the grounds that the issue was a matter related to health, which falls under provincial jurisdiction. The Quebec Court of Appeal agreed and on December 22, 2015, overturned the Superior Court’s ruling and allowed ARELC to be implemented: Quebec (Procureure generale) c D’Amico, 2015 QCCA 2138.
In Carter II, the Supreme Court had to grapple with this new reality: should Quebec, having enacted ARELC, be exempted from the four-month extension? The Attorney General of Quebec argued that an exemption was necessary to avoid a chilling effect of the threat of possible violations of the criminal prohibition or potential civil liability during the four-month extension and that the intervening Attorneys General of the other provinces did not oppose Quebec’s application.
A majority of the Supreme Court exempted Quebec, while four justices dissenting in part would not have. I found both arguments non-compelling. It seemed that the majority accepted Quebec’s arguments primarily on the basis that the other provinces and the federal government did not oppose Quebec’s application (at paras 3-4), which seems devoid of any substantive legal reasoning.
I was similarly unconvinced by the dissenting opinion. The four dissenting justices latched onto a directive issued by the Minister of Justice of Quebec ordering the Director of Criminal and Penal Prosecutions not to prosecute any physician who follows ARELC even if the Supreme Court did not grant an exemption to Quebec. According to the dissenters, this rendered Quebec’s application moot (at para 10). The dissenters seemed satisfied with the notion of prosecutorial discretion. I am skeptical of courts using prosecutorial discretion as the justification for legal reasoning and found the dissent similarly lacking in any substantive legal reason for denying or rejecting Quebec’s application.
Should individual Canadians be exempted under certain conditions?
One of the more curious conclusions from Carter II was the idea of a ‘constitutional exemption’ – that judges may grant relief to individuals on a case-by-case basis – carved out by the majority. In Carter I, a unanimous Court explicitly rejected the notion that there ought to be exemptions for petitioners who meet the ‘Carter conditions’ (i.e. terminally ill and in intolerable pain) but who nonetheless are subject to the suspension of invalidity (Carter I at para 129). In Carter II, the majority seemingly reversed itself by permitting individuals to apply for exemptions during the four-month extension period by applying to a court for judicial review (at paras 6-7).
The question is: with the possibility of exemptions, do we really have an extension of the suspension at all?
Carter II was written in four days and the majority’s opinion is only seven paragraphs long. It is hard to predict its impact; whether it will be viewed as a ruling on a unique set of circumstances brought about by a once-in-a-generation confluence of political events or whether the exemptions and extensions granted will have impacts on other areas of Charter jurisprudence in the future.
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By: Sarah Burton
Case Commented On: Barr v Alberta (Attorney General), 2016 ABQB 10
Last spring, I posted a comment flagging the constitutional concerns surrounding section 69.1 of the Gaming and Liquor Act, RSA 2000, c G-1, the province’s gang affiliation law (here). The provision authorizes police officers to remove or exclude anyone from a licenced premises based on their belief that the target of removal is connected, in varying degrees, to a gang (see section 69.1 here). Failing to comply with this direction is an offence punishable by a fine and/or a maximum of 6 months in prison (Gaming and Liquor Act, sections 116, 117; Barr v Alberta (Attorney General), 2016 ABQB 10 at para 3).
The gang affiliation law is meant to protect bar owners by diminishing gang presence in bars and de-incentivizing the lifestyle to potential recruits (Barr at para 6). Despite this laudable goal, the law raises several red flags under the Charter: it appears overbroad both in its sphere of application (it applies not only to bars, but all licenced premises) and targets for removal (including not only gang members, but persons who support or facilitate gangs, or persons in the company of any of those persons). It also appears to contravene the Charter’s guaranteed freedoms regarding peaceful assembly and association. I encourage readers interested in the provision to read my earlier post here.
At the time of my earlier post, no formal challenge to the law had been launched. Fast-forward one year and the anti-gang provision now faces a direct constitutional challenge stemming from an incident in September 2014. This month, the Applicants in that challenge scored a big procedural victory that, while not determinative, bodes well for future of their challenge (see Barr v Alberta (Attorney General), 2016 ABQB 10). It also raises several questions about the Crown’s approach to this issue.
Barr was an application to strike portions of several affidavits. The two Applicants, Mr. Barr and Mr. Kirkland, were criminally charged after refusing to leave a licensed premise as directed by the RCMP in September 2014, in direct contravention of the law (Barr at para 2).
In June 2015, Barr and Kirkland commenced an Originating Application in the Alberta Court of Queen’s Bench. This Application seeks a declaration that that the gang affiliation law is of no force and effect because it is ultra vires the Province of Alberta, and/or that it unjustifiably infringes section 2 of the Charter (Barr at para 1).
The Respondent Crown filed (at least) six affidavits in its defence. From the information provided in Barr, we know the affiants included several Alberta peace officers and at least one expert on crime prevention and organized crime (Barr at paras 7, 11, 12, 14).
Counsel for the Applicants objected to the content of these affidavits, arguing that they contained several excerpts which offended the Alberta Rules of Court, Alta Reg 124/2010 (the Rules). In particular:
In response, the Crown argued that the Applicants were viewing the Rules too strictly (Barr at para 13). In the Crown’s view, the Rules ought to be read liberally when the Crown was asked to defend legislation enacted for the public good. An overly restrictive reading would unnecessarily restrain its ability to explain why the provision should survive constitutional attack (Barr at para 6).
The Crown argued that the impugned law offered a better approach than other provinces had developed to deal with the same problems. Explaining this benefit required broad affidavits outlining the historical experience of Alberta peace officers, along with other Crown evidence. “[S]trict adherence and slavish obedience” to the Rules would unduly prevent the Crown from advancing its argument (Barr at para 7). So long as the police were exercising their discretion objectively and rationally, the Crown argued that they ought to be given latitude and the provision ought to be upheld (Barr at para 7).
Justice Sanderman agreed with the Applicants. The Rules were designed to regulate litigation fairly and to ensure that all parties are aware of the framework in which the litigation will proceed. The Crown’s reliance on inadmissible evidence would subvert this process (Barr at paras 9, 13).
The Crown was right that it ought to be afforded some latitude to define the case as it saw fit, but not for the reason it suggested. Given that the matter proceeded by way of Originating Application, there was no Statement of Defence to use as a reference in defining the Crown’s view of the matter, or the relevant parameters of the action. However, this latitude does not entitle the Crown to offend an evidentiary or procedural rule (Barr at para 9).
As a result, portions of several affidavits were struck because they offended the rules on hearsay. Two affidavits had additional portions struck because they contained opinion evidence from persons who were not offered as experts capable of providing these opinions. One affidavit was disallowed entirely because it contained expert evidence that was not properly submitted, and additionally, the evidence within it was not relevant to the proceedings (Barr at paras 11, 12, 16).
This case doesn’t provide any final resolution of the constitutional issues raised by Mr. Barr and Mr. Kirkland. It does, however, offer some insight into how the case will be argued. It also raises some questions about Crown counsel’s approach to the Rules of Court.
The Upcoming Challenge
I haven’t had the opportunity to read the Crown’s affidavits, either in their final or amended form. With that caveat in place, based on the discussion in Barr we know that they focus on the fact that the law is necessary, works well in practice, protects the public good, and is properly enacted. Or, in Charter-speak, the affidavits are focused on a section 1 argument that the law is rationally connected to a valid objective. While these arguments may or may not be persuasive, by themselves they are not enough for the law to survive a constitutional attack. A law may be rationally connected to a valid object, and yet fail a constitutional challenge.
Indeed, this is often the case. Most Charter challenges fail at the minimal impairment stage of inquiry (Peter Hogg and Allison Bushell, “The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All)”, (1997) 35:1 Osgoode Hall LJ 75 at 85). Unless a persuasive argument can be made that the gang-affiliation law is minimally impairing and, after that, is a generally a proportional response, it will fail constitutional scrutiny.
It may be that the affidavits do cover these points in areas that were not the subject of the application to strike. However, based on the sweepingly broad blanket this law creates, in my opinion the minimal impairment stage of the section 1 test is a steep hill for the Crown to climb.
The Crown’s Arguments in Defence of their Affidavits
As a civil liberties lawyer, I find the Crown’s defence of this application troubling on two points.
First, it is concerning to hear the Crown argue that a different standard of compliance with the Rules ought to apply to them because they are defending a law enacted in the public good. This idea runs contrary to the rule of law. In a country governed by the rule of law, everyone – including the Crown – follows the same rules. The Crown’s chosen defence strategy should not impact its compliance with the basic rules governing litigation. They should not be granted latitude because the Rules make it more difficult for them to advance their arguments.
It also bears emphasizing that the Crown’s argument (that the law was enacted in the public good) is not unusual or unique. Indeed, in every Charter challenge, the Crown must establish that the impugned law is enacted for the public good (the pressing and substantial objective test). Arguing that this should dictate a more lenient standard for affidavits is tantamount to arguing that the Crown shouldn’t have to follow the Rules as closely as other parties in Charter challenges.
Second, the Crown argued that the gang-affiliation law should be upheld so long as the police used it objectively and in a rational and principled fashion. This is not how Charter challenges should work, and raising the argument in Court displays a problematic attitude of the Crown towards its obligations. Law enforcement may exercise their discretion with every law in a rational and principled fashion. Indeed, we all hope that is the case in every situation. However, if the law is drafted in such a way that it authorizes a sweeping disregard for an individual’s Charter rights without reasonable justification, it must be struck down.
The Crown’s approach to this case (as revealed through the application) raises questions about the Crown’s method for defending the gang-affiliation provision. Only time will tell whether the Crown’s loss in Barr was the result of simple oversight, or whether it was part of a larger strategy or a gamble that didn’t pay off. In the meantime, we are left wondering what the fate of the gang-affiliation law is, and how the Crown will approach the case on a go-forward basis. While litigation can be unpredictable, at this juncture the loss in Barr can only be seen as tilting the odds of success in favour of Mr. Barr and Mr. Kirkland.
Stay tuned on this one.
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By: Lyndsay Campbell
On January 16 & 17 the Canadian Law and Society Association (CLSA) held its midwinter meeting in Waterloo, Ontario. This small conference featured a variety of panels, on topics ranging from legal identities and legal pluralism to AirBnB and Uber, the duty to consult, aboriginal title, legal education, and the corporation.
The CLSA is currently gearing up for its main annual conference, to be held May 28-30 at the University of Calgary as part of the Congress of Social Sciences and Humanities 2016. Our meeting overlaps with that of the Canadian Association of Law Teachers (CALT, May 30-31) and, as well, a one-day interdisciplinary symposium on social justice (May 28) entitled “Building A2SJ: An Interdisciplinary Conversation about Problems and Solutions.” Our founding dean, John McLaren, has agreed to give a keynote address at the jointly held CLSA-CALT banquet on May 31. Calls for papers for the CLSA and CALT conferences are available here and here (note proposals are due January 31), and registration for Congress is now possible via the link here.
Since the Faculty of Law is also beginning its 40th anniversary celebrations, we are hoping for a great western turn-out of people interested in sociolegal issues and welcome expressions of interest in any or all of these activities. For further information, please contact Jennifer Koshan (CALT, email@example.com) or Lyndsay Campbell (CLSA, firstname.lastname@example.org).
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By Michael Nesbitt
This week, it was reported that Canada’s Foreign Minister Stephane Dion and the Liberal government were considering lifting sanctions on Iran and re-establishing diplomatic relations between the two nations. The quandary here – to lift or not to lift, to engage or not to engage – has been foreseeable for some time: I wrote an op-ed in the Globe & Mail back in July warning the next government that they would have to be prepared to act, and act quickly, once the US lifted its sanctions on Iran (see here).
The repercussions of Canada’s delay for Canadian business are immense: Our companies do not want to be left behind as Iran’s enormous emerging market – 80 million people with a dilapidated infrastructure and close connection to a large Diaspora in Canada – begins to open up to the rest of the world. There is no such thing as a second-movers advantage.
But Canada’s business interests are not the only consideration here, even in our struggling economy; Canada’s national security regime is also implicated and the situation is both complicated and controversial.
Let’s start with a reminder of why Iran sanctions are now in the news before getting into the commentaries that have recently set off a debate in Canada.
Iran Sanctions in the News
In the context of Iran-US relations, Saturday 16 January 2016 was “implementation day” – the day that, with the release of an International Atomic Energy Agency (IAEA) Report, the US was to begin implementing terms of the Joint Comprehensive Plan of Action (JCPOA) agreement by lifting its nuclear proliferation-related sanctions on Iran. The JCPOA is an agreement between the US and Iranian governments, signed on 14 July 2015. (Formally the so-called E3+3 – France, Germany, the UK, China, Russia and the European Union – were also signatories to the agreement and will likewise lift sanctions, where relevant). The UN Security Council subsequently adopted the terms of the agreement (see: UN Security Council Resolution 2231 of 20 July 2016, available here).
The agreement is long, complicated, and technical, but at the risk of oversimplifying, it can be explained as follows: the US agreed to lift its nuclear proliferation-related sanctions on Iran that had contributed to the crippling of Iran’s economy in exchange for Iran agreeing to a surprisingly intrusive monitoring and enforcement system headed by the IAEA (see here).
Since July, the IAEA has been working on monitoring and verification of Iran’s terms of compliance with the initial stage of the agreement (for an overview see here). Essentially, this work was a preparatory process to ensure that Iran would be ready to comply with the terms of the JCPOA – and would formally begin compliance – at the same as the US lifted its sanctions. As expected, the IAEA issued its report confirming Iran’s requisite preparatory compliance (it issued its report on 16 January 2016). At that moment, it was then on the US to fulfill its obligations and start lifting sanctions.
When the US subsequently fulfilled its obligations by lifting its nuclear-related sanctions – and levying sanctions on 11 persons or entities with ties to Iran’s ballistic missile program, something I will get to – the question in Canada naturally became: “on this crucial foreign policy file, what are we going to do”? There are arguments for and against a rapprochement with Iran.
On the one hand, it is likely that few who follow the file trust the Iranian regime, and not just because of its possible nuclear ambitions, but also because of its support for terrorist groups (Hezbollah), its troubling actions in support of Assad in Syria, its worrying ballistic missiles program, its active electronic army, its regional meddling, and generally its internal repression and widespread domestic human rights abuses. On the other hand, current Canadian sanctions relate not to these other (valid) concerns but to what Canada asserted to be a “breach of international peace and security” resulting from Iran’s nuclear ambitions (see discussion of SEMA below). Moreover, Canadian businesses would be at a distinct disadvantage if they were left unable to engage with Iran while their competitors were free to negotiate. A good example is the Canadian company Bombardier, surely tempted by Iran’s needs in the airplane and train industries. Bombardier, already in a difficult financial situation, will be at a distinct disadvantage if American Boeing and European Airbus move first into the Iranian market. Finally, it is uncertain how effective Canadian sanctions have been period, let alone if we go it alone on the Iran file. A hard-line could be more symbolic than anything – though again there are reasons to maintain a symbolic hard-line.
In Canada, since the JCPOA was agreed upon, the complexities of these issues have not been fleshed out, either by the government or by commentators. Instead, in response to the US’s recent lifting of sanctions, the Canadian media focused in the first instance on some talk of Harper’s “booby-trap”, wherein it was asserted that by designating Iran as a state sponsor of terror, the Harper government set a legal booby-trap for the Liberals that limited their future course of action on sanctions and in re-establishing diplomatic relations (see e.g. CBC article here). Legally speaking, the Harper government did no such thing, at least not related to Canada’s sanctions on Iran. Politically speaking, Harper may well have done so, though it was less a “booby-trap” – which implies a covert attempt to limit future governmental action – than the sort of ordinary policy decision that is regularly taken by governments. In any event, the CBC article that first reported the controversy seems to conflate the situation with respect to Canada’s sanctions regime and the situation relating to our diplomatic relations with Iran. These are distinct topics with distinct political and legal considerations, so in order to clarify the situation they will be treated separately, below.
Let’s start with a brief analysis of Canadian sanctions on Iran before moving to a discussion of re-establishing diplomatic relations.
Canada’s Sanctions on Iran and the Limitations of our Legislative Regime
Canadian sanctions are governed by umbrella legislation, the Special Economic Measures Act, SC 1992, c 17 (SEMA). In relevant part, section 4(1) of the SEMA states:
4 (1) The Governor in Council may, for the purpose of implementing a decision, resolution or recommendation of an international organization of states or association of states, of which Canada is a member, that calls on its members to take economic measures against a foreign state, or where the Governor in Council is of the opinion that a grave breach of international peace and security has occurred that has resulted or is likely to result in a serious international crisis,
(a) make such orders or regulations with respect to the restriction or prohibition of any of the activities referred to in subsection (2) in relation to a foreign state as the Governor in Council considers necessary; and
(b) by order, cause to be seized, frozen or sequestrated in the manner set out in the order any property situated in Canada that is held by or on behalf of
(i) a foreign state,
(ii) any person in that foreign state, or
(iii) a national of that foreign state who does not ordinarily reside in Canada. (Emphasis added)
Put simply, the SEMA allows Canada to enact regulations sanctioning a foreign country where an international body, like the UN Security Council, has asked the international community to do so, or if we determine that there has been a “grave breach of international peace and security” that “has resulted or is likely to result in a serious international crisis.”
The regulation governing – sanctioning – Iran is called the Special Economic Measures (Iran) Regulations, SOR/2010-165. The Iran Regulations make clear that it is the second consideration that led to the sanctions: “the Governor in Council is of the opinion that the situation in Iran constitutes a grave breach of international peace and security that has resulted or is likely to result in a serious international crisis” (SEMA preamble, emphasis added).
So what does this have to do with the Harper government designating Iran a “state sponsor of terror”? In short: nothing. (I’ll get to the implications of this designation below when I discuss diplomatic relations between Canada and the US). If Canada wants to lift sanctions on Iran, it can do so. If it wants to lift some of the sanctions in the Iran Regulations – for example those on financial services – while leaving others in place – such as the list of designated persons and entities – it may also do so. It certainly has taken this approach in the past, most recently perhaps with Burma (see Special Economic Measures (Burma) Regulations, SOR/2007-285). Contrary to what the CBC article implies, the designation of Iran as a state sponsor of terror does not legally limit the options under these Regulations.
But there nevertheless is a big problem here, and my sense is that this undocumented problem is why there has been a delay in moving forward with any sanctions-related actions on Iran – whether it be lifting them or doubling down. The problem goes as follows.
On the one hand, arguably Canada has a legal duty to lift its sanctions on Iran. First, no international body has demanded that Canada put sanctions on Iran as a result of its nuclear ambitions – indeed the UN has adopted the JCPOA, as discussed. Second, the Iran Regulations relate the “grave breach of international peace and security” to Iran’s nuclear ambitions; now that the international community has said that the Iran’s nuclear ambitions are not an imminent threat to – let alone breach of – international peace and security, the justification for Canada’s sanctions arguably falls away. Remember that these two criteria are the only two justifications upon which Canada can, it would seem, uphold its Iran sanctions regulations. With neither applicable at this time, the raison d’etre of the sanctions regime would no longer seem to apply unless Canada wishes to go it alone and claim that, despite the assertions of our closest allies and an IAEA monitoring regime in place, Iran’s nuclear program has caused a breach of international peace. It’s an argument that could be made, one supposes, but it certainly extends the discretionary terms of the SEMA well beyond what one would suppose was the intention.
On the other hand, as already mentioned, there are lots of valid reasons to maintain sanctions on Iran that are unrelated to its nuclear ambitions. As canvassed, these run the gamut from support for terrorism, to regional meddling, to human rights abuses and a ballistic missile program that evidence suggests shares information with North Korea. It is for this very reason that, just as the US was lifting sanctions on Iran as per the JCPOA agreement, it was levying new sanctions against Iranian entities that purportedly support its ballistic missiles program (see here). The US would surely love it if Canada did the same.
But, again, under the SEMA there must be a breach of international peace and security – wording that goes beyond a “threat” of a breach. Canada cannot designate Iranian persons or entities for threats to international peace and security, or for “mere” human rights abuses, or even for sponsorship of terrorism, unless we find that they rise to the level of a breach of “international peace and security”. Moreover, even if one could argue that the totality of Iran’s actions represent a breach of international peace and security, our Iran Regulations have not made this argument, but rather have tied the breach to Iran’s nuclear program.
This real restriction on the scope of Canadian sanctions is a fundamental problem with Canada’s SEMA that extends beyond the Iran Regulations. Successive governments have failed to tackle this problem and, in so doing, have truly limited the potential scope of Canada’s sanctions regime. Now that might be applauded in some circles, but so long as Canada and our allies treat sanctions as a legitimate foreign policy tool, we should not simultaneously be undermining its potential.
There is another major problem with the SEMA, on which the government must surely be ruminating. While the US lifted its nuclear-related sanctions it also designated (sanctioned) others, including a company in the United Arab Emirates (UAE) (see here). But as per the Iran Regulations, section 4(1)(b)(i)-(iii), Canada can only designate a “foreign state”, “person in that foreign state”, or “national in that foreign state that does not ordinarily reside in Canada.” A company incorporated in the UAE thus cannot be sanctioned by Canada, even if it is known to trade with and transship to Iran. Unless Canada can prove that goods shipped to the UAE are ultimately intended for or make it to Iran, something that is extraordinarily hard to prove in most cases, Canada cannot take action under the Iran Regulations. This in part explains why we have virtually no prosecutions under the SEMA despite widespread use of sanctions against numerous countries.
Until these holes in our legislation are fixed, our sanctions enforcement regime will be weak. Likewise, without legislative reform, Canada will not be able to remove nuclear-related sanctions as the US is doing while simultaneously keeping up with our allies to pressure the human rights abusers and other threats in the Iranian regime or elsewhere in the world. Without a broad re-think of our sanctions policy and legislation, there does not seem to be a win-win solution here, and my sense is this is one of the issues causing pause for Canada’s government.
Iran as a State Sponsor of Terror and Canadian-Iranian Diplomatic Relations
On 7 September 2012 Canada shuttered its Embassy in Iran, “PNG’d” Iranian diplomats (the colloquial diplomatic term used to say that they were issued “persona non grata” papers and required to leave the country), and listed Iran as a state sponsor of terror under the Justice for Victims of Terrorism Act, SC 2012, c 1 (JVTA) (see here).
As I see it there is nothing here that sets up a “booby-trap” or legal barrier to re-establishing diplomatic relations. In fact, from the legal perspective, there’s a relatively easy fix: all the Liberals have to do is un-designate Iran as a state sponsor of terror and they can re-establish diplomatic relations. There will be legal complexities and headaches here, sure, particularly as relates to any (presumably grandfathered) civil actions under the JVTA, but changes of laws often require complex solutions.
This solution does seem to come with a major political rub however. The Harper government had a reasonable justification for designating Iran as a state sponsor of terror. Under Canada’s Criminal Code, RSC 1985, c C-46, both the al-Qods Force and Hezbollah are listed terrorist entities. Hezbollah has been responsible for attacks in Lebanon and Israel and, most recently, egregious violations in support of the Assad regime in Syria. More to the point, the Qods force is not just supported by Iran, it is an elite part of the Iranian regime itself. Some might recall that Qods force General Qasem Soleimani made waves this summer as a major influence peddler in Iraq as Iran took the fight to ISIS (see for example here). The upshot here is that Iran is fairly clearly a state sponsor of terror, at least according to our Criminal Code. The Harper government’s designation is thus justifiable, even if Canada regularly ignores designating would-be state sponsors of terror to avoid tricky diplomatic repercussions.
The end result is that, for Canada to re-establish relations after un-designating Iran, the government will either have to say that these groups are not terrorist entities – a hard and politically divisive argument to make – or that Iran is not sponsoring these groups, an assertion that would belie all available evidence. From a political and messaging perspective, undoing Iran’s designation would surely take some politically astute communications at the very least.
So, if Canada determines that the political repercussions of un-designating Iran are too weighty, or that there is not sufficient justification to un-designate Iran as a state sponsor of terror, what are the repercussions? So far as I can see, there are at least two crucial issues standing in the way of re-establishing diplomatic relations, though there may well be more.
The first and most obvious is that Iran remains designated under the JVTA. With Iran still designated, any lawsuits will continue, new suits will be possible, and Iranian diplomats and politicians will be loath to enter Canada for fear of it exercising its jurisdiction and getting caught up in the legal system.
The second issue relates to the re-opening of the Iranian Embassy in Canada and Canadian Embassy in Iran. Again, this can easily be done – legally – if Canada un-designates Iran as a state sponsor of terror. However, with Iran designated, there is a possible legal and political impediment to re-establishing relations. The issue goes as follows: politically or legally can we, or do we wish to, have open diplomatic relations with designated state sponsors of terrorism? Can or should Canada host the Embassy and diplomatic personnel of a known – and legislated – sponsor of terrorism, particularly when our Criminal Code contains offences for sponsoring terrorism? I invite comment here, but my sense is that legally and politically, without backtracking on the designation, normalizing relations and re-opening the embassies will be very near impossible.
Contrary to recent media attention, there are no legal obstacles to re-establishing relations with Iran that cannot be overcome, though the designation of Iran as a state sponsor of terror certainly made things politically difficult. Likewise, designating Iran as a state sponsor of terror does not limit our ability to act on the sanctions file. Rather, our inability to act on the sanctions file – to remove existing sanctions while simultaneously introducing new sanctions on ballistic missile developers and supporters of terrorism – is limited by past failures to act on the sanctions file and Canada’s continuing unwillingness to update its legislation to address the heart of the matter.
The most likely outcome is that some sanctions on Iran will be removed while others will remain in place; a compromise that gives a bone to Canadian business while maintaining sanctions against a regime Canada does not fully trust. But this is a compromise with relatively little benefit for anyone, at least in the short term. Some sanctions will remain in place, making business between Iran and Canada complex, confusing, and legally risky. Businesses don’t fully lose, but they don’t win either, particularly considering most will have to understand the US sanctions as well and there will not be uniformity between the two countries’ regimes. At the same time, the sanctions that remain in place will have limited impact in that they will not necessarily target those that need to be targeted, they will not be harmonized with and reinforced by the sanctions of our allies, and legal enforcement against those who would challenge them will remain difficult.
I leave the tricky issue of re-establishing diplomatic relations to the political and diplomatic experts, along with the Department of Justice lawyers dealing with terrorism and the JVTA. However, on the sanctions side, things are much clearer: the legislation needs a rethink, and with it so does Canadian sanctions policy, practice and enforcement. Without tackling the real source of our limitations on this file, whatever Canada chooses to do with Iran sanctions will be another temporary, half-hearted fix.Tweet
By: Theresa Yurkewich
PDF Version: Catch Me If You Can
Case Commented On: R v Sandhu, 2015 ABQB 827
Mr. Sandhu, the respondent and an Uber driver, was charged with operating a business without a license (City of Edmonton, Bylaw No 13138) as well as operating a vehicle for hire without a taxi plate (City of Edmonton, Bylaw No 14700). His charges arose as part of an undercover sting, carried out by the City of Edmonton, into suspected Uber drivers. Mr. Hykawy, a municipal enforcement officer, downloaded the Uber application and used it to locate a vehicle which happened to be operated by Mr. Sandhu. Mr. Hykawy’s volunteer, Ms. Lenz, then approached Mr. Sandhu’s vehicle and confirmed Mr. Sandhu was operating as an Uber driver. She advised him that her Uber app was not working and then offered him a cash payment for a ride.
At trial, the Commissioner limited the issue to whether on the day in question, at the moment in question, Mr. Sandhu was committing one of the two offences. Commissioner Yaverbaum indicated that he must decide whether there was a sale or not and further, whether there was actual acceptance by taking cash to provide services. As such, he limited the scope of the Crown’s cross-examination of Mr. Sandhu to the transaction that occurred between him and Ms. Lenz.
During testimony, there were contradicting statements from Ms. Lenz, who stated her payment was accepted, and Mr. Sandhu who denied accepting such payment. Mr. Sandhu testified that he was an Uber driver at the time and was waiting to pick up a passenger, but that he only let Ms. Lenz into his car to warm up. During this time, he demonstrated to Ms. Lenz that he would have to go offline to provide her with a ride, and that he was not willing to do so. Ultimately, the Commissioner could not convict Mr. Sandhu as he had a reasonable doubt, and granted an acquittal. The Crown appealed that decision to the Court of Queen’s Bench, and a new trial was ordered. This article provides commentary on that decision.
The right to appeal an acquittal of the Commissioner is limited to questions of law, and the Crown alleged three errors (at para 17):
The Crown argued that although proof of a transaction is sufficient to establish a business operation, it is not necessary. Given Mr. Sandhu’s admissions that he was an Uber driver and was waiting for a call at the time of the transaction, the Crown argued there was sufficient evidence that he was operating a business as well as a vehicle for hire. Further, the fact that Mr. Sandhu advertised his services through the Uber app was prima facie proof that a business existed (at paras 21-28).
In response, however, Mr. Sandhu argued that the Crown had the obligation to prove its case, including the date and time as framed in the charging documents. It is these particulars that Mr. Sandhu argued allow an accused to make an informed decision on the conduct of their defence, including when to testify and the possible consequences of that decision. In his opinion, when the Crown extended its examination to details of his relationship with Uber, it widened the scope of the case and he was no longer clear of the case he was to defend against (at paras 29-33).
In review of the Commissioner’s decision, Justice Shelley stated that the evidence must be considered as a whole when determining whether the Crown has proven its charge beyond a reasonable doubt. In regards to Bylaw 13138, the Commissioner was obliged to determine whether Mr. Sandhu was operating a commercial activity or undertaking or an activity which provided goods and services. For Bylaw 14700, the Commissioner was to determine whether Mr. Sandhu was driving or in care and control of a vehicle offering transportation in return for a fee (at paras 35-37).
Proof of a transaction is only one piece of evidence and should not be wholly determinative of the Crown’s success. You may at this point recall Veit J’s statement in Edmonton (City) v Peter, 2015 ABQB 635 (at para 43, as I discussed here), that a “business that never concluded any transaction would be an unsuccessful business, but it would be a business all the same.” In Mr. Sandhu’s case, the Court, therefore, ruled that the Commissioner incorrectly focused his decision on the success of the particular transaction. Although he was entitled to consider its success, it was not necessarily determinative of guilt (at paras 41-42).
In light of this error, the Court noted that it is reluctant to overturn acquittals. Rather, the onus is on the Crown to establish that the Commissioner’s errors might have had a “material bearing on the acquittal”; not, however, that the verdict would have changed (at para 20). In this case, a number of Mr. Sandhu’s admissions would have been sufficient to establish the facts of conviction, including that he was an Uber driver, he was logged into the Uber application and waiting for a call, that he was available for hire, and that he would provide Ms. Lenz a ride if she requested it through the Uber application. Had the Commissioner focused on the evidence as a whole, including these uncontroverted admissions, the Court determined it was reasonably certain that this evidence would have had a bearing on the outcome of the Commissioner’s decision (at paras 46-48).
Mr. Sandhu argued that it would be unfair to convict him on a basis other than what was introduced in the Crown’s case in chief. Because evidence was led primarily with respect to the specific transaction, changing the scope of the case would have violated his ability to fully answer and defend himself. As a general rule, however, the Crown is not bound to prove its theory, but only the essential elements of the offence. Where particulars are not given and the Court is capable of capturing alternative bases for conviction, it is an error to grant an acquittal simply because the path differs from the one offered by the Crown. Here, it was not clear to the Court that the Crown limited itself to a particular theory of liability. If it did, however, a conviction based on being an Uber driver was likely part of its original theory. The Crown led sufficient evidence in Ms. Lenz’s testimony to put Mr. Sandhu on notice that he might be convicted on the basis of operating as an Uber driver, such that he could tailor and provide his testimony in response, as needed.
In summary, the Court ruled that the Commissioner erred in acquitting Mr. Sandhu based on the success of the transaction, rather than examining the elements of the offence and the evidence as a whole. The Court allowed the appeal and ordered a new trial (at paras 64-66).
This case reflects an ongoing dispute between municipalities and Uber, as Uber seeks to provide ride-sharing services that extend beyond a regulatory scheme and does so in a bull-dog fashion. Last year, the City of Edmonton failed to thwart Uber with an injunction (see Edmonton (City) v Uber Canada Inc., 2015 ABQB 214 as discussed here), and in response, cracked down on the Uber drivers instead, hoping to make the form of employment less enticing. The City of Calgary, however, learned from Edmonton’s mistakes and was successful in obtaining an injunction against Uber drivers in November 2015, in front of Justice G.H. Poelman (unreported). It is now working with municipal interests, including Uber and taxi companies, to develop a regulatory scheme that will capture this new trend towards sharing services.
Municipalities have perhaps realized that these sharing models are becoming more prominent in society and in fact, demanded by many of their citizens, and as such, traditional ways of thinking must be adapted. If not, the Court’s decision here will certainly provide some direction for enforcement officers looking to catch Uber drivers, and conversely, to Uber drivers hoping to avoid similar charges.
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Today the Supreme Court of Canada is hearing the appeal in R v MB, 2015 ABCA 232, concerning the proper interpretation of infanticide in section 233 of the Criminal Code, RSC 1985, c C-46. Section 233 provides as follows:
A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.
Infanticide is one of only two offences in the Criminal Code that is gender specific, and the Women’s Legal Education and Action Fund is intervening in the case to offer submissions on how the provision should be interpreted in keeping with substantive equality. LEAF’s news release provides its position in the case:
The Women’s Legal Education and Action Fund (LEAF) is intervening before the Supreme Court of Canada today in the case of R v MB. At issue is the legal standard in section 233, the infanticide provision, of the Criminal Code.
The crime of infanticide is one of only two gender-specific crimes in the Code. The interpretation and application of this provision raises important questions relating to the substantive equality rights of women.
Infanticide is a partial defence to a charge of murder and carries a maximum sentence of five years. These cases are rare and typically involve young, socially isolated and otherwise marginalized women, who commit the offence often in desperate and tragic circumstances. The judicial discretion currently available under this provision enables this small group of women, who might otherwise be convicted of murder and sentenced to life in prison, to avail themselves of the reduced culpability offence of infanticide.
The mitigating framework for infanticide in s. 233 reflects the principles of substantive equality, which provide that the law should not be interpreted or applied in a manner that exacerbates historical disadvantage or vulnerability. Societal values and the conditions of many women may have evolved since the infanticide provision was first introduced, but the mitigating framework of infanticide, and the underlying concerns relating to the social context of women’s inequality to which it responds, have relevance and application in the contemporary context.
Currently, the legal standard in the provision enables judges the discretion to recognize the overlapping social, economic, psychological, medical and other effects of childbirth and lactation in the commission of the crime. LEAF will argue that the words “her mind is… disturbed” in the infanticide provision set a cognizable legal standard that was purposefully chosen by Parliament for its breadth and flexibility. The provision must not be interpreted in a manner that inappropriately medicalizes this legal standard simply because it is broad and flexible enough to allow for judicial interpretation and application in a wide range of circumstances.
In the context of s. 233, substantive equality is best promoted by an interpretation that accords with Parliament’s original intent of creating a flexible legal standard that accounts for the diverse array of factors – medical, social and economic – that may arise upon birth and/or lactation. Such an interpretation enables this statutory criminal law defence to operate in a manner that promotes the substantive equality of women.Tweet
By: Jonnette Watson Hamilton
Case Commented On: Kerr v Coulombe, 2016 ABQB 11 (CanLII)
A tenant, Gary Kerr, showed up for a hearing at the Residential Tenancies Dispute Resolution Service (RTDRS) in Edmonton. The hearing, initiated by the landlord, Betty Coulombe, against Gary and Jason Kerr, was scheduled for November 27, 2015 at 1:30 p.m. The tenant arrived on time and checked in with the receptionist. The receptionist told him to have a seat in the waiting room and said they would call him. At 2:30 p.m., the tenant checked with the receptionist again, wanting to know if he should continue to wait. The receptionist disappeared into the back and returned with an Order against the tenant. The Order stated that the landlord appeared by telephone and “Tenants are not participating.” As the tenant succinctly put it in his affidavit, “I did not have a chance to speak on our behalf” (at para 3). This scenario is reminiscent of Franz Kafka’s parable, “Before the Law”, where the man from the country patiently sits before a gatekeeper controlling entry into the law.
What the RTDRS did to Gary Kerr was, without question, a breach of natural justice: “an obvious and fundamental failure of natural justice” (at para 14). No administrative tribunal in the Canadian legal system — no matter how “fast, inexpensive, less formal” it bills itself — can leave a party cooling his heels in the waiting room and conduct a hearing without giving him a chance to speak. It may be fast, it may be inexpensive, and it may be informal — but it is not justice.
We are not told how this bureaucratic negligence occurred, or whether safeguards have now been put in place to ensure it does not happen again. We are not told this because no one from the RTDRS was required to appear and explain what happened or to take responsibility for their bumbling. Instead, the tenant — the innocent party — was the one who had to spend his time and money to take steps to try to remedy the injustice.
If this was such an obvious breach of natural justice by the RTDRS, what was the problem? Why did the tenant have to act — and act very quickly — to remedy this injustice?
The problem lies in the Residential Tenancies Act, SA 2004, c R-17.1, and its provisions and regulations establishing and controlling the RTDRS. They are overly deferential to the RTDRS, providing little possibility of relief to tenants when things go wrong at the RTDRS. See, for example, “Setting Aside Residential Tenancy Dispute Resolution Service Orders for Problems with Service: It Can’t Be Done”, commenting on Abougouche v Miller, 2015 ABQB 724 (CanLII), and “Expensive, Complex Appeals from Residential Tenancy Dispute Resolution Service Orders”, commenting on Nee v Ayre & Oxford Inc, 2015 ABQB 402 (CanLII).
There is nothing to indicate that the Tenancy Dispute Officer who issued the Order tried to remedy his or her error in making the Order when he or she found out that “Tenants are not participating” was incorrect and the tenant was still there. Did the Tenancy Dispute Officer try to contact the landlord immediately, to say that the Order was no good because the tenant had in fact been ready to participate and to say that the matter would have to be re-heard (preferably right then and there so the tenant wasn’t put to any more inconvenience)?
This possible remedy was suggested by Master Schlosser in this case. He mentioned the possibility that a tenant could “more creatively, invite the RTDRS Office to re-hear the matter”, dealing with it under section 19(1)(c) of the Residential Tenancies Dispute Resolution Service Regulation, Alta Reg 98/2006, while leaving a more thorough investigation of this possibility “for another case” (at para 16).
Section 19 of the Residential Tenancies Dispute Resolution Service Regulation does appear to be appropriate if the RTDRS and its Tenancy Dispute Officers are willing to show a little initiative. It states:
19(1) Subject to subsection (2), a tenancy dispute officer may, with or without a hearing,
(a) correct typographic, grammatical, arithmetic or other similar errors in an order of that tenancy dispute officer,
(b) clarify the order, and
(c) deal with an obvious error or inadvertent omission in the order.
(2) A tenancy dispute officer may take the steps described in subsection (1)
(a) on the tenancy dispute officer’s own initiative, or
(b) at the request of a party, which, for the purposes of subsection (1)(b) and (c), must be made within 15 days after the order is received by the party.
(3) A request referred to in subsection (2)(b) may be made without notice to the other party, but the tenancy dispute officer may order that other party be given notice.
(4) A tenancy dispute officer must not act under this section unless the tenancy dispute officer considers it just and reasonable to do so in all the circumstances.
The problem is that the power granted to a Tenancy Dispute Officer by section 19(1) is the power to do some fairly trivial and uncontroversial things, namely, to “(a) correct typographic, grammatical, arithmetic or other similar errors in an order of that tenancy dispute officer, (b) clarify the order, and (c) deal with an obvious error or inadvertent omission in the order.” The more general phrase in subsection (c) must be read in the context of the more specific clauses (a) and (b). The Tenancy Dispute Officer’s power is probably limited to correcting errors or omissions of a minor or clerical nature. The power of the Tenancy Dispute Officer to re-hear a dispute should be expressly provided for. Even if Master Schlosser (or another Judge or Master) decides that errors, such as the one that occurred in this case (or something sufficiently similar), do fall within section 19(1)(c) and give a Tenancy Dispute Officer the power to deal with the error and re-hear the dispute, section 19(1) leaves it up to the Tenancy Dispute Officer to act or not. The power is crafted in terms of what they “may” do. Would they take the initiative?
But, as Master Schlosser said, the possibility of the RTDRS correcting its own errors “remains for another case” (at para 16). In this case, what Master Schlosser crafted was a fifth type of interim relief for the tenant. But before getting to the first (or first to fourth) types of relief, let me digress for a moment.
Despite how badly this matter went before the RTDRS and how frustrating this whole situation must have been, there was some good news for the tenant. First, Brian Summers, Q.C., a commercial litigator with Dentons, appeared as Amicus counsel, i.e., as a volunteer lawyer who could explain the complicated jurisdictional issues in this case as a friend of the court. Pro Bono Law Alberta launched the Court Assistance Program — the Queen’s Bench Amicus Program — in Edmonton in March 2015. The purpose of this program is to improve access to justice for self-represented litigants who appear in Chambers before Masters and Justices of the Court of Queen’s Bench by providing volunteer lawyers who act as ‘amicus curiae’ and help the court understand the facts, issues and arguments of the unrepresented litigants. Second, the tenant’s application was heard by Master W. Scott Schlosser, who has taken an interest in remedying injustice handed down by the RTDRS and the time to produce written judgments that show other tenants how to proceed. This judgment in Kerr v Coulombe is his third in the last ten months. He also decided Boardwalk General Partnership v Montour, 2015 ABQB 242 (CanLII) (Montour) last April and Cardinal v Amisk Housing Association, 2015 ABQB 503 (CanLII) (Cardinal) in August 2015. Those two cases were where Master Schlosser pointed out the first to fourth types of interim relief for tenants.
Interim relief? Why interim? Interim before what? As Master Schlosser noted in Montour, an order of a Tenancy Dispute Officer “is binding on the parties to the dispute unless it is set aside or varied on appeal”: section 21 of the Residential Tenancy Dispute Resolution Service Regulation. Section 23 of the same regulation provides for appeals that might set aside or vary the Order. There are numerous problems with this appeal provision, including:
The result of those rules and realities is that it is usually only the interim relief that tenants want or need or are eligible for, i.e., a stay of enforcement of the RTDRS Order: Montour at para 13. Take this case. The tenant could seek to have the RTDRS Order set aside for the obvious breach of natural justice and would no doubt be successful — but why bother? The dispute could not and need not be decided on its merits. The tenant just needs to get his belongings and square up accounts with the landlord. He needs a stay of the RTDRS Order that makes a landlord amenable to a negotiated resolution. After all, this whole dispute was settled by the Master within two weeks of the RTDRS Order.
But remember that the Residential Tenancies Act and the Residential Tenancy Dispute Resolution Service Regulation say RTDRS Orders are binding on the parties unless and until set aside or varied on appeal to a Justice of the Court of Queen’s Bench. What if there is no appeal? How does a Master give interim relief (short of an appeal) in the face of such difficulties in the legislation? What is the source of the Master’s jurisdiction, i.e., his or her power to act?
Based on a belief that it cannot have been the intention of the legislature to leave the parties without any remedy on facts such as those in Montour, Cardinal and Kerr v Coulombe, Master Schlosser has outlined five possible sources of jurisdiction when the timing of payments need to be changed a little, or the deadline to vacate the rental premises needs to be extended a tiny bit, or the lack of a hearing requires a remedy:
None of these five ways of providing relief without an appeal is a sure thing, although the last one, the inherent jurisdiction approach, looks the sturdiest. As Master Schlosser has said, what is really needed is a “small repair” to the Regulations: Montour at para 26.
One of the saddest aspects of this whole case is how unnecessary it was in the end. We are not actually told what the landlord sued for, or what order the Tenancy Dispute Officer made. It appears that the tenants had not paid rent for November 2015 when the Tenancy Dispute Officer heard from the landlord and made the Order on November 27. The tenant admitted being behind on the rent because of a work slowdown — something all too common in Alberta today. But by the time the tenant swore his affidavit, sometime between November 27 and December 1, the November rent had been paid, together with a $50 late fee. He offered to move out December 3 and noted that they had paid first and last month’s rent when they moved in, so December’s rent was already paid (at para 3). The tenant acted quickly enough to get his application before the Master on December 1. Somewhat ironically, his application was adjourned in order to ensure that the landlord had notice and a chance to appear. The Tenancy Dispute Officer’s Order was stayed in the meantime. But unfortunately, not everyone was acting as expeditiously as the tenant and the landlord did not learn about the Master’s December 1st order in time. She hired a civil enforcement agency to enforce the Tenancy Dispute Officer’s Order and they changed the locks on the rental premises. When the matter was heard on the merits by Master Schlosser on December 9, an arrangement had to be worked out so that the tenants could get into the rental premises and retrieve their belongings. They had found another place to live, as they said they would. But they had to pay the civil enforcement agency’s costs and a per diem rate for a portion of December’s rent.
I wonder if the RTDRS has a fund that would enable them to repay the tenants for those civil enforcement agency costs and any other out-of-pocket expenses they incurred in applying to the Court of Queen’s Bench and trying to correct the injustice perpetrated by the RTDRS? I hope the RTDRS at the very least gave the tenants a written apology for all the trouble and frustration they caused and did not fix. And I hope the help that the tenant received from the Amicus counsel and the Master, and the mostly positive results that followed from his persistence and quick acting, left him feeling better about the Alberta legal system than did his original encounter with the RTDRS.
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By: Alastair Lucas
Case/Matter Commented On: Berger Inquiry; Committee for Justice and Liberty v National Energy Board,  1 SCR 369, 1976 CanLII 2; Joint Review Panel for the Mackenzie Gas Project (2009)
Processes for reviewing and analyzing proposals for large diameter pipelines to move natural gas from the Canadian Arctic to Southern North American markets have been significant for the development of Canadian environmental law. This includes regulatory review processes and judicial review cases that arose out of the pipeline review proceedings. Milestone decisions were taken on critical procedural matters including community hearings to receive traditional knowledge, intervenor funding, and decision maker impartiality. The story spans more than 35 years and involves two separate sets of pipeline proposals (see Thomas Berger, Northern Frontier, Northern Homeland, The Report of the Mackenzie Valley Pipeline Inquiry, (Ottawa: Minister of Supply and Services Canada, 1977) (Berger Report)).
The first set of these pipeline plans, which included two competing proposals – one following a Yukon-Alaska Highway route and the other a Mackenzie Valley route – was advanced in the early 1970s. Approval then, as now, was required by the National Energy Board. The first proposal announced, the Mackenzie Valley pipeline, created sufficient public controversy that a Commission of Inquiry, under Commissioner Justice Thomas Berger was established by the federal government. Justice Berger’s mandate was to study the environmental, social and economic impact regionally of the project, to hold hearings and to report to the responsible federal minister.
Hearings took place from 1974-1976. The Inquiry’s procedure, rulings and final report produced a number of Canadian environmental law firsts. One was the structured, yet open, procedure adopted. Formal hearings involving the applicant Canadian Arctic Gas Pipeline Limited, an expert panel funded by the applicant, Aboriginal and environmental intervenors, and a competing pipeline company, were held in Yellowknife and some other communities. But significantly, dozens of informal hearings were held in small communities. Justice Berger was determined to hear from the people and he did. It was a preview of the significance that traditional Aboriginal knowledge was to have in subsequent regulatory proceedings. Intervenors in the formal hearings received funding from the Inquiry to participate. The Commissioner was adamant that though “public interest groups do not represent the public . . . it is in the public interest that they should be heard.” After hearing representation from the parties, he ruled that groups seeking funding had to meet the following criteria (Berger Report, Vol 2, Appendix, 225-226):
These funding criteria have become the gold standard for guiding participant funding decisions.
Justice Berger recommended that the pipeline should not proceed until Aboriginal land claims were settled in the region. It was precisely the argument made by the Aboriginal intervenors. This recommendation and its supporting evidence provided an important basis for Northern land claims negotiations that proceeded over the next 25 years. The Inquiry also witnessed considerable collaboration between the Aboriginal and environmental intervenors – a preview of the complex issues that have emerged around environmental law and the broadly similar, but not always consistent objectives of First Nations and environmental groups.
Justice Berger stated that for environmental protection, the multiple use concept was insufficient. Land preservation was necessary to protect wilderness, wildlife species and critical habitat. He recognized basic ecological values. Thus, he ruled out Northern Yukon and Mackenzie Delta pipeline routes, and recommended establishment of a wilderness park in Northern Yukon. He did not use the term “precaution” in his reporting letter to the Minister. But the idea of a precautionary principle, now common currency in Canadian environmental law, comes through clearly. A similar precautionary approach was taken by the environmental coalition in the Inquiry. They argued that the proposed pipeline’s buried chilled gas technology (to prevent discontinuous permafrost melting) amounted to experimenting on the North and should not be permitted.
Ultimately, the National Energy Board (NEB) approved both the Canadian Arctic Gas and the competing Foothills Pipeline (Yukon) projects (National Energy Board, Northern Pipelines Decision, Reasons for Decision, June 1977), but not before two major events occurred.
First, the NEB environmental intervenors raised a bias allegation against the NEB chair (who chaired the hearing panel) which they fought all the way to the Supreme Court of Canada (see Committee for Justice and Liberty v National Energy Board  1 SCR 369). The Chair had been appointed six months prior to the NEB receiving the Canadian Arctic Gas application. He had been President of the Canada Development Corporation, a member of the Pipeline Consortium, and had participated in planning and routing decisions. In a decision that has become the leading Canadian case on bias by administrative decision makers, the Supreme Court ruled that participation by the NEB chair created a “reasonable apprehension of bias.” This voided the NEB process. The resulting delay, along with deteriorating national economic conditions, ensured that the pipelines did not proceed.
Fast forward to the early 2000s. A new Mackenzie Valley gas pipeline proposal emerged. In many ways it was remarkably similar to its 1970s predecessor. An NEB application for this 16 billion dollar project was filed by the project consortium in 2004. Hearings that included 15 Arctic communities began in 2006 and led to approval, subject to 264 specific conditions concerning environment, engineering and other matters, in 2010 (Joint Review Panel for the Mackenzie Gas Project, Foundation for a Sustainable Northern Future: Report of the Joint Review Panel for the Mackenzie Gas Project (Canada: Minister of Environment, 2009)).
Along the way, a unique cooperative regulatory assessment process based on a “Cooperation Plan” among ten federal, territorial and First Nation agencies that had some type of regulatory or consultative process, was carried out. This involved a joint federal-territorial-First Nation Environmental Review Panel and separate National Energy Board hearings. An NEB panel member, who also sat on the Joint Review Panel, provided a critical link.
There were several First Nation judicial review applications, including a challenge to the Cooperation Plan. This action, based on constitutional Aboriginal consultation rights, confirmed procedural rights of the Dene Tha’ First Nation, and contributed to the considerable overall length of the process. The litigation was ultimately settled. But it underlines the significance of the duty to consult (see Kirk Lambrecht, Aboriginal Consultations, Environmental Assessment and Regulatory Review in Canada (Regina: University of Regina Press, 2013)), particularly in relation to large linear projects affecting the environment, as well as Aboriginal rights.
The regulatory process introduced innovative cooperative arrangements. But the result was a replay of the 1970s in the sense that the late 2000s recession, coupled with rapid development of shale gas in both Canada and the United States resulted in the project not proceeding.
Thus the 35 year northern gas pipeline saga has shaped Canadian environmental and related Aboriginal law in a number of ways. Procedural fairness and Aboriginal consultation principles were advanced. Perhaps most important, basic values, including early articulations of sustainability, precaution and ecological integrity, values that underpin much of modern Canadian environmental law, were affirmed.
Excerpted from An Introduction to Environmental Law and Policy in Canada, 2nd ed, by Paul Muldoon et al, by permission of Emond Publishing, Toronto, Copyright 2015. For more information: emond.ca/enviro2e.
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By: Jennifer Koshan
Kim Armstrong, Deputy Minister of the Status of Women, visited the University of Calgary campus yesterday. I participated in one of her meetings with a group of deans, faculty members and senior staff. One of the major themes from our meeting was the need for the university to attract and retain a diverse body of students, faculty and staff, and to prepare and support students with the challenges they may face in their fields once they graduate. The need for diversity and intercultural training was also a common theme. It was interesting to hear about initiatives at the university level and in other faculties: Valerie Pruegger, Director of the Office of Diversity, Equity and Protected Disclosure, reported that her strategic plan will soon be released; Jennifer Quin, Senior Director of Student Services, has been working on a new policy on sexual assault and sexual harassment on campus; the Faculty of Science is appointing an Associate Dean responsible for Diversity; and the Werklund School of Education has engaged in cluster hiring of First Nations, Inuit and Métis faculty members. I was pleased to report that our Faculty has a new student group, Calgary Women Studying Law, with whom the Deputy Minister would like to meet to discuss women and leadership, and that we are working towards implementing the recommendations regarding legal education from the Truth and Reconciliation Commission’s recent report (see Calls to Action # 27 and 28, available here).
On my wish list of matters for the Status of Women Ministry to undertake, in conjunction with the Ministry of Justice, are a few amendments to the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA). These amendments would benefit university women as well as women and other equality-seeking groups in Alberta more generally.
First, Alberta is one of the few jurisdictions in Canada that does not have a pay equity law. Section 6 of the AHRA requires women to be paid equally for “the same or substantially similar work”, whereas true pay equity provisions guarantee equal pay for work of equal value (see e.g. section 11 of the Canadian Human Rights Act, RSC 1985, c H-6). The government should amend the AHRA to include a similar guarantee.
Second, the AHRA should be amended to protect against discrimination on the basis of social condition or social disadvantage. Currently, our human rights law only prohibits discrimination based on “source of income”, which is much narrower (including, for example, receipt of social assistance but not poverty, education level, inadequate housing or homelessness). If we want to protect some of the most vulnerable people in our province from discrimination in employment, tenancies, and services customarily available to the public, we should extend the AHRA to include social condition or disadvantage as a protected ground. We would join provinces such as Manitoba, New Brunswick, and Quebec by doing so. And it is worth noting that the new government has already amended the AHRA to include gender identity and gender expression as protected grounds (see Bill 7), so it is on the right track.
Third – and I did not get a chance to mention this at the meeting – the government should amend the AHRA to allow the Human Rights Commission to initiate complaints. At present, the Commission is prevented from doing so (see section 20 of the AHRA). This exclusion limits the extent to which issues of systemic sex and other forms of discrimination can be scrutinized, and may shield egregious cases of discrimination when victims are afraid to come forward. Using the Canadian Human Rights Act as a comparator once again, section 40(3) provides that “Where the Commission has reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice, the Commission may initiate a complaint.” Similar provisions exist in other provinces as well (see e.g. Manitoba’s Human Rights Code, CCSM c H175.
Fourth, it is time to completely remove the requirement that school boards notify parents when the K-12 curriculum will cover issues concerning human sexuality or religion. This requirement was formerly found in section 11.1 of the AHRA, but the Conservative government migrated it to the School Act, RSA 2000, c S-3 last fall when it passed Bill 10. Bill 10 was somewhat of an improvement, as it removed materials on sexual orientation as one of the triggers for giving notice, and no longer branded non-compliant boards and teachers as violating human rights legislation. However, it may still create a chilling effect on classroom discussions covering important issues related to gender and sexual equality (see previous posts on this issue here and here). The repeal of this provision would also align with the government’s new Guidelines for Best Practices: Creating Learning Environments that Respect Diverse Sexual Orientations, Gender Identities and Gender Expressions, released Wednesday.
I am encouraged that we have a new Status of Women Ministry, and a Minister – Shannon Phillips – and Deputy Minister who are committed to improving the position of women and other equality-seeking groups in Alberta. The mandate for the Ministry is still being set and will be released in March 2016. I hope that it will include some actions in the realm of human rights law.
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