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Uber & Calgary – A Modern Day Romeo & Juliet

Mon, 02/09/2015 - 9:47am

By: Theresa Yurkewich

PDF Version: Uber & Calgary – A Modern Day Romeo & Juliet

The days of ride-sharing programs are nothing new, but with Uber’s recent opening in Edmonton, there is no doubt that it will soon make its way to Calgary. However, Uber is not the first taxi-alternative to make a run at the Calgary market. Blue & white Car2Gos can be seen populating the city, and especially the downtown core, where users sign up with their payment information and driver’s license in order to rent easy-to-park vehicles on a per-minute basis. These cars can be reserved using a mobile app or web browser and payment is electronically transferred when the ride ends.

But Car2Go isn’t the only ride-sharing program in Calgary – a simple search on Kijiji will find various drivers offering rides, will match riders with drivers, and there are other start-ups in the works. This post will consider the legal regime governing ride-sharing, with a focus on Calgary, while identifying some of the legal issues that these programs might face when operating within a municipality.

What is Uber?

Uber is a ride-sharing mobile application which allows users to book drivers (similar to a taxi brokerage service), input their credit card information, and track the location of those drivers on their way to pick up. The drivers, hired by Uber (after conducting a criminal background check), arrive in their personally owned sedans and their fares are based on time and distance. Prior to booking, both the rider and driver can view each other’s profiles (built from customer feedback) and see the estimated fare. Upon acceptance, the money is electronically transferred.

The app searches for riders travelling the same direction and encourages them to share rides by providing incentives such as a reduced fare. For riders who agree to share an Uber, the payment is divided and their credit cards are charged equally. As states, in enabling customers to split fares, their service is the end of pay-me-backs and IOUs.

There are four divisions within Uber. UberTAXI is similar to a standard taxi service with licensed drivers. UberBLACK and UBERLUX are made up of professional chauffeurs with commercial licenses, and UberX is made up of drivers over 21 years of age, who possess personal auto insurance and a well maintained vehicle. All rides are covered by Uber’s commercial liability insurance policy, and vehicles must be safe and of high quality. Rides are requested through the app and then each trip is archived within the application, which includes reviews of both the driver and rider.

Uber is currently available in 252 cities (and 53 countries) and is expanding. But, in recent months it has received a heavy dose of backlash from taxi companies and law makers. The fact that Uber operates through a mobile application, allowing individuals to hail a ride with the click of a button, is what makes it unique. However, it is possibly Uber’s laissez-faire approach to the law and its vocalized “play to win” attitude that has spawned negative attention from municipalities and taxi companies in the past year.

Regulation of Taxi Services by Municipalities

A municipality has the power to regulate the taxi industry provided it acts within the boundaries of provincial legislation and confines its regulation to business occurring within the municipality itself. Under the Municipal Government Act, RSA 2000, c M-26, municipalities have the power to make bylaws regulating transportation systems (section 7) and regulate, prohibit, and provide for a system of licenses (section 8). Through limiting the number of taxi licenses available, municipalities create a market and increase or decrease the value of a license.

Revenue received through regulating licenses must be closely related to the municipality’s licensing costs; otherwise, the municipality is ultra vires its constitutional powers. For example, in Surdell-Kennedy Taxi Ltd v Surrey (City of), 2001 BCSC 1265, the power to sell licenses by auction was not fairly implied from the municipality’s power to license and regulate. In order to characterize an auction price as a license fee, the price was required to be directly related to the municipality’s cost of administering the licensing (see paras 35-36, 57).

Case Study: The City of Calgary

Are Uber vehicles subject to regulation?

The first step to determine whether regulation of the Uber service is valid is to examine whether the service fits within the definitions provided by the City of Calgary’s Livery Transport Bylaw, 6M2007. The Bylaw does not apply to a motor vehicle, other than a taxi, accessible taxi, or limousine that is carrying passengers pursuant to a contract with the city.

A Limousine is a motor vehicle including a stretch-limousine, sedan-limousine or specialized limousine with a valid limousine plate license attached to it. The term of note is a “Sedan-limousine” – a Lincoln or Cadillac, which has not been altered in any way, seats 6 people maximum, has a frame 6 inches longer than a standard Lincoln or Cadillac, and is no more than 8 years old (section 42).

The definition of taxi is much simpler – a motor vehicle with a valid taxi plate license affixed to it (section 12 (qq)). This definition raises the question of whether a driver can avoid regulation by merely not affixing a license so that their vehicle does not meet the definition of a limousine or taxi. This would certainly be the position Uber takes, as their drivers do not carry taxi or limousine licenses.

The short answer to this question is no. The Bylaw provides that “No person shall advertise or offer a motor vehicle for hire unless that motor vehicle has a valid taxi plate license, accessible taxi plate license, or limousine plate license joined to it” (section 25). The same goes for charging a fare to carry passengers or even just operating a motor vehicle suggesting it is for hire (sections 26 and 27).

Regardless of whether Uber vehicles are taxis or limousines, it is clear the service is captured by the Bylaw. In the most basic sense, vehicles are offered for hire and charge fares to carry passengers. Fines for operating, charging a fee, or suggesting a vehicle is for hire without a license range from $800-$1500 (Schedule “D”) per offense.

Bylaw Logistics and the Regulation of Minimum Fares

Under the Livery Transport Bylaw, limousines must be previously arranged (section 50), which means entering into an agreement 30 minutes prior to pick up. Although this can be achieved by booking a ride through Uber’s mobile app, the strict 30 minute requirement means users will have to put some foresight into their ride requests.

The annual license fee for a limousine plate in 2015 is $703, $877 for a taxi plate, $1753 for a brokerage license application, and $1753 for an annual brokerage license (Schedule “B”). Additional to these fees are others such as those for inspection, bylaw, police check, and license replacement. The fee may be steep for drivers, but Uber would likely recoup these fees in profits.

But setting aside the waiting time and the costly license fees, it appears Uber’s main challenge in being classified as a limousine service is the minimum fare requirement. A limousine cannot be offered or advertised for a trip less than $84.60 per hour, regardless of the length of trip, time of trip, or number of passengers (sections 47-49, Schedule “A”). All of a sudden, that quick 10 minute “Uber” to work is costing close to $85. Drivers who disobey the bylaws will face fines ranging from $200-3,000.00 per offence (Schedule “D”).

An $85 fare for a 10 minute ride is preposterous, and will easily destroy the benefit of Uber. This would explain why Uber is adamant to operate outside the confines of the Bylaw, or often limits itself to the development of UberX, which does not use limousines.

However, even UberX faces its challenges. It constantly battles with the media and taxi industry to prove its methods of hiring are safe and reliable and to convince the public that an insurance policy does exist. Examples of this debate are seen in Calgary taxi companies join national anti-Uber campaign, The Calgary Herald (November 9, 2014) and Jesse Kline: Uber offers salvation for taxi-starved cities like Calgary. Why do they resist?, National Post (December 22, 2014).

Further, the strict fare regulations (Schedule “A”) make it difficult for Uber to compete by introducing lower prices. In addition to the rules surrounding minimum fares, there are conditions surrounding requirements such as transfers and the maintenance of log books.

There has been a constant battle between The City of Calgary and the public over the accessibility and cost of taxi services. As stated in Jesse Kline’s article on Uber (above), in 1986, the City capped the number of taxi licenses at 1,311. In the years up to 2014, only 255 licenses were added – even though the population had vastly grown. Finally, in September 2014, the City issued 383 new licenses in attempts to curb public outrage, however, as of December 5, 2014 only 37 new taxis had actually been added. This is not due to a lack of interest in purchasing new licenses, but due to delays in process. In fact, according to Taxi license auction adds 126 plates, The Calgary Herald (October 28, 2014), there were nearly 2,000 applicants for one of these taxi plate licenses.

Advancements in technology such as Uber or FastCab attempt to deregulate the industry and solve the problem of supply, demand, and driver wages; however, they are stifled by onerous regulations such as minimum fares and advanced booking requirements.

Can a Municipality Regulate Competition?

To determine the validity of a bylaw, its purposes must first be examined. Reading the preamble of the Livery Transport Bylaw, its purpose is to ensure public safety, service quality, and consumer protection in addition to establishing a regulatory mechanism and maintaining a sustainable industry.

This sounds like an important objective – but what if through the municipality’s attempts to protect consumers, it is really preventing lower fares, limiting efficiency, and pushing away start-ups that offer to meet consumer demands in the free-market? What this really sounds like, is a municipality regulating competition.

As stated above, municipalities are given the power to regulate under the Municipal Government Act. Further ability is provided through delegation of the provincial power to legislate on property and civil rights (section 92(13) of the Constitution Act, 1867), but, this power often intersects with the exercise of the federal government’s power to regulate trade and commerce through developing competition legislation (section 91(2) of the Constitution Act, 1867; see also General Motors of Canada Ltd. v City National Leasing Ltd., [1989] 1 SCR 641).

A municipality’s decision to act must be for a bona fide purpose (reviewable on the standard of correctness) as stated in Edmonton Flying Club v Edmonton (City), 2013 ABQB 421 (see para 89). Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2 clarified that this means councillors may consider social, economic, and political factors relevant to voters (see para 30).

In Associated Cab Limousine Ltd. v Calgary (City of), 2006 ABQB 32, the court stated:

There is nothing to prevent the Province from delegating to municipalities the regulation of local business. The regulation of the limousine and taxi business in the City of Calgary is a bona fide municipal purpose…Implicit in the power to regulate such business is the power to consider and regulate the issue of competition between such local businesses (see para 17).

Further, citing Shell Canada Products Ltd. v Vancouver (City), [1994] 1 SCR 231, “the incidental regulation of competition between industries is not incompatible with the broad purpose of providing services that are necessary or desirable for all of a municipality, or with the regulation of the City’s transportation systems” (2006 ABQB 32 at para 22).

Municipal powers must be interpreted with a “broad and purposive approach”, as stated in Municipal Parking Corp v Toronto (City) (2009), 314 DLR (4th) 642, [2009] OJ No 5017 (SCJ). In United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City), 2004 SCC 19, the Court applied a broad and purposive interpretation to the Municipal Government Act, in determining that a municipality has the power to limit the number of taxi plate licenses as a result of this power to regulate and provide for a system of licenses.

Further, in Associated Cab Limousine Ltd. (above), the Court found that section 8 of the Municipal Government Act permits municipalities to treat businesses differently (i.e. a taxi and a limousine service). Imposing minimum hourly rates for limousine services has been justified on the basis that they are an upscale alternative and not a necessity. These minimum hourly rates, higher than those of a taxi, were upheld by the Alberta Court of Appeal in Associated Cab Limousine Ltd. v Calgary (City of), 2009 ABCA 181.

Parks West Mall Ltd. v Hinton (Town), [1994] 3 WWR 759, 15 Alta LR (3d) 400 has illustrated that courts are very reluctant to quash a bylaw and rule that a municipality has not acted in the public’s best interest. A policy will not be overturned without sufficient evidence of bad faith – meaning, made with an improper purpose, impropriety, improper conduct, or illegality.

Merely a corrupt motive or dislike of the policy by the public is not sufficient, as demonstrated in Hollett v Halifax (City), (1975), 66 DLR (3d) 524 (NSCA). In this case, the applicant illustrated that their notice of application for a permit was a catalyst to the bylaw, that their economic interests would clearly be affected, and that the municipality operated against the advice of their advisors, yet, this was not sufficient to quash the bylaw.

To disturb a municipality’s determination of the public interest, a “good and sufficient” reason must be given. Discussed in Nanaimo (City) v Rascal Trucking Ltd., 2000 SCC 13, this high standard requires evidence of a “clear demonstration” (see para 36). Without proof of bad faith or improper purpose, a party cannot establish that the City has not acted in the public interest or for a bona fide municipal purpose – regardless of how individuals feel about it. The effect of limiting competition is not improper provided the initial reasoning behind it was made with good intentions.

But what about the federal Competition Act, RSC 1985, c C-34? Surely that must prevent a municipality from inadvertently regulating competition? Edmonton Regional Airports Authority v North West Geomatics Ltd., 2002 ABQB 1041 describes the Competition Act as “consumer protection legislation designed to protect the public from business practices which interfere with the operation of normal market practices such as to allow the public access to goods and services in a competitive market environment” (see para 130).

However, in Toronto Livery Association v Toronto (City), 2009 ONCA 535, the Court found that regulation of the taxi and limousine business is a bona fide municipal objective, incidental to which can include the power to “consider and regulate competition” in the public interest (see para 84). As such, Toronto’s bylaw regulating the limousine business did not offend the Competition Act.

Similar regulation of competition has been upheld in cases such as 698114 Alberta Ltd. v Banff (Town of), 1999 ABQB 59, in which a municipality wished to limit commercial growth and preserve uniqueness. In doing so, it established an annual lottery which regulated commercial development. Without this restriction, development in the area would have been highly competitive. The Court however upheld the bylaw based on the powers given to a municipality to regulate (which inadvertently can include decreasing competition itself).

There is an exception to this general rule – a bylaw which creates a monopoly will violate a municipality’s powers of regulation. A municipality’s right to regulate must be general and affect all who come within the scope of the legislation. As stated by the Alberta Court of Appeal in United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City of), 2002 ABCA 131, “where a bylaw is not prohibitory altogether but prohibitory to one and permissive to another, in effect, it is discriminatory in nature, open to favouritism and tends to create a monopoly” (see para 76). Although competition can be regulated, it must not be unduly inhibited.

A further limit is that without an express statutory provision, a municipality’s power to regulate does not include the authority to completely prohibit individuals from engaging in an occupation or trade. A license or permit process that is so onerous that it practically prohibits the obtaining of a permit or license constitutes an impermissible prohibition. However, this is not to be interpreted in the same manner as regulation of entry into an employment or profession (see 2002 ABCA 131 at paras 83-84, 117).


The requirement for minimum fares – whether for taxis or limousines – doesn’t do much to help competition, but it is entirely within the purview of The City of Calgary’s powers. However, at the end of the day, consumers are looking for the quickest ride at the lowest price. By regulating the lowest fare a driver can charge (or imposing higher rates for more “luxury” vehicles), there is no ability – or incentive – for a service like Uber to cut costs and offer cheaper service. The public may not back the City’s decision, but without evidence of bad faith, the municipality is presumed to operate in the public’s best interests.

With the courts supporting a municipality’s power to inadvertently regulate competition and the ability of the municipality to justify a bona fide purpose for regulation, it appears that if Uber wishes to operate legally, it has no recourse but to avoid Calgary, play by the rules, or lobby policy makers. Surely their “play to win” attitude suggests a preference for the latter. But, without a change of heart by local regulators, it seems Calgary and Uber will forever be kept apart.

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Does the Charter Apply to Universities? Pridgen Distinguished in U Vic Case

Fri, 02/06/2015 - 9:00am

By: Linda McKay-Panos

PDF Version: Does the Charter Apply to Universities? Pridgen Distinguished in U Vic Case

Case Commented On: BC Civil Liberties Association v University of Victoria, 2015 BCSC 39

In Pridgen v University of Calgary, 2012 ABCA 139, one member of the Alberta Court of Appeal, Justice Paperny, came to the conclusion that the Canadian Charter of Rights and Freedoms could apply to the actions of the University of Calgary in disciplining the Pridgen brothers for non-academic misconduct (see a post on that decision here). In BC Civil Liberties Association v University of Victoria, 2015 BCSC 39 (“UVic”), the British Columbia Supreme Court ruled that the Charter did not apply, and distinguished Pridgen on several grounds.

Pridgen involved a number of University of Calgary students in the Faculty of Communication and Culture (now Arts) who posted derogatory comments about one of their instructors on Facebook, and who were disciplined for non-academic misconduct. The discipline included writing mandatory letters of apology and lengthy periods of probation. Some students appealed the faculty’s decision to the General Faculties Council Review Committee, which upheld the finding of non-academic misconduct. The Pridgens sought further appeal to the University’s Board of Governors. One of the grounds of appeal was that their freedom of expression under the Charter had been violated by the University. Justice Jo’Anne Strekaf of the Alberta Court of Queen’s Bench granted the Pridgens’ application for judicial review on both Charter and administrative law grounds (see Pridgen v University of Calgary, 2010 ABQB 644).

On appeal, only one Alberta Court of Appeal Justice in Pridgen, Marina Paperny, directly addressed the issue of whether the Charter could apply to the University; the University argued that there was an “evidentiary vacuum” that should preclude that analysis (at para 62). For a number of reasons, Justice Paperny held that the Court of Appeal should determine the issue of whether the Charter applied to the University in the context of the case. She provided a thorough review of the previous case law on Charter section 32 (which provides that the Charter applies to government), and concluded that there are five categories of cases in which the Charter may apply. These include (at para 78):

  1. Legislative enactments;
  2. Government actors by nature;
  3. Government actors by virtue of legislative control;
  4. Bodies exercising statutory authority; and
  5. Non-governmental bodies implementing government objectives.

While Justice Strekaf had determined that in this case, the University was a “non-governmental body implementing government objectives”, Justice Paperny would have found that the University, in imposing disciplinary sanctions, was a “body exercising statutory authority” (at para 105). Thus, the statutory authority to discipline students for non-academic misconduct (Student Misconduct Policy) must be interpreted and applied in light of the Charter right to freedom of expression. Furthermore, the breach of the Pridgens’ right to freedom of expression by the decision of the Review Committee could not be saved by Charter section 1.

The remaining two justices at the Alberta Court of Appeal did not consider the Charter’s application directly and decided the matter on administrative law grounds.

Pridgen is one of a number of cases that address the issue of whether and when universities are subject to the Charter (see, for example: McKinney v University of Guelph, [1990] 3 SCR 229; Harrison v University of British Columbia, [1990] 3 SCR 451; R v Whatcott, 2012 ABQB 231). In the UVic case, Cameron Côté, a former student at the University of Victoria, was on the executive of a student club called Youth Protecting Youth (“YPY”). He was informed by the President of the Students’ Society that the University had prohibited YPY from using campus space because of its prior activities (i.e., anti-abortion activities). The activity proceeded and YPY and Côté were admonished for defying the direction of the president of the Students’ Society. Mr. Côté and the British Columbia Civil Liberties Association (BCCLA) asked the BC Supreme Court, among other things, for a declaration that any restrictions or regulations placed by the UVic on students who wish to use the school for “expressive purposes” be consistent with the Charter.

In addressing the issue of whether the University policies were subject to the Charter, the BCCLA and Côté relied on Justice Paperny’s judgment in Pridgen to support their position that any regulation of speech on University property is subject to Charter scrutiny (at para 137). Recall that Justice Paperny’s reasoning was based on the determination that the university was exercising statutory authority and thus was subject to the Charter.

Chief Justice Hinkson of the BCSC distinguished Pridgen for a number of reasons. First, he noted that neither Justices O’Ferrall nor McDonald agreed with Justice Paperny in Pridgen in terms of the Charter issue. In particular, Justice O’Ferrall had held that a ruling on the application of the Charter was unnecessary to the lower court’s disposition of the case and to the disposition of the University’s appeal. He was further influenced in his conclusion because the issue of Charter infringement had not been explored in the original hearing (at para 138). Justice McDonald had held that it was neither appropriate nor necessary for the lower court to have embarked on a Charter analysis in Pridgen (at para 132).

Second, Justice Hinkson noted that Côté, unlike the Pridgens, was not subject to any actual discipline by the University (at para 141).

Third, Alberta’s applicable legislation differs from that of British Columbia, because the BC University Act, RSBC 1996, c 468, specifically prohibits the Minister from interfering with certain powers granted to the University, and also gives the president and senate authority over student discipline (at para 141).

Fourth, Justice Hinkson accepted the University’s submission that in booking space for student club activities, the University is neither controlled by government, nor performing a specific government policy or program (following Lobo v Carlton University, 2012 ONCA 498).

Fifth, the Charter did not apply to the impugned decisions as they were undertaken “by the University with respect to the management of its privately owned land, and not to the exercise of governmental policy or the implementation of a specific government program regulating the use of University land” (at para 147). Thus, the decisions made by the University were within the University’s “sphere of autonomous operational decision-making” and not subject to the application of the Charter (at para 148).

Justice Hinkson thereby concluded that the Charter did not apply to the activity of booking space by students (at para 152). He declined to grant the declarations sought by Côté and the BCCLA.


John Dixon of the National Post has criticized this decision and indicated it will likely be appealed (see here). Dixon notes that it is rather ironic the UVic case begins with a quotation from University of Victoria’s Vice President, Jim Dunson:

Universities are places where difficult ideas and issues are often discussed and debated. Freedom of speech is a core component of intellectual inquiry and is a fundamental value of the University of Victoria …

Yet it was Dunson who issued the order to stop the activities and threatened further punishment of the pro-life students in the case at issue.

While Chief Justice Hinkson relied on several factors to distinguish Pridgen, some similar distinguishing factors were present in R v Whatcott, 2012 ABQB 231. In that case, however, the result was very different. The Alberta Court of Queen’s Bench determined that the University of Calgary had used anti-trespassing legislation to prevent an opportunity for participation in a learning activity, and this created a direct connection between the University’s governmental mandate and the impugned activity. The Charter applied, even to a non-student, who was using university property to distribute printed material without university permission. In contrast, in Lobo v Carlton University, 2012 ONCA 498, the activity—refusal of Carleton Life Line’s request to display its Genocide Awareness Project in outdoor area of campus—was characterized as “book[ing] university space for non-academic extra-curricular use,” and thus not subject to the Charter (at para 4).

Whether the Charter applies appears to be dependent on whether the activity is characterized as one that is related to learning or is determined to be purely non-curricular. However, when very similar activities are characterized differently, confusion results. It looks like the Supreme Court of Canada will have to settle this issue.

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Proportional Sentencing for Impaired Driving Causing Death: The Tragic Death of Brandon Thomas

Thu, 02/05/2015 - 9:00am

By: Shaun Fluker

PDF Version: Proportional Sentencing for Impaired Driving Causing Death: The Tragic Death of Brandon Thomas

Case Commented On: R v Gibson, 2015 ABCA 41

On the evening of December 6, 2012, Ryan Gibson was intoxicated and driving a truck on highway 22 south of Cochrane. He moved into the northbound lane to pass 2 semi tractor-trailers and after passing them he did not move back into the southbound lane. He continued to travel at highway speed on the wrong side of the highway, and subsequently struck 3 oncoming vehicles. After side swiping and striking the first 2 vehicles, Gibson’s truck collided head-on with the car being driven by 17 year-old Brandon Thomas who lived in Cochrane. Brandon Thomas died at the scene as a result of the collision. Gibson pled guilty to impaired driving causing death and one count of impaired driving causing bodily harm. In May 2014 the sentencing judge rejected a joint submission by the Crown and defence for a 2 year custodial sentence and instead imposed a sentence of 2 years and 8 months imprisonment. In R v Gibson, 2015 ABCA 41, the Alberta Court of Appeal has dismissed an appeal by Gibson who argued the sentencing judge erred by rejecting the joint submission on sentencing.

The determination of an appropriate sentence in a case like this has to be one of the more difficult aspects of being a judge. A young man has been killed and his family and friends devastated. No words can truly explain their loss, and no penalty imposed by the legal system will bring back Brandon Thomas. The man to be sentenced accepts full responsibility for his conduct and has no prior criminal history. Ryan Gibson was only 22 years old in December 2012 and has expressed sincere remorse for his actions.

Sentencing has been the topic of previous comments on ABlawg (for recent comments by Joshua Sealy-Harrington and Professor Jennifer Koshan see here and here respectively) and scholarship in recent years (Julian Roberts discusses the scholarship in “Sentencing Scholarship and Sentencing Reform in Canada” (2001) 46 McGill LJ 1163). A good place to find Canadian literature on criminal sentencing would be the Criminal Law Quarterly published by Carswell. In the context of impaired driving specifically, a quick search of this journal revealed at least one article directly on point: Tammy Law, “Sentencing of Impaired Driving Cases: Should Harm be Considered?” (2004) 49(2) Criminal LQ 198.

Principles of sentencing are closely informed by theories of justification for punishment by the State. Such theories are generally categorized into 2 groups. One group justifies punishment based on its effects. For example, punishment for crimes is justified because it removes a dangerous offender from society or the imposition of such punishment on the offender deters others from committing a similar offence. The other group justifies punishment based on the principle of just deserts – the commission of the criminal act itself justifies the punishment or the offender is punished because they deserve such. This group argues that the effects-based theories can perhaps be too lenient in imposing a penalty (see generally Mark Tebbit, Philosophy of Law (Routledge, 2000) c 10). In his 2001 review of sentencing decisions by the Supreme Court of Canada in the context of legislated mandatory minimum sentences, Professor Kent Roach observed a trend of increasing reliance on just deserts in sentencing decisions by the Court (see Kent Roach, “Searching for Smith: The Constitutionality of Mandatory Sentences” (2001) 39 Osgoode Hall LJ 367 at 395-399).

Principles and factors to consider in criminal sentencing are set out in sections 718 to 718.21 of the Criminal Code, RSC 1985, c C-46. These sections appear to incorporate all the various theories justifying punishment. Section 718.1 in particular stands out as the section states the fundamental principle in sentencing is that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Parliament added this section to the Criminal Code in 1996 and it has been considered by some as evidence of an intention by Parliament to assert a just deserts approach over other principles such as deterrence (see e.g., Roach above at 395).

In Gibson, the Court of Appeal refers explicitly to section 718.1 in asserting the proportionality principle to rule that the sentencing judge was correct to reject the joint submission on sentencing by the Crown and defence counsel. The Court further rules that the sentencing judge was not bound to follow a joint submission which was not proportionate to the crime. The Court clearly asserts that it is the role of the court – not counsel – to decide on the appropriate sentence in a given case (see generally paras 14 – 19). The Court of Appeal also seems to strongly endorse just deserts as the fundamental principle of criminal sentencing.

In the circumstances of this crime, the Court states that the 2 year sentence proposed by the Crown and defence counsel would be “profoundly unfit” because (1) the gravity of this offence was on the high end of the spectrum – Gibson was driving on the wrong side of a highway at highway speeds and took no evasive action to avoid collisions; and (2) Gibson drove his vehicle while impaired at more than twice the legal limit (at paras 21-24). The Court concludes that a fit sentence in this case would be no less than 4 years imprisonment (at para 26). However, the Court declines to interfere with the decision of the sentencing judge to impose a sentence of 2 year 8 months because the Crown did not give prior notice of an intention to seek an increased sentence (at para 27, citing R v Holloway, 2014 ABCA 87).

The Court of Appeal has corrected the error in these proceedings for future application, but ruled it was precluded from addressing the problem here. There is perhaps no greater sorrow than that experienced by a grieving parent who outlives her child. The Court’s confirmation that just deserts were not implemented in this case likely serves only to accentuate this grief for Brandon’s family.

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Civil Liberties Association Holds Public Consultation on Gay-Straight Alliances in Schools

Wed, 02/04/2015 - 9:00am

By: Sarah Burton

PDF Version: Civil Liberties Association Holds Public Consultation on Gay-Straight Alliances in Schools

Consultation Commented On: Rocky Mountain Civil Liberties Association, Consultation on Gay Straight Alliances, January 27, 2015

The Rocky Mountain Civil Liberties Association (RMCLA) recently conducted public consultations to continue Alberta’s ongoing conversation about Gay Straight Alliances (GSAs) in schools. This post discusses the main themes revealed at the public consultation held at the University of Calgary on January 27, 2015.


In December 2014, the Prentice government introduced Bill 10: An Act to Amend the Alberta Bill of Rights To Protect Our Children, 3rd Sess, 28th Leg, 2014 (Bill 10) in response to public pressure driven by Liberal Private Members’ Bill 202, the Safe and Inclusive Schools Statutes Amendment Act. Without rehashing the details (which were discussed in an earlier post here), Bill 10 permitted school boards to deny a student’s request to create a GSA, and gave recourse to the Minister of Education in the event of such a denial. Amid a growing wave of public scrutiny, on December 4, 2014 Bill 10 was “put on hold for more consultation”.

The government has not, however, announced any plans to conduct a public consultation. The RMCLA stepped in to fill this void and create a platform for Albertans to voice their opinions on this issue. Oral and written submissions were welcome from everyone. They will be incorporated into a formal report that will be submitted to the Alberta government in March 2015. More information on the public consultation, as well as copies of the written submissions, is located on RMCLA’s website (here).

I had the opportunity to attend the Calgary branch of the public consultation process on January 27, 2015. It was an informative and poignant expression of public interest in the creation of GSAs. The audience heard from students, teachers, social workers, politicians, religious representatives, civil liberties groups and other interested community members. While their stories were varied, the following common themes emerged.

  1. All Students Benefit from GSAs

A GSA is not a gay club, and it does not only benefit LGBTQ students. Everyone is welcome to join, and in practice, membership includes a wide variety of students who are looking for a safe and welcoming place in their school.

GSAs have a positive impact outside the four-corners of the group. Parents, teachers and students repeatedly emphasized the difference that a GSA makes in creating a more positive school culture. As one student noted, just the presence of a GSA is a conversation starter. It sparks curiosity and questions from other students, creating a perfect opportunity to educate people about what GSAs are and why they are needed. It also is a useful launch point to explain to the larger student population the effect that homophobic put-downs have on persons in the LGTBQ community. Several students and teachers noted that the use of homophobic slurs decreased after a GSA was up and running at their institution.

  1. Deferring to Parental Control Misses the Point

Bill 10 protects the right of parents to control how their child is exposed to human sexuality in school. For instance, it modifies but continues the controversial practice of sending a notice to parents whenever “human sexuality” (as opposed to “sexual orientation”) will be taught (Bill 10, s. 2(5)). While GSAs themselves are not expressly subject to parental control, the appeal structure created by Bill 10 would not function without parental involvement or awareness.

On its face, parental controls are appealing – they respect the right of Alberta parents to present sexuality to their children in a way that accords with their deeply held beliefs. However, this approach is flawed in its assumption that all students come from supportive and accepting families, and that those students possess no rights independent of their parents.

In handing over significant control to parents, Bill 10 ignores the tragic fact that parents are often the worst bullies of their LGBTQ children. There is no shortage of news stories involving parents who isolated or abused their LGBTQ children, often with dire consequences (for example, read reports of Leelah Alcorn’s story). It is sad but undeniable that family bullying contributes to LGBTQ youth suicide rates, and the overrepresentation of LGBTQ youth among Alberta’s homeless populations (see here and here).

GSAs create a safe space for students to be themselves. When they lack family support, it may be the only place they have. If parental control takes precedence, this undermines ones of the core benefits GSAs have to offer the most vulnerable students. A GSA with a parental override clause will not serve those who most need it.

  1. Religious Beliefs Should Not be a Barrier to GSAs

Two Jewish community leaders spoke out in support of GSAs. Their submissions sought to demonstrate that there is more than one way to interpret and contextualize religious beliefs on homosexuality. Members representing the Christian faith were asked to make oral submissions in Calgary, but regrettably declined. This is unfortunate, as it would have provided an opportunity to clarify one of the central sticking points on GSAs – their application to the separate Catholic School Boards.

When Alberta became a province in 1905, s. 17 of the Alberta Act, 1905 (an appendix to the Constitution Act, 1867) affirmed the right of minority faith communities, either Protestant or Roman Catholic, to form a separate school district. This was affirmed by s. 29 of the Charter, which preserves existing constitutional rights. As such, the province of Alberta must contend with constitutionally enshrined rights bestowed on denominational schools when it seeks to enact legislation affecting Alberta schools.

This has caused tension with Alberta’s prohibition on discrimination based on sexual orientation, which has bubbled over periodically into lawsuits and human rights complaints (see, for example Vriend v Alberta, [1998] 1 SCR 493).

In an ideal world, matters should not have to proceed to court before the status of GSAs in denominational schools can be settled. As the Jewish community leaders demonstrate, the tension between religion and the LGBTQ community is not inevitable, nor is it universal. Given the demonstrated benefits of GSAs, religious teachings on support and inclusivity, and the fact that membership and involvement with GSAs is entirely voluntary, the Jewish representatives have shown that it is possible to respect one’s faith and facilitate the creation of GSAs.

  1. GSAs Should be Student-Driven

One of the most valuable features of a GSA is that it is student led and controlled. No two GSAs are identical, because they adapt to the specific student needs at each school. It is this individuality and ownership of interested students that have made GSAs so successful.

A blanket obligation that all schools “shall” have a GSA blunts this spirit and sense of control. While the GSA supporters agreed that all schools should permit GSAs when asked, they were equally clear that the impetus for creating the GSA should rest with the students.

5. There is Importance in a Name

Legislation on GSAs must stipulate that the name “Gay Straight Alliance” is permitted, although not required. While students didn’t care about the name “Gay Straight Alliance”, politician Laurie Blakeman and the RMCLA panelists recalled Ontario’s problems with school boards creating “diversity” or “equality” clubs while simultaneously prohibiting the name “Gay Straight Alliance” (see, for example, news coverage of Windsor Ontario’s Catholic School Board here).

By permitting the GSA title, legislation will be clear that school boards must adhere to the spirit and the letter of the law. Students may, however, choose a name other than GSA.

Concluding Thoughts

As you may gather from the comments outlined above, participants in the public consultation were overwhelmingly pro-GSA. This may not be surprising, as the RMCLA would likely appeal to advocates who are, by and large, supporters of equality rights. While I believe that Albertans who are skeptical of GSAs would have been received respectfully and openly at the hearing, their absence demonstrates that they likely felt otherwise.

The relative one-sidedness of the oral public consultation highlights how much a government-sponsored public forum would have been useful on this issue. A government sponsored consultation would give the appearance of a more neutral platform for Albertans to voice their concerns, and perhaps to settle their differences.

Unfortunately, after the firestorm died down late last year, the Alberta government has been largely silent on Bill 10, its potential successor, and GSAs generally. Given the headache it caused the government, this silence is disappointing but not at all surprising. Amidst this silence, however, it is important to remember that the issue of GSAs has not been settled. While attention has been diverted, the Alberta students who would benefit from a GSA have been left waiting in limbo. All schools in Alberta have LGBTQ children. Given the risks facing marginalized LGBTQ youth in schools, and the demonstrated benefits of GSAs, we owe it to these students to make comprehensive legislation on GSAs a priority that actually serves their needs.

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Judicial Interventions and Rape Myths: Differing Approaches at the Alberta Court of Appeal

Tue, 02/03/2015 - 10:40am

By: Jennifer Koshan

PDF Version: Judicial Interventions and Rape Myths: Differing Approaches at the Alberta Court of Appeal

Case Commented On: R v Schmaltz, 2015 ABCA 4

A decision from the Alberta Court of Appeal has garnered attention from the media (see here and here) for its contribution to recent debates about rape culture and rape myths. In the context of discussions about Ghomeshi (see here and here), Cosby, Dalhousie and the ongoing challenges that prevent many women from coming forward with complaints about sexual assault and harassment, the Court of Appeal has weighed in on the role that judges can play in curtailing the perpetuation of rape myths in the courtroom.  In R v Schmaltz, 2015 ABCA 4, the majority (Justices Russell Brown and Thomas Wakeling) ordered a new trial based on their view that the trial judge had gone too far in limiting cross-examination of the complainant. Justice Marina Paperny, writing in dissent, would have dismissed the appeal and upheld the conviction of the accused.

The Decision

The alleged facts are sparse in the majority judgment, and it is only in the dissenting judgment where we learn that the accused digitally penetrated the complainant in her daughter’s home. Media reports indicate that he was a friend of her daughter’s boyfriend. The complainant testified that she woke up to find this assault underway and that she did not consent. The accused also testified, and while he did not deny the sexual activity, he claimed that the complainant consented to it. The key issue at trial was therefore whether the complainant consented to the sexual activity in question. Following a preliminary inquiry, the trial proceeded before a judge alone. After rejecting an application for a mistrial made by the defence, Judge D.J. Greaves convicted the accused of sexual assault, contrary to s 271 of the Criminal Code, RSC 1985, c C-46.

At the Alberta Court of Appeal, the appellant framed the issues as follows: (1) whether the trial judge’s conduct created the appearance of an unfair trial, and (2) whether the trial judge’s conduct raised a reasonable apprehension of bias and thus resulted in a miscarriage of justice (at para 12). The conduct of the trial judge that was alleged to give rise to these issues was a series of interventions he made during the cross-examination of the complainant by defence counsel.

On the first issue, the majority articulated the following test: “whether the appellant’s right to make full answer and defence was breached by significant and unwarranted constraints imposed by the trial judge upon defence counsel’s cross examination of the complainant” (at para 20, citing R v Lyttle, 2004 SCC 5 (CanLII), [2004] 1 SCR 193 at 196).  This question is to be answered from an objective perspective, namely “whether the accused or an observer present throughout the trial might reasonably consider that the accused had not had a fair trial” (para 21). Put another way, trial fairness should be looked at in terms of whether justice was seen to be done, again assessed from the perspective of a reasonable, “well-informed and right-minded observer” (para 23). The majority rejected the Crown’s argument that there should be a presumption in favour of trial fairness, with a declaration of trial unfairness reserved for the clearest of cases. They indicated that this higher standard was applicable only to allegations of reasonable apprehension of bias, and not to allegations of unfairness based on judicial interventions in cross-examination (at paras 21, 24), noting however that there was authority to the contrary (see R v Hamilton, 2011 ONCA 399 (CanLII)). The majority’s reasoning was that the fairness of judicial interventions can be “objectively viewed and assessed” on appeal, while allegations of bias cannot be similarly tested due to the difficulty of knowing a trial judge’s “mind or motivations” (at para 24).

Justice Paperny indicated that while she agreed generally with this approach, the reasonable observer (and the reviewing court) “must look beyond mere appearances and consider whether, in fact and in law, interventions by the trial judge deprived the appellant of his right to make full answer and defence” (at para 62). She noted that the right of an accused to cross-examine witnesses, while essential, is not absolute, and must comply with the rules of evidence and avoid “harassment, misrepresentation … [and] questions whose prejudicial effect outweighs their probative value” (at para 63, citing Lyttle at para 44). In the sexual assault context, legislation and case law places further restrictions on cross-examination related to the complainant’s sexual history / reputation and discredited “rape myths”. Unlike the majority, Justice Paperny accepted the existence of a presumption “that a trial judge has not unduly intervened in a trial” and indicated that trial unfairness based on interventions should be found “only in the clearest of cases” (at paras 64, 66, citing Hamilton).  She reasoned that a reviewing court should be deferential to the trial judge’s decisions given the advantageous position of the trial judge in assessing the demeanour of witnesses and the conduct of cross-examining counsel (at para 64), and emphasized that ensuring a fair trial is intended to protect the rights of both the accused and the complainant (at para 68).

The appellant contended that there were four instances of judicial intervention in cross-examination that had the effect of impairing the defence strategy of showing inconsistencies in the complainant’s testimony and testing her credibility. The majority and dissenting justices applied their approaches to trial unfairness to each of these allegations individually as well as cumulatively.

The first argument was that the trial judge had improperly interfered in defence questioning about the complainant’s consumption of marijuana. The defence had been trying to expose a possible contradiction between the complainant’s testimony, where she indicated that she had not consumed drugs on the occasion in question, and a medical report which showed THC in her blood. The trial judge had intervened in the cross-examination to express concerns about the lack of expert evidence, and took judicial notice that traces of THC can remain in a person’s blood for some time. The appellant argued that this intervention “amounted to advocacy on the part of the Crown” and “provided the witness with an answer to counsel’s questions”, thus preventing effective cross-examination (at para 31).

The majority agreed with this argument, finding that the trial judge’s conduct had deprived the accused of an opportunity to test the complainant’s credibility (at para 32). Justice Paperny disagreed. She noted that the trial judge’s questions were directed at ensuring that proper legal procedures for introducing the medical report were followed, that his intervention had not influenced the complainant’s response, and that the defence strategy of showing a possible inconsistency in the complainant’s testimony had been accomplished (at paras 75-78).

The second allegation of inappropriate interference in cross-examination went to the trial judge’s intervention in defence questions about flirting. Defence counsel was trying to suggest a contradiction between the complainant’s evidence in chief, where she denied any flirting having taken place, and her statement to the police, which suggested there had been flirting. The trial judge intervened to indicate that the police statement made it clear the complainant had said it was the accused who had been flirting with her, and the defence then abandoned that line of questioning.  The Crown returned to this issue in its re-examination of the complainant, where she confirmed that the accused had been flirting with her, not vice versa.

The majority found that this intervention was also inappropriate, suggesting that the passive language used by both the Crown and police “left open the question of who was flirting” (at para 36). They believed that the trial judge’s conduct “not only effectively shut down cross-examination by defence counsel on a potentially critical ambiguity in the complainant’s statement to police, it suggested a resolution to that ambiguity that Crown counsel was able to exploit” (at para 38).  Justice Paperny disagreed , indicating that defence counsel could have, and in fact later did continue with cross-examination on this issue, and that the accused had given a different account in his testimony, making it possible to find a contradiction in the complainant’s testimony about flirting (at paras 80-81). More importantly, she questioned the relevance of this line of questioning, as any flirting was irrelevant to the issue of consent, and was only “tangentially” relevant to the complainant’s credibility (at para 82).

The third argument concerned the trial judge’s intervention in defence questions about whether the complainant was wearing a bra. Again, this line of questioning was said to be intended to expose possible inconsistencies between the complainant’s evidence at trial and her statement to the police. The majority found this intervention to be appropriate, as the complainant had not accepted the police transcript as an accurate reflection of what she told police, and the judge’s intervention was merely to indicate that the defence would need to prove the veracity of the transcript (at para 40). Justice Paperny did not deal with this issue in her reasons, perhaps because the majority had already dismissed its relevance to trial fairness. But her point about the flirting line of questioning is also pertinent here – evidence about the complainant’s clothing was irrelevant to the issue of consent, and only tangentially relevant to credibility at best.

The fourth area of concern related to evidence of the complainant’s sobriety.  The defence strategy was to show contradictions between the complainant’s testimony and that of her daughter as to whether she was drunk at the time of the alleged incident, and between the complainant’s testimony at trial and at the preliminary inquiry in terms of how many beers she had consumed. The trial judge intervened to indicate that defence counsel’s questions were unclear, that there appeared to be no contradiction, and that she should move on.

The majority found that the trial judge had improperly interfered with the ability of the defence to cross-examine the complainant on the inconsistencies in evidence regarding her sobriety, which went to her credibility (at paras 44-46). The dissent disagreed, indicating that the trial judge had properly sought to have defence counsel conform to evidentiary procedures for introducing contradictory statements, and that he was alive to the contradiction between the evidence of the complainant and her daughter (at paras 84-85).

Overall, the majority found that the cumulative impact of the trial judge’s interventions rendered the trial unfair:  “he frustrated, to a significant and unwarranted degree, defence counsel’s strategy to test the complainant’s credibility. This would lead a reasonable, well-informed and right-minded observer to conclude that the appellant was not able to make full answer and defence” (at para 48). The majority did acknowledge the important role to be played by trial judges in sexual assault cases to protect complainants “from questions tendered for the purpose of demeaning and pointing to discredited, illegitimate and irrelevant factors personal to the complainant” (at para 47). However, their view was that the defence strategy was to test the complainant’s credibility rather than to suggest she had consented, and that this strategy did not propagate rape myths. A new trial was therefore required.

In contrast, Justice Paperny concluded that the trial judge’s interventions were either proper or immaterial, and she found that the interventions did not deprive the appellant of his right to make full answer and defence. She found that the defence had been able to make its position clear “that the complainant was a liar, a possible drug user, was drunk at the time of the assault, and consented to the sexual activity” (at para 86).  Overall, “the high threshold required to establish an injustice warranting a new trial has not been met” (at para 87).

On the second issue, whether there was a reasonable apprehension of bias, the majority found that a more onerous standard was appropriate, with a “strong presumption that judges discharge faithfully their oath to deliver justice impartially” (at para 50), such that a new trial should be ordered only in the clearest of cases. The majority held that the appellant could not meet this threshold on the facts presented (at paras 52-59), and Justice Paperny agreed with this outcome (at para 61).


It is interesting that the majority refers to rape myths several times, but without defining the term, explaining its origins, or offering relevant examples. The only elaboration of rape myths in their judgment appears at para 19, where they indicate that trial judges in sexual assault cases may intervene to protect complainant witnesses from “random shots at the complainant’s reputation or groundless questions directed to discredited “rape myths” to the effect that the complainant’s unchaste or aroused state made it more likely that she would have consented to the sexual activity in question.”

But rape myths are about much more than reputation and consent.  In the Supreme Court of Canada’s first decision recognizing rape myths, R v Seaboyer; R v Gayme, [1991] 2 SCR 577, 1991 CanLII 76 (SCC), McLachlin J (as she then was), writing for the majority, stated that rape myths include the discredited beliefs “that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief” (at 604).  Justice L’Heureux Dubé’s dissenting reasons went further, providing a non-exhaustive list of rape myths including the following:

  • “a woman cannot be raped against her will, that if she really wants to prevent a rape she can”
  • “rapists are strangers who leap out of bushes to attack their victims”; “the existence of a relationship between the parties [is used] to blame the victim”
  • women “are madonnas or they are whores”
  • “being on welfare or drinking or drug use … are used to imply that the woman consented to sex with the defendant or that she contracted to have sex for money”
  • “if a woman is raped, she will get hysterical during the event and she will be visibly upset afterward”
  • “if a woman is raped she will be too upset and ashamed to report it, … [or] she will be so upset that she will report it”
  • “the feminine character is especially filled with malice. Woman is seen as fickle and as seeking revenge on past lovers.”
  • “the female’s sexual behavior, depending on her age, is under the surveillance of her parents or her husband, and also more generally of the community….  if a woman says she was raped it must be because she consented to sex that she was not supposed to have”
  • “females fantasize rape”
  • “rapists are not “normal” and are “mentally ill”” (at 651-654, citing L. Holmstrom and A. Burgess, The Victim of Rape: Institutional Reactions (New Brunswick, N.J.:  Transaction Books, 1983) at 174-199)

Justice L’Heureux Dubé also explained the operation of rape myths in the criminal justice system (at 654):

Like most stereotypes, they operate as a way, however flawed, of understanding the world and, like most such constructs, operate at a level of consciousness that makes it difficult to root them out and confront them directly.  This mythology finds its way into the decisions of the police regarding their “founded”/“unfounded” categorization, operates in the mind of the Crown when deciding whether or not to prosecute, influences a judge’s or juror’s perception of guilt or innocence of the accused and the “goodness” or “badness” of the victim, and finally, has carved out a niche in both the evidentiary and substantive law governing the trial of the matter.

Another Supreme Court decision which includes a lengthy discussion of rape myths is R v Ewanchuk, [1999] 1 SCR 330, 1999 CanLII 711 (SCC), where Justice L’Heureux Dubé, in concurring reasons, added to her list from Seaboyer the following (at paras 82, 87):

  • “women often deserve to be raped on account of their conduct, dress, and demeanour”
  • “when a woman says “no” she is really saying “yes”, “try again”, or “persuade me””

In Schmaltz, to the extent that the trial judge’s interventions reined in questions targeted at undermining the complainant’s credibility based on her clothing and her alleged flirtatious behavior, or what she said about these matters earlier, he was appropriately rejecting the perpetuation of rape myths. As recognized by Justice Paperny, these matters were immaterial to the issues at trial. Potential inconsistencies in the complainant’s testimony about them should not have been exploited by the defence in the name of credibility testing. Questions about drinking and drug use are a bit more complicated, as they may go to the complainant’s ability to recall the events in question, but caution must also be taken to ensure that such questions do not lead to inappropriate inferences about the likelihood of consent or the overall trustworthiness of the complainant. The trial judge’s interventions in cross-examination on these issues, while not clearly linked to the rejection of rape myths, were still appropriate.

Justice Paperny’s judgment is also to be preferred because of the high threshold she recognized for overturning a trial decision based on allegations of unfairness in limiting cross-examination. Inappropriate cross-examination of the complainant that perpetuates rape myths remains an issue in many sexual assault cases, and the Crown and trial judges should be encouraged to object to and limit such questioning, with appropriate deference shown to such interventions on appeal (for more on this topic see the excellent essays in Elizabeth Sheehy’s collection Sexual Assault in Canada: Law, Legal Practice and Women’s Activism (Ottawa: University of Ottawa Press, 2012) and a review of the book by Doris Buss and myself here). The competing views of the proper threshold offered by the majority and dissent, and the contradictory decision of the Ontario Court of Appeal in Hamilton, suggest that this may be an appropriate case for an appeal to the Supreme Court of Canada.

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A Constitutional Right to Free Transcripts?

Thu, 01/29/2015 - 9:00am

By: Sarah Burton

PDF Version: A Constitutional Right to Free Transcripts?

Case Commented On: Taylor v St. Denis, 2015 SKCA 1

Last fall, the Supreme Court of Canada found a hearing fee scheme unconstitutional because it prevented people from accessing courts (see Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 (Trial Lawyers)). In Taylor v St. Denis, 2015 SCKA 1 (St Denis), the Saskatchewan Court of Appeal was asked to extend this reasoning to exempt a self-represented litigant from the cost of mandatory trial transcripts. The Court declined this request, choosing instead to distinguish the landmark Supreme Court decision. Unfortunately, the decision in St Denis was impacted by deficits in the applicant’s evidence and arguments. Despite these shortcomings, St Denis serves as a useful indicator to highlight how the Supreme Court’s decision will function as a future precedent.


The applicant, Taylor, appealed the judgments in two defamation actions he commenced. Under the Saskatchewan Court of Appeal Rules, Taylor was required to pay for and file a trial transcript as part of the appeal record (Court of Appeal Rules, Sask Gaz April 18, 1997, Rule 19; The Court Officials Act, SS 2012, c C-43-101, s. 14(2)). Without relevant transcripts, the appeal would not proceed. If the parties could not agree on relevant extracts to produce, the entire transcript was required. The transcript fee in this case was $20,500. Taylor alleged that he could not afford to pay for the transcripts, and sought an order directing an exemption from the fee. He lost that battle on jurisdictional grounds because, in Saskatchewan, transcribing services are provided by and paid to private third parties. The presiding justice lacked jurisdiction to order a private non-party to forego the fee for their services. Taylor then amended his application to request that the Attorney General pay the transcript fee. The Attorney General intervened in opposition to the amended application.

Reasons for Decision

Taylor’s application failed. As is unfortunately the case with many self-represented litigants, Taylor was not his own best advocate, and many of his arguments were hindered by unfamiliarity with complex legal principles. As such, several of his arguments (including a claim under the doctrine of state necessity, Charter ss. 7 and 15(1) breaches, reliance on Criminal Code provisions, and an assertion that the trial judge’s reasoning breached the rule of law) were dismissed with little difficulty (St Denis at paras 12 – 37).

However, Taylor’s submission that the transcript fee violated a constitutional right to access superior courts merited more detailed discussion. This argument rested on the Trial Lawyers decision, wherein the Supreme Court held that hearing fees impermissibly encroach on s. 96 of the Constitution Act, 1867 and the rule of law if they effectively block access to courts (Trial Lawyers at para 2).

Taylor argued that his situation mirrored that in Trial Lawyers. Madam Justice Ryan-Froslie was less convinced, and distinguished Trial Lawyers on four grounds:

  • Every limit on accessing courts is not an automatic constitutional problem (see, for example, British Columbia (Attorney General) v Christie, 2007 SCC 21 (St Denis at para 59)).
  • Transcript fees differ significantly from the hearing fees in Trial Lawyers. Transcripts are a form of evidence, the assembly of which have always been considered personal in nature. Moreover, transcript fees are charged by private individuals as part of their business. It is not a government fee or method of broader government policy implementation (St Denis at para 60).
  • Appellants have some control over the extent and cost of the transcripts they produce on appeal. Where disputes arise, a court application can determine which transcripts are necessary to an appeal (St Denis at para 61).
  • The government’s position on transcript fees is a question about the allocation of scarce resources. This determination is better left to the legislative and executive branches of government (St Denis at para 62).

Alternatively, even if she was wrong in her assessment of Trial Lawyers, Justice Ryan-Froslie noted that Taylor failed to meet the evidentiary standards established in that case. In particular, Taylor failed to demonstrate that he could not afford the $20,500 fee, as the evidence he submitted regarding his financial position was lacking on several vital points (St Denis at paras 33-35, 63, 65).

On a conciliatory note, Justice Ryan-Froslie adjourned opposing counsel’s cross-application demanding that Taylor’s appeal be perfected. She directed the parties to a pre-hearing conference where they could determine what portions of the trial transcripts were actually necessary to the appeal.


Distinguishing the Trial Lawyers Decision

Given the burden that a broad reading of Trial Lawyers could impose on courts and government, this application would have been difficult to win even with an ideal fact pattern and experienced counsel. Unfortunately, neither of these factors was present here. As such, the Court did not hear a clear and compelling argument about how the hearing fees in Trial Lawyers are comparable to mandatory trial transcripts. This missed opportunity permitted the Court of Appeal to emphasize the differences between these two cases and draw on Taylor’s evidentiary weaknesses to reach its decision.

For example, unlike Trial Lawyers, Taylor’s $20,500 transcript fee was not a flat and unavoidable charge. Instead, it depended on the scope and style of appeal being launched. While not stated expressly, it seems that Taylor was demanding that the full trial record from the 29-day trial be transcribed. As Justice Ryan-Froslie correctly noted, there were a variety of methods open to Taylor to reduce the $20,500 fee to a more affordable level. Even though a much more reasonable fee (say $5,000) could still have been too expensive to afford, Taylor’s role in reaching the $20,500 figure significantly weakened his argument that the government should bear the cost.

The Court of Appeal further emphasized the difference with Trial Lawyers by reference to government policy. The Supreme Court in Trial Lawyers was notably influenced by the fact that hearing fees were a tool to implement government policy (in that case, encouraging the efficient use of court time). However well intentioned, this policy had the effect of entirely blocking some people with valid claims from accessing court, and that was unacceptable (Trial Lawyers at paras 22, 51, 52). In St Denis, the transcript fee was not a government fee. Justice Ryan-Froslie used this discrepancy to distinguish the Supreme Court’s decision (St Denis at para 60). A persuasive argument could have been made that that the privatization of transcribing services is indeed a government policy. Arguably, this policy accomplishes the same goal, and has the same shortcomings, as the policy at issue in Trial Lawyers. Unfortunately, this argument was not pursued by Taylor.

Lastly, the St Denis decision was likely influenced by the fact that Taylor sought access to the Court of Appeal as opposed to the Court of Queen’s Bench. Justice Ryan-Froslie correctly noted that Courts of Appeal are “superior courts” (The Court of Appeal Act, SS 2000, c C-42.1 s 3(1)), and that the reasoning in Trial Lawyers applied equally to Courts of Appeal (St Denis at para 57). Nonetheless, this unquestionably lessened the persuasiveness of Taylor’s argument. The Court in Trial Lawyers provided inspired passages on the fundamental importance of superior courts and their core jurisdiction in resolving disputes (Trial Lawyers at paras 31-33). This rhetoric does not resonate as strongly when discussing the Court of Appeal, as Taylor already had his day in court. Given the broad nature of the appeal he was launching, it seemed that he was seeking the right to re-argue that case. In short, Taylor’s facts did not create any incentive for the Court of Appeal to stretch the reasoning in Trial Lawyers to help him out.

Developing Law with Self Represented Litigants

Unfortunately, Taylor’s self-representation clearly hindered his ability to launch a successful argument, and the evidentiary shortcomings may have defeated his case before it began. One cannot help but feel Taylor’s frustration with the complexity of the process. From his perspective, Taylor faced a $20,500 cover charge to launch an appeal. Finding this burden insurmountable, he applied to have the fee waived. His application was dismissed on a jurisdictional point and before he knew it, Taylor was arguing about the constitutionality of s. 14 of The Court Officials Act against counsel for the Attorney General.

This complexity is commonplace in the legal profession, but it does little to make the justice system appear accessible to our community. It also does not help the justice system’s struggling public image as a broken and insular entity (see Dr Julie MacFarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants (May 2013) at 110); Canadian Bar Association, Reaching Equal Justice Report (November 2013)). Indeed, the Court of Appeal’s written decision itself is legalistic and formal, and I suspect it will serve lawyers looking for a precedent more than it will ever help Taylor understand why he lost his application.

Having said all that, there is a significant positive development in the decision. Justice Ryan-Froslie should be commended for providing a much-needed beacon of practical insight when she directed that the matter proceed to a pre-hearing conference. In so doing, she cut through the complex legal concerns to address the real issue, the $20,500 price tag. Even though there may be no constitutional right to free transcripts, this direction recognizes the Court’s discomfort with fees preventing someone from launching an otherwise meritorious appeal.

By stepping into a role more akin to case management, Justice Ryan-Froslie will be able to achieve more for both parties than any court application would ever accomplish. This step is often invaluable when dealing with self-represented litigants, who have repeatedly expressed their increased satisfaction with Court processes when they can deal with judges in this capacity (see MacFarlane, supra at 13, 14, 126). Shifting to case management orientation is a move that, at first, may appear to strain an already stretched legal system. I would suggest, however, that it will save time and money in clearing the courtroom of many inefficient applications, and will increase public confidence and support of our justice system.

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University of Calgary is the Place to be for Environmental Law in 2015

Wed, 01/28/2015 - 10:00am

By: Martin Olszynski, Scott Allen and Allan Ingelson

PDF Version: University of Calgary is the Place to be for Environmental Law in 2015

Conferences Commented On: 2015 CAELS Conference: “Igniting a Spark”; CIRL/CBA NEERLS Symposium on Environment in the Courtroom; JELP 5: “Après le Deluge”

When it rains, it pours. And so it is that the first half of 2015 has the University of Calgary Faculty of Law hosting a series of national environmental law conferences.

2015 Canadian Association of Environmental Law Students (CAELS) Conference: “Igniting a Spark”, February 13 & 14, 2015

Formed in Ottawa a couple of years ago by the membership of the-then University of Ottawa Environmental Law Students Association, CAELS is a networking body connecting environmental law students across Canada. This past year, responsibility for organizing CAELS’ annual conference was transferred to the University of Calgary’s Environmental Law Society (ELS).

This year’s theme, “Igniting a Spark,” focuses on innovations and solutions to the pressing issues of Canadian environmental, energy and natural resources law and policy. The student-run ELS has done an impressive job of securing expert panellists from the private bar, academia, government and non-governmental organizations to discuss a wide range of issues including pipelines, liquefied natural gas development, climate change, federal environmental law reform and Aboriginal law issues.

Supported by the Alberta Law Foundation and the Shell Experiential Energy Learning Program, the 2015 CAELS Conference welcomes students and practitioners from all relevant disciplines to take part. The full program and registration are available here.

CIRL/CBA NEERLS Symposium on Environment in the Courtroom IV: “Evidentiary Issues in Environmental Prosecutions and Hearings”, March 6 & 7, 2015

Over the course of the past three years and with financial support from Environment Canada (EC), the Canadian Institute for Resources Law (CIRL) has organized a series of symposia intended to strengthen the understanding and application of environmental law in Canadian courtrooms (see here for an overview of previous symposia). This year, CIRL has teamed up with the National Environmental, Energy, and Resources Law Section (NEERLS) of the Canadian Bar Association (CBA) to deliver the fourth instalment of this highly successful series, which will focus on evidentiary issues in environmental prosecutions and hearings.

Session topics include a cross-country check up on environmental prosecutions across Canada, a primer on the relevant science (everything you needed to know but were afraid to ask), issues with causation, the law on expert evidence, as well as more practice-oriented sessions, including how to prepare and cross examine expert witnesses. The full program is available here.

This year’s symposium is being held concurrently with the CBA NEERLS Annual Summit, which means networking opportunities for environmental lawyers throughout Canada and opportunities to discuss the most recent developments and current issues in environmental law more generally. Registration is available at CBA NEERLS.

Journal of Environmental Law and Practice (JELP) 5th Conference: “Après…le Deluge: Future Directions for Environmental Law and Policy in Canada”, June 6 & 7, 2015

Finally, the first weekend in June will see environmental law scholars, practitioners, as well as analysts from both government and non-governmental organizations, gather at the Faculty of Law and at the Kananaskis Field Station for the JELP’s 5th biennial conference.

This year’s conference theme, “Après… le Deluge,” invites participants to assess the current state of federal environmental law and policy, especially in the wake of the 2012 omnibus budget bills that introduced a new environmental assessment regime and amended several other acts, including the Fisheries Act, RSC 1985, c F-14 and the recently renamed Navigation Protection Act, RSC 1985, c N-22. Participants will also consider potential responses to what is widely perceived as a federal retreat in the environmental arena, whether by other levels of government (e.g. provincial, territorial, Aboriginal) or in other areas of law, such as the common law or international law.

A call for papers was sent out in mid-December, 2014 (proposals are still being accepted), and a finalized program should be available by the end of February, 2015. The program, as well as instructions for general registration, will be made available on JELP’s website at that time.

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Providing an Effective Remedy for the ISO’s Unlawful Line Loss Rule

Tue, 01/27/2015 - 9:00am

By: Nigel Bankes

PDF Version: Providing an Effective Remedy for the ISO’s Unlawful Line Loss Rule

Decision Commented On: AUC Decision 790-D02-2015, Milner Power Inc. and ATCO Power Ltd, Complaints re the ISO Transmission Loss Factor Rule and Loss Factor Methodology, Phase 2 Module A, January 20, 2015

In this decision the Alberta Utilities Commission (AUC) has decided that it has the jurisdiction to grant tariff-based relief in a case where a rule of the Independent System Operator (ISO) is found to be unlawful on the basis that it was unjust, unreasonable, unduly preferential, arbitrarily and unjustly discriminatory and inconsistent with various provisions of the Electric Utilities Act (EUA) (now SA 2003, c. E-5.1) and the Transmission Regulation (now Alta Reg 86/2007). Such relief may involve retrospective or retroactive adjustments to the ISO tariff going back to the date when the Rule first entered into force (January 1, 2006, Milner Power having originally filed its objection to the ISO Line Loss Rule in August 2005 before the rule came into force).

In AUC Decision 2014-110, the AUC confirmed its earlier conclusion in Decision 2012-104 to the effect that the ISO’s Line Loss Rule was unjust, unreasonable, unduly preferential, arbitrarily and unjustly discriminatory and inconsistent with various provisions of the Electric Utilities Act and the Transmission Regulation on the grounds that the rule disadvantages generators that are loss savers and does not properly charge loss creators for their losses. The AUC’s Decision 2014-110 is the subject of an ABlawg post by Sean Bullen here.

Having made that determination the AUC then had to assess what remedy might be available. This decision comprises the first step in that procedure. The AUC’s comprehensive 80 page decision sets out the basis on which the Commission concluded that it had the jurisdiction to grant tariff-based relief. In doing so the Commission had to grapple with two principal issues. First, there was the reality that the terms of both the both the EUA and the Transmission Regulation had changed over the time period in question. Second, there is a long standing principle that a utility commission generally does not have the jurisdiction to engage in retroactive or retrospective rate making.

As to the first issue the Commission concluded that while there had been changes in the Act and Regulation these were not such as to deprive the complainants of their right to a remedy (at paras 221 and 239).

As to the second issue, the Commission concluded that there were a number of established exceptions to the principle that a utilities commission cannot engage in retroactive or retrospective rate making and that the present case fell within a number of these exceptions. The exceptions are as follows (at paras 153-212):

  1. A Utilities Commission can always adjust interim rates back to the date of the interim order: Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 SCR 1722; Re Coseka Resources Ltd. and Saratoga Processing Co., 1981 ABCA 180, 126 DLR (3d) 705 (Alta CA).
  1. A Utilities Commission can use deferral accounts to adjust rates: Bell Canada Bell Aliant Regional Communications, [2009] 2 SCR 764, 2009 SCC 40; Calgary (City) v Alberta (Energy and Utilities Board), 2010 ABCA 132.
  1. A complaint based statutory scheme (referred to here as a negative disallowance scheme) as opposed to a scheme that requires prospective approval of rates by a Utilities Commission necessarily contemplates that the Commission has the jurisdiction to set just and reasonable rates in substitution for those set unilaterally by the Utility (or in this case ISO) back to the date of the complaint: Nova, An Alberta Corporation Amoco Canada Petroleum Company Ltd., [1981] 2 SCR 437, 1981 CanLII 211 (SCC).
  1. The knowledge exception: a Utilities Commission can change the rates where affected parties knew or ought to have known that rates were subject to change.
  1. The nullity exception: a Utilities Commission can (re)establish a new set of rates on a retrospective or retroactive basis when a set of rates has been shown to be a nullity.

The Commission relied on the first four exceptions in concluding that it had the jurisdiction to proceed with tariff-based relief. That said, the knowledge exception seems to function more as overarching principle that connects the first three exceptions rather than as an independent source of authority. Furthermore it should be noted that while the version of the legislation in force at the time of Milner Power’s original complaint was a negative disallowance scheme the current provision is (at para 219) “strictly prospective in application”.

This is a well-crafted decision which reaches a practical and just conclusion; any other conclusion would have rendered the entire complaint process (at least as it originally stood) completely hollow. It is true that there will be challenges ahead in working out the details of “tariff-based relief” but, as the Commission noted (at para 167), the Supreme Court’s 1989 decision in Bell Canada makes it clear that perfection is not required in crafting a set of retrospective or retroactive rates designed to rectify what would otherwise be unjust and unreasonable rates (the earlier version of the EUA) or which fail to support the fair, efficient and openly competitive operation of the market (the FEOC principle which now animates the test for a valid rule – see para 258).

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First Nations Community Election Codes and the Charter

Mon, 01/19/2015 - 10:45am

By: Jennifer Koshan

PDF Version: First Nations Community Election Codes and the Charter

Case Commented On:  Orr v Peerless Trout First Nation, 2015 ABQB 5

In December Jonnette Watson Hamilton and I wrote a post commenting on Taypotat v Taypotat, 2012 FC 1036; rev’d 2013 FCA 192; leave to appeal granted 2013 CanLII 83791 (SCC), a case currently before the Supreme Court which involves the constitutionality of a First Nations election code.  A similar case arose in Alberta recently.  In Orr v Peerless Trout First Nation, 2015 ABQB 5, Master L.A. Smart dismissed a claim by a member of the Peerless Trout First Nation alleging that that Nation’s Customary Election Regulations were unconstitutional.

Peerless Trout First Nation (PTFN) is described as “a self-governed First Nation in the Treaty 8 Territory of Northern Alberta” (at para 4).  Section 74(1) of the Indian Act, RSC1951, c 29 empowers the Minister of Indian Affairs and Northern Development to permit a First Nation to develop its own election code for the purposes of electing the Chief and members of Band Council.  The PTFN has adopted an election code, the Customary Election Regulations, the relevant provisions of which are as follows:

9.3      Electors Eligible for Nomination

(a)   All Electors must be 18 years of age or older.

(b)   Any Elector convicted of an unpardonable indictable offence or who is charged with an indictable criminal offence at the time of Nomination is not eligible to be Nominated.

(c)   Any Elector who is a Plaintiff in a civil action against the PTFN is not eligible to be Nominated.

(d)   Electors employed by the PTFN or a PTFN Business Entity are not eligible to be Nominated.

Master Smart noted that Taypotat had decided that First Nation election codes are subject to the Charter (2013 FCA 192 at paras 34-42). In Taypotat, the Federal Court of Appeal considered the application section of the Charter, section 32, which provides that the Charter applies “(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament…; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.”  The Federal Court acknowledged that a First Nation is “clearly a sui generis government entity”, yet it “exercises government authority within the sphere of federal jurisdiction under the Indian Act and other federal legislation” (Taypotat at para 36). The Supreme Court had previously held that First Nations elections are subject to the Charter (see Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203), and although the Charter must be interpreted so as not to “abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada” (see section 25 of the Charter), there were no aboriginal or treaty rights at issue in Taypotat (at paras 37, 42). For these reasons, the Charter was found to apply to the First Nations election code at issue in Taypotat.  Master Smart did not review these reasons in the specific factual context of the PTFN election code, and simply adopted the holding from Taypotat that the Charter applied.

Orr’s argument was that section 9.3(c) of the Customary Election Regulations – which makes any elector who is a plaintiff in a civil action against the PTFN ineligible to be nominated as a candidate for election – violated several sections of the Charter.  Master Smart dismissed each of these arguments in turn.

Orr’s first argument was that section 9.3(c) of the Customary Election Regulations violated section 2(b) of the Charter, which protects freedom of expression.  The specifics of this argument were not clear, but Master Smart relied (at para 13) on Baier v Alberta, [2007] 2 SCR 673, 2007 SCC 31, which decided that although a prohibition against school employees standing for election as school trustees may have limited access to a platform for expression, it did not violate section 2(b) of the Charter. Section 2(b) generally protects against government interference with expression rather than providing a positive right to particular methods or locations for expression, and was therefore not engaged here.

Second, Orr argued that section 9.3(c) of the Customary Election Regulations infringed section 2(d) of the Charter, which protects freedom of association. Violations of section 2(d) turn on whether “the state [has] precluded activity because of its associational nature, thereby discouraging the collective pursuit of common goals?” (at para 14, citing Dunmore v Ontario (Attorney General), [2001] 3 SCR 1016, 2001 SCC 94 at para 16). Noting that Orr had not provided the specifics of this argument either, Justice Smart dismissed the claim on the basis that the restriction on eligibility to stand for election did not interfere with Orr’s “ability to establish, belong to [or] maintain an association” (at para 16).

Orr’s third argument – that section 9.3(c) of the Customary Election Regulations violated section 3 of the Charter – was also dismissed.  Section 3 protects democratic rights, but has previously been found to apply only to federal and provincial elections (Haig v Canada, [1993] 2 SCR 995, 1993 CanLII 58 (SCC)), and not to band council elections (Crow v Blood Band, [1996] FCJ No 119 at para 23). A similar dismissal of section 3 Charter arguments occurred in Taypotat (at paras 27-29).

More attention was devoted to Orr’s fourth argument – that section 9.3(c) of the Customary Election Regulations was discriminatory, contrary to section 15(1) of the Charter – perhaps because section 15 was also the focus of Taypotat.  Master Smart noted that the discrimination argument was successful in Taypotat on the grounds that the grade 12 education requirement at issue in that case was found to create an adverse impact on the claimant and others based on age and aboriginality-residence.  Age is a ground expressly protected under section 15(1) of the Charter, and aboriginality-residence qualifies as an analogous ground pursuant to the Supreme Court decision in Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203, 1999 CanLII 687 (SCC).  In Orr’s case, however, being a plaintiff in a civil action against the PTFN did not relate to any enumerated grounds protected under section 15(1), nor did it constitute an analogous ground, which includes only personal characteristics that are “immutable or changeable only at unacceptable cost to personal identity” (Corbiere at p219, cited in Orr at para 20). Master Smart also found that the restriction on election eligibility in section 9.3(c) of the Customary Election Regulations was not discriminatory – it did not perpetuate any “pre-existing disadvantage, vulnerability, stereotype or prejudice suffered by the Applicant which might support a finding of discrimination” (at para 22).

Finally, Master Smart dismissed Orr’s argument that section 9.3(c) of the Customary Election Regulations infringed the protection of aboriginal and treaty rights under section 35 of the Constitution Act, 1982, noting that the argument was without basis (at para 24).

We argued in our post on Taypotat that there are some strong arguments that the community election code at issue in that case does infringe section 15(1) of the Charter.  Even if the Supreme Court upholds the Federal Court of Appeal decision in Taypotat, however, the arguments made by Orr under section 15(1) are weak in light of the requirement of proving a distinction based on a protected ground that results in discrimination. Orr’s other constitutional arguments were similarly weak, and Master Smart’s decision to dismiss the claim was a sound one.

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Deconstructing Investigative Detention

Wed, 01/14/2015 - 9:00am

By: Dylan Finlay

PDF Version: Deconstructing Investigative Detention

Case Commented On: R v Rowson, 2014 ABQB 79

Crime scenes are often intense and dynamic environments. This presents a challenge to investigators who – prior to making an arrest – must collect enough evidence to satisfy the standard of ‘reasonable and probable grounds.’ The recent case of R v Rowson, 2014 ABQB 79 displays this hurdle. The scene of the alleged crime – a motor vehicle collision – was attended by paramedics, firefighters, the police, and an air ambulance helicopter. Collecting enough evidence to make an arrest was not the police’s immediate priority. To mitigate the challenge that inevitably arises in situations such as this, police are armed with the common-law power of investigative detention. This post will deconstruct this power.

The common law power of investigative detention was developed incrementally and recognized by the Supreme Court of Canada in R v Mann, 2004 SCC 52. This case involved two police officers who, while responding to a break and enter, encountered an individual who matched the description of the offender. The individual, Mr. Mann, was stopped and made subject to a pat-down search during which one of the officers felt a soft object in his pocket. Upon reaching inside the pocket, the officer found 27.55 grams of marijuana and a number of small plastic baggies. Mann was subsequently arrested; prior to this he had only been under a state of detention. At trial, Connor Prov. Ct. J. held that while the police were justified in searching Mann for security reasons, reaching into the appellant’s front pocket after feeling a soft item therein was not justified in the circumstances. The conduct thus contravened s. 8 of the Charter, the right to be secure against unreasonable search or seizure. On appeal, the Manitoba Court of Appeal held that it was not unreasonable for the police to continue the search inside of the pocket. This was further appealed to the Supreme Court of Canada.

Iacobucci J., writing for the majority, recognized “a limited police power of investigative detention” (at para 18). The scope of the term ‘detention’ within ss. 9 and 10 of the Charter was held to cover only delays that involve “significant physical or psychological restraint” (at para 19). Section 9 of the Charter provides that everyone has the right “not to be arbitrarily detained.” Since a lawful detention is not arbitrary, an investigative detention that is carried out in accordance with the common law power recognized in Mann will not infringe an individual’s Charter rights (at para 20).

To make a warrantless arrest an officer must have reasonable and probable grounds to believe the individual has committed an indictable offence, or the officer must have found the individual committing a criminal offence, or the officer must have reasonable and probable grounds to believe that a warrant is in force for arrest (s. 495(1) of the Criminal Code, RSC 1985, c C-46). It is important to note that the Criminal Code uses the term ‘reasonable grounds,’ rather than ‘reasonable and probable grounds.’ However, R v Loewen, [2011] 2 SCR 167 confirms that the standard of ‘reasonable grounds’ as prescribed by s. 495(1) actually requires ‘reasonable and probable grounds.’ Thus the two phrases can be used interchangeably in the context of a warrantless arrest.

In contrast to the standard required to make a warrantless arrest, what is the threshold test for lawful investigative detention? The first articulation of such a test occurred in the English Court of Criminal Appeal case of R v Waterfield and Another, [1964] 1 QB 164 (cited in Mann at para 24). A police officer’s conduct is prima facie an unlawful interference. To be deemed lawful, a two-pronged test emerges: it must be asked if the detaining officer’s conduct first fell “within the general scope of any duty imposed by statute or recognised at common law, and, secondly, if the conduct did so fall, whether it involved an unjustifiable use of powers associated with the duty” (Mann at para 24). The first branch is derived from the nature and scope of police duties, including the common law duty to preserve the peace, prevent crime, and protect life and liberty, subject to reasonableness (Mann at para 26). The second branch was elaborated upon by the Ontario Court of Appeal in R v Simpson (1993), 12 OR (3d) 182 (CA), holding that the detaining officer must have “some ‘articulable cause’ for the detention,” a concept borrowed from American jurisprudence (Simpson at para 58). This threshold is both lower than reasonable and probable grounds, being closer to that of ‘reasonable suspicion,’ and involves the objective and subjective aspects established by R v Storrey, [1990] 1 SCR 241 (Simpson at para 61).

Despite considering the ‘articulable cause’ standard, the majority in Mann preferred the phrase ‘reasonable grounds to detain’ (at para 33). The test is articulated as follows (at para 34):

The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individuals to be detained and a recent or ongoing criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular investigation is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference.

In other words, the officer must have reasonable grounds to believe there is a nexus between the individual detained and a criminal offence. The detention must also be reasonably necessary and assessed against the totality of the circumstances as reasonable. It should remain brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police (Mann at para 45).

Where does ‘reasonable grounds to detain’ figure into the myriad of standards associated with arrest, search, and detention? The majority left out the term ‘probable,’ possibly because with ‘reasonable and probable grounds’ the officer could make an arrest. However, the problem with making the above assumption is that it is possible that the Court used the term ‘reasonable grounds to detain’ but meant ‘reasonable and probable grounds to detain.’ Mann occurred before Loewen confirmed that the two articulations are interchangeable. Deschamps J., writing for the dissent in Mann, adds some clarity to this quandary. The dissent in Mann prefers the term ‘articulable cause’ to ‘reasonable grounds to detain’ primarily because “‘[r]easonable grounds’ has traditionally been employed to describe the standard which must be met in order to give rise to the power to arrest a suspect . . . Using this term in the present context could lead to the erroneous conclusion that the same degree of justification is required for a detention as is required in order to carry out an arrest. This cannot be the case. It would undermine the very purpose of the common law power to detain, which is to provide police with a less extensive and intrusive means of carrying out their duties where they do not have sufficient grounds for arrest” (at para 64). Therefore the standard of ‘reasonable grounds to detain’ must be interpreted as somewhere below ‘reasonable and probable grounds’ and closer to that of ‘reasonable suspicion.’

The true issue in Mann was not whether the investigative detention was lawful, but rather whether the pat-down search was lawful as a search incident to investigative detention. In the context of an arrest, the Supreme Court has held that police officers are empowered to search without a warrant for weapons or to preserve evidence (R v Golden, [2001] 3 SCR 679 at par 94). Mann recognizes that the common law police power of search incident to arrest applies to search incident to investigative detention (at para 38). This is again subject to the test articulated in Waterfield. The first prong of the test recognizes search incident to investigative detention as arising from the general scope of police duty (at para 38). The second prong limits the first to searches that are reasonably necessary (at para 39). In reference to a pat-down search, the Court explicitly states that such a power to search does not exist as a matter of course, but rather only if the detaining officer has reasonable grounds to believe his or her own safety or the safety of others is at risk (at para 40). In the context of the facts in Mann, it was reasonable for the officers to conduct a pat-down search because there “was a logical possibility that the appellant, suspected on reasonable grounds of having recently committed a break-and-enter, was in possession of break-and-enter tools, which could be used as weapons” (at para 48).

An officer making an investigative detention does not only have to comply with the appropriate standard and refrain from making unreasonable searches, he or she must also comply with s. 10 of the Charter. To do this, he or she must first advise the detained individual of the reasons for the detention, as s. 10(a) of the Charter provides (Mann at para 22). Section 10(b) of the Charter, the right to retain and instruct counsel without delay and to be informed thereof, is not strictly adopted by the Supreme Court; the Court instead held that it “must be purposively interpreted,” and left further articulation to the lower courts, noting only that mandatory compliance cannot be turned into an excuse to prolong the detention, which must remain brief (at para 22).

R v Orbanski; R v Elias, [2005] 2 SCR 3 further articulates the s. 10(b) requirement in relation to investigative detention. The issue in this case centered upon whether an officer may ask questions about alcohol consumption and request a driver perform sobriety tests prior to complying with s. 10(b) (at para 22). The Court held that in the context of investigating a driver’s sobriety at the roadside, s. 10(b) is suspended. However the scope of s. 10(b) rights in the broader context of investigative detention was left unanswered.

The Court in R v Suberu, [2009] 2 SCR 460 held that subject to a few conditions, s. 10(b) rights arise immediately upon detention. Paragraph 42 of Suberu states:

In our view, the words ‘without delay’ mean ‘immediately’ for the purposes of s. 10(b). Subject to concerns for officers or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

Despite the strict interpretation in Suberu, one’s thoughts must turn to the potential remedy. In Rowson, the police placed Mr. Rowson under investigative detention for dangerous and possibly impaired driving. At a voir dire on the Charter issues, it was conceded that the detaining officer did not inform Rowson of his right to counsel at this time, but rather a few minutes later when he was placed under arrest. In terms of remedy for the breach of s. 10(b), it was held that statements made by Rowson were to be excluded up until he was informed of his right to counsel. The investigative detention remained lawful, however.

Breath samples obtained after Rowson was informed of his right to counsel were found to be admissible, and he was convicted of a number of impaired driving related charges following a trial. The Crown advises that the accused is pursuing an appeal.

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We Versus Me: Normative Legislation, Individual Exceptionalism and Access to Family Justice

Tue, 01/13/2015 - 9:00am

By: John-Paul Boyd

PDF Version: We Versus Me: Normative Legislation, Individual Exceptionalism and Access to Family Justice

In many of Canada’s family law courts, especially our provincial courts, the majority of litigants now appear without counsel. This state of affairs should have been a foreseeable consequence of the diminution of legal aid representation in family law cases coupled with the relative absence of market forces impelling private family law lawyers to reduce their rates or embrace new service models, but it is nonetheless where we find ourselves today.

It is easy enough to point to the observable consequences of this superabundance of litigants without counsel – chief among them the increased number of ill-conceived chambers applications, the ever-expanding length of trials and the congestion presently plaguing court registries – and shudder in horror. However, it must be borne in mind that the justice system is not our system, a system for judges and lawyers, but their system, a system that belongs to the users of the system, the litigants themselves. As a result, despite the inconveniences enuring to the mutual discomfort of bench and bar, I am hard pressed to conclude that there is anything fundamentally wrong with the growing presence of unrepresented litigants; the situation is infelicitous, to be sure, but not iniquitous.

The engagement of so many litigants without counsel in court processes could be viewed as prima facie evidence that family justice is accessible, however as the recent work of Professor Julie Macfarlane and the Canadian Research Institute for Law and the Family demonstrates, this sort of “access” is superficial and doesn’t go much further than being able to find the front door of the courthouse; there would still be lineups to get into the only hospital in town even were it staffed by a third of the necessary doctors and equipped with a third of the necessary beds, but we wouldn’t call that accessible health care. The research produced by Macfarlane and the Research Institute shows that litigants have enormous difficulty understanding and navigating the rules of court, the rules of evidence, court processes and the legislation applicable to their cases, and that, unsurprisingly, they find the justice system to be impossibly intimidating, incomprehensible and inaccessible.

This raises a special set of problems for litigants involved in family law disputes. Family law is a unique species of civil law for many reasons, but primarily because of: the frequency with which disputes brought to court concern social, psychological and emotional issues rather than legal; the almost complete absence of circumstances in which a specific legal conclusion invariably and inevitably results from a particular set of facts; and, the range of other areas of the law that may be concurrently applicable, such as contracts, tax, conflicts, real property, negligence, torts and trusts. Family law, in other words, is complex, and the questions this note seeks to explore are the extent to which complexity is necessary or desirable, and the extent to which complexity is compatible with fairness and an accessible system of family justice.

To begin with, it must be noted that the federal and provincial legislation on domestic relations is an expression of social values and government social policy. Divorce is bad, and accordingly the 1857 UK Divorce and Matrimonial Causes Act made it very difficult to get a divorce a vinculo, especially if you were a woman; adultery and abuse are bad, and accordingly the 1968 Canadian Divorce Act required the court to take matrimonial misconduct into account when determining issues of custody and support. Today, some of the clearest examples of social policy questions resolvable by legislation concern:

  • Children – Should both parents always be presumed to be the children’s custodians? Should a default parenting schedule be prescribed by legislation?
  • Child Support – If and when should stepparents assume a liability to pay child support? Should children be allowed as adults to sue to collect arrears accumulating during their minority?
  • Spousal Support – Should the income of dependent spouses’ new partners be considered in determining eligibility for support? Should spousal support be paid from income derived from assets that have already been divided as matrimonial property?
  • Property – Should unmarried couples have interests equivalent to those of married couples? Should property acquired before the commencement of a relationship take priority over property acquired during the relationship, or should primacy be given to the latter rather than the former?

Given that the moderation of conflict is a critical psychological, social, legal and economic value, it also stands to reason that certainty would inform the manner in which social policy is expressed through legislation, particularly in family law matters. Certainty is, by and large, a valuable and useful quality, particularly for litigants without counsel. Knowing that only X equals Y saves a great deal of time and money arguing about the possibility that Z might also equal Y; it helps to improve the predictability of litigated outcomes; it depersonalizes disputes, insofar as it’s not anyone’s fault that X equals Y; and, it promotes settlement by limiting the available options and thus circumscribing litigants’ hopes and expectations.

Financial issues have proven to be most amenable to certainty in family law matters, as a result of which we have the tables of quantum provided by the Child Support Guidelines, the formulae set out in the Spousal Support Advisory Guidelines for the calculation of duration and quantum, and legislation establishing presumptions of varying strength with respect to the division of matrimonial property. Despite the efforts of MP Maurice Vellacott and his perpetually recurring Bill C-560, certainty as to the care and control of children after separation remains elusive, with, I suggest, good reason.

Nevertheless, certainty is the enemy of complexity in most legal matters save those relating to taxation. Certainty must yield results fulfilling government’s social policy goals and those results must be objectively fair, however, because justice systems are human rather than mechanical in nature, the correct expression of this principle is that certainty must tend to yield results fulfilling government’s social policy goals and those results must be subjectively fair for most people most of the time. It is important to observe that in adding even these modestly temporizing qualifications, abstract conceptions of objective certainty already begin to be undermined by subjective considerations, and a hint of the complexity that must necessarily fill the void begins to emerge.

Attempts to reconcile social policy, certainty and complexity produces legislation that is ultimately, although perhaps unintentionally, utilitarian in design, inasmuch as it is generally intended to produce the greatest good for the greatest number, and therefore also normative. The classic bell curve that models the normal statistical distribution of many human qualities, from IQ scores to height, to the likelihood that the bus will arrive on time, can also be used to model the impact of family law legislation on dissolving families.

For most people, the application of the rules and principles set out in normative legislation will yield a fair, if not actually good, result. Assuming a normal statistical distribution, this should be the experience for almost 70% of the population, those grouped within the first standard deviation on either side of an average result. However, the more a family’s circumstances tend to depart from those of the hypothetical everyman family for whom the legislation was written, the less satisfactory are the results produced by the application of that legislation.

It’s entirely reasonable, for instance, that spousal support would be permanently payable for a couple leaving a long-term, traditional marriage of the Leave it to Beaver variety, in which the dependent spouse has sacrificed her career and employability to manage and nurture the family while the payor worked outside the home supporting the family and incidentally improving his earning potential. It’s far less just for a couple leaving a two- or three-year relationship during which the dependent spouse became permanently unemployable as a result of a drunk driving accident or botched suicide attempt, and yet the indefinite payment of spousal support in such a case is the probable outcome, barring a hefty insurance settlement or another source of income.

Thankfully, relatively few families should find themselves in the tail areas of the bell curve; again assuming a normal statistical distribution, the outcomes obtained by less than 5% of the total population, those in the third and fourth deviations, ought to be unfair or very unfair compared to an average result. In my experience as a family law lawyer, however, it has seemed to me that the bell curve modeling the impact of legislation on my clients has perhaps a higher standard of deviation than the norm, giving the bell curve a greater population at the extremes and thus fatter tails than suggested by the normal distribution; in other words, my impression is that quite a bit more than 5% of separating couples experience an unfair or very unfair result from the application of family law legislation. (This is certainly the experience of many of the unrepresented litigants discussed in Macfarlane’s research and the Canadian Bar Association’s recent report on access to justice.) My views may be the result of sample error, given that the families who consult counsel tend to be those whose circumstances are complex or conflicted; whether this is an error or not, it is also the experience of our judges, who deal with a still higher proportion of families in complex and conflicted circumstances.

In anticipation of just such unfairness, most if not all of the legislation on domestic relations come with built-in safety mechanisms. British Columbia’s repealed Family Relations Act, for example, provided that spouses would each receive a one-half share of the family property, unless an equal division would be “unfair” considering a non-exhaustive list of six factors; its new Family Law Act prescribes an equal division unless an equal division would be “significantly unfair” upon consideration of an even longer non-exhaustive list of factors. The Family Law Act offers similar exemptions in respect of presumptions that would otherwise require parenting time and parental responsibilities to be shared equally, that all parental responsibilities after the death of one guardian be vested in those which survive, and deem a proposed relocation to be in the best interests of a child once certain conditions are met.

Other, better-known examples of such safety mechanisms are found in the Child Support Guidelines, a regulation that presumptively determines the quantum of support awards according to the payor’s income and the number of children for whom support is being paid. The Guidelines provide escape valves that allow the court to depart from the tables of quantum when: a dependent child is an adult; the payor’s income is more than $150,000 per year; the payor is a stepparent; each parent has the primary care of one or more siblings, known as “split custody;” the parents share the children’s time equally or near-equally, known as “shared custody;” or, a parent would suffer “undue hardship” were the table amount to be paid. (These safety mechanisms are particularly important for married parents given that the Divorce Act prohibits the granting of divorce orders unless “reasonable arrangements,” usually interpreted as payment according to the Guidelines tables, have been made for the support of the children.)

To put things another way, the drafters of our family law legislation, being aware that all families are neither cut from the same cloth nor use the same tailor, have included in their work certain presumptions, providing objective fairness, along with means of avoiding those presumptions, providing an element of subjective fairness for those families in the tails of the bell curve. Although this approach is sensible and laudable, the discretion demanded by subjective considerations undermines the certainty provided by the presumptions, resulting in the exacerbation of complexity, particularly where the exceptions themselves are couched in ambiguous language that cannot be understood without reference to the case law interpreting that language.

Returning to child support for an illustration, section 8 of the Guidelines discusses the calculation of quantum in situations of split custody and section 9 concerns situations of shared custody. Section 8 requires that the parents’ table obligations be offset against one another, with the parent having the greater financial obligation paying the difference:

Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.

Section 9, on the other hand, says this:

Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

While section 8 provides a concrete and readily calculable formula, section 9 simply lists three factors that need to be considered when fixing an appropriate amount of support, and the amount payable is therefore indeterminate. As a result, parents with shared custody of their children must be able to access and understand the case law interpreting section 9 in order to have any hope of gauging the amount of support they may be obliged to pay or entitled to receive, and indeed whether they meet the 40% threshold for shared custody at all.

Two problems follow from the complexity entailed by discretion. First, complexity gives courts the opportunity to craft judgments that are precisely and often uniquely tailored to the particular circumstances of the family before them. Few litigants or lawyers would argue that this sort of bespoke justice is anything other than a highly desirable outcome, but the end result is the fraying of the tapestry of the common law with inconsistent and sometimes incoherent case law that becomes increasingly intricate as exception after exception is carved out of general, normative principles to meet the needs of individual families.

Second, it means that the law that applies to a particular legal problem becomes obfuscated and ceases to be intelligible merely upon review of the applicable legislation. The case law describing the range of circumstances invoked by open-ended lists of factors and interpreting phrases such as “undue hardship,” and similar idiomatic expressions such as “unless the court otherwise orders” and “unless it would be inappropriate,” must be consulted to properly understand the law, creating a significant barrier to justice for people not trained in legal research and the jurisdictional nuances of stare decisis. Although organizations like CanLII have done a wonderful job making newer case law accessible and searchable, it can be incredibly challenging for even highly educated laypeople to separate the wheat from the chaff and find relevant case law illuminating and elucidating the text of statute law.

Interestingly, these problems are often explicitly renounced by legislation intended to promote certainty and objective fairness, such as the rules of court. The Guidelines, for example, are introduced with this statement of purpose at section 1:

The objectives of these Guidelines are

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

Despite their noble intent, the latter three objectives are significantly undermined by the extensive use of escape valves, often couched in frustratingly vague language, that pepper the subsequent provisions of the Guidelines and facilitate subjective fairness and single-serving justice.

To boil all of this down somewhat, in my view our legislation on domestic relations does in fact tend to yield generally fair results for most people most of the time, arguments over the correctness of social policy aside. There are, however, families for whom the legislation yields results that are unfair or very unfair, and there are more of these outliers in family law disputes than one would expect from utilitarian legislation yielding a normal distribution of fair and unfair outcomes. Our legislation anticipates, and is drafted so as to accommodate, these outliers, however in so doing: the plain meaning of the legislation becomes obscured; a critical body of uncodified case law necessarily accumulates that is external to the legislation yet must be accessed to understand it; certainty of result is diminished as complexity increases and expectations are less bounded; opportunities to pursue subjective fairness multiply, and along with them conflict and the likelihood that litigation will be required to resolve any given dispute; and, ultimately, the accessibility of family justice is significantly impaired.

In the end, the dilemma posed by the conflicting principles of objective certainty and subjective justice resolves into a question of values and priorities to which there is no easy answer.

We could adopt relatively inflexible legislation of the X equals Y variety, which offers very little room for judicial discretion but results in a correspondingly higher degree of certainty. A separating couple would be able to read the legislation and determine the range of likely outcomes, without needing to read the case authorities except to seek explanations. A limited range of potential outcomes would reduce opportunities for conflict and the likelihood that unreasonable positions will be adopted. Separating couples would be more able to resolve legal disputes without the need for costly court proceedings. Pressure on the system would ease and more judicial time could be given to non-adversarial processes. Frankly, it’s not hard to imagine simplified versions of the Guidelines and Advisory Guidelines that admit of fewer opportunities to escape their presumptions, mathematical approaches to the division of matrimonial property that are more determinate, or even automated dispute resolution systems that at least provide a starting point for settlement discussions where disputes aren’t resolved completely.

Unfortunately, the rigidity inherent in such an approach will damn those individuals stuck in the fat tails of family law to their unfair or very unfair results, with little opportunity for redemption. The approach is poorly compatible with the principle that decisions about the post-separation care of children must be based on their best interests as well. It may stifle innovation and the evolution of the law. It also conflicts with the shrill yet compelling demand for custom-fit outcomes. Justice will be accessible, although it may not be just.

On the other hand, we could have a system much like that we already have, which generously accommodates individuals stuck in the tails and their pleas for subjective fairness. However, excessive deference to demands for custom-fit outcomes raises critical barriers to justice. Such an approach demands complexity, often becoming involute to an extraordinary degree, resulting in systemic inefficiencies and unintelligible legal principles; it exacerbates conflict in the highly emotional circumstances of family breakdown, depleting family resources and risking serious long-term harm to children; and, it diminishes the likelihood that someone without counsel will achieve a fair result even at trial, a concern raised by Justice Victoria Gray in her paper on litigants without counsel and the judicial system.

Although there may be a hybrid approach which lies somewhere in the middle of these two options, it is clear that the present system is inordinately complex, requires enormous funding to maintain, and is largely inaccessible to litigants without counsel at a time when such litigants are flooding the courts. I fear that efforts toward reform which are conducted without a radical reexamination of our fundamental assumptions about the expression of social policy and the nature of family justice will produce results no better than what we have at present.

The tension in the justice system between the law that is good for the group and the law that is good for the individual reaches a critical mass in family law disputes as the call for bespoke justice is so clear in such cases. However, the emphasis on subjective fairness and individual exceptionalism in family law matters comes at a very high price and it is not at all clear that the benefits to the individual outweigh the psychological, social, legal and economic cost of complexity. As we deliberate on the barriers to justice and explore avenues of improvement in the age of the litigant without counsel, it seems to me that we need some degree of resolution to the debate on the extent to which complexity in family law matters is necessary or desirable, and the extent to which complexity is compatible with an accessible system of family justice. Should we accept some impairment of the needs of the few on the condition that such vitiation redounds to the benefit of the many, or should the needs of the few prevail at the risk of access to justice for all? Should family justice be designed for we or just me?

This post originally appeared on Slaw.

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Some Thoughts on the Presumption of Deference under the Dunsmuir Framework in Substantive Judicial Review

Mon, 01/12/2015 - 9:00am

By: Shaun Fluker

PDF Version: Some Thoughts on the Presumption of Deference under the Dunsmuir Framework in Substantive Judicial Review

Case Commented On: Alberta Treasury Branches v Alberta Union of Provincial Employees, 2014 ABQB 737

This is a run-of-the-mill judicial review decision by Justice Don Manderscheid in early December. The decision reviews statutory interpretation conducted by the FOIP Commissioner acting under the Freedom of Information and Protection of Privacy Act, RSA 2000 c F-25 (FOIP Act) to settle a dispute between Alberta Treasury Branches (ATB) and the Alberta Union of Provincial Employees (AUPE) over the obligation of ATB to disclose certain bargaining unit information to AUPE. While there is nothing particularly unusual about this case, it does provide a good platform from which to revisit some of the fundamentals in judicial review as we enter 2015. This post first describes the legal issues in this case, and then summarizes how Manderscheid J. resolves them. I conclude with some thoughts on the developing presumption of deference in substantive judicial review post-Dunsmuir.

The Dispute between ATB and AUPE and the Commissioner’s Ruling

In March 2010 the AUPE requested information from ATB on employees who were excluded from the bargaining unit. ATB refused to disclose the information on the view that such records were exempt from disclosure under section 4 of the FOIP Act. The relevant portion of section 4(1)(r) states: “This Act applies to all records in the custody or under the control of a public body . . . but does not apply to a record in the custody or control of a treasury branch other than a record that relates to a non-arm’s length transaction between the Government of Alberta and another party.” The Freedom of Information and Protection of Privacy Regulation, Alta Reg 186/2008 designates ATB as a public body subject to the FOIP Act disclosure obligations. However ATB’s position was that the bargaining unit information requested by AUPE is in the custody or control of a treasury branch, and thus exempt from disclosure under section 4(1)(r) of the Act. The AUPE subsequently asked the FOIP Commissioner to rule on the issue.

As all first year students learn in our legislation fundamentals course, the first step in statutory interpretation is to isolate the interpretation problem(s) in the case. Which word(s) or phrase requires interpretation? The goal of the statutory interpretation exercise is to decipher the intention of the legislature as to the meaning and effect of the words in question. Consideration is given to the literal reading of the words, their context, and the overall purpose of objective of the legislation.

The crux of this dispute involves interpreting the meaning of ‘treasury branch’ in section 4(1)(r) of the FOIP Act. In particular, does this phrase include all aspects of the ATB operations, including the corporate and administrative functions relevant here? If it does, then presumably the clause provides a full exemption to ATB from the disclosure requirements in the FOIP Act. If it does not, then the operations of ATB outside of a treasury branch are subject to the disclosure obligations as a designated public body.

One wrinkle in the interpretation issue is that ‘treasury branch’ is defined in several enactments. Under section 1(k) of the Alberta Treasury Branches Act, RSA 2000, c A-37 ‘treasury branch’ means “a treasury branch established under section 10, whether the branch carries on business with the public directly or serves as an administrative or head office.” Section 10 further states that Alberta Treasury Branches may establish and operate treasury branches at any location within Alberta. The most important provision for interpreting the term in the FOIP Act would be section 28(1)(ddd) of the Interpretation Act, RSA 2000, c I-8 which states that in any enactment ‘treasury branch’ means a treasury branch as defined in the Alberta Treasury Branches Act.

The definition in section 28 of the Interpretation Act applies to all other Alberta legislation. However, ATB argued that another legislated definition of ‘treasury branch’ is in force, and it is in a transitional provision of the Alberta Treasury Branches Act, SA 1997, A-37.9 which states in section 36(3) that a reference in any enactment to “treasury branch” shall be read as a reference to “Alberta Treasury Branches”.

The question of law for the FOIP Commissioner was to interpret and reconcile these various provisions in order to establish the scope of the disclosure exemption in section 4(1)(r) of the FOIP Act. In Decision F2012-09 the Commissioner considered the relevant provisions of the Alberta Treasury Branches Act and concluded the legislation expressly makes a distinction between a treasury branch and the corporate entity of Alberta Treasury Branches. The two terms are not synonymous – the corporate entity establishes treasury branches and is not a branch itself (F2012-09 at paras 16-25). In Supplemental Decision F2013-D-01 the Commissioner considered the transitional provision in the 1997 legislation. A literal reading of that section would suggest ‘Alberta Treasury Branches’ is synonymous with ‘treasury branch’ in any enactment. However the Commissioner favored a purposive and contextual reading to conclude the 1997 transitional provision was not intended to apply to the current ATB regime, but rather the legislature intended this transitional section to apply to references to the former branch of the Treasury Department known as the Government of Alberta Treasury Branches to ensure legal interests transitioned from this prior structure to the new corporate ATB entity established at that time. The Commissioner cited Alberta court decisions that support this reading and further noted that if section 36(3) of the 1997 legislation applied literally today, it would be in conflict with the definition of ‘treasury branch’ in the Interpretation Act; accordingly if the literal reading was intended, the legislature would have seen fit to address this conflict.

The Commissioner also had to address previous Orders under the FOIP Act that had confronted the same interpretive problem but had ruled that the reference to ‘treasury branch’ in section 4 of the FOIP Act did include both the corporate offices of ATB as well as the treasury branches established by ATB, and which had also cited the 1997 transitional provision as support for this conclusion. The Commissioner essentially just disagrees with earlier Orders, but also notes these earlier Orders do not run through the same interpretive analysis of the various legislated definitions of ‘treasury branch’ (Decision F2012-09 at paras 30-33).

Judicial Review Application Dismissed

Justice Manderscheid decides three issues in his judicial review decision: (1) what is the applicable standard of review? (2) Did the Commissioner err by ruling the 1997 transitional provision does not apply to the interpretation of section 4(1)(r) of the FOIP Act? (3) Did the Commissioner err by ruling that section 4(1)(r) of the FOIP Act does not provide ATB with an exemption from disclosure obligations on the AUPE request? In short, he concludes the standard of reasonableness applies to the Commissioner’s decisions in (2) and (3) above and that both decisions are reasonable. ATB’s judicial review application is dismissed.

As I noted at the outset, there is nothing particularly unusual with this result. But the decision does provide an opportunity to revisit some fundamentals in substantive judicial review.

The Applicable Standard of Review

The first step in substantive judicial review under Canadian administrative law is to identify the standard of review applicable to the question or questions in the impugned statutory decision. Since the Supreme Court of Canada’s 2008 decision Dunsmuir v New Brunswick, 2008 SCC 9, the choice of standard is either correctness or reasonableness.

Under the correctness standard the reviewing court affords no deference to the statutory decision-maker and effectively conducts a de novo assessment by answering the issue or issues itself (Dunsmuir at para 50). If the court agrees with the findings of the statutory decision-maker the impugned decision survives judicial review, but if the court disagrees with the findings then the impugned decision is set aside or varied to correct the error.

Under the reasonableness standard the reviewing court defers to the statutory decision-maker and limits its review to an inquiry as to whether the impugned decision is intelligible, transparent, and justified, as well as within the range of possible outcomes given the applicable facts and law in question (Dunsmuir at para 47). The application of this standard is less straightforward than correctness: the determination of whether an administrative decision intelligible, transparent and justified is a necessarily a subjective exercise. One characteristic of a reasonableness review that does seem more concrete however is that the court should limit its review to assessing the adequacy of the reasons provided by the statutory decision-maker.

In Dunsmuir the Supreme Court of Canada attempted to simplify the standard of review selection process by making a series of declarations on which standard usually applies to a particular category of question (Dunsmuir at paras 51-61). We were told the correctness standard will apply to questions involving constitutional law, questions of law important to the legal system generally and outside the specialization or expertise of the statutory decision-maker, questions of law that engage the jurisdiction of more than one statutory regime, and ‘true’ questions of jurisdiction whereby the statutory decision-maker must ask whether it has the authority to pursue the line of inquiry. And we are told the reasonableness standard will apply to questions of fact, questions that engage primarily with policy, questions laden with discretion, and questions of law within the ‘home’ statute(s) and expertise of the decision-maker.

The identification of the applicable standard of review thus requires a good understanding of how to differentiate between questions of law, questions of fact, and all related iterations between and surrounding these extremes. Dunsmuir also confirmed that precedent is established on the applicable standard of review for a particular decision-maker in relation to a particular type of decision or question (Dunsmuir at para 62).

An applicant in judicial review who seeks to have the statutory decision set aside or otherwise varied will usually assert that correctness be applied as the standard of review. And in this case ATB argued for correctness on the basis that the Commissioner’s decision engages in the interpretation of statutory provisions which are outside of her specialization, and also that the interpretation of the scope of the disclosure exemption is a true question of jurisdiction.

The respondent in judicial review who seeks to defend the statutory decision will usually assert that reasonableness be applied as the standard of review, such that the reviewing court affords deference to the decision and making it less likely the court will interfere with the decision. And in this case the AUPE argued for reasonableness on the basis that the statutory interpretation in the Commissioner’s decision is conducted within the overall FOIP regime. Even though the Alberta Treasury Branches Act is not expressly within the ‘home’ turf of the Commissioner, the interpretation here is connected to the question of disclosure.

Justice Manderscheid canvasses Dunsmuir and earlier Alberta cases concerning the standard of review applicable to FOIP decisions, and based on this jurisprudence he rules the standard of review applicable to the Commissioner’s decisions is the deferential reasonableness standard (at paras 26 – 40). In particular, he agrees with the AUPE that the Commissioner is entitled to deference on the interpretation of home legislation as well as legislation that is encountered in the course of FOIP issues. He also rejects the ATB argument that the application of the section 4 exemption is a jurisdictional issue, noting that ‘true’ questions of jurisdiction are rare concerning the interpretation by a statutory decision-maker of its home statute (at para 39).

These findings on standard of review are not only consistent with the overall trend in existing jurisprudence concerning the judicial review of FOIP decisions, but are also consistent with the trend towards reasonableness as the standard of review generally in substantive judicial review of statutory interpretation by administrative decision-makers. Some post-Dunsmuir Supreme Court of Canada decisions have asserted there is now a presumption that the standard of review is reasonableness concerning the interpretation by a statutory decision-maker of its home statute and related legislation.

The Presumption of Deference

The notion of a employing a presumption of reasonableness to simplify the standard of review determination was first suggested by Binnie J. in Dunsmuir at para 146, however the majority of the Supreme Court did not concur with him. Then in 2011 Justice Rothstein, this time writing for the majority in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, wrote that the principle of judicial deference asserted in Dunsmuir had evolved to the point where there is a presumption the standard of review is reasonableness where a statutory decision-maker applies and interprets its home statute (at para 39). In another 2011 Supreme Court of Canada decision Justice Fish, writing for the majority in Smith v Alliance Pipeline, 2011 SCC 7, agreed that Dunsmuir had established that the reasonableness standard will usually apply when a statutory decision-maker is interpreting and applying its home statute (at para 28).

Madam Justice Deschamps wrote concurring opinions in both Alberta Teachers’ Association and Alliance Pipeline. Her divergence from the majority in both decisions rested on the view that judicial deference is based upon the principle of relative expertise or experience in a particular area, and thus this bare assertion of a presumption of deference simply because a statutory decision-maker is interpreting its home statute pays too little attention to whether the statutory decision-maker actually has sufficient expertise or experience to justify deference to its determination of a legal question (See Alliance Pipeline at para 80 and Alberta Teachers’ Association at paras 82 – 89).

More recent Supreme Court of Canada jurisprudence continues to use the language of a presumption of reasonableness. In McLean v British Columbia (Securities Commission), 2013 SCC 67, Justice Moldaver restated the presumption that a statutory decision-maker’s interpretation of its home statue will attract the reasonableness standard (at paras 20 – 24). And it is apparently a very strong presumption, demonstrated by how the Court described the onus on an applicant seeking to challenge the statutory interpretation given by a decision-maker to its home statute (at paras 40, 41):

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

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

And finally for present purposes, Justice Rothstein wrote for the majority in Canadian National Railway v Canada (Attorney General), 2014 SCC 40, and he again asserts that there is a presumption of reasonableness that applies to the interpretation of home statutes and other legislation related to the function of a statutory decision-maker (at para 55).

While these more recent decisions confirm that a presumption of reasonableness applies, they suggest the presumption rests on the need to demonstrate some expertise or familiarity on the part of the statutory decision-maker. However it remains to be seen just how rigorous the Court will be on what it takes to establish such expertise. It seems most likely to me that the threshold to establish expertise will not be a high one, and thus the fact a decision-maker is interpreting its home statute or related legislation will be enough to invoke the presumption of reasonableness as the standard of review.

Some Concluding Thoughts

This decision by the FOIP Commissioner was a paradigm candidate for the presumption of judicial deference. The interpretive problems were located outside of the FOIP Act, but nonetheless strongly connected to the application of the FOIP regime. Moreover, there are several judicial review decisions which also indicate reasonableness is the standard to review statutory interpretation by the FOIP Commissioner. Despite this, it appears both ATB and the AUPE expended significant time and energy arguing over what the applicable standard of review would be in their case. Unfortunately, I think a similar observation can be made in most judicial review proceedings today. Most would likely agree that the Dunsmuir decision itself did little to simplify matters in substantive judicial review.

Perhaps it is folly to expect substantive judicial review to be a simple exercise, since at its core the review must both acknowledge and respect the exercise of legal authority by statutory officials while at the same time ensure such authority is legitimate under the rule of law. It may be that employing a presumption of deference risks overlooking important context or the subtle wrinkles that may arise in the exercise of public power by statutory officials.

In this case for example, one might suggest Justice Manderscheid ought to have been more intrusive in his review and given stronger consideration to ATB’s argument that the Commissioner erred in law by failing to follow the earlier interpretations set out by a previous FOIP Commissioner. Justice Manderscheid touches on this argument only at the very end of his judgment by (1) simply declaring that the Commissioner’s decision not to follow these earlier interpretations was reasonable (at para 83); and (2) stating that in any event the doctrine of stare decisis does not apply to administrative tribunals such that the Commission is entitled to completely depart from an earlier interpretation (at para 84).

It is here where Manderscheid J.’s analysis might raise some eyebrows. Can we so readily abandon consistency in legal decision-making and still purport to be functioning under the rule of law? Stating that administrative decision-makers such as the FOIP Commissioner are entitled to alter precedents or completely depart from an earlier interpretation of legislation – as Justice Manderscheid states here (at para 84) – was perhaps tenable in a legal system that did not employ a strong presumption of deference to substantive legal findings made by these persons. It seems more problematic in a legal system that gives administrative decision-makers the power to make final and binding determinations of law when they interpret and apply their home legislation. But the application of judicial deference and the reasonableness standard of review should – and did – constrain the extent to which Justice Manderscheid explores this issue.

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The Website of the Alberta Courts

Fri, 01/09/2015 - 9:00am

By: Nigel Bankes, Jennifer Koshan, and Jonnette Watson Hamilton

PDF Version: The Website of the Alberta Courts

Matter Commented On: The Alberta Courts’ website

This post deals with Court websites. We are posting it now because all three Alberta Courts have just made a significant change in their practice. At the beginning of this week (January 5, 2015) they announced that they will no longer post judgments on their own website. Instead, users are referred to CanLII for copies of recent judgments. Here is the notice that you will find on the ABQB and ABPC websites:

A collection of the judgments of the Court of Queen’s Bench of Alberta is available from CanLII. The official version of the reasons for judgment is the signed original or handwritten endorsement in the court file. If there is a question about the content of a judgment, the original court file takes precedence. Copies of the original judgment may be obtained on payment of the applicable fee, by contacting the relevant court location.

You are about to leave the Court of Queen’s Bench of Alberta website. The Court of Queen’s Bench of Alberta is not responsible for the content of any external website.

Queen’s Bench judgments on CanLII

The Court of Appeal has yet to implement this decision but anticipates doing so in the near future.

We are given to understand that, while this move has been made to conserve staff time and reduce technology costs the Courts will continue to update the judgment databases — but henceforward the databases will only be available to internal users on the Courts’ intranet. We also understand that the decisions of the Courts will be sent to Can LII on a daily basis, and that there should not be a significant time lag in accessing them on Can LII.

In making this move the Alberta Courts are following the practice of some other Canadian courts, including those in Saskatchewan, Manitoba and Newfoundland and Labrador.

ABlawg is a strong supporter of Can LII, and was one of the first blogs to participate in Can LII Connects. However, we think that there is a case to be made for Courts maintaining their own publicly accessible judgment databases, as well as contributing to open source databases such as CanLII.

What is that case? We think that a website offers any entity, including the different branches of government, the opportunity to communicate to the public about who they are and what they do. The practice of rendering public judgment is a central part of what a court does and should be celebrated. Many courts do just that, both in Canada and internationally. For Canadian examples, see the websites of the Courts of British Columbia and Nova Scotia. The website of the former includes an easily accessible “Recently Released Judgments” for both superior courts that lists the courts’ most recent decisions and a one sentence summary of the issue(s) dealt with by the court. The website of the latter includes, on their Court Decisions page, a list of “Today’s Releases” by five different levels of court. The Courts of Nova Scotia website also includes webcasts of court proceedings, among numerous other features.

Some courts even go beyond this content and use their websites to make additional materials available to the public, including appellate factums, transcripts, podcasts and in some specialized cases the pleadings. Examples here include the Supreme Court of Canada, the High Court of Australia, the Supreme Court of the United Kingdom (where it appears you can even rent the Court for special events; see “Venue Hire”!), and the International Court of Justice. In the case of the Australian and UK courts, these websites are additional to the open source databases AustLII and BAILII.

Of course these initiatives may not be appropriate to all levels of Court; we are not advocating any particular approach. But what we are saying is that a website is a crucial means of communication between the Courts and the public. A Court’s website conveys something about how accessible that Court is, or how accessible it wishes to be perceived to be. It says something about how central it sees the work of written decision-making and the dissemination of that work.

The message that the Alberta Courts send with the notice quoted above is that, while judgments may be central to who they are and what they do, they will leave it to others to publish those decisions and to be responsible for them. We think that that’s a shame. It’s even more of a shame if the Courts continue to maintain and update the database for their own use, since that suggests that any cost savings will be marginal at best.

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A Methodology for Beginning Fundamental Justice Reform

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

By: John-Paul Boyd

PDF Version: A Methodology for Beginning Fundamental Justice Reform

Discussion on the reform of civil justice in Canada reached a new crescendo last year with the publication of the various reports of the national Action Committee on Access to Justice in Civil and Family Matters and the initiatives that have popped up here and there across the country, and continue to pop up, as a result. An enormous amount of learned discussion on justice processes, barriers to justice, the meaning of access to justice, potential solutions and reform processes is available on websites of organizations like the Canadian Forum on Civil Justice, Slaw and the Canadian Bar Association.

As the various initiatives move forward, the issue of reform processes has in particular taken on a new importance. The reasons for this are fairly straightforward: the rules and principles of the English common law justice system are 900 years old and somewhat hidebound as a result; the system engages a significant number of influential stakeholder groups that must be convinced to support efforts toward substantive reform; the system is managed by a dense bureaucratic administrative structure laden with regulations, politics and vested interests that must be reorganized and reenergized; and, the system itself is incredibly expensive, as are the cost of mistakes and false starts. The process most likely to be successful must be one that is capable of reconciling these intransigent, obdurate circumstances and achieving broadly supported change. At present, the most promising reform process available is the social lab approach, which has been eloquently written about by people such as Nancy Cameron and Nicole Aylwin.

I won’t reiterate what Nancy and Nicole have said; they’re both very articulate writers who have described the concept better than I could, and you really should read their articles. (Nicole’s article, incidentally, has lots of helpful links to related resources.) Suffice it to say that the social lab approach attempts to mobilize the different stakeholders involved in a particular social issue to collaboratively implement prototypes of new processes which are continuously refined in an iterative cycle of evaluation and adaptation. This is all very well and good, and the social lab approach is likely one of the very few means of achieving the large-scale reform of intractable social problems in a manner that is neither coercive nor unpleasantly prescriptive. It’s also the approach being used in Alberta’s Reforming Family Justice Initiative, which Diana Lowe has succinctly described.

Some concerns

I am, however, worried that the social lab approach might circumscribe our ability to be genuinely creative in developing new approaches to systems that are complex, multidisciplinary and massive, like the justice system, and involve multiple stakeholders with varying commitments to reform. The implementation > evaluation > feedback > adjustment > re-implementation loop required by the prototyping methodology strikes me as being limited to taking the bits and pieces of existing systems and rearranging them, albeit in innovative, novel ways. There may be some aspect of the social lab process that I have failed to grasp, but it seems to me that the approach may be incapable of contemplating a fundamental redesign of established complex systems; rather than being a renovation that takes the house back to the studs and starts over, the prototyping approach seems to be limited to reconfiguring the furniture and testing new arrangements. I raise this point as it is not at all clear to me that the way we manage disputes within the present family justice system has any necessary or intrinsic merit. While I suspect there will always be a need for authoritarian and perhaps adversarial court processes to address truly difficult individuals and problems of immediate urgency, I am concerned that a proper reconceptualization of the system may require more than triage processes and the co-location of social services, both of which are really not much more than reconfigurations of existing protocols and resources, and may demand:

  • a fundamental reconsideration and reappraisal of our basic assumptions; and,
  • a critical examination of alternatives such as inquisitorial processes, abridged trial procedures, non-adversarial judging techniques, the embedding of mental health professionals in decision-making processes, mediation-ligation hybrid processes and so forth.

A social lab approach may be the most effective way to pilot new ideas and new procedures once this reconceptualization has taken place, but I suggest that it may not be suitable to reforms addressing the fundamental underpinnings of family justice processes, assuming of course that these processes need to be addressed at all.

A potential methodology

In light of my concerns with the social lab approach, and given that the usual alternatives to that approach are, for the reasons pointed out by Nicole, unworkable for the purposes of justice reform, the next step must be to discover the process that will work if we are to develop a completely new way of doing family law. I do not pretend to have the answer, but I do have a suggestion.

I think that first there needs to be some really big-picture brainstorming. I would hand-pick a dozen of the best and the brightest thinkers on family justice, focussing on people with practical experience in the trenches who are genuinely creative, out-of-the-box thinkers with a deep understanding of justice issues and family law. I’d send them off to a secluded place outside of Banff with a box of notepads, whiteboards, markers, the best research currently available on family breakdown and its sequelae, and a case or two of good wine, with instructions to come up with a comprehensive outline of a new family justice system, complete with workflows, processes and rules, applying no preconceptions that any aspect of the current system needs to be or should be retained, and I would tell them to keep at it until they reach a consensus about a completely new model of family justice.

When they’re done, I’d bring them back, and get them to write up their model in two statements, a technical draft for legal professionals, government and others involved in the system and another in plain language for the public and the media. I would take a year with the group criss-crossing the province talking to the bench, bar, community groups, court staff, social workers, counsellors, advocates, social service agencies and so on to collect feedback, correct problems and foster buy-in. The group would then issue a final statement on the new system that reflects the insights gained from touring the province. This, by the way, is more or less the approach taken by Professors Rollie Thompson and Carol Rogerson between the release of their first draft of the Spousal Support Advisory Guidelines in 2005 and the release of the final draft in 2008, and it worked wonderfully well.

I would then put the final statement into the care of a larger, more comprehensive group of stakeholders for implementation in one justice centre, using the social lab approach to prototyping and the iterative evaluation and adaptation of new processes. When the new model seems to be more or less functional, I’d roll it out to other justice centres and their local stakeholders for the same process of evaluation and adaptation, tailoring the implementation of the model to the particular needs of each community.

The point of all of this is to achieve a redesign of the family justice system from the ground up, by putting aside our current assumptions about family breakdown, and how the disputes arising from family breakdown should be managed, and starting afresh in a principled manner supported by research. Family justice is, you see, fundamentally different than any other branch of civil justice. We should not and must not handle the legal issues arising from family breakdown as we do those arising from shareholders’ grievances, motor vehicle accidents and wrongful dismissals.

Just an idea.

This post originally appeared on Access to Justice in Canada.

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Expert Reports: Are They Inherently Material Evidence?

Mon, 01/05/2015 - 9:00am

By: Camille Sehn

PDF Version: Expert Reports: Are They Inherently Material Evidence?

Case Commented On: E.G. v Alberta (Child, Youth and Family Enhancement Act, Director), 2014 ABCA 396

This summer I posted a comment on a successful application to stay the Queen’s Bench decision of the Honorable Mr. Justice G.C. Hawco, which reversed a Permanent Guardianship Order (“PGO”) made by the Provincial Court at trial. On the hearing of the appeal of the Director of Child and Family Services (“the Director”) of Justice Hawco’s decision, there were several issues raised surrounding the expert reports that were entered as evidence at trial and relied upon in Justice Hawco’s decision, but not relied upon in the trial decision of the Honorable Judge L.T.L. Cook-Stanhope. This post will comment upon the Court of Appeal (Justices Côté, Rowbotham and Jeffrey) decision on those issues.


The background to the appeal is outlined in greater detail in the decision and my earlier post, but it is important to highlight several important developments within the case which began at trial. There were two reports entered as evidence by counsel for the parents, the reports of Ms. Debra Harland and Dr. Sonya Vellet, which were then withdrawn during trial. The authors of these reports were not called as witnesses, therefore not available for cross-examination, and counsel for the parents confirmed to Judge Cook-Stanhope that the parents were not intending to rely on them.

However, the reports were admissible, remained on the record, and were referred to in questioning of the only expert witness called, Dr. Rosalyn Mendelson. The first issue that arose on appeal with respect to these reports was whether Justice Hawco erroneously relied on them on appeal. The Court of Appeal concluded that Justice Hawco did rely on the reports, and should not have (at para 31). Secondly, the Court of Appeal discussed whether such reports would constitute material evidence which, if disregarded at trial, would be a reviewable error. Ultimately, the Court clarified that these reports were not material evidence, and that Judge Cook-Stanhope was correct to not address them in her reasons (at para 35).


These reports, and the way in which they should be dealt with, bring up several issues related to the weight of expert evidence and the level of deference to a trial judge on appeal. Without a jury, the judge assumes the role of the trier of fact. If the reports had been withdrawn from a jury trial, the jury would not be able to rely on them. The expert witness role, and the reason for a higher standard of qualification of these experts as opposed to lay witnesses, is that their evidence is not entered for the truth of its contents (at para 21); there is probative value in expert opinions that can assist the trier of fact in making inferences. The trier of fact still has the discretion, absent an overriding and palpable error, to choose which evidence he or she prefers, including which opinions and inferences are preferable (at para 37).

Counsel for the children suggested that Justice Hawco was entitled to reweigh the evidence presented at trial, but the Court of Appeal confirmed that the standard of review for an appellate court does not allow that court to substitute its own view by re-weighing the evidence absent an error in principle or a correct finding that the trial judge had disregarded material evidence. Since the reports were not material, and there was no error in principle (at para 45), the decision of Judge Cook-Stanhope to grant a PGO was restored.

This decision confirms that the level of deference in weighing expert opinions remains very high. If Ms. Harland and Dr. Vellet had been called, Judge Cook-Stanhope would have needed to address their testimony in her decision if she was disagreeing with their opinions, but would not have been required to place any greater weight on those opinions. Without the opportunity for cross-examination and, further, without counsel for the parents specifically relying on the reports, they were not material evidence (at para 45). This is despite the fact that they were expert reports.

However, the Court also indicated (at para 44) that in this case, the issue is not even whether the trial judge preferred the evidence of one expert over another. Essentially, there was only the expert evidence of Dr. Mendelson available at trial. While the reports were completed by experts and remained on the record as admissible evidence, the Court of Appeal reveals in this decision that it is not only the qualification of an expert that has a higher threshold, it is also the presentation of that expert’s evidence that has a high threshold in order to be material evidence. Without an opportunity to cross-examine an expert on their report, it seems that evidence contained within the reports should have no probative value.

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The Top Ten Canadian Legal Ethics Stories – 2014

Fri, 01/02/2015 - 9:00am

By: Alice Woolley

PDF Version: The Top Ten Canadian Legal Ethics Stories – 2014

For the last two years I have written up the “top ten” Canadian legal ethics stories for the prior year (2013 and 2012). This year I initially wondered whether it would be possible to identify ten important legal ethics stories. It wasn’t. Moreover, it is fair to say that some of these stories now justify the descriptor “saga,” making their third consecutive appearance on the list.

It should be noted that the ordering of the list is neither rigorous nor based on a precise calculation of each story’s importance. Nor is the “Top Ten” descriptor a claim I’d aggressively defend. I’m not sure whether, in an objective sense, these are the top ten stories and nor am I sure which ones are more interesting and significant than the others. But since “Ten Canadian legal ethics stories listed in no particular order but that I, for my own idiosyncratic reasons, think are interesting and significant” is not exactly catchy, I’m sticking with “Top Ten.”

  1. Trinity Western’s Approval Revoked

On December 11, 2014 the British Columbia Minister of Advanced Education revoked the consent it had previously granted to Trinity Western University to open a law school. It did so based on the “current uncertainty over the status of the regulatory body approval” for the law school (CBC, December 11 2014). That uncertainty arose from the decisions by the law societies in British Columbia, Ontario, New Brunswick and Nova Scotia either not to approve the admission of graduates of Trinity Western or to do so only conditionally. My overview of the regulatory history of Trinity Western’s proposal, and the issues it raises, is here. Elaine Craig’s article from June 2014 on TWU is here. SLAW blog posts on Trinity Western from 2014 can be found here, here, here, here and here.

The Trinity Western law school proposal is one of the legal ethics sagas. It has raised significant issues in legal ethics, particularly in relation to the effectiveness of the Federation of Law Societies (whose approval process was in the end not treated as binding or even given much weight); the scope of anti-discrimination and protection of diversity with respect to admission to the profession; the role of the law societies in determining that scope and protection (as opposed to, say, human rights commissions); the process used by law societies to consider Trinity Western’s application; and, finally, the role of law societies in regulating the content of legal education.

It is also a saga likely “to be continued” in the next few years: if Trinity Western proceeds with its various applications for judicial review of its law school, and if it succeeds in those applications, either procedurally or substantively, then this matter will end up back before the Minister of Advanced Education and, perhaps, the law societies.

  1. Settlement of the complaint against Lori Douglas

On November 24, 2014 the Canadian Judicial Council stayed its investigation into the conduct of Associate Chief Justice Lori Douglas in consideration for her agreement to retire effective May 2015. As noted in an article on, the investigation into ACJ Douglas had been ongoing for four years and cost approximately $3 million. The legitimacy of the investigation was – and continues to be – fiercely criticized. Most recently critics focused on the CJC’s insistence on viewing the pictures of ACJ Douglas, even though the basic content of those pictures was widely known (see, e.g., Blatchford, Drummond #1, Drummond # 2, Open Letter).

The settlement agreement prevents the continuation of proceedings that seemed most unlikely to reach any satisfactory and fair conclusion given the muddied issues they raised – was the issue the failure to disclose the existence of the pictures on her written application for appointment? Was it Douglas’s alteration of her personal diary once the investigation commenced? Or was it the existence of the pictures themselves? A letter written by Norman Sabourin in response to an Open Letter criticizing the CJC suggests all of the above.

The agreement also means, however, that the significance of online sexual pictures to future judicial applicants remains unclear. Do prospective judges need to disclose the existence of pictures that are on the web? Do they need to disclose the existence of pictures that may be put on the web at some future time? Does disclosure depend on the likelihood that the pictures will end up on the web? What, ultimately, is the burden on an applicant? From a policy perspective, given the increased prevalence of such pictures in a digital age, what would the effect of compulsory disclosure of such pictures be on applications by women to the bench relative to men over the longer term? These are questions that merit further consideration and clarification.

  1. The Canadian Bar Association Futures Report

In August 2014 the Canadian Bar Association published the report of its Legal Futures Initiative, Transforming the Delivery of Legal Services in Canada. The result of extensive consultation and research, the Report offered a considered assessment of issues and challenges facing the legal profession, and made recommendations for changes to the regulation and education of Canadian lawyers. The most controversial of those recommendations are those supporting liberalization of the legal services market and that lawyers be permitted to practice in “Alternative Business Structures”. Specifically, the Report recommended that “Lawyers should be allowed to practise in business structures that permit fee-sharing, multi-disciplinary practice, and ownership, management, and investment by persons other than lawyers or other regulated legal professionals” (Recommendation #1, p. 35). It also recommended regulatory changes to permit effective rather than direct supervision of non-lawyers (Recommendation #4, p. 42), fee-sharing with non-lawyers (Recommendation #5, p. 43) and compliance-based entity regulation (Recommendation #8, p. 47).

The merits of the CBA’s proposals can be debated. The regulatory changes they propose are, in some cases, themselves top ethics stories from the year, as discussed below. But of independent significance is the fact that the CBA has been willing to engage in this process, and to take positions that challenge the regulatory status quo. There is nothing modest or timid about the CBA’s approach. When faced with a similar opportunity the American Bar Association ducked, declining to consider any liberalization to the rules preventing non-lawyer ownership (see James Moliterno’s criticism of the ABA 20/20 Commission, here but also some debate on Moliterno’s criticisms here). I am not an impartial observer– I was a member of the CBA’s Professional Regulation Futures Committee – but in my view the CBA is to be commended for its initiative and openness to new ways of regulating the profession.

  1. Alternative Business Structures

As noted, one of the key recommendations of the CBA was to permit alternative business structures (ABS), law firms that are owned, at least in part, by non-lawyers. In September the Law Society of Upper Canada released its Discussion Paper Alternative Business Structures: The Future of Legal Services, seeking input from its membership about whether, and to what extent, alternative business structures ought to be permitted.

The debate around ABS focuses on their risks and rewards, with opponents suggesting that ABS pose significant risks to lawyers’ integrity and their provision of services to clients, while creating few real benefits to access to justice (see, e.g., Ontario Trial Lawyers Oppose ABS; Ken Chasse on ABS).

Proponents suggest that there is evidence to support ABS’s positive effect on access to justice (Kowalski on ABS) and that, in any event, the risks posed by ABS to the legal profession ought not to be overstated (Mercer #1 and Mercer #2). The questions now are whether any law society will be willing to proceed with ABS, if so which one and if so will others follow suit?

  1. Jian Ghomeshi’s Statement of Claim

The serious criminal allegations against Jian Ghomeshi were one of the top news stories in Canada in 2014. But the allegations also had a legal ethics dimension. Specifically, was it ethical to file a statement of claim that was arguably meritless and that may have been intended to suppress legal claims against Ghomeshi? This question was debated by David Tanovich (arguing that filing such a claim is unethical) and me (arguing that, while ethically problematic, it is not improper). Howard Levitt and I have also raised questions about the sufficiency of the advice given by Ghomeshi in relation to filing the Statement of Claim.

  1. British Columbia Regulatory Task Forces

As noted, the CBA Futures Project recommended the adoption of compliance-based entity regulation. In 2012, the British Columbia Legal Profession Act was amended to give the Law Society of British Columbia the authority to regulate law firms. The Law Society has struck a task force to “recommend a framework for the regulation of law firms” (LSBC Task Force). Adam Dodek wrote a paper advocating law firm regulation in 2012 (here) and it is significant that the law societies are taking concrete steps in this direction.

Of perhaps even greater note, however, is that in December 2014 British Columbia’s Legal Services Regulatory Framework Task Force recommended that “the Benchers seek an amendment to the Legal Profession Act to permit the Law Society to establish new classes of legal service providers to engage in the practice of law, set the credentialing requirements for such individuals, and regulate their legal practice.”   The areas in which such legal service providers would be permitted to practice include family law. A loosening of the constraints on legal practice by non-lawyers may be the most significant development in increasing access to justice, particularly in family law, where it is estimated that 70% of participants are unrepresented (Julie MacFarlane, cited in Mercer #2)

  1. A2J

Access to justice continues to be a significant issue for Canadian lawyers and the public, and for good reason. As John-Paul Boyd noted in a post on SLAW on December 5th: “The present situation is, with the greatest respect, staggering. We have at hand a crisis on a national scale, affecting a system that costs governments billions of dollars a year to maintain, and yet we as a society are unwilling to allocate the few millions of dollars that are necessary to tackle the problem as aggressively as it requires” (Boyd on A2J). Two major reports on access to justice were published in 2013 (Action Committee on Access to Justice in Civil and Family Matters Report and CBA Equal Justice Report) and, as indicated by the BC task forces, the CBA Futures Report and the debate over ABS, legal regulators and the legal profession are taking the access to justice problem seriously. They are trying to remove barriers to the provision of legal services and to facilitate access to lawyers and legal services. Until some material progress is made, however, access to justice will properly remain a top legal ethics story in Canada.

  1. The Boyle Recusal

On September 4 2014, Tax Court Justice Patrick Boyle wrote a 47 page decision recusing himself from further participation in a matter in which he had previously issued a decision that was now under appeal to the Federal Court of Appeal. He did so on the basis of submissions made by the appellants and, in particular, what he felt were unfair allegations that he had been “untruthful, dishonest and deceitful” in his judgment, and what were “clear untruths” about him (see 2014 TCC 266 (para 4)). Some commentators have suggested that the factum of the appellants was not particularly unusual or out of order (Tax Judge Issues Rare Ruling in Own Defence) while others have suggested it was “unusually aggressive” and contained “ad hominem” attacks (Judge Slams Counsel, then Recuses Himself).

Whatever the ethics of counsel’s conduct, however, Boyle’s decision to engage with the merits of the case in a recusal decision raises its own ethical problems. An article reproduced on the Dalhousie Law school website quotes Professor Brent Cotter as saying “this engagement by the judge raises questions about whether impartiality has been preserved in this case” and quotes lawyer Gavin Mackenzie’s description of Boyle’s reasons as “completely unnecessary” and his suggestion that certain aspects of Boyle’s judgment “can raise a legitimate question about the civility of the judge in this case” (Was Canadian Judge’s Recusal in McKesson Out of Bounds).

The effects of Boyle’s judgment is now before the Federal Court of Appeal, who recently allowed taxpayer’s counsel to amend its grounds of appeal to include the question of whether the reasons for recusal compromised “the appearance and reality of a fair process in this case such that a new trial is necessary” (Notice of Motion). In his decision Justice Stratas said “the recusal reasons, by responding to the appellant’s memorandum of fact and law, depart from the norm. They are a new, material development in this appeal and have become part of the real issues at stake.” (2014 FCA 290 at para 11; see in general: FCA allows taxpayer motion).

  1. The Collapse of Heenan Blaikie

On February 5, 2014 the national law firm, Heenan Blaikie, announced its dissolution. Even though the firm’s economic foundations had been relatively solid, a diminution in partner earnings early in the year led to a “run on the bank” with 30 partners leaving and the firm dissolving soon after. In an article for Legal Ethics in June 2014 Adam Dodek summarized the various explanations offered for the firm’s collapse: “the inability of a mid-tier large firm to compete in the Canadian legal market; the failure of the partnership model; a clash of cultures between the Toronto and Montreal offices; a failure in succession planning, etc. In a bizarre turn, one commentator blamed law schools for Heenan’s fall, apparently on the theory that the market cannot absorb the number of Canadian legal graduates.” ((2014) 17 Legal Ethics 135 at 136). Heenan had also allegedly had internal conflicts in relation to its international practice, and in particular its involvement in transactions in Africa which may have undermined its stability (How Heenan Blaikie’s stunning collapse started with a rogue African arms deal).

From the distance of a few months the broader significance of Heenan’s collapse seems less clear; it may have been a product of broader challenges and issues in the legal services market, but it may also simply reflect pathologies specific to Heenan at that time. A determination of its broader significance perhaps awaits future events.

  1. The LPP Path to Articling

2014 saw the first entrants into Ontario’s new alternate path to articling, the Law Practice Program (LPP). The LPP has been praised as opening up the profession to law school graduates who would otherwise be precluded from practice (see, e.g., The new faces of law school). In 2013 Tom Conway, then Treasurer of the Law Society of Upper Canada suggested that the LPP may be a better form of training than traditional articling, an entirely plausible claim given the dearth of regulation of articling, and of evidence to demonstrate the quality of education it provides (as discussed by Adam Dodek, here).

The LPP has also, however, been subject to criticisms in relation to the significant increase in articling fees associated with the program, the unavailability of student loans for participants and the fact that students are not paid for practicum placements (see e.g., Articling fees and access to justice and Reality bites for LPP students). Some critics, as evidenced by the comments to the article on Articling fees and access to justice, also complain that the LPP is enabling an unjustified expansion in the number of lawyers in Ontario.

As a final note, on December 27 Canada lost a legal icon with the death of Eddie Greenspan. For good and occasionally not so good reasons, Greenspan was an outsized figure in the Canadian profession and in relation to issues of legal ethics. In the casebook I co-edit and co-author he appears in a less positive light from time to time (as the unsuccessful defendant in Stewart v. Canadian Broadcasting Corp, [1997] OJ No 2271 and as the author of a stinging and problematic 1999 National Post editorial directed at Justice Claire L’Heureux-Dubé after her judgment in R v Ewanchuk, [1999] 1 SCR 330). But Greenspan was also an ardent defender of Joe Groia in relation to the Law Society of Upper Canada’s prosecution of Groia for incivility (The horrible crime of incivility) and actively worked to improve the quality of the Canadian legal system, both for his own clients and more generally, as evidenced by his last editorial, published posthumously (Stephen Harpers’ scary crime bluster).

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ABlawg a Runner up for 2014 Clawbie

Wed, 12/31/2014 - 10:05am

The Canadian Law Blog Awards (Clawbies) for 2014 were announced this morning, and ABlawg is very pleased to have been recognized as a runner up in the category of Best Law School/Law Professor Blog. One of ABlawg’s nominees, Paul Daly’s Administrative Law Matters, took the top spot in the category this year. Our colleague Lisa Silver, who teaches criminal law, was also a runner up in the category for her Ideablawg.  And, our colleague John Paul Boyd from the Canadian Research Institute on Law and the Family – also one of our nominees – was recognized in the category of Best New Blogs for his blog Access To Justice in Canada.

We extend our thanks to all of our nominators and the Clawbie selection committee, and our congratulations to all the winners, runners up and nominees.

ABlawg looks forward to continued engagement with our readers in 2015. Happy New Year!

Ensuring Competent Representation: Know What You Don’t Know

Tue, 12/30/2014 - 10:00am

By Alice Woolley

You’ve got to know when to hold ‘em

Know when to fold ‘em

Know when to walk away

And know when to run

You never count your money

When you’re sittin’ at the table

There’ll be time enough for countin’

When the dealin’s done

The Gambler (Don Schlitz; performed by Kenny Rogers)

Being a competent lawyer means knowing your own limits.  Lawyers representing clients in cases for which they do not have the necessary knowledge and skills risk liability in negligence, being found to have provided ineffective assistance of counsel (in a criminal case) and violating the obligations of the codes governing their conduct.  Those codes define the competent lawyer as “recognizing limitations in one’s ability to handle a matter of some aspect of it and taking steps accordingly to ensure the client is appropriately served” (FLS Model Code, Rule 3.1-1(h)).  They further state that a lawyer ought not to take on a matter for which she is not competent and must recognize “a task for which the lawyer lacks competence” (Rule 3.1-2, Commentaries 5 and 6).

How difficult can this be?  Quite, according to some recent media reports.  While the facts as reported are not sufficient to support the conclusion that the lawyers involved acted improperly, they do at least raise the question: given the apparent disconnect between their expertise and their clients’ circumstances, why were these lawyers acting?  And what lessons might we be able to draw to allow lawyers to appreciate when folding ‘em is wiser than holding ‘em?

The first case is the representation of Jian Ghomeshi by two lawyers from the Dentons firm.  As noted here – Why did Ghomeshi hire Dentons? – the lawyers who filed Ghomeshi’s (now withdrawn) civil claim against the CBC were a partner specializing in “commercial litigation and insolvency” and a senior associate “with experience in real estate, employment, defamation and fashion.”  The dubious merits of that claim have been widely discussed (see, e.g., here: Levitt on Ghomeshi).   More concerning, however, is the admission in the Claim that Ghomeshi engaged in “sado-masochism”, an admission Ghomeshi also made in his statement on Facebook (which counsel may or may not have reviewed before it was posted – Ghomeshi FB post).  It is hard to see how either the Claim or Facebook post advanced Ghomeshi’s legal interests and it is quite easy to see how each may ultimately injure those interests given that “when it comes to BDSM – or at least its more intense versions – the law doesn’t actually care about consent.” (See: Cossman on Consent).

The second case arises from a lawsuit brought – ironically enough – against Ghomeshi’s new counsel, Marie Heinen, and another criminal defence laywer, Steve Skurka.  Skurka and Heinen have been sued by their former client Nathan Jacobsen in part because of their representation of him in a US criminal trial.  A December 5, 2014 article in the Globe and Mail noted that Jacobsen’s original guilty plea in the US was struck out, and that his American counsel argued that Jacobsen has received “ineffective assistance of counsel”.  It also reported that in testimony in the US proceeding, Skurka stated “We were hammered by the fact, Ms. Henein and I, by the fact that there were different discovery rules than we had in Canada.” (Globe and Mail, December 5 2014)

Heinen and Skurka are not the first Canadian lawyers to be criticized for their handling of a US criminal case.  Eddie Greenspan’s representation of Conrad Black several years ago was criticized not only by Black, but also by journalists, although the journalists were not necessarily prepared to see Greenspan’s representation as the cause of Black’s problems:  “This wasn’t Eddie Greenspan’s finest hour. But it is stingingly absurd to suggest that Conrad Black was done in by his lawyers. He was done in by the facts.” (E.g., Wells on Black and Greenspan).  It should also be acknowledged that Greenspan worked with US counsel on Black’s representation – in fact, he made the retainer of such a lawyer a condition of his representation (Greenspan on Black)

In each of these cases the lawyer’s (or lawyers’) area of expertise (insolvency and commercial litigation/Canadian criminal law and procedure) deviates from the issues raised by the representation (sex and employment/US criminal law and procedure).  The quality of their representation has been challenged.  So why were the lawyers acting? Why didn’t they refuse the brief?

My guess is that it was not because of ignorance of their legal and ethical duties.  Rather, it was because they did not see any issues with the representation.

One explanation for that (mis)perception may be that the feeling of not being competent is not abnormal for a lawyer.  Most lawyers in the early stages of their career – and some lawyers (and academics!) at later stages of their careers – will feel like they don’t know enough, or have sufficient skill, to be handling the work they have been given to do.  But they persevere, because the work has been given to them and it’s their job to figure out how to do it as best they can.  They trust the senior lawyer to identify any mistakes, or their own hard work and effort to ensure that such mistakes are avoided.  As a consequence, however, lawyers may become somewhat inured to that feeling of incompetence, and less likely to see it as a basis for ethical decision-making.

Another may be that human beings simply tend to think we are better at things than we are.  In one study 94% of university professors rated themselves as above average teachers (here); in another study 88% of drivers reported themselves as above average (here).   Evidence does suggest competent people have better self-assessment in their area of competence than do incompetent people (the Dunning-Kruger effect, summarized here), which might suggest that lawyers ought to know the boundaries of their competence.  But on the other hand, it may suggest the opposite: that it is at the boundaries of our competence, when we are becoming incompetent, that we become the least able to assess our own abilities.  As David Dunning noted in the article linked above, “Logic itself almost demands this lack of self-insight: For poor performers to recognize their ineptitude would require them to possess the very expertise they lack.” It may be at the point where our expertise runs out that we do not know that it has.

A further contributing factor is the fact that while lawyers clearly do specialize we do not treat ourselves as specialists from a regulatory perspective.  We admit all lawyers to legal practice as generalists and we don’t identify them as specialists absent the satisfaction of certain criteria (and even that only occurs in some jurisdictions). This may create a perception amongst members of the bar that they have general competence, that their competence is not limited to their area of specialization. As a result lawyers may be more willing to practice outside of their specialty than are, say, doctors; one can’t really imagine a dermatologist being willing to practice occasionally as a neurosurgeon, or a neurosurgeon deciding to dabble in skin cancer detection.

If this is the case, then how might a lawyer avoid overreaching into areas where she lacks the necessary competence?  One way is to view oneself as a specialist and to know what that specialty is. The specialty may not be an area of law – lawyers practicing in smaller communities and litigators often deal with a variety of legal questions.  But it may be that all one’s clients are individuals; the cases are small; they don’t involve issues of crime or sex; they all occur within Canada.

And if a case is outside of her area of specialty, then the lawyer ought to presume that she is not competent to deal with it, and also be aware that she is far more likely to mistakenly believe that she is competent than to mistakenly believe that she is not.  That, most significantly, the lawyer may not even know the risks to her client that her lack of knowledge and experience in the area presents, because she doesn’t know enough about the governing law and procedures to know the dangers.  A lawyer who, e.g., never practices in areas touching on criminal law simply will not appreciate that an admission of certain sexual practices may indicate guilt regardless of consent.  This does not mean that the lawyer cannot be involved in such a case, but it does suggest that the lawyer ought not to act as sole and senior counsel on it.  Rather, the lawyer should be involved in a junior or supporting role in the case or, if acting as senior counsel, should ensure that there is supportive expertise provided by someone with the knowledge and competence the lawyer acts.

This post originally appeared on Slaw.

All I Want for Christmas is the Justification for Shell Jackpine

Tue, 12/23/2014 - 9:00am

By: Martin Olszynski

PDF Version: All I Want for Christmas is the Justification for Shell Jackpine

Case Commented On: Adam v Canada (Environment), [2014] FC 1185

On December 9, 2014, the Federal Court rendered its decision in Adam v. Canada (Environment). Chief Allan Adam, on his own behalf and on behalf of the Athabasca Chipewyan First Nation (ACFN), challenged two federal government decisions pursuant to the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 (CEAA) in relation to Shell Canada’s proposed Jackpine oil sands mine expansion project. The first was the Governor in Council’s (GiC) determination pursuant to section 52(4) that the project’s anticipated significant adverse environmental effects are “justified in the circumstances.” The second was the Minister’s “Decision Statement” pursuant to section 54, which contains the conditions subject to which the project may proceed. In a decision that reads somewhat tersely but that also covers a lot of ground, primarily Aboriginal consultation and division of powers issues, Justice Tremblay-Lamer dismissed the ACFN’s challenge. This post – the first of what will likely be a series – focuses on the first challenged decision: the GiC’s determination that the project’s significant adverse environmental effects are justified.

As I noted when the Joint Review Panel (JRP) report for Shell Jackpine was first released back in the summer of 2013, this was the first time that a JRP concluded that an oil sands project was likely to result in significant adverse environmental effects:

[9] The Panel finds that the Project would likely have significant adverse environmental effects on wetlands, traditional plant potential areas, wetland-reliant species at risk, migratory birds that are wetland-reliant or species at risk, and biodiversity. There is also a lack of proposed mitigation measures that have been proven to be effective. The Panel also concludes that the Project, in combination with other existing, approved, and planned projects, would likely have significant adverse cumulative environmental effects on wetlands; traditional plant potential areas; old-growth forests; wetland-reliant species at risk and migratory birds; old-growth forest reliant species at risk and migratory birds; caribou; biodiversity; and Aboriginal traditional land use (TLU), rights, and culture.  Further, there is a lack of proposed mitigation measures that have proven to be effective with respect to identified significant adverse cumulative environmental effects.

The effect of all of this was that before the project could proceed, the GiC (i.e. the federal cabinet) had to determine that these effects were “justified in the circumstances” pursuant to section 52. This the GiC did, or at least purported to do. As I noted here, the GiC never actually provided any justification. Rather, and in contrast to the detailed justification provided for the Lower Churchill Hydroelectric project (a project also found likely to result in significant adverse environmental effects), the Shell Jackpine ‘Decision Statement’ simply stated that “[in] accordance with paragraph 52(4)(a) of CEAA 2012 the Governor in Council decided that the significant adverse environmental effects that the Designated Project is likely to cause, are justified in the circumstances.”

The ACFN challenged this aspect of the GiC’s decision from a consultation perspective, arguing that as a consequence the process lacked transparency (at para 28). The federal government responded that “the Minister’s advice to Cabinet and the reasons for Cabinet’s decision are confidential; the ACFN had no right to disclosure” (at para 34). The Federal Court agreed with the government:

[79] …The applicant was not entitled to disclosure of the Minister’s advice to Cabinet: as they acknowledge, the Minister properly asserted privilege (Canada Evidence Act, RSC 1985, c C-5, s 39(2)). Furthermore, the duty to consult is determined by the actions that Canada took during the consultation process, not by what the Governor in Council may have considered.

[80] This Court could draw an adverse inference if the Crown selectively disclosed only those documents that favoured its position (Babcock v Canada (AG), 2002 SCC 57 (CanLII) at para 36, [2002] 3 SCR 3), which cannot be said of the present case. No adverse inference can stem from the Crown’s exercise of privilege.

[81] Nor did the Crown have to justify to the ACFN the Cabinet’s decisions on the Project (Babcock at paras 21–27). The applicant cites no authority in support of their purported right to such justification. The duty to consult obliged the Crown to justify its rejection of the ACFN’s position but not to disclose the explanation that it gave to the Cabinet for recommending approval of the Project (West Moberly First Nations v British Columbia (Chief Inspector of Mines), 2011 BCCA 247 (CanLII) at para 148, 333 DLR (4th) 31) (emphasis added).

I haven’t seen the pleadings so it’s hard to know where things went sideways here, but it appears that there was some confusion between the confidential deliberations of Cabinet, which are indeed privileged, and the “justification” (i.e. explanation) required by the Act. The authority for that latter proposition is the Federal Court of Appeal’s very recent decision in Council of the Innu of Ekuanitshit v. Canada (Attorney General), 2014 FCA 189 (CanLII), another case involving a challenge to a CEAA justification decision (for the previously mentioned Lower Churchill hydroelectric project). As I noted here, the Court of Appeal held that a CEAA justification is reviewable in order to ensure that the government complied with the Act:

[40] …the Court will only intervene with the [Governor in Council’s] and Responsible Ministers’ decisions…if it finds that: … 2) the GIC or Responsible Ministers’ decisions were taken without regard for the purpose of the CEAA; or 3) the GIC or Responsible Ministers’ decisions had no reasonable basis in fact; which is tantamount to an absence of good faith.

Without any reasons or explanation, it is not possible to determine whether the GiC had regard for the CEAA’s purposes, the duties imposed on it pursuant to section 4 (to “exercise [it’s] powers in a manner that protects the environment and human health and applies the precautionary principle”), or that the decision had a reasonable basis in fact.

Even the federal government seemed to appreciate the implications of the Innu of Ekuanitshit decision for this part of CEAA, as evidenced from the circumstances surrounding the release of its response – soon thereafter – to another project recently deemed likely to result in significant adverse environmental effects, the Site C dam. Although the Decision Statement for that project is as sparse with respect to justification as was the one for Shell Jackpine, the same day that it was released the Minister of Environment also released a “statement outlining the [GiC’s] determination” that Site C’s environmental effects are justified in the circumstances:

The Site C project, which has been proposed by BC Hydro and Power Authority, underwent a thorough independent federal-provincial review by an independent panel. This process included extensive, meaningful and respectful consultations with the public and Aboriginal groups. The environmental assessment process provided the scientific and technical expertise and the effective engagement of the public and Aboriginal groups to enable an informed decision by both governments.

The proposed Site C project is an important one for British Columbia and for Canada as it will support jobs and economic growth while providing clean, renewable energy over the next 100 years. The Site C Clean Energy Project will translate into about 10,000 direct person-years of employment from now until 2024 and when indirect and induced jobs are added in, that figure climbs to 29,000 person-years of employment.

This decision will benefit future generations. Over the life of the project, Site C is expected to help mitigate the growth in greenhouse gas emissions in Canada by preventing the discharge of between 34 to 76 megatonnes of CO2 equivalent.

In the Decision Statement that I released today, there are over 80 legally binding conditions that must be fulfilled by the proponent, BC Hydro, throughout the life of the project in compliance with the Canadian Environmental Assessment Act, 2012. Failure to meet these conditions is a violation of federal law (emphasis added).

Several questions went through my mind when I first read this statement back in October. The first was whether similar explanations accompanied the Decision Statements for Shell Jackpine or Enbridge’s Northern Gateway. I checked and couldn’t find any. My second question was to consider whether such a statement, “outlining the GiC’s determination,” was sufficient for the purposes of verifying compliance with CEAA’s purposes and duties and for enabling the primary form of accountability intended here, which is to say political.

Obviously, the Site C “justification” is light on details. It doesn’t speak to the majority of concerns raised by those opposed to it, e.g., that it appears unnecessary from an energy perspective, that there are other less environmentally harmful alternatives potentially available, such as geothermal, and that it will have a significant impact on Aboriginal and Treaty rights in the area. But there is one thing that Site C undeniably has going for it from a CEAA perspective, something that the only other project to come with a real justification (Lower Churchill) also has going for it and which makes both projects entirely different from Shell Jackpine: the promise of positive environmental effects in the form of reduced greenhouse gas emissions. It is at least arguable that Site C’s approval is consistent with taking “actions that promote sustainable development in order to achieve or maintain a healthy environment and a healthy economy” (CEAA, at para 4(1)(h)).

Shell Jackpine? Not so much. In my view, CEAA requires, and Canadians – especially the ACFN – deserve to know why or how this project is “justified in the circumstances,” circumstances which include the destruction of “a large part of the ACFN’s traditional lands” with harm that “is potentially irreversible or has not been mitigated through means of proven efficacy” (Adam, at para 71).

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Two Alberta Perpetuities Stories

Fri, 12/19/2014 - 9:00am

By: Nigel Bankes

PDF Version: Two Alberta Perpetuities Stories

Matters Commented On: Bill 8, Justice Statutes Amendment Act and Gottlob Schmidt’s donation to the province of Antelope Provincial Park

This post covers two matters. The first is the amendment to the Perpetuities Act, RSA 2000, c. P – 5 enacted as part of Bill 8, the omnibus Justice Statutes Amendment Act which received third reading on December 9th and Royal Assent on December 17th. The second relates to a story carried in the Calgary Herald about Gottlob Schmidt’s generous donation to the province of a block of land for parkland purposes.

Section 9 of Bill 8, the Justice Statutes Amendment Act provides that

(2) The following is added after section 22 [of the Perpetuities Act]:

Rule against perpetuities not applicable to qualifying environmental trusts

22.1(1) In this section, “qualifying environmental trust” means a qualifying environmental trust as defined in section 1(2)(g.011) of the Alberta Corporate Tax Act.

(2) The rule against perpetuities does not apply to a qualifying environmental trust created after December 31, 2013.

The definition of a qualifying environmental trust (QET) is complex since it involves reference not only to the Alberta Corporate Tax Act, RSA 2000, c.A-15 but also to the QET provisions of the federal Income Tax Act, RSC 1985 (5th supp.), c 1. The basic idea of a QET is that it is a trust that is established to meet reclamation obligations principally in the natural resources sector. This amendment to Alberta’s Perpetuities Act became necessary (or at least desirable) as a result of the National Energy Board’s consideration of the need to make provision for the reclamation obligations of operators of federally regulated pipelines.

In its report, Reasons for Decision, Set Aside and Collection Mechanisms: Pipeline Abandonment –Financial Issues, issued in May 2014, the NEB made decisions about the types of financial mechanisms that it would accept to ensure that regulated companies would have adequate funds in place to pay for pipeline abandonment out into the future. While the Board generally supported the use of QETs as a tax efficient mechanism for achieving this goal, it also noted that any such trusts would need to take account of the applicable perpetuities rules of the relevant jurisdiction. This might, for example, involve commitments to re-settle QETs before the expiry of any perpetuity period in a “wait-and-see” jurisdiction, or it might involve some jurisdiction shopping to establish the trust in a jurisdiction like Manitoba that has abolished the rule (although the Board noted (at 32) that a settlor’s choice of law would not always be determinative). However, the Board also noted (at 33) that “Enbridge argued that there is the potential that Alberta will abolish the rule against perpetuities. The Board expects that Enbridge is working to achieve this goal in view of its submissions.”

In sum, the current amendment is a response to the concerns identified. Hansard for December 1, 2014 (at 217) records that the amendment was sought by the Canadian Energy Pipeline Association on behalf of its members. The amendment is designed to provide greater certainty for those seeking to establish QETs in Alberta to provide for pipeline abandonments costs. It will make Alberta a more attractive jurisdiction for this purpose since the inapplicability of the rule means that the settlor will be able to avoid the complexity associated with the need to re-settle funds before the end of the perpetuity period.

The second story which caught my attention was carried in the Calgary Herald on December 6th, referring to a generous donation of land by Gottlob Schmidt of native grasslands for the creation of Antelope Hill Provincial Park. What caught my attention was the statement in the story that “The donation from Schmidt comes with the requirement that the province ‘preserve the land in its natural state for future generations to enjoy.’” Now I don’t know how Schmidt actually structured this gift but this language does ring some alarm bells because of changes made to the perpetuity rules in Alberta in 1972 (effective 1973).

As everybody knows, perpetuities reform in Alberta introduced the idea of “wait-and-see” to Alberta’s perpetuities rules as a result of which most contingent gifts will be saved: Perpetuities Act, ss. 2- 4. But the perpetuity reformers of that era (see Institute of Law Research and Reform, Report No. 6, Report on the Rule Against Perpetuities, August 1971) also changed the law on the age old distinction between determinable estates and estates subject to a condition subsequent.

In the pre-Act days it would have been easy to advise Mr. Schmidt as to how to structure this transaction to make it stick for the benefit of future generations. The advice would have been to structure the gift as the grant of a fee simple determinable, i.e. “for so long as the land is maintained in its natural state”. That would have left Mr. Schmidt and his heirs with a possibility of reverter and in the pre-Act days that possibility of reverter was not subject to the common law rule: Village of Caroline v Roper (1987), 82 AR 72 (QB). But the Act changed all of that.

Section 19 made three changes to the common law rules on the distinction between determinable estates and estates subject to a condition subsequent. First, s.19 says that the distinction between the two is abolished for perpetuities purposes. Hence, both the possibility of reverter and the right of re-entry are subject to the rule. Second, the result of making both interests subject to the rule is that if the contingent event has not come about during the perpetuity period, the right of re-entry or the possibility of reverter is henceforward void, i.e. in this example, the province’s title becomes an absolute fee simple shorn of the private law obligation to maintain the property in its natural state. The result of these two changes is that Mr. Schmidt can no longer structure the deal to benefit future generations but can only structure it to achieve this result as a matter of private law for the perpetuity period. And so third, what is the perpetuity period for this purpose? Well the normal rule under the Act is the (statutory) lives in being plus 21 years for non-commercial transactions (see s. 5) or 80 years for commercial transactions (s.18) – but in the case of s.19 the perpetuity reformers recommended a very short period of 40 years.

The Institute’s Report argued as follows (at 56):

We assume that the distinction between a determinable fee and a right of entry applies in Alberta though we know of no case on the subject; and indeed there may be doubt whether either type of interest is registerable under the Land Titles Act. In any case we think it advisable to deal with them. Morris and Leach (209-218) think that both types of interest should be treated in the same way. The next question is whether they should both be within the Rule or outside it. Both England (s. 12) and Ontario (s. 15) have brought determinable fees within the Rule. On balance we agree with this policy. The determinable fee, like a right of re-entry creates a cloud on the title and it may remain indefinitely in favour of some one who can be identified only with difficulty.

The Institute gave a similar reason (at 57 – 58) for preferring the shorter period of 40 years as the relevant perpetuity period, namely the difficulty of tracing the person entitled to benefit from the condition or limitation.

The short answer to this may of course be that it is not up to the grantee (the Province in our example) to trace anybody. It is up to an interested grantor (or his or her successors) to take the initiative if the “possibility” comes about. If they are not interested then that is likely the end of the story. In any event, 40 years does seem a very short period when considered in the environmental context of protecting land and biodiversity values for future generations.

We have seen some piecemeal reform of the Perpetuities Act in the last couple of years to respond to concerns of mineral owners (see the new s.19(5)) and my post on the background to this amendment) and now of pipeline companies (and the landowners who will benefit from perpetual QETs). If we are to engage in a more comprehensive review of the perpetuities legislation then it might be appropriate to revisit the policy behind this particular change that was made in 1972 and ask whether we really want to prevent somebody from trying to ensure that land donated for public purposes will continue to be used for those purposes for more than just a 40 period.

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