By: Jennifer Koshan
PDF Version: Human Rights, the Charter, and Access to Justice
Case Commented On: Canadian Human Rights Commission v. Canada (Attorney General), 2016 FCA 200 (CanLII)
This summer, the Federal Court of Appeal upheld the ruling of the Canadian Human Rights Tribunal (CHRT) that if a claimant wishes to challenge discriminatory federal legislation, they must do so via a Charter claim rather than a human rights complaint. This post will analyze the Court’s decision, compare it to the approach taken in Alberta in cases such as Gwinner v. Alberta (Human Resources and Employment), 2002 ABQB 685 (CanLII); aff’d 2004 ABCA 210 (CanLII), and raise some concerns about the implications of the federal approach for access to justice. I will not analyze the Court’s reasons on standard of review, but it is interesting to note that following a survey of Canadian courts of appeal, the Federal Court of Appeal refers to the “sorry state of the case law and its lack of guidance on when decisions of human rights tribunals interpreting provisions in human rights legislation will be afforded deference” (Canadian Human Rights Commission v. Canada (Attorney General), 2016 FCA 200 (CanLII) at para 78). The Supreme Court has an opportunity to clarify the standard of review issue in Stewart v Elk Valley Coal Corporation, 2015 ABCA 225, leave granted 2016 CanLII 13730 (SCC), which we have blogged on here and here and which will be heard by the Court in December. In addition, this month the Canadian Human Rights Commission filed an application for leave to appeal the Federal Court of Canada decision that is the subject of this post.
The CHRT’s ruling was made in two cases that are summarized at paragraph 4 of the Federal Court of Appeal decision:
In two very thoughtful and thorough decisions, reported as 2013 CHRT 13 (CanLII) [Matson] and 2013 CHRT 21 (CanLII) [Andrews], the Tribunal determined that the complaints in the present case were direct challenges to provisions in the Indian Act and that, as such, did not allege a discriminatory practice under section 5 of the CHRA because the adoption of legislation is not a service “customarily available to the general public” within the meaning of section 5 of the CHRA. While sensitive to the merits of the complainants’ claims, the Tribunal ruled that the challenge to the impugned provisions in the Indian Act may only be brought under section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c. 11 … and therefore needs to be made to a court of law. In so deciding, the Tribunal relied on the decision in Public Service Alliance of Canada v. Canada Revenue Agency, 2012 FCA 7 (CanLII), 428 N.R. 240 [Murphy], where this Court held that the adoption of legislation is not a service customarily available to the general public within the meaning of section 5 of the CHRA. In result, the Tribunal dismissed the complaints.
The Canadian Human Rights Commission sought judicial review of these decisions at the Federal Court, supporting the Matson and Andrews complainants’ position that the CHRT did have jurisdiction to hear their challenges to the registration provisions of the Indian Act, RSC 1985, c I-5 under the Canadian Human Rights Act, RSC 1985, c H-6 (CHRA). The Federal Court dismissed the Commission’s applications in Canada (Human Rights Commission) v. Canada (Attorney General), 2015 FC 398 (CanLII), holding that the CHRT’s decisions should be reviewed on the standard of reasonableness and that its decisions were reasonable.
The underlying issue in both the Matson and Andrews complaints involved an allegation of ongoing discrimination in the Indian Act concerning entitlement to registration or “Indian status” (the Federal Court of Appeal notes (at para 9) that “many indigenous people find this terminology offensive”, but uses it because of the language of the legislation, as will I).
Prior to 1985, the Indian Act determined status on a patrilineal basis, such that Indian men who married non-Indian women were able to pass their status on to their wives and children, whereas Indian women who married non-Indian men lost their status, as did their children. These provisions were unsuccessfully challenged under the Canadian Bill of Rights in Attorney General of Canada v. Lavell,  SCR 1349, 1973 CanLII 175, but were revised in 1985 via Bill C-31 once the equality provisions in the Charter came into effect (see also Lovelace v Canada, Communication No R.6/24, UN Doc Supp No 40 (A/36/40) at 166 (1981), a decision of the UN Human Rights Committee finding that the provisions violated article 27 of the International Covenant on Civil and Political Rights, the right of ethnic minorities to enjoy their own culture in community with other members of their group).
Bill C-31 made some attempt at removing the overt discrimination in the status provisions of the Indian Act, but maintained a “second generation cut-off rule” in section 6 of the Indian Act, described as follows by the Federal Court of Appeal (at para 15):
[T]hese provisions contemplate that individuals born of only one parent with Indian status are considered to be second generation and are granted status under subsection 6(2). If they have children with a person without status, they cannot transmit Indian status to their children. Conversely, people born of two parents with Indian status are generally speaking considered to be first generation and are granted status under subsection 6(1) of the Indian Act. They can transmit Indian status to their children, irrespective of whether the other parent possesses Indian status.
The second generation cut-off rule was found to violate section 15 of the Charter in McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153 (CanLII). The federal government responded with the Gender Equity in Indian Registration Act, SC 2010, c 18 [the GEIRA], which adds section 6(1)(c.1) to the Indian Act, providing an entitlement to registration under section 6(2) for those individuals whose grandmothers lost status by marrying non-Indians before April 17, 1985. However, the McIvor decision and the GEIRA that followed it did not completely eliminate the problem of differential entitlement to status under the Indian Act. Sharon McIvor unsuccessfully sought leave to appeal the BC Court of Appeal decision to the Supreme Court (see 2009 CanLII 61383 (SCC)), and she currently has a communication (complaint) pending with the UN Human Rights Committee (see here). In May 2016, Canada asked the UNHRC to suspend consideration of McIvor’s communication to allow the government to implement a response to another constitutional challenge to the status provisions of the Indian Act in Descheneaux c. Canada (Procureur Général), 2015 QCCS 3555 (CanLII). The government’s request – which does not yet appear to have been ruled on by the UNHRC, but to which McIvor objects – states that “Canada is now exploring various opportunities and approaches for engagement with First Nations and other Indigenous groups on necessary legislative changes in response to the Descheneaux decision.”
Another case currently before the courts that challenges the Indian Act’s status policy is Gehl v Attorney-General of Canada, 2015 ONSC 3481 (CanLII). The Ontario Court of Appeal has granted leave to intervene to the Women’s Legal Education and Action Fund (LEAF) to argue that the Proof of Paternity Policy – which assumes that if a father is not listed on a birth certificate, he is non-Indian – is discriminatory. LEAF argues that “there are many reasons why an Indigenous woman would not register her child’s biological father”, including lack of funds, denial of paternity by the father, or sexual violence such as incest and rape.
It is in this complicated context that the Matson and Andrews complaints were made under the CHRA. The Matson complaint concerns three siblings who became eligible for status under section 6(2) of the Indian Act following McIvor and the enactment of the GEIRA, but whose children are ineligible because the complainants married individuals who are not eligible for Indian status. The Andrews complaint involves a man entitled to status under section 6(2) who cannot pass status on to his children; he was born after his father was “enfranchised” (i.e. lost status under the Indian Act), whereas his sister, who was born before their father was enfranchised, is eligible for registration under section 6(1)(d) of the Indian Act and can pass status on to her children.
The issue for the Federal Court of Appeal was whether these complaints fell within the scope of section 5 of the CHRA, which provides that:
5 It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
The Federal Court of Appeal Decision
After lengthy consideration, the Court of Appeal determined that the appropriate standard of review was reasonableness. That is, were the CHRT’s decisions reasonable in finding that the Matson and Andrews complaints involved direct challenges to the Indian Act, and that the adoption of legislation is not a “service customarily available to the public”?
On the first issue, the Court held that the CHRT reasonably characterized the Matson and Andrews complaints as involving direct challenges to the Indian Act. According to the Court, “The complaints seek to expand the statutory grounds for the grant of Indian status by arguing that the legislation is impermissibly under-inclusive because it makes discriminatory distinctions based on the prohibited grounds of race, national or ethnic origin, sex or family status.” (at para 93). I do not take issue with this aspect of the Court’s decision.
On the second ground, the Court held the CHRT’s decision that the adoption of legislation was not a “service customarily available to the general public” under section 5 of the CHRA was also reasonable. The Court noted that previous case law on the scope of the “services” section required proof of two elements: “first, something of benefit must be available and, second, the benefit must be held out or offered to the public or a segment of the public” (at para 95, citing Gould v. Yukon Order of Pioneers,  1 SCR 571, 1996 CanLII 231 (SCC) and Watkin v. Canada (Attorney General), 2008 FCA 170 (CanLII); see also University of British Columbia v. Berg,  2 SCR 353, 1993 CanLII 89 (SCC)). The CHRT recognized that the Indian Act could be seen to confer benefits on those who have status, including benefits related to health and education, tax exemptions, and more “intangible benefits” related to acceptance by one’s indigenous community (at paras 10, 54). LEAF points out in its factum in Gehl that the Indian Act also confers benefits related to band membership, including the ability to vote and run in band elections, and that “the ability to pass on Indian status to one’s child is a significant benefit” (at paras 4-5). The first requirement of section 5 of the CHRA was therefore met.
However, the CHRT concluded that the second element –the benefit must be held out or offered to the public (or a segment thereof) – was not met, and the Court of Appeal found that there was a reasonable basis for this conclusion. It pointed to the unique and fundamental law-making function of Parliament, and asserted that “One simply cannot equate the act of legislating with a service” such as processing a citizenship application (at para 96, citing the CHRT decision in Andrews at para 57). The CHRT had followed the 2012 decision of the Federal Court of Appeal in Murphy that the adoption of legislation is not a service customarily available to the public, and while there is federal case law to the contrary, the CHRT properly found this case law less persuasive (at paras 36 and 97, referencing Canada (Attorney General) v. Druken,  2 FCR 24, 1988 CanLII 5712 (FCA), where the respondent had admitted that the adoption of the impugned legislation was a service customarily available to the public).
The Court of Appeal also found that the CHRT’s decisions were “not at odds with the case law from the Supreme Court of Canada or other jurisdictions that recognizes that, in appropriate cases, a human rights tribunal may declare inoperative a piece of legislation that conflicts with the human rights legislation due to the primacy of the latter” (at para 98). It is here that I take issue with the Court’s decision.
In Gwinner v. Alberta (Human Resources and Employment), 2002 ABQB 685 (CanLII), Justice Sheila Greckol – who came to the bench with recognized expertise in human rights law – held that Alberta legislation, the Widow’s Pension Act, SA 1983, c W-7.5, was subject to the “services customarily available to the public” clause in this province’s human rights legislation (then section 3 of the Human Rights, Citizenship and Multiculturalism Act, RSA 1980, c H-11.7 (HRCMA)). The Widow’s Pension Act conferred benefits on certain women but excluded others on the basis of their marital status. Justice Greckol focused on the quasi-constitutional nature of human rights legislation, and the “clear … expression of supremacy” in section 1(1) of the HRCMA, which provided that “Unless it is expressly declared by an Act of the Legislature that it operates notwithstanding this Act, every law of Alberta is inoperative to the extent that it authorizes or requires the doing of anything prohibited by this Act.” (at para 73; emphasis added). Her decision that the Widow’s Pension Act was inoperative to the extent it discriminated on the basis of marital status was upheld by the Alberta Court of Appeal and leave to appeal was denied by the Supreme Court of Canada (see 2004 ABCA 210 (CanLII);  SCCA No 342).
Similarly, in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII),  1 SCR 513, a majority of the Supreme Court recognized the jurisdiction of tribunals other than human rights bodies to apply human rights legislation. Part of the rationale for this decision was the primacy of human rights legislation, codified in Ontario in section 47(2) of the Human Rights Code, RSO 1990, c H.19: “Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act” (emphasis added). In Tranchemontagne, the majority held that the Social Benefits Tribunal should not have declined to exercise its jurisdiction to apply the Human Rights Code to its own legislation, which excluded persons with addiction-related disabilities from receiving benefits.
In the Matson and Andrews cases, the CHRT found that “in those cases where legislation had been declared inoperative by reason of a conflict with human rights legislation, the Tribunal possessed jurisdiction on an alternate basis, often because the complaint stemmed from an employment relationship where the employer applied an impugned legislative provision” (at para 34; see also paras 98-99). The Federal Court of Appeal found that this was a reasonable basis for distinguishing cases such as Tranchemontagne. However, the sole basis of the complaints in Gwinner and Tranchemontagne was the legislation itself, so this basis for dismissing case law other than Murphy is not persuasive.
On the primacy argument more generally, the Federal Court of Appeal found that “there is no reason to read [section 5 of the CHRA] as providing jurisdiction to hear legislative challenges merely because in cases where the Tribunal otherwise possesses jurisdiction it may declare conflictual legislation inoperative” (at para 99). With respect, this guts the primacy of human rights legislation – tribunals should not be restricted to hearing challenges to legislation in the limited circumstances where they otherwise possesses jurisdiction.
More specific to the Indian Act context of the Matson and Andrews complaints, until 2008, section 67 of the CHRA provided that nothing in the Act “affects any provision of the Indian Act or any provision made under or pursuant to that Act”. This section was repealed in An Act to amend the Canadian Human Rights Act, SC 2008, c 30, s 1, an amendment which had been long in the making. In the Matson and Andrews cases, the Canadian Human Rights Commission argued that an interpretation of section 5 of the CHRA that did not include review of discriminatory legislation “would render … former section 67 of the CHRA virtually meaningless” (at para 43). The Tribunal rejected this argument, in part because section 67 covered collateral challenges to the Indian Act, such that its repeal was not conclusive about the CHRT’s jurisdiction to consider direct legislative challenges (at paras 43-44). The Federal Court of Appeal found this to be a reasonable conclusion.
Also relevant was the remedial jurisdiction of human rights tribunals. The Federal Court of Appeal noted that the Matson and Andrews complaints “did not merely seek to have provisions in the Indian Act declared inoperative. Rather, their complaints of under-inclusiveness are ultimately aimed at having the provisions in section 6 of the Indian Act broadened to include the complainants’ children and those who are similarly situated to them” (at para 101). The Court noted that the CHRT does not have remedial powers to declare legislation invalid or to read in excluded groups so as to cure underinclusive legislation; these are Charter remedies. In Gwinner, however, Justice Greckol also dealt with underinclusive legislation, and noted that a finding that the legislation was inoperative combined with an order to the respondent that it cease its discriminatory practices was within a tribunal’s remedial powers (Gwinner at para 77).
Lastly, the Federal Court of Appeal dealt with the Commission’s argument that allowing challenges to discriminatory legislation to proceed before human rights tribunals in appropriate cases would result in greater access to justice. It rejected this argument, noting “the lengthy delays that are all too often seen in human rights adjudications” (at para 103). While delays in the human rights system cannot be denied, there are other access to justice advantages that may apply in human rights challenges as compared to Charter challenges, including less stringent evidentiary rules and approaches to discrimination (although see here), the ability of agents to appear on behalf of claimants (see e.g. the work of Pro Bono Students Canada), and the supportive role of human rights commissions in tribunal hearings in many jurisdictions.
Although the context of the Matson and Andrews complaints are admittedly complex and arise in the midst of a number of Charter challenges to the same provisions, I believe a blanket rule that discriminatory legislation cannot be directly challenged in human rights proceedings is contrary to the wording of human rights legislation and previous case law, and has serious access to justice consequences for claimants. To close with the words of the Supreme Court in Tranchemontagne, human rights legislation “must be recognized as being the law of the people… Accordingly, it must not only be given expansive meaning, but also offered accessible application.” (at para 33). Hopefully the Supreme Court will grant leave to appeal in Canadian Human Rights Commission v. Canada (Attorney General) and affirm that principle by recognizing the jurisdiction of human rights tribunals to hear challenges to discriminatory legislation.
This post may be cited as: Jennifer Koshan, “Human Rights, the Charter, and Access to Justice ” (Sept 29, 2016), on-line: ABlawg, http://ablawg.ca/wp-content/uploads/2016/09/Blog_JK_Matson_Andrews_Sept2016.pdf
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By: Martin Olszynski
PDF Version: Fisheries Act Review Should Be Evidence-Based
Matter Commented On: Standing Committee on Fisheries and Oceans Review of the Fisheries Protection Provisions (section 35) of the Fisheries Act R.S.C. 1985 c. F-14.
Consistent with the Prime Minister’s mandate letter to the Minister of Fisheries and Oceans and the Liberal government’s announcement this past summer of a broad review of the federal environmental and regulatory regime, the Standing Committee on Fisheries and Oceans (FOPO) is about to begin its review of the changes to the habitat protection provisions of the Fisheries Act introduced by the previous Conservative government back in 2012. I have previously blogged about those changes here and here, and eventually wrote an article about them. What follows is a letter that I recently sent to FOPO with respect to the scope of its review, urging it to ensure that it has the evidentiary foundation necessary to make its review meaningful.
Re: Fisheries Act Review – “Serious Harm to Fish” and Associated Provisions
I am writing you today with a view towards your review of the Fisheries Act and specifically the changes to section 35 (protection of fish and fish habitat) introduced in 2012. I write to urge you to request that Fisheries and Oceans Canada (DFO) gather the relevant data and information necessary to ensure that the Committee has the proper evidentiary foundation to conduct a meaningful review. More specifically, I am referring to data and information with respect to compliance with section 35 of the Fisheries Act, including compliance with section 35 authorizations, as well as information with respect to the overall status of fish habitat in Canada.
Such studies have previously been carried out by DFO employees in the past. Perhaps one of the best known is J. T. Quigley, D. J. Harper, “Effectiveness of Fish Habitat Compensation in Canada in Achieving No Net Loss” (2006) Environ. Manage. 37 at 351. In this paper, the authors assessed the effectiveness of habitat compensation requirements in section 35 authorizations for a number of projects in Western Canada. In the course of my research, I have also come across the following piece from Alberta assessing the effectiveness of trenchless watercourse crossings: Nugent, S. 2011. “A review of trenchless watercourse crossings in Alberta with respect to species at risk” Can. Manuscr. Rep. Fish. Aquat. Sci. 2947: vi + 69 p. These are but two examples of the kind of research I propose further below.
During the limited (by design) Parliamentary debates surrounding Bill C-38 and C-45, critics of the then-existing fish habitat protection provisions argued that such laws were too onerous and/or unnecessary. My own research shows that, by the time of the 2012 amendments, DFO had already gone to great lengths to reduce the regulatory burden on proponents. What is missing, however, is an objective and rigorous assessment of what this regulatory regime has – and has not – accomplished over the years (referring now to both the current and previous regime) in terms of the protection and management of fish habitat.
In my view, this requires an assessment of
(i) a random selection of individual projects that entered the authorization regime in the past decade or so (25 – 30 projects could suffice, drawn proportionally from DFO’s various regions);
(ii) a random assessment of the status of fish habitat in various watersheds or sub-watersheds across Canada. As part of this second assessment, DFO officials would no doubt come across various works in or near water that did not enter the section 35 authorization regime, or perhaps were subject to DFO’s “Operational Statements” or “Letters of Advice”. The state of these works and their impacts (or not) on fish habitat should also be assessed as a part of this exercise.
Here in Alberta there are several individuals and organizations that have conducted such assessments at the watershed and sub-watershed scale who I suspect would be inclined to share their expertise if requested to do so. The Committee may also be aware of the innovative watershed reports recently completed by WWF Canada. These reports rely on various databases to provide an assessment of the health of, and threats to, Canada’s watersheds. Although the authors admit to struggling with data gaps in some instances, their assessment suggests that effective fish habitat protection laws are in fact necessary to stem the tide of continued watershed degradation, especially in urban areas and areas of significant resource development (e.g. the Peace-Athabasca Region). Below is a screenshot to give you some sense of this potentially transformative tool:
Of course, none of this would predetermine the outcome of the Committee’s work. Nor would negative results (e.g. that fish habitat is in fact deteriorating in some regions) necessarily require reverting to the previous regime. There is a wealth of innovation in environmental regulatory theory that should be considered in crafting an effective and efficient regime suited for the challenges of the 21st century. But it seems clear to me that the Committee, and Canadians more generally, would benefit greatly from having some common understanding of the extent of the problem. I am confident that if you request such information and analysis now, it could be completed within 2 months – well within the time frame set out for the Committee to do its work.
Thank you for your time in considering this matter. I will conclude by urging you to request that DFO collaborate on this project with one or more outside institutions, e.g. an academic or research institution of some kind. There are many outstanding fisheries biologists in Canada whose involvement would bolster the credibility, objectivity, and transparency of the exercise, bearing in mind always that restoring trust in Canada’s regulatory processes is one of the primary motivators for this review.
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By: Rudiger Tscherning
Case Commented On: Balev v Baggott, 2016 ONCA 680 (CanLII)
The issues arising from international family disputes involving the non-consensual relocation of children abroad is perhaps one of the more difficult areas of private international law, in that the mechanical aspects of the conflict of laws (as set out in the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 19 ILM 1501) interact with the more personal aspects of international family life.
This post will examine the issue of international child abduction under the Hague Convention regime from the perspective of ‘time-limited consent’, namely whether the ‘habitual residence’ of a child can unilaterally be changed during a time-limited consent period when one parent wrongfully removes or retains a child in another contracting state.
As the Ontario Court of Appeal in Balev v Bagott, 2016 ONCA 680 (CanLII) recalled, applications pursuant to the Hague Convention do not determine custody or decide on what would be in the best interest of the child. The Hague Convention mechanism solely involves an adjudication on whether a child has been ‘wrongfully removed or retained’ in a contracting state within the scope of Art. 3 and Art. 12 of the Convention. If the answer is yes, and no exception contemplated by the Convention is applicable, the child must be returned to the place of his or her habitual residence. The mechanism therefore hinges on a determination of the child’s habitual residence immediately before the removal or retention.
The important term of ‘habitual residence’ is not defined in the Hague Convention. In 2004, the Ontario Court of Appeal set out a four-pronged test in Korutowska-Wooff v Wooff,2004 CanLII 5548 (ON CA).. The question of habitual residence is a question of fact, decided on all the circumstances; habitual residence is the place where the person resides for an appreciable period of time with a ‘settled intention’ a settled intention or purpose is an intent to stay in a place whether temporarily or permanently for a particular purpose; and a child’s habitual residence is tied to that of the child’s custodian(s) (Korutowska-Wooff,at para 8).
The Convention establishes a presumption in favour of ordering the summary return of the child, designed to restore the status quo ante by way of a ‘prompt return’ of the child to the place of his or her habitual residence (see for example, VW v DS,  2 SCR 108 (CanLII), at para 36). The mechanism is subject to four discretionary exceptions: a time limitation; lack of custody rights or acquiescence in the removal or retention of a parent; grave risk of physical or psychological harm to the child; and the ‘voice, not a veto’ right of a child to express its objection to a return order. This strict presumption is first and foremost designed to act as a powerful deterrent to parents against future international child abductions.
Issues Before the Ontario Court of Appeal
The appellant Mr. Balev and the respondent Ms. Bagott are Canadian citizens and the parents of two children, who were born in Germany but who are both Canadian citizens only. With the exception of two periods of time in Canada (one undisclosed and the other from October 2010 to January 2011) the children resided in Germany until April 19, 2013 when they arrived in Ontario with their mother. The parents had separated in 2011 but subsequently co-habited in 2012. The father had been awarded interim custody of the children in Germany. In April 2013, the parties agreed to take the children to Canada so that they could attend school, with the father signing a “Consent Letter for Children Travelling Abroad” for a period between July 2013 and August 2014. This consent is referred to as a ‘time-limited consent’ in international family law practice.
On the mother’s insistence (so as to enroll the children in a Canadian school), the father also signed a letter transferring physical custody of the two children to the mother for the time-period in question. Upon expiration of the consent period, the mother continued to reside with the two children in Ontario.
The issue before the Ontario Court of Appeal was whether the habitual residence of the two children had changed from Germany to Ontario during the period of the father’s time-limited consent so that the children were habitually resident in Ontario on the date that the consent expired. If so, the mother would not have wrongfully retained them in Ontario within the Hague Convention mechanism.
Case History and Decision
By way of background, the application judge had concluded that after the father’s consent expired on August 15, 2014, the mother had wrongfully retained the children in Canada within the meaning of Art. 3 of the Hague Convention, after she had failed to return them to Germany. The application judge had found that the children remained habitually resident in Germany, based on factual findings that the parties’ settled intention was that the children would reside in Canada on a temporary basis only. There had been a breach of the father’s custody rights under Art. 3 and the children had not ‘settled in’ in Canada within the meaning of Art. 12 of the Hague Convention.
The Divisional Court judge disagreed with the initial findings and concluded that the habitual residence had changed from Germany to Ontario during the consensual, temporary travel period and that the Hague Convention did not apply (at para 22). It held that the change in habitual residence resulted from the joint decision of the parties to move the children to Ontario for an extended period of time. Since the children were residing in Ontario with their mother and with the consent of their father for an “appreciable period of time” (para. 24), their habitual residence had changed.
The Ontario Court of Appeal disagreed. In its view, the Divisional Court had erroneously concluded that the habitual residence of the children could unilaterally be changed by the mother. The determinative paragraph of the Ontario Court of Appeal, at para 42, quotes a long established line of Ontario decisions that confirm that “a parent’s consent to a time-limited stay does not shift the child’s habitual residence”. The time-limitation of a consent fails to establish an “implication of permanency” that is requisite in a change of habitual residence (at para 42). On the facts, the time-limited consent contemplated an extension of the stay, but even if an extension had been agreed to by the father, “the extension does not defeat the time-limited nature of the consent” (at para 48). Nevertheless, the Court left open the possibility that in a different factual scenario, a consensual time-limited stay may be “so long that it becomes time-limited in name only and the child’s habitual residence has changed” (at para 49).
The Ontario Court of Appeal concluded that the components of Art. 3 of the Hague Convention were satisfied. The children habitually resided in Germany prior to their wrongful retention on August 15, 2014. That retention breached the father’s custody rights which the father was exercising at the time of the wrongful retention. The mother therefore wrongfully retained the children in Canada after August 15, 2014 and none of the four discretionary exceptions to the Hague Convention mechanism applied. The children would have to be returned to their father in Germany.
A consistent defence in international child abduction disputes is that the children have ‘settled in’ in their new environment. The Ontario Court of Appeal criticized the Divisional Court for taking this into consideration. As previously confirmed by the Supreme Court of Canada in Thomson v Thomson,  3 SCR 551 (CanLII), evidence of ‘settling in’ is not relevant under Art. 12 of the Hague Convention where an application to return a child is brought within one year of the wrongful detention or removal, as was the case on the facts here. Even where proceedings for a return application are commenced after the one-year period, a child is to be returned under the Hague Convention mechanism, ‘unless’ it can be established that the child is now ‘settled in’ in his or her new environment.
At the time of the decision of the Ontario Court of Appeal, the children had been in Ontario for more than three years. Despite this, the Court rightly concluded that a strict application of the Hague Convention was necessary. Firstly, the mother should not be given undue benefit for her actions in a “direct violation of the father’s custodial rights” (at para 83). Secondly, the issues before the Ontario Court of Appeal “transcend” (at para 83) the direct interests of the children in the overall interest of “countless other children and their parents” (at para 83). Here, the Ontario Court of Appeal reiterated the Supreme Court of Canada’s previous emphasis on deterring future international child abduction by favouring the restoration of the status quo as soon as possible (VW).
The objective and operation of the Hague Convention can only be achieved where there is a strict application of the Convention mechanism by all contracting states. Any decision to the contrary, as the mother in Balev had sought in her attempt to undermine the temporary aspect of a ‘time-limited consent’, would undermine the “purpose and efficacy of a carefully crafted scheme” (at para 84) as set out in the Hague Convention. Whilst the outcome for Ms. Bagott is clearly not satisfactory, the application judge’s order permits her to travel with the children to Germany and to reside there. The order also imposes a requirement that the paternal custodian is to provide ‘suitable housing’ for the mother and the children in Germany that is approximate to their living conditions enjoyed in Canada. As the facts in the case set out, the father is employed and continues to reside in the house in which the parents had resided with the children prior to their wrongful retention in Canada.
Although I do not wish to pass judgment on a family situation that is clearly difficult, one cannot but wonder if Ms. Bagott’s conclusion in the Canadian media that the Hague Convention has become a “means of legislative kidnapping” (“Court orders 2 Canadian children to move to Germany with father”, CBC News, September 13, 2016) is somewhat far-fetched. As the Supreme Court of Canada has previously held, the threshold of harm to a child (both physical or psychological) is a high one, requiring that the harm would amount to an intolerable situation (Thomson, at 596). Nor were there any issues raised that the return to the children’s custodian in Germany would invoke a Canadian public policy exemption as set out in Art. 20 of the Hague Convention on grounds of human rights and fundamental freedoms. The four discretionary exceptions to a ‘prompt return’ order were also not raised.
What is interesting from a conflict of laws perspective is that the Ontario Court of Appeal examined the father’s actions through the concepts of ‘parallel proceedings’ and ‘forum shopping’, which are typically raised in private international law disputes. Before his temporal consent was due to expire, the father filed a Hague Convention application for the return of the children at a court in Ontario. After a delay of 10 months in the Ontario proceedings, the father commenced a Hague Convention application in Germany. When the German courts “indicated” (at para 11) that the children were no longer habitually resident in Germany, the father withdrew his application and proceeded with the Ontario application, an action which the Ontario Court of Appeal considered to border on forum shopping (at para 62). On the facts, however, the German courts had not actually issued an order on the habitual residence of the children, that is, they had not made a final determination (at para 62). Indeed, Art. 8 of the Hague Convention provides that a parent can seek assistance for the return of a child either in the country of the child’s habitual residence or in another contracting state. The Ontario courts were correct to accept jurisdiction, with the Court of Appeal stressing that “the issue of habitual residence under the Hague Convention is one for the courts of the requested state” (at para 64). The jurisdiction of the Ontario courts to adjudicate the father’s application cannot, therefore, be criticized.
There are indications that Ms. Bagott is considering an appeal to the Supreme Court of Canada. Given that the Supreme Court has previously stressed a strict application of the Hague Convention principles and has emphasized the deterrent aspect extensively in VW, it would be surprising if leave were granted.
I began this blog by acknowledging that international child abductions raise sensitive and difficult issues. But in order to deter unilateral actions by parents to wrongfully remove or retain a child, the Ontario Court of Appeal was correct to follow the Supreme Court of Canada’s prior emphasis on deterrence, by applying the Hague Convention mechanism strictly.
On the subject of deterrence, between 2003 and 2008, the latest figures published by the Hague Conference on private international law (Nigel Lowe, A Statistical Analysis of Applications Made in 2008 under the Hague Convention – Part III National Reports, May 2011) show that Canada achieved a reduction of 13% in judicial return applications. Where there is arguable scope for improvement is the speed with which Hague Convention applications are determined. To this effect, courts in Canada, such as the Court of Queen’s Bench of Alberta, have reiterated the Convention’s emphasis on expediency for determining applications on wrongful removal or retention pursuant to the Hague Convention mechanism (see, for example, Court of Queen’s Bench of Alberta, Family Practice Note “6”, Art. 6, effective March 1, 2011).
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By: Shaun Fluker
Case Commented On: Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII)
September at the law school for me includes getting back to the basics of administrative law with the 2Ls as we begin another academic year in the JD curriculum. Early on we study Justice Rand’s seminal 1959 judgment on abuse of discretion in Roncarelli v Duplessis,  SCR 121 (CanLII) (as an aside for some interesting footage of media coverage on Roncarelli see here – thanks to my colleague Professor Martin Olszynski for passing this along), and then we move along to the doctrine of procedural fairness and the threshold question of when does a decision-maker exercising authority owe a duty of fairness. As it turns out, the Alberta Court of Appeal has very recently split over this threshold question in Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII) and this is the subject of my comment here. The point of interest in Wall for administrative law is that the majority (written by Madam Justices Paperny and Rowbotham) rules the doctrine of procedural fairness applies to the impugned decision of the Highwood Congregation even though it is a non-statutory entity exercising power that is not sourced in legislation and does not purport to affect legal rights. Justice Wakeling provides a strong dissent on this point.
RW was a member of the Jehovah’s Witnesses for 34 years and was expelled from the Highwood Congregation in March 2014 for engaging in drunkenness. The expulsion process consisted of a letter dated March 21, 2014 from the Judicial Committee of the Highwood Congregation directing RW to appear before it 3 days later to answer to the allegation. RW appeared before the Committee – which consisted of 3 elders of the Highwood Congregation – on March 24 and admitted to being intoxicated. The Committee gave its oral decision to expel RW the same day. RW appealed this decision to an Appeal Committee consisting of 3 elders from a neighbouring congregation. On April 5, 2014 the Appeal Committee met with the Judicial Committee and RW, and on the same day informed RW it was upholding the expulsion order. RW subsequently appealed to the Watch Tower and Bible Tract Society of Canada. The chair of the Judicial Committee informed RW that this appeal was also unsuccessful.
Because the Jehovah’s Witnesses shun expelled members, RW’s family and other members of the Jehovah’s Witnesses are compelled to shun RW. As a result, RW has suffered severe personal and economic losses. The devastation to his family needs no elaboration here. RW was also a realtor and, as a result of the shunning, he lost a significant portion of his clients.
RW applied to the Court of Queen’s Bench for judicial review of the Highwood Congregation’s decision to expel him, seeking an order of certiorari to quash the March 24, 2014 decision of the Judicial Committee. The Congregation responded by arguing the Court has no jurisdiction to review the decision to expel RW. In April 2015 Mr Justice Wilson in chambers ruled the Court does have jurisdiction because the expulsion decision has severe adverse consequences for RW. The Congregation appealed to the Court of Appeal on this jurisdictional issue.
The legal question at issue in this case is whether the Court has jurisdiction to engage in judicial review of the decision made by a non-statutory entity exercising power that is not sourced in legislation. On the one hand, the answer to this question has to be no. In our legal system, the Court’s inherent jurisdiction for judicial review is applied to ensure the Legislature, the Executive, and their delegates adhere to the limits of their authority, as well as exercise their powers reasonably and fairly. This is the essence of Justice Wakeling’s dissent in Wall. Justice Wakeling observes the Highwood Congregation is not governed by legislation, and that its conduct is completely lacking in statutory flavour (at paras 68 – 74). Justice Wakeling points out that in those rare cases where the Court has engaged in the judicial review of non-statutory entities, it typically does so with sparse reasoning (at footnote 36) or the case also involves an adjudication of legal rights. Justice Wakeling also concludes the expulsion of RW does not affect any of his legal rights and is thus a non-justiciable issue (at paras 126 – 141).
On the other hand, if we look past the legal structure it is possible to identify reasons why judicial review of the Congregation’s decision should be available to RW. This is a disciplinary proceeding with significant adverse consequences to RW and as such it is comfortable territory for judicial oversight. Indeed, several of the Supreme Court of Canada’s seminal judgments in administrative law have concerned or been related to disciplinary proceedings: dismissal of a probationary police officer in Nicholson v Haldimand-Norfolk Regional Police Commissioners,  1 SCR 311 (CanLII); prisoners’ rights in Cardinal v Director of Kent Institution,  2 SCR 643 (CanLII); termination of employment in Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII). Canadian courts have consistently given emphasis to adverse consequences suffered by an individual as a strong factor in deciding whether to grant relief in judicial review. This point is explicitly made by Justice Wilson at the chambers level in this case when he remarks “… I think this man has suffered in a way that does involve the court’s jurisdiction” (from the transcript of proceedings in chambers, cited at para 62 in Wall). And concern with process is what most often catches the eye of a scrutinizing court in judicial review. There is no shortage of concern with process here: 3 days prior notice of a hearing that could lead to severe personal and economic consequences; no written reasons for the expulsion; elements of institutional bias with key officials having overlapping roles. In short, the expulsion process administered by the Congregation fails to meet even the lowest measure of procedural fairness expected of Canadian statutory tribunals in a disciplinary context.
The majority judgment in Wall concludes the Court has jurisdiction to review the decision of a non-statutory religious organization when a breach of procedural fairness or natural justice is alleged (at para 22). The majority relies on a short line of authorities for this conclusion (at paras 17 – 21), none of which directly grapples with the point that judicial review in Canada is directed only at statutory entities exercising administrative power sourced in legislation. Particularly in relation to the application of procedural fairness, the classic doctrinal statement that procedural fairness or natural justice applies to public authorities comes from Justice Le Dain in the Supreme Court’s 1985 Cardinal v Director of Kent Institution decision (at para 14 – cited to Canlii):
This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual. (emphasis added)
The decision that provides the strongest authority for the majority judgment in Wall seems to be the Supreme Court’s 1992 judgment in Lakeside Colony of Hutterian Brethren v Hofer,  3 SCR 165 (CanLII) reviewing a decision of a hutterite colony to expel some of its members (cited by the majority in Wall at para 15). However, it is arguable that in the Hofer case the expulsion decision was a justiciable issue because legal rights were at stake in membership with the colony (acknowledged by the majority in Wall at para 15). Moreover the Supreme Court applies the doctrine of procedural fairness to the colony’s decision, but it may be that the jurisdictional point raised in Wall was not argued extensively (Justice Wakeling notes the colony in Hofer conceded on this point, at para 105 in Wall).
I think the majority in Wall gets it right in result – that is, judicial review should be available for RW to challenge the fairness of the Congregation’s expulsion process. However, the majority judgment fails to provide adequate reasoning to justify what appears to be a significant extension to the scope of judicial review in Canada. By ruling the Court has jurisdiction to review the decision of a non-statutory entity, exercising powers not sourced in legislation, and which do not implicate legal rights, the Court notably expanded the list of decision-makers potentially subject to judicial review. It would have been preferable for the majority to grapple more directly with the threshold point and better identify what makes this case justiciable.
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By: Drew Yewchuk
Case Commented On: R v CMG, 2016 ABQB 368 (CanLII)
R v CMG, 2016 ABQB 368 (CanLII) is a Crown appeal of the acquittal of an accused of sexual offences. Justice Sheilah Martin ultimately ordered a new trial due to errors of law by the trial judge regarding self-incrimination, allowing myths and stereotypes to influence the judgment, and failing to make certain factual findings with sufficient clarity (at para 108). This post will review the errors of the trial judge, with a particular focus on the trial judge’s comments regarding the credibility of the complainant. The post concludes with a suggestion on how decisions relating to the credibility of complainants in trials for sexual offences should be written.
The accused was charged with sexual assault and sexual interference (respectively sections 271 and 151 the Criminal Code of Canada). The accused (CG) was 16 at the relevant time; the complainant (RW) was 13. It was accepted at trial that ostensible consent was not a defence to the charge under section 151 (for an earlier post on ostensible consent see here). The complainant testified that the accused had pushed her to the ground in Kinsmen Park, removed her clothing and forced his penis into her vagina before she escaped and ran away (at para 7). In police statements and at trial, the accused repeatedly said that he had engaged only in consensual intercourse with the complainant though the location, number of occurrences and other details varied in his police statement, examination in chief, and cross-examination (at para 9-10). As is usual in a criminal trial, if the trial judge had accepted the testimony of the complainant without being left with any reasonable doubts based on the evidence of the accused, he would have convicted the accused. Oddly, if he had accepted the testimony of the accused, he also would have convicted the accused, because he admitted sexual activity with a person who was too young to consent. He acquitted the accused because he rejected the testimony of both (at para 12). Exactly what the trial judge concluded did occur was not altogether clear.
The accused admitted that he had engaged in illegal sexual activity with the complainant during the summer in question. The trial judge considered that these admissions could not be used to convict the accused as they were protected “under section 13 of the Charter and under the provisions of the Canada Evidence Act…” (at para 29) As noted by Justice Martin, however, those protections are only for the testimony of an accused that was compelled at an earlier proceeding (at para 35). The accused’s testimony in this case was “freely given in his own trial on the very charges before the court” (at para 37). The trial judge may or may not have relied on this reasoning to exclude the evidence – perhaps he simply found the accused totally unreliable (at para 39) – but “his failure to make an express finding about whether he believed the accused had sex with the complainant amounts to the omission of a key legal issue and is itself a reviewable error.” (at para 40)
The trial judge also appears to have considered that the illegal activity the accused admitted to was outside the scope of the charge (at para 30). Justice Martin found that the trial judge wrongly considered “that time was a crucial element of the offence.” (at para 44) The date of the offence is not an essential element of the offences in question – the trial judge considered the timing issue too narrowly.
Myths and Stereotypes
Justice Martin reviewed the historical provisions relating to the credibility of complainants in trials for sexual offences, pointing out that “Many such myths have their foundation in the same set of beliefs that gave rise to the special and replaced set of provisions, principles and practices that characterized the prior law on sexual offences.” (at para 65). The trial judge commented that the complainant did not scream or run for help (at para 68), potentially drawing upon the myth that a complainant could have resisted the rapist if they really wanted to (at paras 68-69). Furthermore, Justice Martin noted that the trial judge did not mention that the testimony of the complainant was that she actually did struggle, break free, and run away (at para 71).
The trial judge noted that the complainant did not immediately tell anyone about the sexual assault, and Justice Martin indicated that this appears to have drawn in the myth of recent complaint (at para 72). The recent complaint myth is that sexual assault will be reported immediately, and any delay is a reason to doubt the complainant. The trial judge also mentioned that the complainant’s aunt did not notice any change in the complainant’s behaviour following the assault – giving the appearance that he was considering the “myth that women who have really been raped will be hysterical and their terror and injuries will be plain to see” (at para 80).
Justice Martin ruled that these comments, without an explanation of their relevance, showed that the trial judge relied on prohibited assumptions and speculation amounting to an error of law (at paras 85-86). The trial judge’s reasons also failed to specify what inferences he had made with respect to the complainant’s testimony and her credibility more broadly (at para 103). These omissions, amongst others, led Justice Martin to conclude that the acquittal must be overturned, the necessary findings were not present to enter a verdict of guilty, and the appropriate remedy was to order a new trial (at para 51).
A trial does not allow for uncritical acceptance of testimony from any party. What R v CMG reiterates is that “certain categories of complainants should not start from a deficit position or face the additional barriers of being discredited based on myths and stereotypes.” (at para 58)
The trial judge did not explicitly state or apply the myths that Justice Martin identified. What he did was to state the facts that underpinned those myths, leave unexplained his inferences based on those facts, and conclude that the complainant was not credible. In this case, the omission of the discussion of the myths was an indication that the myths had been silently applied. However, this gap in his written reasons for judgment would be an issue (although likely not one reviewable on appeal) even if he had ultimately found the complainant credible. In line with the
principle that ‘justice must be done and be seen to be done’, complainants and the public should never be left in doubt about whether credibility assessments have been impaired by myths or stereotypes.
At first glance, it appears the trial judge said too much. While his judgment may have been overturned if the trial judge had not mentioned the facts that indicate his reasoning may have been based on myths and stereotypes, this clearly would not have resulted in a better judgment. The problem was that the trial judge wrote too little. In sexual assault cases where the underlying facts may support one or more rape myths, the trial judge would be better off not to shy away from mentioning those facts in the judgment (e.g. a delay in reporting the assault, a lack of evidence of struggle, or a less severe emotional reaction than a layperson would expect). A trial decision is improved by the inclusion of such facts, a review of the impermissible myths and stereotypes that such facts might lead to, and a clear statement that those inferences would be impermissible errors of law. The accused, complainant and public should be clear that the myths have no grounding in fact and no place in Canadian law. Such a statement serves both as a self-caution to the trial judge, and as an assurance to the parties and the public. Jennifer Koshan has previously written on R v Wagar, 2015 ABCA 327 (CanLII) here about the importance of jury cautions about rape myths and stereotypes and recommended trial judges administer self-cautions. R v CMG is another instance where such a self-caution may have been of assistance. Another recent example is R v JR, 2016 ABQB 414 (CanLII), where a trial decision tainted by rape myths was overturned on appeal, receiving much media coverage (see e.g. here and here). These decisions, even when corrected on appeal, damage public confidence in the justice system’s ability to treat sexual assault complainants fairly.
Cautions rejecting the myths and stereotypes surrounding sexual assault should appear not only during trial, but also in the written decision following those trials. Silence about the myths risks leaving a complainant in doubt that they received a chance to be heard and have their credibility determined fairly, the accused believing that the trial judge overlooked relevant evidence, and the public in doubt about whether justice was done. Stereotypes thrive in silence and wither under scrutiny; if they are to be purged from sexual assault trials it is necessary to confront them, not to ignore them.
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By: Stephen Armstrong
Case Commented On: R v KRJ, 2016 SCC 31 (CanLII)
The rights and freedoms enshrined in the Charter are not absolute. They are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (Canadian Charter of Rights and Freedoms, section 1). In R v Oakes, 1986 CanLII 46 (SCC), Chief Justice Brian Dickson established the legal standard by which an infringement of a Charter protected right may be justified, which has come to be known as the “Oakes test.” An infringing law must (1) pursue a pressing and substantial objective, (2) be rationally connected to that objective, (3) minimally impair the right or freedom in question, and (4) there must be a proportionality of effects between the deleterious and salutary effects of the law (Oakes at paras 69-70). It is possible to find each of these elements described in somewhat different language throughout the case law, but these four components are the essence of the Oakes test.
In R v KRJ, 2016 SCC 31 (CanLII), the Supreme Court of Canada was tasked with delicately balancing the Charter right of an offender not to be punished by the retrospective application of a punitive law, against Parliament’s objective of protecting children from sexual violence perpetrated by recidivists (KRJ at para 64). I will elaborate on the substance of the decision below, but what is of interest to me in this case is the lengthy and substantial “proportionality of effects” analyses engaged in by Justices Andromache Karakatsanis (writing for the majority), Rosalie Abella (dissenting in part), and Russell Brown (dissenting in part). The most substantial point of disagreement between the three judgements occurred at the final stage of the Oakes test.
By so deeply engaging in the balancing inquiry, the Court has indicated that it may be open to relying more heavily on the proportionality of effects stage in the future. This is a development which should be welcomed and will hopefully lead to greater transparency in the Court’s decision making in s. 1 cases.
In 2013, KRJ pleaded guilty to incest and the creation of child pornography (KRJ at para 8). The offences were committed between 2008 and 2011 (KRJ at para 8).
When a person is found guilty of incest or the creation of child pornography, s. 161 of the Criminal Code obliges the sentencing judge to consider making an order prohibiting the offender, upon release, from engaging in certain enumerated activities that might lead to the offender coming into contact with children (Criminal Code of Canada, RSC 1985, c C-46, s. 161).
At the time KRJ committed the offences to which he plead guilty, s. 161(1) read as follows:
(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; or
(c) using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years.” (KRJ at para 9)
In 2012, the Safe Streets and Communities Act, SC 2012, c. 1, s. 16(1) amended s. 161 by broadening the scope of the activities which may be the subject of a sentencing judge’s prohibitory order. When KRJ pleaded guilty and was sentenced in 2013, paragraphs (c) and (d) of s. 161(1) read as follows:
(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or
(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.
The Charter right engaged in this case was s. 11(i), which guarantees the right of any person charged with an offence:
if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
Issues on Appeal to the Supreme Court of Canada
At the Supreme Court, none of parties disputed that Parliament intended the amendments to s. 161(1) to operate retrospectively (KRJ at para 18). It was accepted by Justice Karakatsanis that Parliament intended the amendments to apply retrospectively (KRJ at para 18).
There were two main questions to be decided by the Court, summarized succinctly by Justice Karakatsanis at paragraph 17 of her judgment:
(1) Does the retrospective operation of s. 161(1)(c) and (d) of the Criminal Code limit s. 11(i) of the Charter?
(2) If so, is the limitation a reasonable one prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Charter?
As mentioned above, the Supreme Court divided three ways:
(1) The majority judgment authored by Justice Karakatsanis, and concurred in by Chief Justice McLachlin and Justices Cromwell, Moldaver, Wagner, Gascon and Côté, answered question 1 in the affirmative and found that a retrospective application of s. 161(1)(c) was not justified, but that a retrospective application of s. 161(1)(d) was justified (the “Majority”).
(2) Justice Abella’s dissent in part also answered the first question in the affirmative, but found that a retrospective application of both s. 161(1)(c) and (d) was not justified under s. 1.
(3) Justice Brown’s dissent in part also answered the first question in the affirmative, but found that a retrospective application of s. 161(1)(c) and (d) was justified under s. 1.
The Majority accordingly allowed KRJ’s appeal in part, ordering that s. 161(1)(c) could not be applied retrospectively, but that a retrospective application of s. 161(1)(d) was justified (KRJ at paras 115-116).
In their respective s. 1 analyses, the dissenters and the Majority agreed that the infringing measure pursued a pressing and substantial objective, and satisfied the rational connection and minimal impairment stages of the Oakes test. Where they disagreed was at the “proportionality of effects” stage, which led to their three separate conclusions under s. 1.
Reasons of the Majority (Question #1): Was KRJ’s s. 11(i) Right Infringed?
The legal test to determine whether a prohibition or sanction is a punishment under section 11(i) was established in R v Rodgers 2006 SCC 15 (CanLII) (“Rodgers”). It is a two part test:
(1) The measure must be a consequence of a conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and
(2) The measure must be imposed in furtherance of the purpose and principles of sentencing. (KRJ at para 28)
The majority at the BC Court of Appeal concluded that the sanctions under s. 161(1) were not imposed in the furtherance of the purpose and principles of sentencing because they were aimed at public safety (KRJ at para 14). This position was adopted by the Crown at the Supreme Court (KRJ at para 31).
The position taken by the BC Court of Appeal and the Crown raised two sub-issues the Majority needed to answer:
(1) Does a public safety objective necessarily exempt a law from the second branch of the Rodgers test? (KRJ at para 30)
(2) What role does the impact of a measure on an offender have in determining if the measure is a punishment under s. 11(i)? (KRJ at para 30)
Justice Karakatsanis quickly dispatched with the first sub-issue, answering in the negative. She found that it was “clear from the plain language of s. 718 [of the Criminal Code] that public protection is part of the very essence of the purpose and principles governing the sentencing process” (KRJ at para 33).
To address the second sub-issue, Justice Karakatsanis reformulated the Rodgers test:
(1) The measure must be a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and
(2) The measure must be imposed in furtherance of the purpose and principles of sentencing, or
(3) The measure must have a significant impact on an offender’s liberty or security interests (KRJ at para 41)
Applying the reformulated s. 11(i) test to s. 161(1), Justice Karakatsanis found that the 161(1)(c) and (d) prohibitions were consequences of conviction that form part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence (KRJ at para 50). The first part of the test was satisfied.
Justice Karakatsanis then went on to find that both the second and third parts of the test were satisfied, although only one or the other were required (KRJ at para 51).
The objective of 161(1) was to shield children from sexual violence by separating offenders from society, rehabilitate offenders, and deter future violence (KRJ at para 52). This objective aligned with the purposes and principles of sentencing (KRJ at para 52).
The 161(1)(c) and (d) prohibitions also had the potential for a non-trivial impact on the liberty and security interests of offenders because of the stigma attached, restrictions on employment, restrictions on the ability of an offender to interact in public and private spaces, and a possible significant deprivation of internet access (KRJ at para 54).
All three elements of the reformulated Rodgers test being satisfied, Justice Karakatsanis concluded that the newer version of s. 161 was “clearly” a more severe punishment than the previous version because of the expanded scope of activities covered in s. 161(1)(c) and (d) (KRJ at para 57). Therefore, a retrospective application of the new version of s. 161 infringed KRJ’s s. 11(i) right to the benefit of the lesser punishment and had to be justified under s. 1 of the Charter (KRJ at para 57).
Reasons of the Majority (Question #2): Justification under s. 1 of the Charter
As noted in the introduction, in order to justify the limitation of a Charter right or freedom the law must satisfy each component of the Oakes test. There must be a pressing and substantial objective, a rational connection between the measure and objective, minimal impairment of the right in question, and a proportionality of deleterious and salutary effects caused by the measure (KRJ at para 58).
The evidence presented by the Crown to justify the Charter infringement in this case was unique because neither the BC Provincial Court nor the BC Court of Appeal heard evidence on s. 1. The Supreme Court was therefore the court of first instance on the matter and none of the evidence was tried in the usual way it might have been in a trial setting (KRJ at paras 59-60).
The Pressing and Substantial Objective
An infringing law must pursue an objective of sufficient importance in the context of a free and democratic society to justify overriding constitutionally protected rights (KRJ at para 61). The relevant objective is not necessarily the objective of the law as a whole, but the objective of the infringing measure (KRJ at para 62, citing Toronto Star Newspapers Ltd v Canada, 2010 SCC 21 (CanLII) at para 20). Justice Karakatsansis identified the infringing measure as being the retrospective application of the amended version of s. 161 (KRJ at para 62).
Upon review of the legislative history, judicial interpretation, and design of s. 161, Justice Karakatsanis found the overarching purpose behind the amendments as a whole to be the enhancement of the protection s. 161 provides children against the risk of sexual violence (KRJ at paras 64-65). Naturally then, the objective behind retrospectively applying these amendments was to, “better protect children from the risks posed by offenders like the appellant who committed their offences before, but were sentenced after, the amendments came into force” (KRJ at para 65). This objective was found to “obviously” be pressing and substantial in a free and democratic society (KRJ at para 66).
The means employed by the infringing law must be rationally connected to the pressing and substantial objective on the basis of reason or logic (KRJ at para 68). KRJ conceded that a retrospective application of s. 161 was rationally connected to the objective and Justice Karakatsanis did not take long to conclude on the basis of reason and logic that there was “clearly” a rational connection (KRJ at para 69).
When there is an alternative means available which both achieves the government’s objective in a real and substantial manner and is less harmful to the right infringed, then the impugned law is not minimally impairing (KRJ at para 70).
It is worth noting at this point that Justice Karakatsanis earlier acknowledged and adopted a line of cases from lower courts which have imposed some constraints on when a s. 161 prohibitory order can be used and what form it must take (KRJ at para 48). The sentencing judge must be satisfied that:
(1) There is an evidentiary basis upon which to conclude the offender poses a risk to children,
(2) The specific terms of the order are a reasonable attempt to minimize the risk, and
(3) The content of the order carefully responds to an offender’s specific circumstances.
This framework affords a high degree of latitude to sentencing judges to allow them to tailor the order to the special circumstances of an individual offender and there will be no order imposed where there is no evidentiary footing for one. The discretionary nature of the orders ensures they will impair an offender’s right no more than is necessary to protect children and the requirement of an evidentiary basis ensures the orders will not be applied in an overly broad fashion (KRJ at paras 72-73).
Justice Karakatsanis also noted that a purely prospective application of the amended s. 161 would undermine the government’s objective because the recidivism rate for sex offenders is significant (KRJ at para 75). Additionally, striking down the retrospective application of the amendments at this stage would fail to grant sufficient deference to Parliament’s legislative choice of means (KRJ at para 75).
Accordingly, it was found that the retrospective application of the amendments was minimally impairing of s. 11(i) (KRJ at para 76).
Proportionality of Effects
Before embarking on her extensive 33 paragraph proportionality of effects analysis, Justice Karakatsanis made a critical observation on the final stage of the Oakes test. The proportionality of effects stage is important because it is the only part of the Oakes test that allows judges to transparently engage in a normative, value-laden discussion about whether the infringement of an individual’s Charter rights is justifiable (KRJ at para 79). This stage is, as Justice Karakatsanis noted, the very “essence of the proportionality enquiry at the heart of s. 1” (KRJ at para 79).
Proportionality of Effects: s. 161(1)(c)
There were three categories of effects that Justice Karakatsanis sought to balance:
(1) Deleterious effects on individual offenders: the expanded scope of s. 161(1)(c) constituted a substantial intrusion on the liberty and security interests of offenders because it would prevent them from freely participating in society (KRJ at para 81).
(2) Deleterious effects on society: retrospective application of punitive laws undermines the values protected by s. 11, namely fairness in criminal proceedings and respect for the rule of law (KRJ at para 82). Additionally, the Parliament’s lack of compelling evidence justifying retrospective application enhanced the deleterious effect because it showed a lack of respect for the principles underlying s. 11 (KRJ at para 83).
(3) Salutary effects for society: Justice Karakatsanis accepted that recidivism rates for sexual offenders were significant and that potentially hundreds of offenders could be caught under the retrospective application of the amendment (KRJ at paras 85-88). She therefore accepted that real risks to children were present and that retrospective application would mitigate these risks (KRJ at para 88).
In balancing these three sets of effects, Justice Karakatsanis noted that, while evidentiary issues are inherent when dealing with public policy, s. 1 requires that a limit be demonstrably justified according to, in the words of Chief Justice Dickson, a “stringent standard of justification” (KRJ at para 91, citing Oakes at para 65). The application of this “stringent standard” was the main bone of contention between the Majority and the dissenters.
In regards to the salutary effects of s. 161(1)(c), the Crown produced little, if any, direct evidence of the marginal benefit accrued by applying the new version of s. 161(1)(c) instead of the previous version (KRJ at para 89-90). Justice Karakatsanis also took issue with a lack of evidence as to why the new version had to be retrospective, finding general evidence of recidivism to be insufficient justification (KRJ at paras 93-94).
Justice Karakatsanis then characterized the deleterious effects of the measure as “significant and tangible”, as against the “marginal and speculative” benefits society stands to gain (KRJ at paras 91-92) and concluded that a retrospective application of s. 161(1)(c) could not be justified under s. 1 (KRJ at paras 95-96).
Proportionality of Effects: s. 161(1)(d)
There were at least five categories of effects that Justice Karakatsanis sought to balance for this measure:
(1)Deleterious effects on individual offenders: A complete ban on internet use would be a “significant deprivation of liberty”, erecting “massive barriers to an offender’s full participation in society” resulting in serious social and economic consequences for that individual (KRJ at 98).
(2) Deleterious effects on society: same as considerations applied as with s. 161(1)(c) above.
(3) Salutary effects for society: rapid technological development has changed the degree and nature of the risk of sexual harm to children, creating a legislative gap filled by the introduction of s. 161(1)(d) (KRJ at para 101). The internet has created new and qualitatively different opportunities to harm young people (KRJ at para 107). Such opportunities were not covered under the older version of s. 161 (KRJ at para 107). Justice Karakatsanis described the evidence of salutary effects as “greater and more certain than those stemming from s. 161(1)(c)” (KRJ at 108).
(4) Mitigation of deleterious effects to society: the fact that the law responds to a legislative gap in a swiftly changing social context, according to Justice Karakatsanis, actually makes it less unfair and less intrusive on the rule of law (KRJ at paras 110-111).
(5) Mitigation of deleterious effects on individuals: the adverse effects of this provision will only be imposed when there is an evidentiary basis that it will mitigate the risk of harm to children (KRJ at para 112). It should be noted this consideration would also have applied to s. 161(1)(c) but Justice Karakatsanis did not reference it in that section.
Justice Karakatsanis ultimately concluded that the Crown had a “compelling case” that the deleterious effects of s. 161(1)(d) were outweighed by its salutary effects (KRJ at para 114). As the evidence of the salutary effects was regarded as more direct and credible, and the deleterious effects were somewhat mitigated, the balance was in favour of justification. She also noted that the harm of sexual violence against young people was particularly powerful, the scheme under s. 161(1)(d) was flexible and discretionary, and that an internet prohibition was not among the most onerous of punishments (KRJ at para 114).
Justice Abella’s Dissent in Part
Justice Abella’s main point of departure with the Majority appears to be on the question of how strict the standard of justification should be for the Crown in this case (KRJ at para 124). Justice Abella would have held the Crown to the highest standard of justification (KRJ at para 124). She relied on the “absolutist language” of s. 11 of the Charter and on the Supreme Court’s recent s. 11(h) case, Canada (AG) v Whaling, 2014 SCC 20 (CanLII) (at para 79), where the Court required “compelling evidence” to justify a retrospective change to parole review, which infringed the claimant’s right not to be punished twice for the same offence (KRJ at para 124).
Justice Abella very clearly wanted direct evidence of the benefits to be gained by retrospectively applying the new law (KRJ at paras 128-129). Given the absence of such evidence, she would have found s. 161(1)(d) unjustified alongside s. 161(1)(c) (KRJ at para 130).
Justice Brown’s Dissent in Part
Justice Brown, while agreeing with the Majority on the s. 11(i) question, would have dismissed the appeal entirely because he found a retrospective application of both measures to be justified under s. 1 (KRJ at para 133).
Justice Brown criticised the Majority’s application of the Oakes test for:
(1) reading the purpose of the legislation too narrowly (KRJ at para 135),
(2) a rigid and acontextual application of Oakes, thereby avoiding the “unavoidable normative inquiry” at its heart (KRJ at paras 135-136)
(3) holding Parliament to an exacting standard of proof, denying Parliament its legislative policy-development role (KRJ at para 141),
(4) overstating the deleterious effects of s. 161(1)(c) while understating the salutary effects (KRJ at para 141), and
(5) finding a retrospective application of s. 161(1)(c) to be unjustified when their reasons for upholding the retrospective application of s. 161(1)(d) equally apply to s. 161(1)(c) (KRJ at para 141)
While Justice Brown raised several points of disagreement, in its essence his critique stems from a difference of opinion as to the proper amount of deference to grant to Parliament in this case, and accordingly, the proper standard of justification to apply. Justice Brown stressed that the analysis must be
“sensitive to policy-makers’ need for a measure of latitude to consider and try previously untried alternatives, particularly when confronting persistent and complex public policy concerns” (KRJ at para 144).
In my view, this departure from the Majority is the basis for his various points of criticism which ultimately led him to a different conclusion as to s. 161(1)(c).
Comparison to Alberta v Hutterian Brethren of Wilson Colony
In her general commentary on the proportionality of effects stage of the Oakes test, Justice Karakatsanis made a brief reference to Justice Abella’s dissent in Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (CanLII) at para 149, agreeing with Justice Abella that much of the heavy lifting and balancing should be done at this final stage of the Oakes test (KRJ at para 78). Indeed, much heavy lifting was carried out by the Court at this stage in both cases.
In Hutterian Brethren, the claimants – a colony of Hutterites – successfully argued that their s. 2(a) Charter right to freedom of religion was infringed by a law which mandated photo identification for driver’s licences (Hutterian Brethren at paras 1-4). The claimants’ religious beliefs precluded them from having their pictures taken (Hutterian Brethren at paras 1-4). Chief Justice McLachlin, writing for the majority, found the limit on freedom of religion to be justified under s. 1 (Hutterian Brethren at para 104). Along the way, the Chief Justice breathed new life into the proportionality of effects stage by insisting on its importance and by engaging in a rare in-depth balancing analysis (Hutterian Brethren at paras 72-103).
Where in KRJ, Justice Karakatsanis required more concrete and direct proof of the marginal benefit of applying the new version of s. 161(1)(c) over the old version, Chief Justice McLachlin, writing for the majority in Hutterian Brethren, took a different approach:
Though it is difficult to quantify in exact terms how much risk of fraud would result from permitted exemptions, it is clear the international integrity of the system would be comprised (Hutterian Brethren at para 81)
…a government enacting social legislation is not required to show that the law will in fact produce the forecast benefits. Legislatures can only be asked to impose measures that reason and the evidence suggest will be beneficial. (Hutterian Brethren at para 85)
This is a starkly different approach to the standard of evidence required for justification. What can explain this difference?
The issue of deference and the evaluation of social science evidence in s. 1 cases has plagued the Supreme Court since Oakes (See S. Choudhry, “So what is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s Section 1” (2006), 34 SCLR (2d) 501). KRJ is one of the hopelessly nebulous cases where the state-versus-the-individual dynamic would seem to necessitate a “stringent standard of justification” (Oakes at para 65), but also where the public policy and social science based aspects around judging how to deal with recidivism and protect the rights of children would seem to oblige a more lax standard (Irwin Toy Ltd. v Quebec (AG) 1989 CanLII 87 (SCC) at pp 993-994, Canada (AG) v JTI-Macdonald Corp. 2007 SCC 30 (CanLII) at para 43).
Thus, while Justice Karakatsanis did note that a degree of deference was warranted in her s. 1 analysis, it would appear she did not affect so deferential a posture as to make it determinative of the outcome (KRJ at para 67).
On the other hand, Hutterian Brethren was a case based on social policy and balancing rights outside of the criminal law context. Accordingly, the majority of the Court appears to have been more willing to defer to the legislature’s judgment on how to effect the proper balance of societal interests versus those of a religious minority (See Hutterian Brethren at para 37).
Justice Abella’s approach has been consistent in each case, insisting in a high standard of justification, even outside of the criminal law context as in the case of Hutterian Brethren (See Hutterian Brethren at paras 135, and 156-162). And in each case she appears to have been unable to persuade a majority of her fellow justices on the Supreme Court, although perhaps the Majority’s conclusions on s. 161(1) were influenced by Justice Abella.
The Supreme Court’s jurisprudence concerning the fourth component of the Oakes test has been the subject of considerable commentary by legal scholars. For example, Professor Hogg has described the proportionality of effects stage as “redundant” and observed that it “has never had any influence on the outcome of any case” (Peter W. Hogg, Constitutional Law of Canada (2015 Student Ed.), at section 38.12(b)). Dieter Grimm noted that the final stage of the Oakes test plays a “more residual function in Canada”, which may be born of a “fear that a court might make policy decisions at this stage rather than legal decisions” (Dieter Grimm, “Proportionality in Canadian and German Constitutional Jurisprudence” (2007) 57 UTLJ 383, at 393-394). The dominant narrative in the literature appears to be that, since the introduction of the Oakes test, our courts have been reluctant to meaningfully engage in the inherently value driven act of balancing deleterious and salutary effects of Charter infringing laws.
If the dominant narrative is true, then both Hutterian Brethren and KRJ would seem to buck the trend. One of Justice Brown’s critiques noted above was that the Majority in KRJ shied away from the inherently value-driven nature of proportionality (KRJ at paras 135-136). Respectfully, I could not more strongly disagree. Justice Karakatsanis spent fully 33 paragraphs balancing the deleterious and beneficial effects of the measures and did not shy away from the inherently value-driven nature of proportionality at all.
Just because the Majority was not swayed by the evidence does not mean they have applied Oakes in an unprincipled and mechanical fashion. Indeed, in the absence of hard proof, it was principles and values which moved the Majority to its decision on s. 161(1)(c):
It may be tempting to conclude that mitigating the risk of sexual violence to even one child is worth the costs….Such an approach ascribes almost no value to the right. Section 11(i) protects fundamental interests that can be overridden only in demonstrably compelling circumstances. (KRJ at para 95)
Far from shying away from the normative inquiry, the Majority embraced it. They have stated plainly that our rights and freedoms are not so cheaply held that they may be overridden merely at the say-so of Parliament.
In the final analysis, while the Supreme Court may have breathed new life into the proportionality of effects stage in Hutterian Brethren, the Court has confirmed that the final stage of Oakes does indeed have teeth by using it to overturn government policy in KRJ. If our Courts continue to show a greater willingness to engage in the balancing inquiry at the heart of the Oakes test, there will be greater transparency in judicial decision making in s. 1 cases, and we will be all the richer for it. Such a development should be welcomed.
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By: Julia Gaunce
Decision Commented On: Award on the Merits of the Annex VII Tribunal, In the Matter of the South China Sea Arbitration, The Republic of the Philippines v The People’s Republic of China, 12 July 2016
As recited in an earlier post by Nigel Bankes, the Annex VII Tribunal in the South China Sea Arbitration (SCSA) handed down its Award on the Merits in the dispute between the Philippines and China on 12 July 2016. The dispute between the parties involves China’s extensive maritime claims in the South China (many within the context of the so-called nine dash line), claims in relation to fishing activities by Chinese flagged vessels, as well as claims in relation to China’s dredging and construction activities associated with reclamation activities on a series of maritime features in the South China. The Tribunal ruled in favour of the Philippines on almost all issues in its 479 page unanimous and comprehensive decision.
This post examines the Tribunal’s interpretation of the duty of “due regard” under the United Nations Law of the Sea Convention (LOSC) Article 58(3) in the course of its consideration of Submission No. 9 by the Philippines. That submission requested that the Tribunal declare that “China has unlawfully failed to prevent its nationals and vessels from exploiting the living resources in the exclusive economic zone of the Philippines” (at para 717). The obligation of “due regard” is one of the key mechanisms adopted in the LOSC to balance the potentially competing interests of coastal states and other uses of the new maritime zone, the exclusive economic zone, recognized by LOSC.
The Tribunal concluded that China was in breach of its obligation of “due regard” under LOSC Article 58(3):
… China has, through the operation of its marine surveillance vessels in tolerating and failing to exercise due diligence to prevent fishing by Chinese flagged vessels at Mischief Reef and Second Thomas Shoal in May 2013, failed to exhibit due regard for the Philippines’ sovereign rights with respect to fisheries in its exclusive economic zone. Accordingly, China has breached its obligations under Article 58(3) of [LOSC]. (at para 757; emphasis added)
This post elaborates on that conclusion.
The South China Sea is a semi-enclosed sea in the western Pacific Ocean, south of China and west of the Philippines, important for shipping, fisheries, a biodiverse coral reef ecosystem, and the potential for substantial oil and gas resource exploitation (at para 3). Mischief Reef and Second Thomas Shoal are coral reefs located in the centre of the Spratly Islands, in the southern part of the South China Sea (at paras 290, 3).
The Philippines’ Submission No. 9 concerned Chinese government and fishing vessel activities at Mischief Reef and Second Thomas Shoal, and was one of six submissions (Nos. 8 to 13) dealing with Chinese activities in the South China Sea. The Tribunal’s considerations of Submissions Nos. 8, 12 and 14 (not analysed in this post) all dealt with activities at Mischief Reef and Second Thomas Shoal, and together comprise a broader factual background to Submission No. 9.
In the case of Submission No. 8, the Tribunal noted that the core of the dispute with respect to living and non-living resources was that both the Philippines and China had acted on the basis that each, and not the other, had exclusive rights to these resources (at para 696). With respect to living resources, for example, China promulgated a 2012 fishing moratorium in respect of an area where the Philippines claimed fisheries jurisdiction (at para 712). Although the Tribunal decided the Philippines had not established that China prevented Filipino fishermen from fishing at Mischief Reef or Second Thomas Shoal, it noted it could “readily imagine” that the presence of Chinese enforcement vessels at both locations, combined with China’s general claim to fisheries jurisdiction, could lead Filipino fishermen to avoid such areas (at para 715).
In respect of Submission No. 12 on China’s occupation and construction activities on Mischief Reef, the Tribunal noted that these included the construction of artificial islands and installations (such as concrete platforms supporting three-story buildings, a helipad, communications equipment, wharves, fortified seawalls, temporary loading piers, cement plants, a 250-metre-wide channel to allow transit into the lagoon) and the presence of dredger vessels, cargo ships and ocean tugs (at paras 994, 1003, 1009, 1004).
Regarding Submission No. 14, the Tribunal took note of the vessel grounded on Second Thomas Shoal in 1999 by the Philippine Navy on board of which the Philippines has maintained a small detachment of marines, reports of Chinese government vessels and unidentified aircraft in the vicinity, and the interception of two Philippines supply vessels by two Chinese Coast Guard vessels (at paras 1113, 1115, 1117, 1123).
As factual background related specifically to Submission No. 9, the subject of this post, the Tribunal noted that, since 3 May 2013, China had maintained a “significant presence” of naval and China Marine Surveillance vessels near Second Thomas Shoal (at para 719). The government vessels were accompanied by fishing vessels (at para 720). The Tribunal also noted reports of Chinese fishing vessels escorted by Chinese government ships at Mischief Reef (at para 721). The Tribunal concluded that accounts of officially organised Chinese fishing fleets and close coordination between Chinese fishing vessels and government ships in the area supported the inference that China’s fishing vessels were organised and coordinated by the government—and that, in any event, Chinese government vessels were aware of the actions of Chinese fishermen and would have been able to halt them (at para 755).
Positions of the Parties
In its submissions on issue No. 9 the Philippines relied on the ITLOS advisory opinion in the Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015 (Fisheries Advisory Opinion) for the interpretation that, under LOSC Articles 58(3) and 62(4), a state has a due diligence obligation to ensure its nationals and vessels comply with coastal state regulations in the EEZ and do not engage in illegal, unreported and unregulated (IUU) fishing activities (at para 726; and see SCSA Merits Hearing Transcript (Day 4) pp 84-87, citing Fisheries Advisory Opinion at paras 123, 124, 128, 138). China’s position (as described in diplomatic correspondence with the Philippines, China being a non-participant in the proceedings) was that it did not consider the Philippines to have rights in the relevant area (at para 730).
The Tribunal’s Considerations
The Tribunal concluded that it had jurisdiction with respect to Submission No. 9 on the basis that none of the features claimed by China are capable of generating any entitlement to an EEZ overlapping that of the Philippines (at paras 733-734), and that therefore Articles 15, 74, 83 on delimitation and Articles 297(3)(a), 298(1)(a)(i), 298(1)(b) on exceptions to jurisdiction do not apply (at paras 694-695).
The Tribunal identified the law applicable to the issue of China’s “presence” in the area of Mischief Reef and Second Thomas Shoal (at paras 735-741) as including two elements: first, LOSC Article 61(1) dealing with the jurisdiction of the coastal state (the Philippines) as to the allowable catch within the EEZ, and LOSC Article 62(2) and (3) as to access by flag state vessels to surplus allowable catch, and second—with particular emphasis—Article 62(4) on the obligations of flag state nationals fishing in the coastal state’s EEZ, and Article 58(3) on the obligation of flag states in the coastal state’s EEZ. This last provides that:
In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part. (emphasis added)
The Tribunal’s interpretation of “due regard” under Article 58(3) contains a number of steps.
First, with respect to the “nature” of the obligation, the Tribunal, without further comment, references the observations in the Award on the Merits of the Annex VII Tribunal in the Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom), 18 March 2015 (Chagos) with respect to “due regard” under Article 56(2) (not 58(3)) reproducing from that Award as follows:
… the ordinary meaning of “due regard” calls for the [first State] to have such regard for the rights of [the second State] as is called for by the circumstances and by the nature of those rights. The Tribunal declines to find in this formulation any universal rule of conduct. The Convention does not impose a uniform obligation to avoid any impairment of [the second State’s] rights; nor does it uniformly permit the [first State] to proceed as it wishes, merely noting such rights. Rather, the extent of the regard required by the Convention will depend upon the nature of the rights held by [the second State], their importance, the extent of the anticipated impairment, the nature and importance of the activities contemplated by the [first State], and the availability of alternative approaches. (at para 742, citing Chagos Award at para 519) (square brackets added by the SCSA Tribunal)
Second, remarking on the specific context of the duties of a flag state with respect to fishing by its nationals in a coastal state’s EEZ, the Tribunal noted its agreement with the reasoning of ITLOS in its Fisheries Advisory Opinion, stating that:
…[ITLOS] interpreted the obligation of due regard, when read in conjunction with the obligations directly imposed upon nationals by Article 62(4), to extend to a duty “to take the necessary measures to ensure that their nationals and vessels flying their flag are not engaged in IUU fishing activities.” The Fisheries Advisory Opinion goes on to note that:
the obligation of a flag State . . . to ensure that vessels flying its flag are not involved in IUU fishing is also an obligation “of conduct”. . . . as an obligation “of conduct” this is a “due diligence obligation”, not an obligation “of result”. . . . The flag State is under the “due diligence obligation” to take all necessary measures to ensure compliance and to prevent IUU fishing by fishing vessels flying its flag. (at para 743, citing Fisheries Advisory Opinion at paras 124, 129)
Finally, applying Article 58(3) the Tribunal determined that:
… [Evidence] support[s] an inference that China’s fishing vessels are not simply escorted and protected, but organised and coordinated by the Government…
The obligation to have due regard to the rights of the Philippines is unequivocally breached when vessels under Chinese Government control act to escort and protect Chinese fishing vessels engaged in fishing unlawfully in the Philippines’ [EEZ]. (at paras 755-756)
In the course of its brief consideration of the duty of “due regard,” the Tribunal makes no direct use of the interpretative rules set out in the Vienna Convention on the Law of Treaties (VCLT)–neither explicitly, nor implicitly referencing the interpretative approach outlined in VCLT Articles 31 and 32 (ordinary meaning, context, object and purpose, or any “supplementary” interpretative means) or to the intentions of the parties.
It might have done. Earlier in the Award, the Tribunal elaborated on the procedural safeguards that ensured China suffered no disadvantage with respect to evidence and claims as a result of its non-participation in the proceedings (at paras 119-121). The Tribunal might have been well advised to take a similar approach with respect to the interpretation of “due regard”.
Instead, as noted above, the SCSA Tribunal relies heavily on the reasoning of two prior decisions, the Chagos Award and the Fisheries Advisory Opinion.
While not strictly a source of international law, reference to international jurisprudence is nevertheless commonplace in practice, whether for adjudicative consistency, efficient reference to existing law, or the making of new law through clarification of existing law (see for discussion Thomas Buergenthal, “Lawmaking by the ICJ and Other International Courts” (2009) 103 Proceedings of the Annual Meeting (American Society of International Law) 403, and Harlan Grant Cohen, “Theorizing Precedent in International Law” and Gleider Hernández, “Interpretative Authority and the International Judiciary” both in Andrea Bianchi, Daniel Peat & Matthew Windsor eds, Interpretation in International Law (Oxford: OUP, 2015)).
The Chagos Award on its own might not obviously represent an interpretative consensus on the meaning (or nature) of “due regard”, even if that were possible for a duty the content of which will necessarily arise from the specific circumstances under consideration. Like the SCSA, Chagos was decided by an Annex VII Tribunal which did not elaborate extensively on its interpretative reasoning with respect to “due regard”, although that Tribunal did implicitly refer to the VCLT in referring (albeit abruptly) to the “ordinary” meaning of the term.
Also, as noted by the SCSA Tribunal itself (at para 742), the Chagos Tribunal had before it the “reversed situation”—that is, the question of the “due regard” duty of the coastal state in the EEZ under Article 56(2), rather than “due regard” duty of the flag state under Article 58(3). The SCSA Tribunal does not explicitly conclude whether it equates the respective “due regard” duties of coastal and flag states or whether the interpretation of the one can serve as context for interpretation of the other. The understanding that “due regard” in LOSC Articles 56(2) and 58(3) is mirrored—in the sense of being in the first instance equally weighted or without pre-eminence as between a coastal state (with its sovereign rights) and a flag state (with its freedoms of the high seas)—has been echoed in jurisprudence and literature, but there is not universal consensus on this point. (See, for example, M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v Guinea), Separate Opinion of Judge Laing,  3 ITLOS Rep 10 at para 52, M/V “Virginia G” (Panama v Guinea-Bissau), Dissenting Opinion of Judge ad hoc Sérvulo Correia  ITLOS Rep 1 at para 16, Alexander Proelss, “The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited” (2012) 26 Ocean Yrbk 87, James Kraska, “Resources Rights and Environmental Protection in the Exclusive Economic Zone” in Military Activities in the EEZ: A U.S. China Dialogue (Newport, Rhode Island: China Maritime Studies Institute, U.S. Naval War College, 2010) 75.) Also, apart from the mutual duties of “due regard” under Articles 58(3) and 56(2), the two provisions elaborate on the respective duties of coastal and flag states differently. Under Article 58(3) the flag state has the general obligation of “due regard” as well as the specific duty to “comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part”, while under Article 56(2) the coastal state’s twin obligations of “due regard” and to “act in a manner compatible with the provisions of [LOSC]” are both framed more generally.
As to the “nature” of the duty of “due regard”, the obligation includes, or is, a duty to balance concurrent coastal and flag state entitlements and duties—as described, for example, in the Chagos Award passage reproduced by the SCSA Tribunal:
…the extent of the regard required by the Convention will depend upon the nature of the rights held by [the second State], their importance, the extent of the anticipated impairment, the nature and importance of the activities contemplated by the [first State], and the availability of alternative approaches. (at para 742, citing Chagos Award at para 519) (square brackets added by the SCSA Tribunal)
The Chagos Tribunal applied this balancing analysis as follows:
There is no question that Mauritius’ rights have been affected by the declaration of the MPA. In the territorial sea, Mauritius’ fishing rights have effectively been extinguished. … the [Respondent] United Kingdom’s undertaking for the eventual return of the Archipelago gives Mauritius an interest in significant decisions that bear upon its possible future uses… The Tribunal considers Mauritius’ rights to be significant and entitled, as a matter of good faith and the Convention, to a corresponding degree of regard. (Chagos Award at para 521)
The SCSA Tribunal does not replicate this calculus exactly (i.e. it does not directly contemplate the specific importance of the interests and activities of China and the Philippines, nor impairment or alternative approaches), though it does appear to balance relevant LOSC provisions in the course of its conclusion on the meaning of “due regard” under Article 58(3):
Given the importance of fisheries to the entire concept of the exclusive economic zone, the degree to which the Convention subordinates fishing within the exclusive economic zone to the control of the coastal State, and the obligations expressly placed on the nationals of other States by Article 62(4) of the Convention, the Tribunal considers that anything less than due diligence by a State in preventing its nationals from unlawfully fishing in the exclusive economic zone of another would fall short of the regard due pursuant to Article 58(3) of the Convention. (at para 744)
Presumably a balancing analysis of concurrent coastal and flag state rights and duties is more relevant with respect to an activity by one state that is prescribed (the performance of a duty) or protected (for example, the declaration of an Marine Protected Area by a coastal state, as in Chagos, or navigation by a flag state) but which nevertheless might impair the interests of another state, rather than to an activity that is unlawful in the first instance, such as organizing and coordinating IUU fishing activities in another state’s EEZ.
With respect to the content of due diligence, the SCSA Tribunal goes only so far as to note that:
In many cases, the precise scope and application of the obligation on a flag State to exercise due diligence in respect of fishing by vessels flying its flag in the exclusive economic zone of another State may be difficult to determine. (at para 754)
An analysis of the specific content of due diligence is presumably unnecessary in this case given that China’s conduct was found to be beyond the scope of diligence—that is, its government vessels were found to have escorted, protected, organized and coordinated IUU fishing activities (at paras 754-756).
The SCSA Award is, notably, the first decision to determine a breach of “due regard” obligations by a flag state under Article 58(3) and (agreeing on this with the Fisheries Advisory Opinion) framing the breach as arising from a violation of a general principle of international law not directly expressed in LOSC (see Fisheries Advisory Opinion at para 110). In contrast, the two decisions that have found breaches of “due regard” by a coastal state under Article 56(2), the Chagos Award and the Award on the Merits of the Annex VII Tribunal In the Matter of The Arctic Sunrise Arbitration (Netherlands v Russia), 14 August 2015, each framed the respective breaches of “due regard” in terms of conduct incompatible with LOSC provisions other than Article 56(2) (see Chagos Award at paras 520, 534, 540, 544; and Arctic Sunrise Award at paras 231, 333.)
This blog post will be cross-posted on the JCLOS Blog, the blog of the K.G. Jebsen Centre for the Law of the Sea, the University of Tromsø.
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By: Kristin Barham and Anna-Maria Hubert
International Agreements Commented On: Article 27 of the 1948 United Nations Universal Declaration of Human Rights, and Article 15 of the 1966 United Nations International Covenant on Economic, Social and Cultural Rights
“Scientific and technical advances bring unquestioned benefits, but they also generate new uncertainties and failures, with the result that doubt continually undermines knowledge, and unforeseen consequences confound faith in progress.”
There is a growing body of social science literature emphasising a need for science and technological innovation to be more accountable to society and to take into account the full spectrum of uncertainties surrounding these processes. These calls are often manifested as calls for greater reflexivity, transparency and public participation in R&D. Environmental law – with its focus on the prevention of environmental harm and precaution – provides an important site for regulation and governance for many advances in science and technology. There is an obvious logic to this choice, given the countless examples of technologies that have contributed to environmental damage at various phases of their lifecycles. However, there are conceptual limits to the application of environmental law for governing upstream R&D, as environmental obligations primarily aim at preventing or minimizing actual physical harm to the environment. Precautionary risk assessment and management are examples of governance tools for asserting greater control over research and innovation processes. However, although environmental law is increasingly informed by a broader framework of sustainable development that draws upon a range of legal subject areas, an environmental framing does not directly target the social and ethical concerns that dominate the early stages of science and the development of emerging technologies.
The specific concerns raised by small-scale geoengineering research illustrate this point nicely. Geoengineering is commonly defined as “deliberate large-scale interventions in the Earth’s natural systems to counteract climate change” (Oxford Geoengineering Programme). Larger-scale climate response tests or deployment of geoengineering at material scales are likely to cause a risk of significant harm to the environment or human safety. By contrast, the environmental impacts of initial research projects may be negligible in comparison to other everyday commercial activities. Social scientists point out, however, that precautionary governance may be necessary in the face of the social, political and ethical implications of the knowledge acquired from geoengineering research. They identify the ‘sociotechnical risks’ of geoengineering as including premature entrenchment, path dependency and lock-in (see, e.g., Rob Bellamy, “A Sociotechnical Framework for Governing Climate Engineering” (2016) 41 Science, Technology & Human Values 135).
This blog post highlights the contribution of international human rights law – in particular, the frequently overlooked ‘right to science’ – in providing a supplementary normative underpinning for the governance of sciences and emerging technologies. We begin by outlining legal sources and legal status of this right in international law. We then go on to provide a brief overview of the normative development of this right in the context of ongoing processes established under the auspices of the United Nations Human Rights Council. Finally, we point out some of the implications of the right to science in informing responsible research practices and institutional arrangements for the conduct of geoengineering research.
The Right to Science in International Human Rights Law
Geoengineering will touch on many human rights, but it is the so-called ‘right to science’ that best functions as a normative framework for informing research governance. The right to “share in scientific advancement and its benefits” was first recognized in Article 27 of the 1948 United Nations Universal Declaration of Human Rights, and later reiterated in Article 15 of the 1966 United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR). The Covenant provides a comprehensive articulation of the right to science, including the general right of everyone to “enjoy the benefits of scientific progress.” With 164 States Parties, the ICESCR has near universal participation. Parties are legally bound to respect, protect and fulfill the rights articulated in the Covenant. It requires that States Parties promote “the development and the diffusion of science” (article 15(2)) and “recognize the benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific field” (article 15(3)). In 2013, an Optional Protocol entered into force that sets forth an international complaint and inquiry mechanism which allows the Committee on Economic, Social and Cultural Rights to consider complaints from individuals or groups who claim their rights under the Covenant have been violated and have not received a domestic remedy. The right to science has also been expressed in varying forms in national law with Ecuador, Paraguay and the Republic of Moldova reproducing the scope of the Covenant, and States such as Germany fully protecting freedom of scientific research under its constitution (A/HRC/20/26, para 13).
Normative Development Right to Science and its Implications for the Governance and Regulation of Geoengineering Research
Although the right to science is articulated in binding international treaties, its normative content is vague and underdeveloped. In recognition of this, UN Special Rapporteur Farida Shaheed in the field of cultural rights for the UN Human Rights Council set out a normative framework for the right to science in her 2012 report on “The right to enjoy the benefits of scientific progress and its applications” (A/HRC/20/26). The Special Rapporteur’s report defines the term ‘science’ broadly as encompassing all “knowledge that is testable and refutable, in all fields of inquiry, including social sciences, and encompassing all research” (A/HRC/20/26, para 24). Although this definition provides practical guidance, it is important to bear in mind that the problem of defining the scope and content of the meaning of scientific research is a growing issue in international law. It has cropped up, for example, on several occasions in the context of defining the scope of research exemptions (see, e.g., Whaling in the Antarctic Case (Australia v Japan; New Zealand Intervening)  ICJ; LC-LP.2(2010) on the Assessment Framework for Scientific Research involving Ocean Fertilization).
The UN report further asserts that the normative content of the right to science has four dimensions: (1) access for everyone to the benefits of science, (2) opportunities for everyone to contribute to the scientific process and the freedom indispensible for scientific research, (3) participation for individuals and communities in scientific decision-making, and (4) an enabling environment fostering the conservation, development and diffusion of science and technology (A/HRC/20/26, para 25). All of these elements have implications for the governance and regulation of geoengineering research, and much more can be said on these points, in particular, regarding the third aspect about providing a greater role for citizen participation in the management of technology. However, in the interest of space, the first two elements are examined in further detail below.
Access to the Benefits of Science
Underpinning the right to science is the guarantee of access to the benefits of science. States must guarantee their citizens universal access without discrimination. This means, inter alia, that everyone has the right to access the benefits of science regardless of gender, race, religion or any other defining characteristic (A/HRC/20/26, para 29). The UN report conveys that the ‘benefits’ of science “encompass not only scientific results and outcomes but also the scientific process, its methodologies and tools” (A/HRC/20/26, para 24).
Experts have identified access to scientific information as a key element for the good governance of science and innovation processes. For example, the Third Oxford Principle for geoengineering governance encourages “disclosure of geoengineering research and open publication of results.” Though recognizing that disclosure does carry risks relating to the misuse of scientific data, the authors of the Oxford Principles nonetheless argue for full disclosure to the extent that the “burden of proof should fall on the advocates of any restriction” (Steve Rayner and others, “The Oxford Principles” (2013) 121 Climatic Change 499, 507). Transparency is an end in itself, but also serves a governance function by enhancing legitimacy and the effective and fair distribution of power in decision-making (see further Craik and Moore). Within the environmental law context, open disclosure of scientific information is thought to support implementation and compliance with governance and regulatory regimes, promote public awareness and engagement, and foster trust in institutions and processes (Anne Peters, ‘Towards Transparency as a Global Norm” in Andrea Bianchi and Anne Peters (eds) Transparency in International Law (Cambridge University Press 2013) 599–600).
The guarantee of access to information for researchers is also essential for the freedom of scientific research, described below. It encompasses access to the applications of science, to scientific knowledge and information, scientific literature, data, materials, samples and subjects (A/HRC/26/19, para 15). However, Craik and Moore point out overly onerous disclosure requirements could also hamper scientific progress. Against this backdrop, “a key source of tension in the design of disclosure mechanisms will be balancing the demands for high levels of participation and deliberation against the burdens that these demands place on researchers.” A human rights approach could support procedural fairness and inform the balancing of competing rights in establishing and administering rules for research projects. In particular, legal and ethical disclosure requirements should be subject to the principle of proportionality according to which “non-physical, informational risks” should be treated less onerously than direct physical interventions with the potential to harm the environment or threaten safety (BM Knoppers and others, “A human rights approach to an international code of conduct or genomic and clinical data sharing” (2014) 133 Human Genetics 895).
The Human Rights Council report on the right to science defines ‘scientific progress’ as attributing “positive impact” of science and innovation on human wellbeing. In this vein, it is noted that technology affecting human rights is to be given particular attention (A/HRC/26/19, para 29). Some geoengineering proposals, and, in particular, stratospheric aerosol injection, raise serious human rights concerns. These are related to the preservation of the “international democratic order” both at the domestic level in terms of public participation and consultation on geoengineering and at the international level concerning interference in the affairs of sovereign states in accordance with Article 2(7) of the United Nations Charter (de Zayas, International Law Association (ILA) Panel on Geoengineering (New York, 24 October 2014); see also Werrell and Femia, “CIA Director on the Geopolitical Risks of Climate Geoengineering” The Center for Climate and Security (25 July 2016)).
The Opportunity for Everyone to Contribute to the Scientific Process
The second normative aspect of the right to science is the opportunity for everyone to contribute to the scientific process and have the necessary freedom to do so. This freedom intersects with a variety of other human rights, including the right to mobility, freedom of expression and thought. Most significantly, however, it encapsulates the traditional guarantee of the so-called ‘freedom of scientific research’, which provides for research to be undertaken without political or other interference. This freedom is broad in scope, protecting the freedom of association, inquiry, opinion and expression and extends to all persons, not just professional scientists (A/HRC/26/19, para 15).
The freedom of scientific research is often cited as an argument against stringent governance of geoengineering research (see, e.g., European Commission, European Transdisciplinary Assessment of Climate Engineering (EuTRACE); Edward A Parson and David W Keith, “End the Deadlock on Governance of Geoengineering Research” (2013) 339 Science 1278, 1278). However, the right of free scientific enquiry is not absolute. This point is underscored in several soft-law instruments including in the 1999 UNESCO Declaration on Science and the Use of Scientific Knowledge, according to which “[a]ll scientists should commit themselves to high ethical standards, and a code of ethics based on relevant norms enshrined in international human rights instruments should be established for scientific professions” (para 41). Principles for the responsible conduct of scientific research increasingly extend beyond research involving human and animal subjects to cover ecological research conducted in the open environment (see, e.g., Hubert, “Marine Scientific Research” in Markus and Salomon (eds) Handbook on Marine Environmental Protection: Science, Impacts and Sustainable Management (Springer, in press)).
Clearly, there is a balance to be struck by which “the scientific enterprise remains free of political and other interference, while guaranteeing the highest standards of ethical safeguards by scientific professions” (A/HRC/26/19, para 39). This determination regarding limitations on the freedom of scientific research, will be heavily dependent upon the relevant factual circumstances and should be subject to a precautionary approach in the face of large uncertainties (see Hubert and Reichwein, “An exploration of a code of conduct for responsible scientific research involving geoengineering” (2015) IASS Working Paper, InSIS Occasional Paper No 1. Potsdam & Oxford., Draft Article 8).
Conclusion and Next Steps
A human rights framework can help to bolster the role of environmental law in the establishment of principles, policies and procedures for governing science and emerging technologies. While many general human rights articulated in international law are of consequence for
geoengineering research and development, the normative framework of the right to science has particular relevance. This right has the potential to enhance accountability, transparency and participation, particularly in addressing the sociotechnical risks associated with early research and innovation processes. One advantage of this approach is that the human right to science applies regardless of the scale, duration or environmental impact of the research project. Its normative content is vague and not fully elucidated. However, in light of its universal scope and legally enforceable mechanisms, it provides an important legal basis for the development of responsible research practices grounded in the fundamental principle that that scientific advancement and its benefits should extend to everyone.
Research for this blog post was made possible by a generous grant from the V. Kann Rasmussen Foundation in support of the Geoengineering Research Governance Project (GRGP). The GRGP is an interdisciplinary study on potential arrangements for the governance and regulation of geoengineering research. It is a joint initiative led by Professor Anna-Maria Hubert at the Faculty of Law at the University of Calgary in collaboration with the University of Oxford and Institute of Advanced Sustainability Studies, Potsdam (IASS). You can learn more about the project here: http://www.ucalgary.ca/grgproject/
This comment was originally posted on The Forum for Climate Engineering Assessment, http://dcgeoconsortium.org/2016/08/09/international-human-right-to-science-and-its-application-to-geoengineering-research-and-innovation/
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By: Joshua Sealy-Harrington and David Rennie
PDF Version: Making Sense of Aboriginal and Racialized Sentencing
In R v Laboucane, 2016 ABCA 176 (CanLII), the Alberta Court of Appeal strongly criticizes the Ontario Court of Appeal’s decision in R v Kreko, 2016 ONCA 367 (CanLII), where the Ontario Court of Appeal allegedly approached the sentencing of Aboriginal offenders too leniently, and “almost” interpreted the Criminal Code as providing for automatic sentence reductions in all cases with Aboriginal offenders (Laboucane at para 67).
The Alberta Court of Appeal’s critique warrants a review not only of this alleged disagreement between appellate courts, but also of the lack of clarity in Aboriginal sentencing more broadly. In addition, following a summary of the principles underlying Aboriginal sentencing, we argue that many of those principles should be applied in the context of sentencing racialized communities in Canada, and in particular, in the context of Black offenders.
BACKGROUND: ABORIGINAL SENTENCING
Statutory Background: The Aboriginal Sentencing Provision
At its core, the disagreement between the Alberta Court of Appeal and Ontario Court of Appeal centres on the sentencing framework provided by the Criminal Code, RSC 1985, c C-46.
In a previous post, Joshua Sealy-Harrington and Joe McGrade summarized the Criminal Code’s general sentencing framework, including the fundamental principle that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (Criminal Code, s 718.1; the Proportionality Provision). Here, we will briefly discuss the specific provision that relates to Aboriginal sentencing (the Aboriginal Sentencing Provision).
The Aboriginal Sentencing Provision reads, in relevant part:
A court that imposes a sentence shall also take into consideration the following principles:
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
(Criminal Code, s 718.2; emphasis added).
In other words, the Aboriginal Sentencing Provision instructs courts to pay “particular attention” to the unique circumstances of Aboriginal offenders, and whether those circumstances merit “sanctions other than imprisonment”. The Supreme Court has considered the Aboriginal Sentencing Provision multiple times, a brief summary of which follows.
Jurisprudential Background: The Gladue–Ipeelee Test
Given that the core conflict between the Alberta Court of Appeal and Ontario Court of Appeal here centres on the proper analytical framework for applying the Aboriginal Sentencing Provision, we will concentrate solely on how that analytical framework has evolved (or, in our view, persisted) throughout its consideration by the Supreme Court.
The Supreme Court first considered the Aboriginal Sentencing Provision in R v Gladue,  1 SCR 688 (CanLII). The key principles flowing from Gladue in respect of the Aboriginal Sentencing Provision are the following:
With respect to the analytical framework, Gladue provides at least two distinct considerations for sentencing judges when adjudicating whether an offender’s Aboriginal heritage may justify a more lenient sentence:
(at para 93.6; the Gladue Test).
The Supreme Court next discussed the Aboriginal Sentencing Provision in R v Ipeelee, 2012 SCC 13 (CanLII). Ipeelee did not change the interpretation of the Aboriginal Sentencing Provision. Rather, it reaffirmed the principles established in Gladue and clarified how they operate (Ipeelee, at para 1).
With respect to affirming the principles established in Gladue, the Court restated in Ipeelee that:
In addition to reaffirming that the Aboriginal Sentencing Provision does not displace the Proportionality Provision, the Court explained that the Aboriginal Sentencing Provision does not displace the parity principle. The parity principle requires that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” (Criminal Code, s 718.2(b); the Parity Provision). The Court explained that this principle is not displaced by the Aboriginal Sentencing Provision because, when sentences imposed on Aboriginal offenders are more lenient, they will be “justified based on their unique circumstances … which are rationally related to the sentencing process” (Ipeelee, at paras 76-79).
Lastly, the Court in Ipeelee clarified that Aboriginal offenders need not “establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge.” Rather, those background factors need only be “tied in some way to the particular offender and offence” such that they “bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized” (at paras 81-83). This final point is, in our view, simply a rephrasing of the Gladue Test. Put differently, Ipeelee rephrases the Gladue Test in the following terms:
The Aboriginal Sentencing Provision will impact the sentence of an Aboriginal offender if their Aboriginal heritage either:
(the Gladue–Ipeelee Test).
The Gladue–Ipeelee Test is central to the conflict between the Ontario Court of Appeal and Alberta Court of Appeal discussed in this post. Indeed, their core disagreement distills to how the Gladue–Ipeelee Test should be applied.
ALLEGED APPELLATE CONFLICT OVER GLADUE–IPEELEE TEST
In Laboucane, the Alberta Court of Appeal narrowly distinguishes its approach to the Aboriginal Sentencing Provision from that taken by the Ontario Court of Appeal in Kreko (see Laboucane, at paras 65–73). This alleged distinction relates to how the Gladue–Ipeelee Test should be applied. Accordingly, we will only consider how Kreko and Laboucane address the Gladue–Ipeelee Test, since they agree on all other core principles flowing from Gladue and Ipeelee, including the points that:
Ontario Court of Appeal Approach in Kreko: More Lenient?
In Kreko, the Ontario Court of Appeal shortened a sentence because, in its view, the trial judge improperly required a causal connection for the Aboriginal Sentencing Provision to be triggered.
The trial judge in Kreko did expressly state that “a direct, causal link is not required” to trigger the Aboriginal Sentencing Provision (see Kreko, at para 15). However, the Ontario Court of Appeal held that the trial judge’s reasoning, despite this statement, “effectively requir[ed] a causal link between the appellant’s Aboriginal heritage and the offences” to trigger the Aboriginal Sentencing Provision (at para 20). Specifically, the Ontario Court of Appeal pointed to the following extracts from the trial judge’s reasons for sentence and his report to the Court of Appeal as demonstrating the trial judge’s requirement for a causal link (at para 20):
The Ontario Court of Appeal clarified that, to trigger the Aboriginal Sentencing Provision, a causal link between an offender’s Aboriginal heritage and the offence is not required (at para 21). Rather, the offender’s Aboriginal heritage need only be “tied to the particular offender and offence(s) in that [it] must bear on his or her culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing” (at para 23). In other words, the Ontario Court of Appeal, at least in principle, reaffirmed the Gladue–Ipeelee Test.
Alberta Court of Appeal Approach in Laboucane: More Strict?
In Laboucane, the Alberta Court of Appeal maintained a trial sentence because, in its view, the trial judge correctly determined that the offender’s Aboriginal heritage “did not bear on his culpability for the offences or indicate which sentencing objectives can and should be actualized” (at para 76). Accordingly, the Alberta Court of Appeal, like the Ontario Court of Appeal, reaffirmed the Gladue–Ipeelee Test.
However, despite both judgments affirming the same test for Aboriginal sentencing, the Alberta Court of Appeal strongly criticized the Ontario Court of Appeal’s judgment in Kreko. In essence, the Alberta Court of Appeal critiqued the Ontario Court of Appeal for diluting the Gladue–Ipeelee Test to a near automatic mitigating factor for all Aboriginal offenders. The Alberta Court of Appeal restates this basic critique in various ways, namely, that:
Interestingly, the Alberta Court of Appeal seems to agree with the Ontario Court of Appeal’s holding in Kreko—i.e. reducing Mr. Kreko’s sentence—because the facts in Kreko showed “a measurable connection” between the offender’s Aboriginal heritage and his offence (Laboucane, at para 66). Accordingly, the Alberta Court of Appeal appears to only be critical of how the Ontario Court of Appeal described the relevant legal principles, not how it applied those legal principles in this instance.
In our view, the Alberta Court of Appeal’s critique is likely misplaced, and certainly difficult to understand. On our reading, the problem is not that the Ontario Court of Appeal and Alberta Court of Appeal applied different tests, but rather, that the Gladue–Ipeelee Test is vague, making it difficult for courts to ensure that they are correctly applying the Aboriginal Sentencing Provision.
With that in mind, we will first explore the disagreement between these Courts of Appeal. We will then discuss the possibility of expanding the underlying concepts of Aboriginal sentencing to other racialized offenders in Canada.
Appellate (Dis)Agreement Regarding Gladue–Ipeelee Test
As stated above, it is not clear that there is much if any divide between Alberta and Ontario on the Gladue–Ipeelee Test. Indeed, our best explanation for the ostensible divide between Kreko and Laboucane is the different facts those decisions addressed, rather than the legal principles those decisions affirmed.
First, it is difficult to identify any difference between Alberta and Ontario with respect to the Gladue–Ipeelee Test because the Alberta Court of Appeal’s critique of Kreko is vague. The Alberta Court of Appeal claims that Kreko dilutes the Gladue–Ipeelee Test, but provides no pinpoint references to where the Ontario Court of Appeal’s ruling actually provides for such dilution. Rather, the Alberta Court of Appeal simply describes how “the position adopted in Kreko” (at para 67), “the decision in Kreko” (at para 67), a “probing analysis” of the decision (at para 67), and “the approach taken in Kreko” (at para 68), dilute the Gladue–Ipeelee Test.
Second, a “probing analysis” of Kreko reveals, in our view, the same trigger for the Aboriginal Sentencing Provision as that described in Laboucane (and Ipeelee), namely, the Gladue–Ipeelee Test (see Ipeelee, at para 83; Kreko, at para 23; Laboucane, at paras 55–59).
We appreciate that, when scrutinizing judicial reasoning, it is critical to analyze not only how the court describes the law, but also whether or not the court’s application of the law is faithful to that description (indeed, that is precisely how the Ontario Court of Appeal critiqued the trial judge in Kreko). For example, while the Ontario Court of Appeal undoubtedly affirmed the Gladue–Ipeelee Test (see Kreko at para 23), the Alberta Court of Appeal could be claiming that the Ontario Court of Appeal actually applied a diluted version of that test. But such a critique is difficult to understand in this case because the Alberta Court of Appeal appears to concede that the facts in Kreko—which involved a “measurable connection” between the offender’s Aboriginal identity and his offence—merited an appellate reduction in sentence (Laboucane, at para 66). In other words, it is difficult to characterize the Alberta Court of Appeal’s critique of Kreko as a critique of the Ontario Court of Appeal’s application of the law when the Alberta Court of Appeal appears to agree with how the law was applied in Kreko.
In sum, the Alberta Court of Appeal’s vague critique of Kreko leaves us guessing as to which passages it considers problematic.
Our best explanation is that the source of this vague critique is rooted not in any disagreement over the relevant legal principles, but rather (1) the distinct facts present in Kreko and Laboucane; and (2) the Gladue–Ipeelee Test itself being vague.
Distinguishable Facts in Kreko and Laboucane
The distinct facts in Kreko, which more appropriately justified leniency in light of that Aboriginal offender’s identity, may partially explain the alleged divide between Alberta and Ontario. Indeed, the Alberta Court of Appeal itself appears to admit this, to our confusion (Laboucane, at para 66).
In Kreko, the Aboriginal offender pled guilty to possession without lawful excuse of a loaded prohibited firearm, robbery with a handgun, and intentional discharge of a firearm while being reckless as to the life or safety of another person, contrary to ss 95(2) and 343(d) of the Criminal Code (at para 2). The Trial Judge gave Mr. Kreko a 13-year sentence (Kreko, at para 1).
Mr. Kreko was adopted into a non-Aboriginal family at a young age because his birth mother could not adequately care for him. His Aboriginal grandparents struggled with alcoholism and were unable to parent their children (Mr. Kreko’s mother). This resulted in his mother being placed in various foster homes before becoming a Crown ward at age 11. She gave birth to Mr. Kreko while still a Crown ward at the age of 15 (at paras 4-6).
Mr. Kreko grew up not knowing he was adopted, and assumed his heritage was Finnish and French. However, when he learned of his Aboriginal heritage (around the age of 17), he experienced feelings of abandonment, resentment, and a sense that he was unwanted (at paras 8-9). In particular, Mr. Kreko struggled with his identity and adoption, and the “identity crisis” that followed the discovery of his Aboriginal identity and adoption “coincided with his involvement in the criminal justice system” (at para 14).
In Laboucane, the offender pled guilty to assault on a cabdriver, possession of a stolen taxicab, and refusing to provide a breath sample. Mr. Laboucane was further convicted of one count of break and enter and commit assault, one lesser offence of assault, and uttering threats. Mr. Laboucane was sentenced to two years’ imprisonment (at paras 8-9).
At the time of these offences, Mr. Laboucane was 38 years old, with 36 prior criminal convictions including five assaults, one break and enter, and numerous breaches. These were Mr. Laboucane’s sixth, seventh and eight convictions for violent offences (at para 34).
Mr. Laboucane’s Gladue report found that he had a “good and normal” childhood, free from familial substance abuse and domestic violence. Mr. Laboucane himself considered his parents to be “good parents” and never experienced or witnessed domestic abuse. His father (the only Aboriginal parent) was not raised in the Métis culture. Similarly, his family did not participate in Aboriginal culture and none of his relatives attended residential schools. Mr. Laboucane visited paternal relatives at a Métis settlement, but his cultural involvement was limited. Mr. Laboucane struggled to stay employed due to his personal relationship issues and only experienced domestic violence in his own intimate relationships and his older half-sister’s relationship (at paras 40-45).
In our view, these distinguishable facts explain why the courts in Kreko and Laboucane reached opposing conclusions, despite correctly applying the same legal test.
In Kreko, the Ontario Court of Appeal reduced an Aboriginal offender’s sentence because aspects of his Aboriginal heritage—his dislocated identity that traced back to the discovery of his Aboriginal roots and the factors that led to his adoption—bore on his culpability. Indeed, the Ontario Court of Appeal referenced statistics highlighting how adopted Aboriginal children are more likely to suffer from a sense of dislocation (at para 24).
In contrast, the Alberta Court of Appeal in Laboucane maintained an Aboriginal offender’s sentence because his Aboriginal heritage did not appear to bear on his culpability or inform a suitable sanction. In particular, his upbringing was considered very ‘normal’ and he did not appear to experience the same intergenerational or systemic issues as Mr. Kreko, which could have affected Mr. Laboucane’s culpability (at paras 74-80). Moreover, Mr. Laboucane was a repeat offender who did not take responsibility for his actions (at paras 34 and 46), whereas Mr. Kreko, by the time of the appeal, had found his birth mother, successfully completed a number of rehabilitative Aboriginal programs, and embraced his Aboriginal heritage (at para 12). Given these distinct facts, the Alberta Court of Appeal’s critique of Kreko seems ill-founded, as the same test was applied in both cases, and led to different outcomes that appear responsive to the facts in both cases.
The Gladue-Ipeelee Test is Vague
A further cause of confusion between the Alberta and Ontario Courts of Appeal regarding Aboriginal sentencing is the vagueness of the Gladue–Ipeelee Test itself. The Supreme Court has consistently instructed what the Gladue–Ipeelee Test is not. But it has failed to provide adequate guidance regarding what the Gladue–Ipeelee Test is in a positive sense, i.e. by elaborating on Contributory Mitigation and Suitability Mitigation and providing instructive examples of each.
As we summarized above, ever since Gladue, the Supreme Court, and other appellate courts, have been clear about two extremes, neither of which reflect the proper approach to Aboriginal sentencing:
In this way, courts have been clear in negatively defining Aboriginal sentencing. But a clear positive definition for Aboriginal sentencing remains elusive. At best, the Supreme Court has positively defined Aboriginal sentencing as requiring that an offender’s Aboriginal heritage be “tied in some way to the particular offender and offence” such that it “bear[s] on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized” (Ipeelee, paras 81–83). But what does it mean for an offender’s Aboriginal heritage to be “tied in some way” to an offender or their offence? And what does it mean for an offender’s Aboriginal heritage to “bear” on their culpability? These general terms, without instructive examples, make it difficult for courts to know the threshold at which leniency is warranted in the context of Aboriginal sentencing. Indeed, we suspect that the Alberta Court of Appeal’s alternate and broad language (“a measurable connection”; see Laboucane at para 66) is yet another indicator of these courts not really understanding the type of connection required to warrant leniency in Aboriginal sentencing.
For example, in Kreko, the trial judge acknowledged that the law does not require a causal link (which would be too strict), but still described, in various alternative phrasings, that no leniency was warranted because Mr. Kreko’s Aboriginal heritage did not tie to or bear on his culpability (Kreko, at para 20). Those phrasings included that “there was nothing tied to his Aboriginal genetic heritage”, that his offences “do not relate to his Aboriginal background”, that his “Aboriginal connection had been irrelevant to his offences”, and that “his Aboriginal heritage could not be linked in any meaningful way to these current offences” (at para 20; emphasis added). In other words, even the trial judge in Kreko, like the Alberta Court of Appeal and Ontario Court of Appeal, applied the Gladue–Ipeelee Test (albeit conservatively). With three courts all at least describing the same legal test (see Kreko, at paras 15 and 21–24; Laboucane, at paras 50–63), the only logical source of confusion is the vagueness of the test itself. In particular, the test lacks clarity regarding what it means for an Aboriginal offender’s heritage to tie to or bear on their culpability or to inform the sentencing objectives that should be emphasized in a given case.
Implications for Sentencing Racialized Offenders
In our view, aspects of the sentencing principles discussed above could (and should) be applied in the context of other racialized communities. We say this because many, though not all, of the principles underlying cultural sensitivity with Aboriginal sentencing apply in other contexts. We will discuss the context of Black offenders here.
To be clear, the Aboriginal Sentencing Provision only requires courts to give “particular attention” to Aboriginal offenders. But that does not remove the court’s duty to impose proportional sentences on other racialized offenders. And the unique experiences of other communities—including Black offenders—may inform that proportionality.
Recent commentary argues that systemic and intergenerational factors should be considered for other racialized groups, including Black offenders. This argument has gained momentum in Nova Scotia, where Blacks have a deep history of dislocation and oppression that dates back to the 1770s, when an influx of African-American loyalists and former slaves fled the United States and settled in Canada. In fact, there is an ongoing case in Nova Scotia in which a judge has accepted a cultural assessment similar to a Gladue Report for a Black offender.
In a similar case in Ontario, instead of sentencing a young Black man to the 6-12 month jail term sought by the Crown for drug dealing, Justice Edward Morgan instead issued a conditional sentence (see R v Reid, 2016 ONSC 954 at para 31). In issuing that sentence, Justice Morgan considered both the Black offender’s personal circumstances and societal forces, including anti-Black racism and the over-incarceration of Black citizens (at paras 21-27). In particular, Justice Morgan cited a finding by the Office of the Correctional Investigator, which found that the number of federally incarcerated Black inmates has increased by 80 per cent over the last decade (at para 22).
These cases demonstrate that judges are becoming increasingly willing to consider systemic factors when sentencing members of racialized communities. In our view, this is a welcome development. We appreciate the Supreme Court’s remark in Ipeelee that “no one’s history in this country compares to Aboriginal people’s” (at para 77). But the pursuit of a proportional sentencing process that is sensitive to cultural differences and every offender’s individual culpability should not be blind to other forms of systemic inequality.
The principles underlying sentencing make it clear that the background of racialized offenders should be considered in the sentencing process. For example, it would be difficult to claim that systemic discrimination and intergenerational struggle (experienced in varying ways by different communities) informs proportional sentencing of Aboriginal offenders, but not Black offenders. Even though these communities are very different, certain similarities between those communities (like overrepresentation in the criminal justice system and prejudicial treatment by law enforcement) could surely inform proportional sentencing for Black offenders.
Further, any claim that only Aboriginal offenders should benefit from such considerations because of the phrasing of the Aboriginal Sentencing Provision should be dismissed. First, the Aboriginal Sentencing Provision calls for “particular attention” in the context of sentencing Aboriginal offenders—it does not mandate a complete absence of attention in the context of Black offenders, especially when those circumstances are “rationally related to the sentencing process” (Ipeelee, at paras 76-79). Second, the Aboriginal Sentencing Provision expressly provides that background circumstances mitigating against incarceration should be considered “for all offenders”—which obviously includes Black offenders. Lastly, the Proportionality Provision requires that any sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. Accordingly, if, for example, a Black offender’s background circumstances inform that proportionality, it would be an error not to weigh those circumstances in determining a fit sentence on the basis that such weighing, despite its contribution to proportionality, somehow violated a provision calling for “particular attention” in the context of Aboriginal offenders.
Sentencing is a notoriously complex area of criminal law. And this complex area requires clearer appellate guidance in the context of sentencing Aboriginal and racialized offenders.
The Gladue–Ipeelee Test is well-established, and courts appear to be consistently alluding to its general principles and key terms. However, those principles and terms lack the specificity needed to predictably guide the process of Aboriginal sentencing. In particular, greater positive definition of when Contributory Mitigation and Suitability Mitigation may be triggered will bring much needed clarity to this area of the law. Requiring that Aboriginal heritage tie “in some way” to proportionality is simply too vague.
Recently, the Alberta Court of Appeal released another decision addressing the framework for Aboriginal Sentencing (see R v Okimaw, 2016 ABCA 246 (CanLII)). Okimaw also affirms the Gladue–Ipeelee Test for Aboriginal sentencing (at para 58). However, in our view, the confusion surrounding Aboriginal sentencing persists despite this recent decision. In Okimaw, the Court concedes that the background factors at issue—including the legacy of residential schools, domestic violence, substance abuse, physical and mental health, low income, and unemployment (see paras 26-45)—had “an obvious and profoundly adverse and harmful impact” on the offender (at para 67). In consequence, this relatively ‘clear case’ does not confront the ambiguity caused by the general language consistently used by the Supreme Court in the context of Aboriginal sentencing. Indeed, the Court of Appeal relies on how these many background factors “bear” on the offender’s culpability and appropriate sentencing procedures (at paras 64, 75, and 87)—the same general language we critique above. A later, tougher case may be required before the Court is compelled to provide greater clarity to Aboriginal sentencing.
Additionally, courts should continue to explore the boundaries of how systemic factors inform the proportional sentencing of racialized offenders. Sentencing is a multi-faceted process, and reserving systemic considerations to one community in Canada (albeit an incredibly significant and unique one, particularly in the context of criminal justice) disregards the requirement that every sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing is, and must remain, an individual process. But the diversity of individuals whose backgrounds may inform proportional sentencing should not be arbitrarily limited because those groups lack a specific remedial provision in the Criminal Code. To the contrary, the Supreme Court’s own pronouncements that proportional sentencing demands an exploration of each individual offender’s culpability requires that courts pay attention to racialized offenders and how their background, history, and relationship with the criminal justice system may inform the proportionality of their sentence. Some will confuse such considerations with playing “the race card”. But, in actuality, such considerations will simply ensure that all offenders come before the criminal justice system with an even deck.
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By: Kyle Gardiner
Research Commented On: Shea Nerland Law LLP Fellowship Project on Tax Law and Equality, Summer 2016
On 2 May, 2016, I began a research project with Jonnette Watson Hamilton, Jennifer Koshan and Saul Templeton examining the role section 15 of the Charter plays in tax law. Over 50 variables were recorded from each of the 134 equality challenges to tax law that we analyzed. To read my post on one of these cases, Grenon v. Canada, 2016 FCA 4 (CanLII), see here. The data promises to be a rich tool for examining equality in the realm of tax law.
When I was conducting a literature review for this project, I reviewed Kathleen Lahey’s “The Impact of the Canadian Charter of Rights and Freedoms on Income Tax Law and Policy” in David Schneiderman & Kate Sutherland, eds, Charting the Consequences: The Impact of Charter Rights on Canadian Law and Politics (Toronto: University of Toronto Press, 1997) 109. In that study, Lahey conducted a review of 300 cases in which Charter challenges were brought to various income tax provisions between 1985 and 1995. The current research extends Lahey’s study, systematically reviewing section 15(1) Charter challenges to tax law that have been brought since the conclusion of her study in October, 1995. While many taxation provisions outside of the Income Tax Act, RSC 1985, c 1 (5th Supp) have seen their share of section 15(1) challenges, the cases examined in our study were specifically section 15(1) equality challenges to a section or sections of the Income Tax Act. Our data awaits further statistical analysis beyond what has been done preliminarily here.
By way of background, section 15 of the Charter is an equality rights guarantee, and it allows claimants who believe they have been discriminated against on the basis of a personal characteristic by a government’s law, policy, or program to challenge that law, policy, or program. Section 15(1) protects against both direct discrimination and adverse effects discrimination. Direct discrimination is usually obvious on the face of the law and occurs where a law’s measures explicitly single out some people for specific treatment because they possess a particular trait. Adverse effects discrimination arises when a neutral rule, applied equally to everyone, has a disproportionate and negative impact on members of a group identified by a prohibited ground of discrimination (see here for a thorough discussion of this distinction). Section 15 reads:
15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Of the 134 decisions in our study, 114 were challenges heard in the Tax Court of Canada, and 20 were appeals heard by the Federal Court of Appeal. Of those 20 appeals, 13 were appealed from trial decisions that were included in this data set. No challenge succeeded in reaching the Supreme Court of Canada. Leave to appeal was sought in 12 of the 20 Federal Court of Appeal cases reviewed, and was refused by the Supreme Court in each case.
Figure 1 illustrates the chronological distribution of the cases:
Figure 1: Annual distribution of cases reviewed
A wide array of the Income Tax Act’s provisions was challenged in the cases studied. Personal exemptions, exemptions under the Indian Act, RSC 1985, c I-5, deductions for legal fees, childcare expense deductions, moving expense deductions, disability benefits and tax credits, special opportunity grants, various age restrictions, the inclusion/deduction system of child support, the Canada Child Tax Benefit, eligibility for the GST credit, various credits under section 118(5) of the Income Tax Act (including the equivalent to spouse credit and the credit for a wholly dependent person), tuition credits, and tax rates under section 117 of the Income Tax Act were all challenged.
The two most common sections of the Income Tax Act to be challenged were section 118(5) and section 118.2. These sections were followed in popularity by section 56(1)(b), involving the inclusion/deduction of child support payments.
Section 118(5) is a provision that disallows various deductions under section 118(1) to a taxpayer who is obligated to pay support in respect of a child to whom the credit applies. These two sections combine to allow a recipient of child support to claim the relevant credits in subsection (1), while disallowing a payor from claiming the same credits. This provision was challenged 17 times, 15 of which were by male claimants with an obligation to pay child support. The grounds argued here under section 15(1) of the Charter were most commonly family status or sex.
The challenges to this section provide a good example of cases where judges reworked the claimant’s grounds into characteristics that are not protected by the Charter — in these cases, “having an obligation pay child support” or “being a parent who pays child support” (see e.g. Giorno v The Queen, 2005 TCC 175 (CanLII), Calogeracos v The Queen, 2008 TCC 389 (CanLII), and Sears v The Queen, 2009 TCC 22 (CanLII)).
Section 118.2 was also challenged 17 times. These challenges involved the medical expenses credit, 9 of which were specific challenges to section 118.2(2)(n), or the requirement that medications be “recorded by a pharmacist” in order for the claim for a credit to succeed. The section 15(1) Charter grounds most common in these challenges were physical disability, or the type or severity thereof. Female claimants were overrepresented in this category of challenge (9 males to 8 females or 47% females— compared to the 30% of females in the general sample of cases).
Enumerated or analogous grounds refer to those personal characteristics that, if found to be the basis of the discrimination, render the discrimination unconstitutional (if not saved under section 1 of the Charter). Enumerated grounds are those specified in the text of section 15(1), and analogous grounds are those personal characteristics that have been found by the courts to be similarly immutable or constructively immutable (i.e. changeable only at great personal cost). Sexual orientation, marital status, and citizenship are a few examples of analogous grounds.
Of the 134 cases reviewed, 36 contained challenges upon enumerated grounds, 32 upon analogous grounds, and 12 upon both enumerated and analogous grounds. The grounds of the remaining 54 cases consisted mainly of those that were neither enumerated nor found to be analogous to date, or grounds that were not specified. It is important to note that of all challenges reviewed, the “grounds” stage of analysis was the most common point of failure of the section 15(1) claim.
Of the protected grounds, the most common that were argued as the basis for the section 15(1) challenge were family status (21), physical disability (15), age (12), and “other” (22). Common grounds within the “other” category were income sources or level (which we counted separately given our prediction that numerous challenges would be based on this ground), employment status, and inmate status. Fourteen, or 50% of the challenges brought on “other” grounds failed at the grounds stage of section 15(1) analysis. Figure 2 illustrates the grounds argued by claimants in the cases reviewed:
Figure 2: Grounds argued by claimants in the cases reviewed
It is important to note that two of the claimed grounds that appear in Figure 2, income level and employment status, have not been recognized as analogous grounds in Canadian law to date. Because these grounds appeared so often in the cases reviewed, though, they have been given their own categories for display.
Certain claimants brought challenges via multiple grounds under section 15(1) of the Charter. No notable trends appear between the “Grounds” and “Second Grounds” categories, though certain groupings are apparent. For example, age (12) was the most common ground to be coupled with others, namely family status (2), marital status (2), and sex (1). Further analysis of grounds and corresponding second grounds may yet yield useful data or uncover further trends.
Direct Versus Adverse Effects Discrimination
Cases of adverse effects discrimination were more than twice as prevalent as cases of direct discrimination, a divide of roughly 70 to 30 cases. Common issues of adverse effects discrimination were those regarding section 118(5) of the Income Tax Act, where credits could not be claimed for a child because the taxpayer was paying child support in respect of that child, the deductibility of legal expenses (section 60(o)), medical expenses credits (section 118.2(2)), and issues surrounding childcare expenses (section 63). Claims of adverse effects discrimination also appear to be more prevalent among income tax appeals, as only 9 of the 67 section 15(1) discrimination claims heard by the Supreme Court were adverse effects discrimination claims (see Jonnette Watson Hamilton and Jennifer Koshan, “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter” at Appendix 1, as updated to reflect the Supreme Court’s most recent Section 15(1) decision, Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 (CanLII).
Among adverse effects discrimination cases, the most common grounds argued were family status (14), physical disability (12), “other” (9) and sex (8, 5 males to 3 females). The 12 physical disability cases claiming adverse effects discrimination comprise the entire subset (12) of physical disability cases in our sample. Many of these challenges were to failed claims for medical expense credits under the Income Tax Act.
In direct discrimination cases, “other” grounds were most common (9), followed by age (5) and family status (4). Among the “other” grounds were inmate status (2), sibling status (2), province of residence, cultural rights, and being a receiver of support. The proportion of these grounds within direct discrimination challenges can be compared to the grounds’ prevalence in the greater sample. For example, age represents 17% of all direct discrimination cases, but only 9% of cases in the overall sample were based on the ground of age. As might be expected given that taxation lines are often explicitly drawn on the basis of age, that ground is overrepresented in the direct discrimination category.
The Failure of all Section 15 Claims
The backbone of the section 15 test requires a claimant to prove a distinction based on an enumerated or analogous ground that results in discrimination. While the framework for section 15 analysis has been in a state of flux since its initial development in Andrews v. Law Society of British Columbia, 1989 1 SCR 143 (CanLII), those core elements have remained.
As noted above, the most common stage of failure in our sample was the “grounds” stage (41), where judges often reasoned that the grounds argued were neither enumerated nor analogous. This result was followed by the “no discrimination” stage (28), and the “no distinction” stage (21). Forty-seven decisions were written by judges who failed the challenge at a second stage, either pointing out multiple stages where the test failed, or proceeding to rule that in the event of an error in the judge’s reasoning, the test would still fail at a later stage.
Anecdotally, “no discrimination” was cited commonly as a “catch-all” reason for failure. See, e.g. Fontaine v. The Queen, 2003 TCC 662 at 10:
The Charter of Rights and Freedoms does not assist the Appellant in any way. He is not discriminated against pursuant to subsection 15(1) or any other section. His Charter argument is frivolous.
Within a 13-paragraph decision in Fontaine, McArthur J.A. disposed of the claimant’s Charter argument in one paragraph. See also Pate v. The Queen, 2004 TCC 190 (CanLII) at 25.
Figure 3 reveals the most common stages of failure of the section 15(1) challenge:
Figure 3: The eight most common stages of failure among cases reviewed.
Among the 134 cases reviewed, only one case was successful at trial, but even this modest success was overturned on appeal (see Wetzel v The Queen, 2004 TCC 767 (CanLII)). In 1984, the federal government and the Conne River Band were negotiating criteria for band membership. In a 1984 order-in-council that included the Band under the Indian Act, the criterion of “Canadian Micmac ancestry” was included, effectively excluding Michael Wetzel— a Micmac of American ancestry— from Band membership and from the tax exemptions that go along with such membership. The Tax Court of Canada ruled that this exclusion was a clear violation of Wetzel’s section 15(1) Charter rights. The remedy granted by the Tax Court was to vacate the tax assessments at issue, a personal remedy under section 24(1) of the Charter. The decision of the Tax Court contains no section 1 analysis of whether the government’s actions were reasonable and justifiable.
This case is anomalous, however. Wetzel involved a remission order, a special remedy under the Financial Administration Act, RSC 1985, c F-11, for waiver of tax when it is unquestionably mandated by tax legislation. Instead of challenging a provision of the ITA, Wetzel’s section 15(1) challenge was brought against an order-in-council. On appeal, the issues were characterized as having more to do with “administrative law wrongs” (see Canada v. Wetzel, 2006 FCA 103 (CanLII) at para 23). Sexton J.A. continued with a section 15(1) Charter analysis, concluding that Wetzel was not treated differently from “all the other residents of Conne River Reserve ‘of Indian Ancestry’”. He concluded on this basis that Wetzel’s section 15(1) Charter rights had not been violated (para 30).
Because the cases reviewed in our study are those containing challenges to provisions of the Income Tax Act, Wetzel does not fit cleanly within our data set. The success that this section 15(1) challenge had at first instance may be attributable to its anomalous nature, but this observation is speculative, and the case was overturned on appeal in any event. That result means that no claimants in our overall sample were successful in their section 15(1) challenges.
Turning briefly to section 15(2), the Charter’s affirmative action provision, it was not determinative in any of the cases reviewed. Because section 15(2) protects ameliorative government laws, policies and programs from section 15(1) challenge, it might have formed another basis for the failure of challenges by taxpayers under section 15(1), but this was not borne out in our sample.
Not only were no cases successful in arguing discrimination under the Charter, no case even succeeded in reaching section 1 analysis— the section of the Charter which allows governments to attempt a justification of Charter violations, if they are found. All of the challenges considered in our sample therefore failed because the section 15(1) arguments were unsuccessful.
The challenges reviewed in this study were heard at first level by 40 different Tax Court judges. Seven judges heard 49 of the 113 Tax Court of Canada cases. This means that 43% of the cases were decided by just 7 judges. Eighteen cases were heard by 18 different Tax Court of Canada judges who heard only that case during the period under review. That is, there were 18 “one-off” judges.
Lawyers represented claimants in only 29 cases of the 134 cases reviewed. This is an average representation rate of 22% across both levels of court. Nine claimants were represented by agents, all of whom were law students. One claimant was represented by a relative. The lack of legal counsel across these cases illuminates possible access to justice issues that require deeper exploration.
One other potential access to justice issue is that of cost awards, whereby claimants are either ordered to pay some costs or may have some of their costs of litigation covered (see sections 18.26 and 18.3007 of the Tax Court of Canada Act, RSC 1985, c T-2, under which the court has discretion to award costs). Costs were awarded from the taxpayer in 29 cases, and awarded to the taxpayer in 16 cases. Other arrangements were made in 4 cases, and in the remaining 84 cases cost awards were not specified in the text of the decision.
Claimants were characterized on the face of the decision as “frivolous” 9 times, and “vexatious” 4 times. Frivolous and vexatious claimants never had lawyers and were always male. In the overall sample, claimants were male in 93 cases, and female in 40 cases. In one case the claimant was a corporation. This gender distribution is an exact replication of that found by Lahey in 1997— 70% of the claimants are men. Six claimants were Aboriginal and seeking exemption from payment of taxes under the Indian Act, of which one was Wetzel, the only claimant to succeed in the Tax Court.
While some applications for intervener status were made prior to certain cases being heard, no intervener succeeded in participating in a claimant’s hearing. See e.g. Tall v. The Queen, 2005 TCC 765 (CanLII), where an application for intervener status by the Chinese Canadian National Council (CCNC) was denied in a case involving a section 15(1) challenge based on religion and national or ethnic origin. The claimant in that case sought to claim certain Traditional Chinese Medicine expenses that were not “recorded by a pharmacist” as required by section 118.2(2)(n) of the Income Tax Act. The CCNC intended to offer its unique perspective on issues of equal benefits raised by the claimant’s case.
Finally, 24 cases cited a second Charter section as the basis for the challenge, most commonly section 7 (19 times) and section 6 (5 times). Section 7 protects an individual’s life, liberty and security of the person from government interference that is contrary to the principles of fundamental justice. Section 6 guarantees mobility rights, including the right to move to and take up residence in any province, and to pursue the gaining of a livelihood in any province. Seven cases cited two Charter sections in addition to section 15(1).
The Supreme Court has not heard any section 15(1) challenges in tax cases since the mid-1990s (see Symes v. Canada,  4 SCR 695 (refusing a claim that the non-deductibility of a woman’s child care expenses as business expenses was discriminatory); Thibaudeau v. Canada,  2 SCR 627 (refusing a claim that child support payments count as taxable income to the payee was discriminatory)). It was a discouraging surprise to learn that there has not been a single successful section 15(1) claim to the Income Tax Act since then. Nevertheless, the data provides rich opportunities for analysis of section 15 jurisprudence and tax law. I am grateful for the funding received by Shea Nerland Law LLP and for my opportunity to work on this project.
Research for this blog post was made possible by a generous fellowship received from Shea Nerland Law LLP. For more information on the projects funded by this fellowship, see here.
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By: Hasna Shireen
PDF Version: Human Rights Cannot Be Renounced or Waived
Case Commented On: Webber Academy Foundation v Alberta (Human Rights Commission), 2016 ABQB 442 (CanLII)
The Court of Queen’s Bench of Alberta recently upheld a human rights decision that found Webber Academy, a private school in Calgary, had unlawfully discriminated against two Muslim high school students by prohibiting them from performing certain prescribed Sunni prayers at school. Dr. Webber, President and Chairman of Webber Academy, said that bowing and kneeling was too overt and such prayers would be not allowed on campus. The Alberta Human Rights Tribunal in 2015 found that Webber Academy discriminated against the two students and awarded the students $12,000 and $14,000 respectively as damages for distress, injury and loss of dignity (see 2015 AHRC 8 (CanLII)). The Academy did not explicitly claim that the complainants had waived their rights prior to enrollment. However, on appeal Justice GH Poelman addressed the issue of waiver, as the pre-enrollment discussions between the students and staff were discussed at length by the Tribunal. Justice Poelman held that waiver is not a possible defence in any case, as human rights are a matter of public policy and protect the inherent dignity of every individual; thus they “cannot be waived or contracted out of” (at para 106).
Complaints at the Alberta Human Rights Commission
On February 13, 2012, Ms. Farhat Amir and Dr. Shabnam, on behalf of their sons Sarmad Amir and Naman Siddique, made a complaint to the Alberta Human Rights Commission against Webber Academy for discrimination on the ground of religious beliefs in the area of services or facilities customarily available to the public (section 4 of the Alberta Human Rights Act, RSA 2000, c. A-25.5 (AHRA)). The students are Sunni Muslims and need to pray five times a day. According to their personal Sunni religious beliefs these prayers are mandatory and at least one and not more than two prayers must be performed during school hours (depending upon the time of year). The parents and their children requested a space that would accommodate the students’ need to stand, bow and kneel safely, but not a dedicated prayer space. The Academy facilitated their prayers until December 17, 2011. On that date and in subsequent meetings, Dr. Webber advised the parents that bowing and kneeling was “too overt” and this form of prayer was forbidden on the school’s campus, as the Academy is a non-denominational school (paras 5 – 6).
Tribunal’s Findings and Decision
One issue before the Tribunal was whether the complainants were asking for a designated prayer space as per the Webber Academy’s submission, or their request was to be able to pray, with flexibility as to where that occurred, as per the Director’s and the complainants’ submission (at para 13).
The Tribunal perceived that the prayer space required was only a bit larger than the space required to be occupied by a person and rejected the Academy’s framing of the issue as a request for “prayer space”. It found that the students were requesting the Academy to permit them to honour their religious beliefs on praying (at para 16).
The Tribunal was presented with conflicting evidence regarding the discussion at the pre-enrollment meeting about whether prayers are allowed on school campus. The Tribunal found the testimony of the students and their mothers to be “more accurate and consistent with the balance of the evidence as a whole” (at para 19) and that a positive indication of acceptance to praying on campus was given by Academy staff at the pre-enrollment meeting.
Dr. Webber stated that Webber Academy is a non-denominational school and there had been no approval to have prayer space at school; since the policies were disregarded, the students would not be accepted for enrollment the following year (at para 23).
The Tribunal characterized “the service and facility customarily offered by Webber Academy” to encompass “educational programs and other supportive services and facilities including the use of Webber Academy campus and Facilities”, and defined the “public” as the “student body” (at para 26). The Tribunal considered the scope of services and facilities, and found the students were dependent upon the school to meet their needs during school hours, as they were minors and attended school for full days. Thus, the Tribunal disallowed the Academy’s argument that it did not fall under the AHRA because prayer space is not a service it customarily makes available to its public—prayer space was not the service being offered; rather, the service was education and other supportive services and facilities allowing meaningful access to education (at paras 26 – 27).
The Tribunal used the Moore test for discrimination, which is as follows:
(1) The complainant must have a characteristic that is protected from discrimination;
(2) The complainant must have experienced an adverse impact; and
(3) The protected characteristic must have been a factor in the adverse impact
(at para 49, citing Moore v. British Columbia (Ministry of Education), 2012 SCC 61 (CanLII)).
Applying this test, the tribunal found prima facie discrimination contrary to section 4 of the AHRA for the following reasons:
After finding prima facie discrimination, the Tribunal considered the defence of whether the Academy’s actions were reasonable and justifiable under section 11 of the AHRA. Here, the Tribunal applied British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC) (commonly known as “Grismer”), which involves three steps that must be proven by a defendant in order to rely on section 11. As applied to Webber Academy, these criteria were as follows:
The Tribunal held that the first two criteria were met by Webber Academy. The Academy’s standard was articulated as “no overt prayer or religious activities on school property” (at para 71) and the purpose for the standard “was to foster a non-denominational identity that ensures Webber Academy’s students are placed in a learning environment that is ‘free of religious influence’’’ (at para 71). Next, the Tribunal identified the Academy’s ‘function being performed’ as educational services and facilities (at para 73). The Tribunal decided that the Academy had established a rational connection between the Academy’s purpose and the function it performed (at para 74). It also found that the Academy had adopted its position in good faith (at para 75).
However, the Academy did not meet the third criterion from Grismer. There was no evidence that the students’ prayer practices would have a religious influence on other students, other overt religious observances were permitted, initial allowance of prayers had been easily accommodated, and Webber Academy had not undertaken any assessment of whether allowing the students’ prayers would amount to a hardship for the Academy (at para 31). Thus, the Tribunal found against Webber Academy and awarded Mr. Amir $12,000 and Mr. Siddique $14,000 as damages for distress, injury and loss of dignity.
Standard of Review: Court of Queen’s Bench of Alberta
Justice GH Poelman of the Court of Queen’s Bench of Alberta relied on Association of Professional Engineers and Geoscientists of Alberta v Mihaly, 2016 ABQB 61 (CanLII) for the standards of review to apply to various questions on appeal (at para 34). These will be identified for each of the issues discussed below.
Characterizations: Students’ Request and Services Customarily Available
Both parties agreed that the “public” for the purposes of section 4 of the AHRA is the student body of the Academy as per the Tribunal decision and University of British Columbia v Berg, 1993 CanLII 89 (SCC). However, the parties differed on whether there was discrimination with respect to any services or facilities “customarily available to the public” (at para 36). Justice Poelman determined that this inquiry required a characterization of what the students were seeking and how that related to the services offered to Webber Academy’s “public”—the student body (at para 36).
Justice Poelman held that determining what was requested by the students is primarily a factual matter and thus was reviewable on a reasonableness standard. The Tribunal factually disallowed the Academy’s characterization of the students’ request as being for “prayer space”. There was ample evidence the students were not asking for dedicated space but only for somewhere they could perform prayers for five to ten minutes in a discreet manner (at paras 37 – 38).
Justice Poelman then focused on determining whether what the students requested was a service or facility customarily available to the Academy’s public. On appeal, the Academy did not clearly express how its services and facilities should be described. Rather, the Academy argued that if the specific thing requested—namely the provision of prayer space—is not customarily available to the student body, and it is not therefore protected under section 4 of the AHRA (at para 40).
Justice Poelman agreed that the Tribunal was correct in using the Berg and Moore cases. In applying these two cases to the matter before the Court, Justice Poelman found that the services and facilities the Academy customarily made available to its public were non-denominational educational programs and other supportive services and facilities incidental to those programs (at para 44). To apply the language of Moore, incidental supportive services and facilities include “the means by which those programs could be accessed by students” (at para 44). To apply the language of Berg, Webber Academy has “discretion in the types and scope of incidental services and facilities it offers” (at para 44). However, the “discretion must not be exercised on prohibited grounds of discrimination” (at para 44, citing Berg at para 75). Accordingly, the Tribunal was accurate in concluding “that Webber Academy, as a private school offers services and facilities customarily available to the public and does not have an ‘unfettered discretion’ to summarily refuse a student’s request to perform a religious obligation on its campus” and the Academy’s discretion to set policies regarding student conduct “does not give a private school license to exercise their discretion in denying the services or use of facilities in a discriminatory fashion” (at para 45).
Prima Facie Discrimination
On appeal, the Academy submitted that the Moore test used by the Tribunal was inadequate because it failed to incorporate a “comparator analysis” as per Kelly v B.C. (Ministry of Public Safety and Solicitor General) (No. 3), 2011 BCHRT 183 (CanLII). The Court held that as it was the most recent relevant Supreme Court of Canada authority, the Tribunal was correct in identifying the Moore test as applicable (at para 49).
Application of the Test
Characteristic Protected from Discrimination
As noted above, the Tribunal found that the students had a characteristic protected from discrimination under the AHRA, because of their sincerely held religious beliefs. The Academy argued that the Tribunal gave inadequate consideration to their expert testimony because leading and majority opinion among the four major Sunni schools of Islamic law consider attendance at school is a valid reason to delay or skip prayer (at para 52). The Tribunal’s decision on religious beliefs was based upon its finding that the students personally believed it was necessary to conduct their prayers during scheduled times and it would be sinful to miss them, based on the Qur’an and the sayings of the Prophet as conveyed to them by their parents. Moreover, the Tribunal accepted the testimony of the principal of Rundle College (where the students attended after Webber Academy) that the students practiced their prayer without significant disruption for the two years they attended that school. This was strong evidence of a genuine belief and commitment by the students to their prayer practices (at paras 52 and 54).
Justice Poelman found that the Tribunal appropriately followed the approach established in Syndicat Northcrest v Amselem, 2004 SCC 47 (CanLII). Amselem holds that for complainants relying upon freedom of religion, it is not necessary to prove their beliefs are objectively recognized as valid by coreligionists, nor is it appropriate for courts to inquire into that question. Rather, a person must show sincerity of belief, not validity of a particular belief. Amselem does not support the reliance placed by the Academy on expert evidence, because, as stated by the Court, “[r]eligious belief is intensely personal and can easily vary from one individual to another. Requiring proof of the established practices of a religion to gauge the sincerity of belief diminishes the very freedom we seek to protect” (at para 60, citing Amselem at para 54). Thus, the Court ruled that the Tribunal properly focused on a determination of whether the students sincerely held their religious beliefs regarding the form and times of prayer and found ample evidence from the students, their mothers and their coreligionists to support the Tribunal’s finding that the religious beliefs were sincerely held (at paras 59 and 60).
On appeal, the Academy maintained its argument that the students had requested a designated prayer space. The Court noted that this argument was “premised on a mistaken characterization” and that the students desired to be allowed to conduct private prayers “in whatever unobtrusive place was available” (at para 64). The Academy denied their right to pray and treated them “differently from other students whose religious beliefs in the form of head coverings and facial hair were permitted during their attendance at school, even advertised by Webber Academy, despite the fact that those observances were contrary to the usual policies applicable to Webber Academy students” (at para 64). Thus, there was plenty of evidence showing that the students experienced an adverse impact as a result of the Academy’s actions (at para 65).
Religious Belief a Factor in Adverse Impact
The Tribunal found the students were denied meaningful access to the Academy based on their religious belief, which clearly connects the protected ground of religion to the adverse impacts (of refusing to allow prayer and denial of re-enrollment) (at para 66). The Court of Queen Bench found that based on the evidence, the Tribunal’s findings were reasonable.
The Tribunal’s findings with respect to rational connection and good faith were not challenged on appeal (at paras 74-75). As for the third criterion, the Tribunal made note of the following: the Academy’s public information in the Parent-Student Handbook stated that “at Webber Academy, we believe in,” among other things, “creating an atmosphere where young people of many faiths and cultures feel equally at home”; the Academy’s website page for “Admissions” prominently showed a student with a turban, mustache and beard, along with two other students, conveying the acceptance of students of many backgrounds and faiths; the “Webber Academy information package” contained the statement that the Academy is “non-denominational” (at para 77, citing the Tribunal decision in general). However, the Tribunal rejected Dr. Webber’s view, expressed in his testimony, “that a non-denominational school can reasonably be interpreted as meaning that no prayer or religious practice would be allowed” (at para 79). Justice Poelman found that the tribunal’s finding that the standard imposed by the Academy “was not reasonably necessary to accomplish its purpose of fostering a non-denominational identity” was a reasonable one “founded on the evidence” (at para 83).
As noted above, the third aspect of the Grismer test also requires the respondent to establish that it could not accommodate persons with the characteristics of the claimant without incurring an undue hardship. The Tribunal found that “[t]he evidence overwhelmingly supports that accommodation of the prayer was possible and it would not have been an undue hardship to accommodate the Students’ requests to pray on campus” (at para 81). The Court held that the Tribunal applied the correct legal test under section 11 of the AHRA and its conclusions were reasonable based on the evidence (at para 87).
Webber Academy made submissions on the conflicting evidence on the content of the pre-enrollment meeting and school tour, and also argued that the Tribunal had incorrectly refused to accept evidence of one staff person’s version of the meeting. Justice Poelman held that the Tribunal’s explanations about its conclusions on credibility were unreasonable (at para 100) and not adequately transparent and intelligible (at para 104). However, Justice Poelman concluded that even if Webber Academy’s evidence was accepted, and the Tribunal had found that there had been a clear warning that no prayers would be allowed, this conclusion would also have led to an analysis of whether there was discrimination and whether it was reasonable and justifiable (at para 105). This brings into play the point that one cannot waive one’s rights under human rights law.
Justice Poelman noted that the Academy did not argue waiver, but nevertheless found that a defence of waiver by the complainants of their human rights would not be available (at para 106). As a general rule, any person can enter into a binding contract to waive the benefits conferred on them by legislation, or in other words, can contract out of legislation, unless it can be shown that it would be contrary to public policy to allow such an agreement. In the context of human rights law, “It has been well established that human rights are a matter of public policy, created for the benefit of the community, inherent to the dignity of every individual, and cannot be waived or contracted out of” (para 106, citing Ontario (Human Rights Commission) v Etobicoke (Borough), 1982 CanLII 15 (SCC) at paras 8 to 9; Central Okanagan School District No. 23 v Renaud, 1992 CanLII 81 (SCC) at paras 23 to 25; and Dickason v University of Alberta, 1992 CanLII 30 (SCC) at para 116). As noted in Dickason, human rights legislation is quasi-constitutional, and rights generally cannot be renounced or waived.
After upholding the Tribunal’s finding of discrimination, Justice Poelman also upheld the Tribunal’s damages awards (at para 119).
Justice Poelman’s concluding remarks emphasize that this case was not “precedent-setting with far reaching implications” as argued by Webber Academy (at para 120). Public and private schools have long been required to adhere to human rights law when offering educational services to the public (at para 121). Webber Academy had discriminated against the Sunni students, and could not defend its practices as reasonable and justifiable. Perhaps the most interesting aspect of this decision is the discussion of waiver. Although waiver was not clearly argued, the Tribunal spent a fair bit of time analyzing the pre-enrollment discussions between the school and the students. Presumably, the Tribunal concluded that Webber Academy was arguing that the students waived their human rights based on the pre-enrollment discussions. However, as noted by Justice Poelman, one cannot contract out of human rights legislation. What is interesting is that Justice Poelman does not completely rule out waiver, as the stated conclusion is “it is highly unlikely that waiver would be made out on these facts, even if it was open as a possible defence” (at para 106, emphasis added). To date though, contracting out arguments have only been successful in limited circumstances (see e.g. Dickason, dealing with a mandatory retirement clause in a collective agreement where the parties had equal bargaining power).
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By: Alena Storton
Case Commented On: R v Hamiane, 2016 ABQB 409 (CanLII)
Recent appeals by self-represented litigants (SRL) often focus on the extent of a trial judge’s duty to assist the self-represented litigant. Trial judges are expected to assist SRLs throughout a trial, but the scope of assistance is left to their discretion (R v Hamiane, 2016 ABQB 409 (CanLII); Cold Lake First Nations v Alberta (Minister of Tourism, Parks & Recreation, 2012 ABCA 36 (CanLII); Malton v Attia, 2016 ABCA 130 (CanLII); for earlier posts discussing Malton v Attia see here and here). From the appeals, however, it is clear that SRLs do not feel sufficiently supported or informed to meaningfully participate in a trial. To remedy this issue, trial judges should consider altering the way in which they approach assisting SRLs in the trial process. Judges already explain procedural steps during a trial, as seen in Hamiane. By providing that same assistance at the outset of a trial in accordance with an established set of guidelines, however, trial judges could streamline the process and ensure that all SRLs receive consistent information sufficient to allow them to meaningfully and fully participate in a trial.
This method of assisting SRLs was discussed in Hamiane, an Alberta Court of Queen’s Bench decision. In this case, Mr. Justice Graesser heard an appeal of a summary conviction for dangerous driving. Mr. Hamiane represented himself with the help of a French translator at trial. On appeal, Mr. Hamiane asked for a new trial because he said that the trial judge did not adequately inquire as to whether he wished to retain a lawyer, explain the trial process, instruct him on the applicable law or the permissible nature and extent of cross-examination, or satisfy herself that Mr. Hamiane had the necessary linguistic abilities to understand the proceedings (at para 3).
Justice Graesser determined that the extent to which a trial judge must inquire whether a SRL wishes to retain counsel, or explain the trial process, are matters for the judge’s discretion. That discretionary decision should be based on the circumstances, including the seriousness of the charge (at para 78). In this case, Justice Graesser focused quite extensively on the seriousness of the charge and the potential consequences for the accused. He concluded, “These were not ‘serious’ charges” (at para 55) and the potential consequences for Mr. Hamiane were minimal. Specifically, Mr. Hamiane was not at risk of being sent to jail and “there was no indication at the trial that a criminal record would affect Mr. Hamiane differently than other people convicted of such [driving] offences” (at paras 51-52). In addition, Justice Graesser noted that the case was not complex and did not give rise to any difficult legal issues or obvious Charter arguments (at para 53). Overall, Justice Graesser found that the trial judge exercised her discretion properly and adequately assisted Mr. Hamiane (at paras 60 & 94).
In reaching this decision, Justice Graesser also rejected Mr. Hamiane’s argument that, at the outset of a SRL’s trial, the judge should describe the trial process, the presumption of innocence, the burden of proof, the specific elements of a charge that the Crown must prove, possible defences, the purpose and technique of cross-examination, and various aspects of calling a defence (at para 79). In Justice Graesser’s view, these explanations may be necessary to ensure a fair trial in cases that include a serious charge and potentially serious consequences (at para 80). In less serious cases, however, Justice Graesser held that a trial judge could choose to give only some of this information. He also went on to say, “But in less serious cases, such as this one, a reviewing Court should be slow to fetter the discretion given to trial judges to assess the situations unfolding before them and to determine the best course of action” (at para 80).
It seems unreasonable, however, to base the amount of assistance to be provided to a SRL primarily on the particular charge or other circumstances of a case, as SRLs generally face the same challenges when navigating the Canadian legal system no matter how serious or seemingly inconsequential the charge or claim. The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants interviewed SRLs from a range of legal areas and found that SRLs consistently felt overwhelmed and identified a need for orientation and education, as well as one-on-one assistance to help with their case and understand what is involved in representing themselves (“Final Report” at p 11). The study also indicated that the information that SRLs were able to access before the trial varied and was inconsistent. SRLs’ primary source of information was court staff, but some of the respondents could not find information on these resources online or in the courthouses and, as a result, missed out on this important source of information (at p 10). Information sheets created by the courts also may not help some self-represented litigants because, as Justice Graesser pointed out, these documents are only available in English (Hamiane at para 82). In addition, guidance on procedural matters, a critical topic for participating in a trial, was generally missing from informational sources for SRLs (at p 67).
In light of these common challenges, providing information on the trial process and its requirements at the outset of a trial may be an effective method of fulfilling a judge’s duty to assist SRLs to ensure that all SRLs have access to a basic level of information necessary to participate in a trial, regardless of the seriousness of the charge or any language or knowledge constraints. In addition, creating guidelines for this assistance would provide judges with a useful framework for the type and scope of information to be discussed at the beginning of a trial. An explanation given at the beginning of trial would also help to make trials more efficient because judges would not need to stop at each new step to explain what is required, as in Mr. Hamiane’s trial. Overall, giving SRLs an explanation of trial process and requirements at the outset of trials in accordance with established guidelines would likely improve SRLs’ participation in trials by ensuring that all SRLs have consistent access to sufficient information.
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By: John-Paul Boyd
On 20 June 2016, the Canadian Research Institute for Law and the Family began a study on Canadian perceptions of polyamory, advertised with the assistance of the Canadian Polyamory Advocacy Association, gathering preliminary data with a public survey. The information gathered thus far, from the 547 people who answered our survey, paints a nuanced picture of polyamorous individuals and their family arrangements.
The polyamorous families we are looking at are those created by three or more freely consenting adults, in distinction to faith-based, and often patriarchal, forms of polygamy that exist in much of Africa, the Middle East and North America, the latter of which have been popularized in shows like Big Love and Sister Wives. The polyamorous population we are studying places a high value on equality and honesty, and the rights of individuals to leave a relationship when and how they wish.
The majority of survey respondents live in British Columbia (35.6%), Ontario (28.7%) and Alberta (17.6%) (see Figure 1), and are between 25 and 44 years old (74.4%) (see Figure 2). Respondents tend to be younger than the Canadian population as a whole, with 75% of respondents being between the ages of 25 and 44 (see Figure 2.1) (Canadian population data: Statistics Canada 2011 Census, catalogue no. 98-311-XCB2011025).
Most respondents had completed some form of post-secondary education, most commonly undergraduate degrees (26.3%), followed by post-graduate or professional degrees (19.2%) and college diplomas (16.3%) (see Figure 3). Respondents reported significantly higher levels of educational attainment than most Canadians: 37% of respondents reported holding an undergraduate university degree, compared to 17% of the general population, and 19% of respondents reported holding a post-graduate or professional degree, compared to 8% of the general population (see Figure 3.1) (Canadian population data: Statistics Canada estimate for June 2016, CANSIM table 282-0003).
Although almost half of respondents had annual incomes of less than $39,999 (46.8%) (see Figure 4), almost two-thirds of respondents were not the sole income-earner in their household (65.4%) and more than three-fifths of respondents’ households (62.3%) had incomes between $80,000 and $149,999 per year (see Figure 4). Compared to the Canadian population, fewer respondents (47%) had incomes less than $40,000 per year than the general population (60%), and more respondents (31%) had incomes of $60,000 or more per year than the general population (23%) (see Figure 4.1) (Canadian population data: Statistics Canada estimate for 2014, CANSIM table 206-0051).
Slightly less than one-third of respondents identified as male (30%) and almost three-fifths identified as female (59.7%); the rest identified as genderqueer (3.5%), gender fluid (3.2%), transgender (1.3%) or “other” (2.2%). A plurality of respondents described their sexuality as either heterosexual (39.1%) or bisexual (31%) (Figure 5).
More than three-fifths of respondents (68%) said that they are currently in a polyamorous relationship. Almost two-fifths of the respondents who said that they are not currently in a polyamorous relationship (39.9%) said that they had been in such a relationship in the last five years.
Most of respondents’ polyamorous relationships involved three adults (50.4%) (see Figure 6), but only a fifth of respondents said that the members of their relationship lived in a single household (19.7%). Where the members of a polyamorous family lived in more than one household, most lived in two households (44.3%) or three households (22.2%) (see Figure 7).
Where the members of a polyamorous family live in one household, three-fifths of respondents’ households involved at least one married couple (61.2%), and there was only one married couple in those households. Where the members of a polyamorous family lived in more than one household, almost half involved at least one married couple (45.4%), and 85% of those households involved one married couple while the remainder involved two married couples (12.9%), three married couples (1.4%) and more than three married couples (0.7%).
In the past five years, 53.4% of respondents said that one or more individuals had been added to their family. Women and men tend to join and leave ménages in roughly equal numbers (see Figures 8 and 9).
Almost a quarter of respondents (23.2%) said that at least one child under the age of 19 lives full-time in their household, and 8.7% said that at least one child lives part-time in their household under the care of at least one parent or guardian (see Figure 10).
Slightly less than one-third of respondents (32.2%) said that they had taken legal steps to formalize some aspect of the rights and responsibilities of the members of their family. Most of these respondents had signed emergency authorizations (57.4%), followed by relationship agreements (34.7%) and powers of attorney for medical matters (22.7%) (see Figure 11).
Most respondents said that they support the equality of members of their relationships, regardless of gender or parental status (see Figure 12), and that members have the obligation to be honest with each other and the right to have a say in changes to their relationship (see Figure 13). When asked about the extent to which they agreed that everyone in a polyamorous relationship should be treated equally regardless of gender or gender identity, for example, 82.1% strongly agreed and 12.5% agreed with that statement. More than half (52.9%) strongly agreed and 21.5% agreed with the statement that everyone in a polyamorous relationship should be treated equally regardless of parental or guardianship status. Most (89.2%) strongly agreed and 9.2% agreed with the statement that everyone in a polyamorous should have the responsibility to be honest and forthright with each other.
Although 82.4% of respondents agreed or strongly agreed that the number of people who identify as polyamorous is increasing, and 80.9% agreed or strongly agreed that the number of people who are openly involved in polyamorous relationships is increasing, respondents had mixed views about public attitudes toward polyamory (see Figure 14).
Despite concern about the impact of the prohibition against polygamy in section 293 of the Criminal Code on public acceptance of their relationships, the prohibition does not deter respondents from pursuing the relationships they choose (see Figure 15).
The growing popularity of polyamory suggests that the meaning of “family” continues to evolve in Canada. The traditional model of the western nuclear family, consisting of married heterosexual parents and their legitimate offspring, has undergone enormous change in the last two hundred years – attaching family status to unmarried partnerships and legalizing same-sex marriage are only the most recent changes. Perhaps expectations as to exclusivity and the dyadic nature of committed relationships are next.
The Institute’s complete report on this study, including the text of the survey, will be available on its website by December 2016.
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By: Joshua Sealy-Harrington and Marita Zouravlioff
Case Commented On: Trinity Western University v The Law Society of Upper Canada, 2016 ONCA 518 (CanLII)
Two days before Canada Day, the Ontario Court of Appeal upheld the Law Society of Upper Canada’s decision to not accredit the proposed law school at Trinity Western University—a private Christian university in British Columbia which requires all prospective law students to abstain from gay sex. Many progressives hailed the decision as a victory for equality, and it undoubtedly was. But while the outcome was progressive in this case, its reasoning need not result in progressive outcomes in future cases. For this reason, we critique the Court’s reasons for failing to discuss the appropriate approach to balancing conflicting Charter rights.
Two aspects of the background to the Trinity Western University v The Law Society of Upper Canada, 2016 ONCA 518 (CanLII) decision (TWU ON) enable a fully informed discussion of the contentious issues at play, namely:
We note parenthetically that Nova Scotia’s legal regulatory body—the Barristers’ Society—decided, like LSUC, to not accredit TWU (The Nova Scotia Barristers’ Society v Trinity Western University, 2016 NSCA 59 (CanLII) at para 2; “TWU NS”). However, interestingly, the Nova Scotia Court of Appeal, unlike the Ontario Court of Appeal, overturned that regulatory decision on the basis that it fell outside the scope of its statutory mandate, which is to regulate legal practice in Nova Scotia, not legal education in British Columbia (TWU NS at para 4). As its decision turned on the scope of the Barristers’ Society’s mandate, the Nova Scotia Court of Appeal expressly abstained from discussing the issue of balancing conflicting Charter rights—the focus of this post.
1. LSUC Mandate
LSUC holds exclusive authority over prescribing qualifications to practice law in Ontario (TWU ON at para 34; see also the Law Society Act, RSO 1990, c L.8, the “LSA”). It wields this authority by maintaining the “standards of learning, professional competence and professional conduct” that lawyers must attain (the “Regulatory Standards”). Specifically, the LSA provides the following with respect to LSUC’s Mandate to administer those Regulatory Standards:
Critically, reading sections 4.1(a) and 4.2.3 together provides that LSUC’s Mandate involves maintaining the Regulatory Standards with a view to “protecting the public interest”. The core issue on appeal was whether LSUC’s decision to deny TWU’s accreditation appropriately balanced conflicting Charter rights in light of LSUC’s mandate to maintain its Regulatory Standards for the “public interest.”
2. Decision Under Review
On April 24, 2014, the LSUC benchers voted 28–21 against accrediting TWU’s proposed law school (at para 10). This is the Decision under review.
First, TWU and a prospective TWU law student—Mr. Volkenant—applied for judicial review of the Decision in front of a three-judge panel of the Ontario Divisional Court. On July 2, 2015, that panel dismissed the application (see 2015 ONSC 4250 (CanLII)).
Second, TWU appealed the Divisional Court’s decision to the Ontario Court of Appeal (at para 12)—the subject of this post.
ONTARIO COURT OF APPEAL JUDGMENT
The Ontario Court of Appeal held that the Decision was reasonable, and accordingly, upheld the Decision (at para 145).
This post focuses on how the Court grappled (or rather, failed to grapple) with the balancing of conflicting Charter rights. To that end, our analysis is limited to two parts of the Court’s judgment:
1. Identifying the Charter Rights Conflict (The Easy Part)
The Court held—and we agree—that this case is a clear instance of genuine conflict between Charter rights.
First, the equality rights of LGBTQ students are undeniably violated by TWU’s Community Covenant, which requires all students to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman” and states that “according to the Bible, sexual intimacy is reserved for marriage between one man and one woman”—thus prohibiting gay sex in all circumstances (see paras 23–24 and 115). At one layer (and there are many; see Saul Templeton’s post on the Covenant’s implications for trans and intersex students), lesbian, gay, and bisexual students may only attend TWU Law at “considerable personal cost” (at para 116). This is because, to attend TWU Law, lesbian, gay, and bisexual students must either:
The discrimination is clear: the Covenant uniquely and adversely affects sexual minorities. Equality discourse in Canada is far past the days where arguments claiming that discrimination against pregnant people “is not created by legislation but by nature” (at p 190) should actually persuade anyone. And yet, that the Covenant discriminates against sexual minorities is still somehow disputed (by some). To be frank, antiquated and unpersuasive arguments that assert the absence of discrimination on the basis of formal equality need to stop. The Supreme Court has clearly and repeatedly affirmed that equality rights seek to achieve substantive equality (i.e. treating people with a view to promoting equality of result), not formal equality (i.e. treating people the same)—see e.g. Withler v Canada (Attorney General), 2011 SCC 12 (CanLII) at para 43; Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37 (CanLII) at paras 38–40; and R v Kapp, 2008 SCC 41 (CanLII) at paras 14–16. Indeed, the Supreme Court has rejected a purely formal understanding of equality ever since its first section 15 decision where it held that “identical treatment may frequently produce serious inequality” (see Andrews v Law Society of British Columbia,  1 SCR 143 (CanLII) at 164). Accordingly, if you want to effectively advance freedom of religion, arguing that discrimination founded in religious doctrine treats everyone “equally” is, quite rightly, a recipe for defeat. Religious freedom is important, and balancing Charter rights is complex. But being disingenuous about obvious discrimination does not move our dialogue about balancing Charter rights forward, it simply avoids the conversation altogether.
Second, the religious freedom of TWU and Mr. Volkenant is clearly violated by the Decision (see para 101).
The legal test for a violation of religious freedom under the Charter involves two steps, namely:
(at para 88, citing Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 (CanLII) at para 86).
Both of these steps were met here, though with less clarity in the institutional context of TWU than in the individual context of Mr. Volkenant.
With respect to Mr. Volkenant:
With respect to TWU:
The Court also noted that, while the extent to which religious institutions can independently seek Charter protection in respect of their religious freedoms is inconclusive in the case law, such protection is available in this case because the religious activity at issue—accrediting a Christian law school—cannot be pursued without the vehicle of a collective institution like TWU (at paras 93–94).
In sum, the TWU dispute provides a clear example of two Charter rights in conflict. But how does the Court reconcile those conflicting Charter rights?
2. Reconciling the Charter Rights Conflict (The Hard Part)
The Court’s analysis of whether the Decision was reasonable turned on whether it appropriately balanced, on one hand, TWU and Mr. Volkenant’s freedom of religion, and on the other hand, the equality rights of LGBTQ students (at paras 112–13).
The Court ultimately held that the Decision was “clearly” reasonable (at para 129) because it appropriately balanced these conflicting Charter rights (at para 145). The Court reached this conclusion following what it describes as five reasons, but which, on our reading, are actually nine discrete observations (The “Observations”):
Following the Observations, the Court briefly remarked that the Decision represents a “reasonable balance” between the conflicting Charter rights at issue because (at para 143):
Lastly, the Court noted that the Decision followed a 28-21 vote at Convocation, suggestive of this particular Charter rights reconciliation “giv[ing] rise to a number of possible, reasonable conclusions” (at para 144).
We are generally happy with the outcome in this appeal. However, we have some concerns with the reasons underlying that outcome, namely:
1. they fail to adequately discuss the appropriate approach to balancing Charter rights;
2. they have been received as progressive, but are in fact, largely neutral with respect to social justice; and
3. they support a surprisingly broad scope of indirect regulatory intervention in the context of legal education.
1. Insufficient Discussion of How to Balance Charter Rights
Our first concern is that the Court inadequately discusses the proper approach to balancing competing Charter rights. In the end, the Court held that “LSUC’s decision in this case required a careful analysis and balancing of the appellants’ Charter rights with other Charter values” (at para 68). And yet, the Court rarely (if ever) points to how the benchers (or the Court) substantively performed that purported balance in this case. Rather, the focus of the judgment is on the benchers’ “excellent” process in reaching the Decision and how LSUC was entitled to make (but not necessarily reasonable in making) the Decision. A review of the Observations—summarized above—makes the absence of substantive discussion regarding balancing Charter rights clear.
The Court’s first observation—that LSUC’s decision-making process was excellent (at para 122)—is procedural, not substantive, and therefore fails to outline any framework for substantive Charter rights balancing. Admittedly, a robust process that consults relevant stakeholders is more likely to fairly balance the conflicting interests of those stakeholders (and is therefore more likely to manifest in a reasonable decision). But this observation still falls short of explaining how that balancing process actually functions in general, or functioned in this case.
The Court’s second observation—that the benchers’ speeches reflected a “fair balancing of the conflicting rights” (at para 125)—is simply false. Any evidence of a “fair balancing” is conspicuously absent from the excerpts of speeches provided by the Court (which, if anything, should have been particularly persuasive in demonstrating the balancing process of the benchers given that it was a Court-curated selection of excerpts meant to advance the Court’s view that a fair balancing occurred). Specifically:
In sum, while these excerpts show that the benchers were aware that Charter rights were in conflict, and that this conflict should be resolved in favour of equality, the middle step—reasonably balancing those rights—appears to be absent, no matter how “thoughtful, respectful, and even eloquent” the speeches were (at para 124).
The Court’s third and fourth observations—that the benchers’ speeches were complemented by formal legal opinions provided to them (at para 126) and a robust democratic process (at para 127)—would be persuasive if the Court actually supplemented the speeches with portions of the legal opinions or democratic process which evidence the balancing of Charter rights absent from those speeches. Other than a cursory reference to the areas explored in those opinions (at para 44) and a “democratic process” with a nebulous “record” (at para 127), the Court provides no detail regarding how those opinions or that process resulted in a surrogate balancing of Charter rights on LSUC’s behalf. Indeed, the Court’s affirmation of the Divisional Court’s holding that “[t]he Benchers were all well aware of the clash between religious rights and equality rights that the question before them presented” (at para 126) simply shows that the benchers were, as we noted in the preceding paragraph, aware of the Charter rights conflict, not reasonably balancing those rights.
The Court’s fifth, sixth, and ninth observations—that LSUC is entitled to scrutinize admissions processes (at paras 130–32), weigh its human rights obligations (at para 133), and take positions on policy disputes with a religious dimension (at paras 141–42)—merely show that LSUC would have been permitted to consider those factors in conducting its fair balancing, not that such a balancing actually occurred.
Lastly, the seventh and eighth observations—that limiting religiously motivated discrimination is less problematic than infringing religious belief itself (at paras 134–38) and that international treaty obligations favour the Decision (at paras 139–40)—admittedly show that the decision may have been reasonable in outcome, but nevertheless fail to show how such a balance was actually considered by the benchers in practice.
In sum, largely absent from all of the Observations is a meaningful balancing of the Charter rights in issue. Specifically, there is little evidence of discussion by the benchers, or the Court (other than its brief remarks at para 143), of assigning weight to the relative harms to religious freedom and equality rights in this instance, and how best to reconcile those conflicting harms. Absent such a framework, future similar conflicts are seemingly immune from review as long as decision-makers adopt similar procedures as LSUC did here.
To be clear, we appreciate that reasonableness review refers “both to the process of articulating the reasons and the outcome”, such that some of the Observations support the reasonableness of the outcome in this case (see Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII) at para 47; “Dunsmuir”). Regardless, in our view, the Court’s reasonableness review is lacking because it dodges the core issue in dispute, namely, the balancing of conflicting Charter rights. Put differently, the Court spends inadequate time on the proper approach to balancing Charter rights to be able to claim that its analysis demonstrates the “justification, transparency and intelligibility” of the Decision (Dunsmuir at para 47).
2. Judgment Does Not Guarantee Progressive Balancing of Charter Rights
Our second concern is that the Court’s judgment does not guarantee progressive Charter rights balancing in future decisions (a guarantee that the authors recognize is their personal preference, and not necessarily an “error” of the Court). In particular, our concern is that this judgment will be misconstrued as progressive. Rather, it is deferential. And deference on appeal is only as progressive as the decision-maker below.
The Court arguably held that a decision about balancing conflicting Charter rights is immune from review if representatives selected through a mostly democratic process conduct broad consultations before making that decision. In other words, the Court held that, if LSUC had voted in favour of accrediting TWU, judicial review would have similarly upheld the decision. In this way, TWU ON stands as a precedent that could simultaneously preserve Alberta’s decision to grant TWU accreditation and Ontario’s decision to deny it. Indeed, the Court alluded to the fact that it would have upheld the reverse decision in its concluding remarks, when it described the decision not to accredit TWU as a “reasonable conclusion” (at para 145), and the dispute over TWU’s accreditation as one of those “questions that come before administrative tribunals [which] do not lend themselves to one specific, particular result” (at para 144).
This deference flows primarily from the Court’s lack of guidance regarding how to review proportional balancing of conflicting Charter rights. The Court’s review is largely process-oriented, which provides limited substantive guidance with respect to the actual process of balancing Charter rights, and in particular, limited guidance regarding: (1) how adjudicators should assign weight to conflicting Charter violations so that they can balance those violations proportionately; and (2) the degree of disproportionality required in that balancing process to justify appellate intervention. Without such guidance, and given the Court’s emphasis on process, it is unclear how disproportionate balances could be overturned when an adjudicator’s processes are sound. For example, based on TWU ON, how would a Court review a decision (albeit unlikely) of a law society, after broad consultation, deciding to accredit a religious university that excludes black students? Based on much of the Court’s reasons, it is not clear that such a decision could be overturned. In other words, the acute progressive victory that TWU ON represents today is an unpredictable precedent that may result in regressive and disproportionate Charter rights balancing in the future.
3. Broad Scope of Indirect Regulatory Intervention in Legal Education
Our third concern—which goes beyond the rights balancing issues addressed earlier—is that the Court’s judgment supports a surprisingly broad scope of indirect regulatory intervention, particularly in the context of legal education. The breadth of this intervention is, in our view, best illustrated by the hypothetical example of a law society denying accreditation to a law school on the basis that its tuition is too high. In TWU NS, the Nova Scotia Court of Appeal quoted the lower court’s decision to point out that the Nova Scotia Barristers’ Society:
has no authority whatsoever to dictate directly what a university does or does not do. It could not pass a regulation requiring TWU to change its Community Covenant any more than it could pass a regulation purporting to dictate what professors should be granted tenure at the Schulich School of Law at Dalhousie University, what fees should be charged by the University of Toronto law School, or the admissions policies of McGill (at para 32; emphasis added).
However, select portions of TWU ON leave the opposite impression.
When discussing the scope of LSUC’s Mandate, the Court described how “LSUC over its long history has strived to remove discriminatory barriers to access to the legal profession” and affirms that LSUC has “acted to remove all barriers to the legal profession except one – merit” (at para 109). Given increasingly high rates of tuition, we beg to differ.
Further, when describing LSUC’s important gatekeeping role, the Court affirmed Dickson CJ’s remarks from a 1986 speech that:
[I]t is incumbent upon those involved in the admission process to ensure equality of admissions. […] Canada is a country which prides itself on adherence to the ideal of equality of opportunity. If that ideal is to be realized in our profession then law schools, and ultimately the legal profession, must be alert to the need to encourage people from minority groups and people from difficult economic circumstances to join our profession (at para 131; emphasis added).
The Court claims that “all law schools currently accredited by [LSUC] provide equal access to all applicants in their admissions processes” (at para 132). But, from a financial standpoint, this is surely not the case.
Economic class is a significant barrier to accessing legal education in Canada—one that continues to grow. In particular, tuition fees have risen precipitously in the last 20 years. For example, the fees for a first year of study at the University of Toronto Faculty of Law now sit at $34,734.82. Osgoode Hall Law School is not far behind —in the 2015–2016 school year fees totaled $24,745.44, up more than $2000.00 from the year before. These climbing prices have grave consequences for those seeking to become lawyers who do not come from affluent families. Indeed, such a price is prohibitive to accessing legal education for many students, thus reserving legal education to the economic upper class.
Given the above, could an argument be made for LSUC denying accreditation to schools like the University of Toronto and Osgoode Hall on the basis of their significant tuition fees? In our view, based on the Court’s deferential reasoning in TWU ON, it could.
First, these law schools would have no religious freedom argument to use as a means of justifying the arguably discriminatory impact of their high tuition. Second, the decision to deny their accreditation—if it followed the right procedures—could presumably meet enough of the criteria outlined in TWU ON. In particular, with broad consultations, commissioned opinions regarding financial barriers to accessing legal education and whether softening those barriers is in the “public interest” (surely it is), and the unqualified recognition in TWU ON that LSUC is entitled to scrutinize how a school’s policies adversely affect certain minority groups, there is at least a defensible argument pursuant to TWU ON that such a decision by LSUC would merit deference. Our point here is not that LSUC should deny accreditation to law schools with high tuition. Rather, our point is that the Court’s ruling in TWU ON gives rise to a much broader scope of regulatory intervention than we imagine was initially intended (a problem that can go unnoticed when that arguable regulatory overreach results in a politically favourable outcome like the denial of accreditation to a discriminatory law school like TWU).
The Court opened its judgment in TWU ON with two critical questions: in the context of conflicting Charter rights, “[w]ho strikes the balance and what is it?” (at para 14). In our view, those questions remain largely unresolved. Even worse, the failure to adequately resolve those questions creates the risk that regressive and disproportionate balancing of Charter rights will survive judicial scrutiny in the future.
The accreditation of TWU is undoubtedly an issue of significant national importance, as the myriad ongoing appeals across Canada demonstrate. With any luck, a further appeal to the Supreme Court will provide greater guidance in the complex terrain of balancing Charter rights. Progressives may have won the battle for the Charter in this case. But without clearer principles animating the judicial approach to balancing Charter rights, the war for the Charter continues.
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By: Amy Matychuk
Case Commented On: Canada v Ewert, 2016 FCA 203 (CanLII)
Prisons use psychological tests to determine if inmates are likely to reoffend, but are the tests accurate for Aboriginal inmates? In a recent Federal Court of Appeal case, the court found that there was not enough evidence to prove the tests are biased. However, the analysis overlooked a few important factors.
In Canada v. Ewert, 2016 FCA 203 (CanLII) (Ewert FCA), Justice Dawson overruled a Federal Court decision that Correctional Service Canada’s (CSC’s) tests are unreliable when used to assess Aboriginal inmates. She held that Mr. Ewert, a 53-year-old Métis offender serving two life sentences in federal prison, did not provide enough evidence that the tests generate “false results and conclusions” due to cultural bias against Aboriginal people (at para 34). Mr. Ewert argued that these psychological tests do not take Aboriginal cultural differences into account. He alleged that his test scores affected “[his] eligibility for parole, his security classification and his ability to be granted escorted temporary absences” (at para 7). Because the tests generate inaccurate results for Aboriginal inmates, he said, relying on his scores to restrict his freedom was a violation of his rights. Justice Phelan of the Federal Court agreed, finding a section 7 Charter breach and a breach of the Corrections and Conditional Release Act, SC 1992, c 20 (see 2015 FC 1093 (CanLII) (Ewert FC)). However, the Federal Court of Appeal overturned that decision, and ruled that Mr. Ewert had not established on a balance of probabilities that the tests were unreliable.
Justice Dawson’s main reason for overturning the Federal Court ruling was that Justice Phelan failed to require that Mr. Ewert meet the necessary burden of proof (at para 15), which was to establish his claims on a balance of probabilities (at para 19). Justice Phelan ruled that after Mr. Ewert raised a reasonable challenge, the burden shifted to Correctional Services to show they had taken reasonable steps to fulfill their statutory duty to ensure the accuracy of the test. (Ewert FC at para 82). Justice Phelan did not address whether Mr. Ewert had proven his claim on a balance of probabilities.
Mr. Ewert provided expert evidence which suggested that the tests were likely (though not certainly) biased, and Justice Phelan found that this evidence was enough to present a reasonable challenge to the tests’ validity. He held that CSC had breached sections 4(g) and 24(1) of the Corrections and Conditional Release Act by, respectively, failing to make correctional policies responsive to the special needs of Aboriginal persons and failing to ensure that information about an offender is as accurate, up to date, and complete as possible. He also held, based on the same evidence, that the CSC breached Mr. Ewert’s section 7 Charter rights (Ewert FC at paras 75, 113).
Justice Phelan ordered that CSC respond to Mr. Ewert’s challenge of the tests’ accuracy by assessing the tests to ensure their fairness; he also ordered that until CSC assessed the tests’ fairness, CSC could not use the tests on Aboriginal inmates (paras 114-116). In contrast, Justice Dawson held that Mr. Ewert had not established on a balance of probabilities that the tests suffered from cultural bias, and therefore a ruling requiring CSC to ensure the tests’ fairness was not required.
As Justice Phelan had recognized, the available evidence was “a thin record” on which to decide this case (Ewert FC at para 3). Out of the three expert witnesses, the Federal Court largely dismissed two of them for being too narrow and lacking objectivity. Justice Phelan relied on one psychologist, Dr. Hart, for all of the expert evidence in his judgment. Justice Phelan called Dr. Hart’s evidence “balanced, objective, and despite the Defendant’s criticism that he cited no studies, credible” (at para 26). Dr. Hart gave evidence about the types of cross-cultural bias likely to affect CSC’s tests, testifying that they are “more likely than not to be ‘cross culturally variant’” (at para 28). He referred to the “pronounced differences between Aboriginal and non-Aboriginal groups” and said that personally, he would not trust the tests to accurately assess Aboriginal inmates (at para 31.) Dr. Hart concluded that the tests “are not sufficiently predictably reliable for Aboriginals because of the cultural variance or bias of the tests.” (at para 41)
Justice Dawson quoted excerpts from Dr. Hart’s direct examination before the Federal Court, in which he said, “[the bias] may be relatively small and it may be tolerable. But it could actually be large and it may be intolerable. . . . my own professional opinion would be, it would be more likely than not that there is some kind of bias.” (Ewert FCA at para 25) Justice Dawson was not persuaded by this evidence because of the possibility that the tests’ bias against Aboriginal people might be small and inconsequential. Evidence that adequately supported Mr. Ewert’s claim, she held, would have been evidence showing that “cultural bias affected or is more likely than not to affect test usage or the reliability and validity of the resulting test scores in a material way” (at para 27). Dr. Hart’s evidence that bias likely affected the tests in some way was not enough; Justice Dawson wanted proof not only that bias existed, but that the bias was substantial and affected Aboriginal inmates in a negative way.
From a purely technical standpoint, Justice Dawson’s ruling that Mr. Ewert had not established his claim on a balance of probabilities was fair, given the single reliable expert witness and the lack of other evidence. However, before ruling against Mr. Ewert, she ought to have considered the lack of additional evidence available to him. In order to present more evidence to support his claim, he would need an assessment of the psychological tests at issue. As Dr. Hart testified, no research exists that has assessed these tests for cross-cultural bias (Ewert FCA at para 23). Dr. Hart discussed the three ways of assessing these tests, but added, “[i]t is hardly practical for an individual litigant to engage in this type of analysis. Given the CSC’s legislated mandate . . . it is an activity more appropriately commissioned by CSC.” (Ewert FC at paras 34 and 35).
The only way Mr. Ewert could obtain evidence to better support his claim was to wait for CSC, his adversary, to assess the psychological tests for cross-cultural bias and to provide him with the results. To date, CSC has not performed these assessments, which leaves Mr. Ewert in a difficult position: Justice Dawson ruled that he needed more evidence, and the only way he can obtain more evidence is to wait for CSC to perform assessments on its own psychological tests. CSC has very little incentive to perform these assessments because to do so would be to risk creating evidence to support Mr. Ewert’s case.
Justice Dawson should have considered that it would be near impossible for Mr. Ewert to obtain better evidence against CSC than he already had. Justice Phelan recognized this evidentiary difficulty in his Federal Court ruling; he ordered that CSC perform the test assessments before using the tests on Aboriginal inmates. He did not declare that the tests are cross-culturally biased; he only required that CSC produce evidence that would establish whether or not Mr. Ewert’s claim was legitimate. Justice Dawson, conversely, did not require CSC to do anything, leaving Mr. Ewert and other Aboriginal inmates no better off with respect to potentially culturally biased psychological testing. As discussed above, CSC is unlikely to feel motivated to perform these test assessments without a court order: if the assessments show that the tests are biased, CSC will have invited a suit against itself.
However, in an interesting turn of events, CSC is supposedly already assessing the tests for bias. Justice Phelan referred to two previous challenges Mr. Ewert made to the tests’ validity, Ewert v Canada (Attorney General), 2007 FC 13 (CanLII), and Ewert v Canada (Attorney General), 2008 FCA 285 (CanLII). In the 2007 ruling, Justice Beaudry noted that CSC told Mr. Ewert “the study undertaken by its Research Branch in 2003 regarding applicability of the actuarial assessment tools to its Aboriginal inmate population” was still incomplete, and they could therefore not respond to his complaint (at paras 62 and 66). Justice Beaudry urged CSC to, when the research was complete, “explain to the Applicant the initiative undertaken by the Research Branch and the results obtained, if any” (para 67). Neither Justice Phelan nor Justice Dawson’s ruling mentions this study. Based on these previous cases, when Justice Phelan ordered that “the Defendant [conduct] a study that confirms the reliability of [the tests] in respect to adult Aboriginal offenders,” he was ruling that CSC perform research it had already alleged to be ongoing (para 114).
In normal circumstances, a case with so little evidence and so few witnesses to support the plaintiff’s claim should not succeed, and Justice Dawson’s ruling would have been both reasonable and justified. However, this is a case involving a vulnerable prison inmate attempting to enforce his rights against a powerful government actor. In order for Mr. Ewert to successfully challenge the tests’ validity, he needs evidence about cross-cultural bias that requires assessments that only CSC is capable of generating or providing. Justice Phelan’s ruling would have put pressure on CSC to complete assessments of tests that it alleged were ongoing as long ago as 2003 (2007 FC 13 at para 62). If these assessments established that the tests are fair, as CSC argues, Justice Phelan’s judgment would not have prevented CSC from continuing to use the tests on Aboriginal inmates. Justice Dawson’s judgment, however, removes this judicial pressure and allows CSC to continue using potentially biased psychological testing on Aboriginal inmates rather than holding CSC accountable to ensure Aboriginal inmates are treated fairly. Though Justice Dawson’s judgment may be technically correct, it is unfortunate that Mr. Ewert’s claim failed based on a lack of evidence that only his adversary, CSC, was capable of remedying.
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By: Elliot Holzman
Case Commented On: R v Nuttall, 2016 BCSC 1404 (CanLII)
On July 1, 2013, John Nuttall and Amanda Korody placed three pressure cooker bombs in the bushes next to the British Columbia Parliament Buildings (“the Legislature”) in Victoria, B.C. The contents of the explosive devices included nuts, bolts, nails, washers and other materials intended to kill or maim people. Luckily, the bombs never detonated. It became public knowledge immediately after the incident that the devices were inert and were manipulated by the RCMP before Nuttall and Korody got their hands on them. The RCMP clarified that while the threat was real the public was never at risk as the threat was detected early and disrupted.
The initial reports indicated that Nuttall and Korody were a couple living in Surrey in the Lower Mainland and were converts to Islam who were self-radicalized. Over the following weeks, more details began to emerge about an elaborate RCMP and CSIS led investigation – Project Souvenir – that had been involved with Nuttall and Korody in the months, weeks, days, and hours leading up to the bombs being planted.
On June 2, 2015, Nuttall and Korody were convicted by a jury of a number of terrorism offences, but their convictions were not entered as they immediately applied for a stay of proceedings based on the conduct of the RCMP during its undercover investigation. This is known as entrapment. As I will describe below, entrapment occurs when someone is induced to commit a criminal offence as a result of unfair law enforcement practices such as trickery, persuasion or fraud.
In Canada, in a trial for a terrorism related offence, an accused person cannot put the defence of police entrapment before a jury and so Nuttall and Korody bore the burden of proving entrapment, on a balance of probabilities, in front of Madam Justice Catherine Bruce of the British Columbia Supreme Court in Vancouver, who was also the presiding judge during the jury trial. In a 288-page opinion, Justice Bruce found that, for the first time in Canadian history, defendants had been entrapped by the RCMP into committing a terrorist act.
In this post, I will first lay out the underlying facts of the RCMP’s involvement with Nuttall and Korody, and then examine the existing law of entrapment and how it was applied by Justice Bruce to the facts of this case.
Underlying Facts of Project Souvenir (from paras 15-471)
The RCMP became involved with Nuttall in February 2013 when they received a tip that he was attempting to purchase potassium nitrate, a precursor to an explosive substance, at local pharmacies in Surrey. The RCMP had previously received tips in July and October 2012 from a neighbour who overheard Nuttall speaking on the phone espousing violent Islamic beliefs following his conversion to Islam in 2011.
A psychiatric nurse attended Nuttall’s residence and concluded he was not suffering from a mental illness, though he might be developmentally delayed. At this time, the RCMP began Project Souvenir after CSIS passed on information that Nuttall constituted a “threat to public safety” (at para 20). The concern was that Nuttall might be a recent Muslim convert who was attempting to recruit others and might be capable of violence.
The RCMP surveillance on the pair began on February 2, 2013, when two officers attended the Nuttall residence on the pretext of a domestic complaint in the neighbourhood. While they didn’t find anything suspicious in the residence, they continued enhanced surveillance over the following months, including direct contact with the pair through scenarios where an undercover officer (“Officer A”) would make up a scenario that would bring him into direct contact with Nuttall and attempt to get Nuttall’s assistance in completing a task. The first task was an attempt to find Officer A’s niece, who in the scenario was someone who ran away from home due to her family’s strict adherence to conservative beliefs about Muslim women. This scenario was intended to play on Nuttall’s increasingly radicalized Islamic beliefs.
The scenarios gradually ratcheted up to plans to get Nuttall to devise a terrorist plan and execute it (with the idea being that the RCMP would intervene at the last minute and arrest the pair). Officer A told Nuttall that he was now part of Officer A’s “organization”, which was a jihadist organization, planning a large scale attack on the West. But Nuttall had to come up with the plan for the attack. These ranged from an attempt to blow up the naval base in Esquimalt Harbour, to hijacking a passenger train in Victoria, to the eventual plan to plant pressure cookers on the grounds of the Legislature, similar to the tactics used in the Boston Marathon bombing in 2013.
Unfortunately for the officers involved in Project Souvenir, Nuttall proved to not be particularly competent, organized, or able to devise a plan and come up with the details to execute it. Frequently he would concoct wild and unrealistic plans, including: firing Qassam rockets over the Legislature in Victoria, freeing Omar Khadr from prison, launching some sort of attack on the Vancouver Sun Run, and freeing prisoners from Guantanamo Bay.
Following a few months of failed plans and a lack of hard evidence to tie Nuttall and Korody to violent jihad, the members of Project Souvenir changed tack to attempt a more traditional “Mr. Big” style operation on the pair. In this scenario, Officer A would introduce Nuttall to another undercover officer, who would be a fictitious leader of a jihadist organization and he would press Nuttall to choose a target and execute a terrorist attack.
Officer A began to turn up the heat on Nuttall by getting mad at him and threatening to expel him from his organization, unless Nuttall could come up with a workable plan for an attack. Officer A promised to finance the plan if Nuttall could come up with a realistic plan of attack.
Eventually, a plan came together about planting pressure cookers on the grounds of the Legislature in Victoria. Nuttall demonstrated time and time again that he had no idea how to make an explosive. The RCMP took the pair to Kelowna in order to have Nuttall plan out the attack. It became clear that he had no idea how much black powder or C4 (a form of plastic explosive used in the making of bombs) he would need for his rockets. He had no idea where to get explosives. However, Officer A again eliminated Mr. Nuttall’s lack of knowledge and resources as obstacles by promising to provide him with all the C4 that he would require. In fact, during the Kelowna trip Nuttall and Korody told the fictitious leader of the jihadist organization that they felt pressured by Officer A to support a plan that was quick and that he was not interested in helping them with their long-term plan to build rockets, which was their dream.
At para 375, Justice Bruce summarized many of the things Officer A did for Nuttall and Korody in the days leading up to the pressure cookers being planted:
Officer A systematically eliminated all of the obstacles that Mr. Nuttall had previously placed in his own path towards executing a plan for jihad. In particular, Officer A said that he would take care of the explosives and the guns; he would drive them around to shop for anything they required to build the bombs; he would give them the tools they needed; he had already found them a place where they could construct the devices; he would take them to Victoria a day prior to locate targets and transport them to the location where they would place the bombs. He would also provide them with a safe place to test their bombs. In addition, Officer A said he would do whatever he could to ensure that the defendants stayed alive after they planted the bombs. It was not going to be a suicide mission.
Law on Entrapment
The Supreme Court of Canada (SCC) developed the doctrine of entrapment in three major decisions: R v Amato  2 SCR 418 (CanLII), R v Mack,  2 SCR 903 (CanLII), and R v Barnes,  1 SCR 449 (CanLII), though Mack remains the leading case. In Mack, the police engaged a known drug dealer to act as their agent in the investigation of Mr. Mack for drug trafficking because he was someone previously known to Mack. The drug dealer repeatedly solicited Mack’s participation in drug transactions, and eventually an undercover officer offered Mack $50,000 in clandestine circumstances at which point Mack agreed to arrange a drug transaction and was arrested upon delivery.
Justice Lamer, writing for the Court, concluded that entrapment occurs in circumstances where:
At paragraph 557 of Nuttall, Justice Bruce interpreted the principles from Mack to mean that the police are not entitled to embark on an investigation into criminal activity that includes providing a person with “an opportunity” to commit an offence unless they are acting on a reasonable suspicion that this person is already engaged in the type of criminal misconduct under investigation. Reasonable suspicion means more than mere suspicion but is less than reasonable and probable grounds. As explained in Mack, the absence of a reasonable suspicion may indicate that the police are engaged in random virtue-testing or, worse, acting in bad faith based on improper motives (Mack, at para 112).
Importantly, the second part of the entrapment defence outlined in Mack states that even where the police have reasonable suspicion that a person is already engaged in the type of criminal misconduct under investigation, the police may not induce the commission of an offence.
Application of Law to the Facts of this Case
On the first part of the entrapment argument, Justice Bruce found that the police had very little evidence at the commencement of Project Souvenir to support any reasonable suspicion that Nuttall and Korody were already engaged in criminal activity of any type (at para 615). Justice Bruce found that the expression of radical beliefs, without more, is not enough to provide police with a reasonable suspicion that such a person is involved in criminal activity (at para 617).
At para 622, Justice Bruce held:
An opportunity is a situation in which something one wants to do is made possible; however, a possibility is not an opportunity, it is only something that might happen sometime in the future…. The question is when or if any of the statements made by Officer A amounted to a true opportunity to commit a terrorism offence.
The Defence argued that when Officer A committed unconditionally to provide C4 to Nuttall in June 2013, the pair was induced into committing a terrorist offence. The question then turned to whether, at that point, Nuttall and Korody were already engaged in criminal activity. The Crown argued that even this offer of C4 did not constitute the provision of an opportunity to commit an offence.
At para 631, Justice Bruce held that:
In my view, Officer A’s offer was not merely an inquiry into whether the defendants were willing to engage in a terrorist act or some other type of preliminary step in the investigation. Nor was the offer necessary to perpetuate contact with the defendants who were by this time desperate to be with Officer A. It was a firm and specific opportunity and not a mere possibility that was communicated to the defendants. Accordingly, I find the RCMP presented the defendants with an opportunity to commit a terrorism offence when Officer A committed unconditionally to provide the C4 for the pressure cooker devices on June 16, 2013.
Justice Bruce was satisfied that, by June 2013, Nuttall had proven his ineptitude, his “scatterbrained character”, and his inability to remain focused on a task, which would be “essential to the articulation and execution of a terrorist plot” (at para 634). She found that, at the time of the offer of C4, there “was little objective evidence to support a reasonable suspicion that Mr. Nuttall was already engaged in criminal activity related to terrorism.” (at para 648)
Justice Bruce also addressed the inducement issue, in case she was wrong that the RCMP lacked reasonable suspicion that Nuttall and Korody were already engaged in criminal activity.
In Mack, Lamer J. outlined a series of factors relevant to the assessment of whether police went beyond opportunity and strayed into inducement. These include: deceit, fraud, implied threats, exploitation of vulnerabilities and friendship, any police conduct that undermines constitutional values, and whether police conduct was persistent and proportional, and whether it included any illegal acts (Mack at para 125). Justice Bruce found that all these factors were engaged in this case. At para 769, she found that:
Based on the evidence before me, I am satisfied that the RCMP knowingly exploited the demonstrated vulnerabilities of the defendants in order to induce them to commit the offences. They adopted a multi-faceted approach that included most of the factors in favour of a finding of entrapment articulated in Mack, including the use of trickery, fraud and reward; the use of persistent direction to become more organized, focused and realistic in their jihadist ideas; the use of persistent veiled threats to adopt the pressure cooker plan as their own and to abandon the grandiose ideas that the police knew the defendants could never accomplish; the exploitation of the defendants’ social isolation and desperation for friendship with Officer A, as well as their ongoing search for spiritual meaning in their lives; the creation of an elaborate ruse that led the defendants to fear for their lives if they failed to satisfy this sophisticated international terrorist organization; the repeated angry encounters with undercover officers who played roles as terrorists; and the decision to play the role of the defendants’ spiritual advisor and exploit the influence Officer A had secured over them to direct their actions towards the use of violence to accomplish religious and political objectives.
The Court’s Conclusion
Finding that the test laid out in Mack for raising the defence of entrapment was met, Justice Bruce held that this was a case where a stay of proceedings was warranted due to an abuse of process by the RCMP. She found that this was truly a case where the RCMP manufactured the crime: “[t]he police took two people who held terrorist beliefs but no apparent capacity or means to plan, act on or carry through with their religiously motivated objectives and they counselled, directed, urged, instructed and moulded them into people who could, with significant and continuous supervision and direction by the police, play a small role in a terrorist offence.” (at para 775)
In overturning the jury’s verdict, this case became the first instance in Canada where the defence of entrapment succeeded in a terrorism-related offence. Justice Bruce delivered a scathing critique of the RCMP’s conduct in this case. She said, “Simply put, the world has enough terrorists. We do not need the police to create more out of marginalized people who have neither the capacity nor sufficient motivation to do it themselves.” (at para 836) The Crown immediately announced that they would appeal Justice Bruce’s decision to the British Columbia Court of Appeal.
It will also be interesting see what impacts the amendments to the Criminal Code, RSC 1985, c C-46 through the passing of Bill C-51 will have on future cases where entrapment is argued in a terrorism context. The new section 83.221 of the Code states:
Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general — other than an offence under this section — while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed, as a result of such communication, is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.
The Crown raised this section of the Code but Justice Bruce dismissed its application, seeing as this section of the Code was not in existence at the time of Project Souvenir or the planting of the pressure cookers by Nuttall and Korody.
Whether or not the Crown’s appeal succeeds, we truly are in a watershed moment with respect to police actions in the context of home-grown terrorism.
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By: Linda McKay-Panos
Case Commented On: Pham v Vu’s Enterprises Ltd, 2016 AHRC 12 (CanLII)
On some occasions, there is an Alberta Human Rights Tribunal (AHRT) case where the respondent may have been far better off settling the complaint in private, instead of steadfastly denying discrimination occurred, or refusing to settle even after an investigation, thereby experiencing what should be embarrassing publicity inherent in a reported AHRT decision against them. This may be one of those cases. The Director of the Alberta Human Rights Commission (AHRC) had carriage of the complaint before the AHRT (at para 6), which indicates that the AHRC had previously determined that the complaint had merit and that the parties were unable to settle or unwilling to accept the terms of a proposed settlement.
The complainant was Thu Hien Pham (Pham), and she was employed by La Prep (formerly La Pasta) owned by Vu’s Enterprises Ltd., which operated in the University of Calgary Food Court. She filed a complaint with the Alberta Human Rights Commission on October 9, 2012, alleging Mr Son Vu (Vu) discriminated against her on the grounds of gender (sexual harassment) contrary to s 7(1)(b) of the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA). Pham alleged she had to quit her job due to “sexual harassment that included jokes, comments, physical touching and threats” (at para 1). The respondent Vu stated in his defence that he and Pham had a consensual sexual relationship away from the business and that she was paid for sexual services over a two-year period (at para 2). Pham testified that she did not have a relationship with Vu outside of the business (at para 36).
As a preliminary matter, the Director of the AHRC noted that the respondent company was actually solely owned by Vu and his spouse. The Director applied to have Vu added as a party to the complaint in his personal capacity (at para 13). Section 28 of the AHRA allows the AHRT to add a party in order to provide effective remedies to the complainants and to attach liability to the people who have contravened the AHRA (at para 21). It should be noted that under human rights law, employers and owners are statutorily liable for the conduct of their employees in the course of their employment (Robichaud v Canada (Treasury Board),  2 SCR 84 (CanLII)). In the human rights setting, the preferable situation from the complainant’s perspective is to obtain systemic remedies against the employer (e.g., an order that a sexual harassment policy be implemented, reinstatement, etc.), as well as personal remedies against the person who discriminated against them (e.g., an apology, damages for pain and suffering, etc.). Tribunal Chair Jean Munn allowed Vu to be added as a personal respondent (at para 27).
Pham testified through a sworn interpreter (at para 28). She had worked for Vu since 2007 at La Pasta, which closed and re-opened as La Prep in October 2011. She prepared food and was the cashier. She provided a number of examples of sexual harassment. For example, Vu followed Pham into the storage room, manoeuvred her into a corner and touched her breast and buttocks (at para 31). She told him to stop, pushed him away and ran out of the room. There were other similar incidents recalled by Pham. In addition, Vu made comments to Pham about paying prostitutes, having sexual relations with his wife and his sexual medication (at para 33). He proposed sex to her a few times, and the last time he did, she quit. She left her employment in September 2012, and made her complaint the next month (at para 33). She testified that she did not quit after the incident in the storage room because she needed the job. Her husband was ill and was not working (he later passed away) (at para 34). She also testified that she was only with Vu outside of work two times, when she and her husband attended a wedding with Vu and his spouse, and when she and her husband attended the Vu’s home for dinner (at paras 36 and 37).
Vu testified that Pham had attended alone to his home in addition to the times she attended with her husband. He said that on August 29, 2010, Pham went to his house and had consensual sex with him for $1,000 (at para 43). He denied all incidents of sexual harassment at the workplace (at para 48). He sometimes characterized the relationship with Pham as a boyfriend/girlfriend relationship (at para 49), but also denied that same relationship (at para 47).
Tribunal Chair Jean Munn relied on the leading case of Janzen v Platy Enterprises,  1 SCR 1252 (CanLII) (Janzen) to hold that sexual harassment is a form of gender discrimination (at para 51). She noted that the onus is on the complainant to prove discrimination on a balance of probabilities, and indicated that the complainant had made out her case of prima facie discrimination, demonstrating she had suffered adverse effect and that her gender was a factor in the adverse effect she experienced (at para 52). She also noted that the credibility of the complainant and the respondent was central to the determination of the issues in the case (at para 56). She held that here were significant internal inconsistencies in the testimony of the respondent (at para 68).
Thus, the complaint was made out against both Vu personally and the corporate employer. Because the case was “particularly egregious”, both respondents were held jointly and severally liable to pay the complainant $15,000 (at para 76). Munn indicated she would have been inclined to award more, but $15,000 was the amount requested by the Director (at para 76).
It should be noted that Vu no longer owns La Prep (at para 9). It is perhaps ironic that such an example of sexual harassment could occur in a private business located at an institution that has sexual harassment policies and works very hard to educate staff, students and faculty about rights and responsibilities in this area. This is, again, a case that the respondents should have settled in private. It certainly must be very difficult for Vu’s spouse to know that the facts (and the details of Vu’s defence) are in the public realm.
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By: Sharon Mascher
Case Commented On: Gitxaala Nation v. Canada, 2016 FCA 187 (CanLII)
On June 20, 2016, the majority of the Federal Court of Appeal (FCA) quashed Order in Council P.C. 2014-809 requiring the National Energy Board (NEB) to issue Certificates of Public Convenience and Necessity to Northern Gateway on the basis that Canada had not fulfilled the duty to consult it owed to Aboriginal peoples affected by the Project. Concluding that “Canada offered only a brief, hurried, and inadequate opportunity in Phase IV – a critical part of Canada’s consultation framework – to exchange and discuss information and dialogue” (at para 325), the Court identifies several ways in which the consultation process fell “well short of the mark”. Marking a crucial step in the “Northern Gateway legal saga” (for a list of previous ABlawg posts, going as far back as 2012, see here), the FCA has remitted the matter to the Governor in Council for redetermination. While entitled to make a fresh decision, the FCA has made clear that should it decide to do so the Governor in Council may only issue Certificates for the Project after Canada has fulfilled its duty to consult with Aboriginal peoples (at para 335).
Needless to say, the substantive guidance provided by the majority’s decision will be important whenever the duty to consult is engaged going forward. In the immediate future, attention will be focused on what this means for the Northern Gateway Project and the Trans Mountain Expansion Project consultations currently underway in accordance with the Federal Government’s interim measures.
The Majority of the FCA’s Duty to Consult Analysis
Throughout the Northern Gateway approval process, Canada acknowledged its duty to engage in deep consultation with the First Nations potentially affected by the Project “owing to the significance of the rights and interests affected” (at para 187). The First Nations agreed that deep consultation was owed but disagreed that the consultation process undertaken was sufficient to meet this duty, pointing to a number of deficiencies in the process (at para 191). This blog post will highlight, in turn, the majority’s analysis relating to: (1) Canada’s failure to share its assessment of the strength of the First Nations’ claims to Aboriginal rights and title; and (2) Canada’s execution of Phase IV of the consultation process.
Canada’s Failure to Share Its Strength of Claim Assessments of First Nations Claims to Aboriginal Title and Rights
While concluding that Canada was not obliged to share with affected First Nations “its legal assessment” of the strength of their claims, the majority of the FCA held that Canada must disclose information on its strength of claim assessment and discuss that assessment with the affected First Nations. Why? As we have known since Haida Nation, the extent and content of the duty to consult lies on a spectrum (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII)at para 39; see also Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 (CanLII) at para 36). When a claim is weak or the potential infringement is minor, the content of the duty to consult lies at the low end of the consultation spectrum. However, “[w]hen a strong prima facie case for a claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high, the duty of consultation lies at the high end of the spectrum” (Gitxaala Nation at para 174).
While Canada said it accepted an obligation to engage in deep consultation, its failure to share these assessments meant that no dialogue could take place as to what that meant – what subjects were on the table, how deep did, and must, the consultation or accommodation go? As the Gitxaala argued – and the majority accepted – Canada’s failure to disclose information relating to strength of claim assessments wholly undermined the consultation process (at para 219) and, as discussed below, exacerbated the failure in the Phase IV consultations.
Failures in Execution of Phase IV of the Consultation Framework
The consultation framework established by Canada for the Northern Gateway Project provided for five phases of consultation throughout the regulatory process. Phases I – III allowed for consultation on the Joint Review Panel (JRP) agreement, the provision of information in the pre-hearing stage and participation in the JRP hearings. Phase IV provided for additional, direct consultations between Canada and Aboriginal groups after the JRP Report and before the Governor in Council considered the project, with Phase V contemplating further consultation during the regulatory and permitting processes after project approval. The court was satisfied that “[o]verall, the parties had ample opportunity to participate in the Joint Review Panel process and generally availed themselves of it” (at para 48). However, it was Phase IV of the consultation process – representing as it did Canada’s first and last opportunity to discharge its obligation to engage in direct consultation and dialogue with Aboriginal groups on matters of substantive concern related to the Project – on which the majority focused its attention. While further consultation in the regulatory and permitting processes following project approval was contemplated, because the Governor in Council’s decision is a “high-level strategic decision that sets into motion risks to the applicant/appellant First Nations’ Aboriginal rights” (at para 237), the majority held that the duty to consult had to be discharged before the Governor in Council’s decision approving the Project.
While careful not to hold Canada “to anything approaching a standard of perfection” (at para 185), the majority concluded that the Phase IV consultations were “unacceptably flawed” and “failed to maintain the honour of the Crown” (at para 230). The flaws were many.
The Phase IV consultations were rushed. Affected First Nations were given only 45 days to advise Canada in writing of their concerns and thereafter only 45 days were allocated to meet with all affected Aboriginal groups (at para 245). Requests to extend the time-lines for consultation (which were designed to meet the decision-making timeframe established by the National Energy Board Act, RSC 1985 c N-7), were ignored (at paras 247-249). No evidence was provided that Canada gave any thought to asking the Governor in Council to extend the deadline, despite the fact that the “importance and constitutional significance” of the duty to consult would have provided “ample reason” to do so (at para 251).
The information gathered during this phase of the consultations and put before the Governor in Council did not accurately portray the concerns First Nations had expressed. And not only was “Canada…less than willing to hear the First Nations on this and to consider and, if necessary, correct the information” (at para 255), it also did not explain what effect, if any, the errors had on the Governor in Council’s decision.
The lack of meaningful dialogue during the Phase IV consultations was also of significant concern to the majority of the FCA (at para 263). First Nations were repeatedly told during the Phase IV consultation process that Canada’s representatives were tasked with gathering information, were not authorized to make decisions and were required to complete the Crown Consultation Report by April 16, 2014 as the Governor in Council needed to make a decision by June 17, 2014 to meet timelines in the National Energy Board Act (at para 264). Not surprisingly, this meant that concerns raised by First Nations – which the majority of the FCA considered central to their legitimate interests – were left both unconsidered and undiscussed (at para 265). In short, the majority was persuaded that Canada had failed in its Phase IV consultations to engage “in a real and sustained effort to pursue meaningful two-way dialogue” or “grapple with the concerns expressed in good faith by all of the applicant/appellant First Nations” (at para 279). And “generic” and in some cases error-ridden letters sent to affected First Nations “summarizing at a high level of generality the nature of some of the concerns expressed” (at para 281) did little to further Canada’s assertion that it had fulfilled its obligation to enter into meaningful dialogue.
These failures were exacerbated by Canada’s unwillingness to disclose its strength of claims assessments – a matter fundamental to identifying the relevant impacts the Project might have on the affected First Nation and communicating those findings to the First Nations. The majority held that it was not consistent with the duty to consult for Canada to simply assert that the Project’s impact would be properly mitigated, without first discussing the nature and extent of the rights impacted. And in cases where a strong prima facie claim exists and the potential for significant infringement of those rights exists, deep consultation also requires written explanation demonstrating how the Aboriginal group’s concerns were considered and explaining the impacts of those concerns on the resulting decision. As the majority emphasizes, this becomes particularly important when the Crown is balancing multiple interests: “[i]n the absence of this safeguard, other issues may overshadow or displace the issue of the impacts on Aboriginal rights” (at para 315).
Finally, “and most importantly, on the subject of reasons” the majority noted that the Order in Council included only a single mention of the duty to consult (at para 320). The Governor in Council did not “express itself” as to whether Canada had fulfilled its duty to consult, raising the “serious question” (at para 321) of whether it actually concluded that it was satisfied that impacts of the Project – some of which were identified in the Report of the Joint Review Panel, and some not – “were left undisclosed, undiscussed and unconsidered” (at para 325).
Overall, therefore, the majority of the FCA concluded that “during the Phase IV process, the parties were entitled to much more in the nature of information, consideration and explanation from Canada regarding the specific and legitimate concerns they put to Canada” (at para 287). Moreover, the Phase IV consultations “did not sufficiently allow for dialogue, nor did they fill the gaps” (at para 327).
So What Does Discharging the Duty to Consult Look Like Going Forward?
Of course, this decision does not mark the end of the administrative approval process for Northern Gateway. Rather, the FCA has directed the matter back to the Governor in Council for redetermination – with all the same powers as immediately before the first Order in Council was issued. The majority of the FCA is clear, however, that Canada must first fulfill its duty to consult with Aboriginal peoples before the Governor in Council could order the issue of Certificates for the Project. This would mean, at a minimum, that the Phase IV consultation must be re-done (at para 335).
It is worth noting that the key flaws in the Phase IV consultation identified by the majority – a lack of information, consideration and explanation – arose largely in the context of the environmental impacts and risks associated with the Project. For example, some of the concerns that the consultation process was rushed centered on the need for more time to conduct scientific studies, and particularly adequate spill modeling (at paras 249-250). The errors and omissions in letters sent to First Nations and put before the Governor in Council included the failure to identify concerns relating to the lack of baseline work and spill modeling in the open water area (at para 258) and the failure to respond to concerns regarding the risk of oil spills in their territory (at para 261). Failures in the Phase IV consultations to engage, dialogue and grapple with the concerns expressed in good faith by the First Nations and to respond in a meaningful way were exemplified by reference to environmental concerns and particularly by “missing information” in the JPR Report relating to spill modeling and assessment. It was Canada’s response (or lack thereof) to the Kitasoo Nation’s submissions that the Project’s impacts could not be assessed without information regarding “spill modeling and assessment, the behavior (or fate) of bitumen in water, a baseline marine inventory and what the spill recovery would look like” that demonstrated to the majority “just how short of the mark the Phase IV consultation was” (at paras 266 and 267). This point was also made by reference to Canada’s failure to adequately respond to the Heiltsuk Nation’s Phase IV submissions that additional information was needed regarding the risk of an oil spill on their Aboriginal right to fish on a commercial basis (at para 268-270); to the Haisla Nation’s evidence that errors in the Report of the JRP relating to impacts on hundreds of culturally modified trees at the proposed terminal site (at para 273); and to the Gitxaala concerns relating to oil spills (at para 277). The majority also viewed the generic letters sent by Canada, including the generic response to concerns raised by First Nations about the consequences of an oil spill (at para 282), the general references to the “rigorous science-based review” of the JRP (at para 284) and the failure to engage with the specific express concerns relating to the insufficiency of evidence to allow informed dialogue about the potential impacts of the Project on Aboriginal and treaty rights (at para 286) as inadequate to discharge the obligation to enter into meaningful dialogue.
Yet, these concerns were not raised solely in the context of Canada’s failure to discharge its duty to consult. The FCA was also asked to consider several applications by First Nations and environmental NGOs to judicially review the Report of the JRP for the Northern Gateway Project on the basis that the environmental impacts and risks associated with the Project were not properly considered (see West Coast Environmental Law’s summary of legal challenges here). However, as my colleague Martin Olszynski discusses here, the FCA dismissed these challenges. It did so on the basis that when the NEB is the “responsible authority” under the new CEAA, 2012, as is the case for pipelines proposed after that Act was brought into force, the legislative scheme assigns environmental assessment a different role – “a much attenuated role” – from that which it plays under other federal decision-making regimes (at para 123). Based on its analysis of the legislative scheme, which my colleague argues is not actually applicable to Northern Gateway, the FCA concluded that it is for the Governor in Council alone to determine “whether the process of assembling, analyzing, assessing and studying is so deficient that the report submitted does not qualify as a ‘report’ within the meaning of the legislation” (see para 124).
Nevertheless, to successfully discharge the duty to consult – especially at the deep end of the spectrum – Canada must fill the information gaps and then allow for dialogue and consideration of the potential environmental impacts and risks associated with the Project on Aboriginal title and rights. Thus, while the majority of the FCA offers the opinion that this process “if well-organized and well-executed, need not take long” (at para 335), I would suggest that the basis for this assertion is not at all clear. Presumably, time must be allowed to conduct scientific studies, including adequate spill modeling and baseline work. Existing errors and/or gaps in the evidence referenced in the JRP Report, at least as it relates to First Nations, must also be addressed. Where knowledge gaps otherwise cannot be filled, Canada must engage with the specific concerns relating to the insufficiency of information and explain to affected First Nations how the Project’s environmental impacts on their rights can be assessed. In other words, the actual and potential environmental impacts, at least as relevant to the affected First Nations, must be fully disclosed, discussed and considered before Canada can be said to have properly discharged its duty to consult.
Is Fulfilling the Duty to Consult Enough?
Before commencing its duty to consult analysis, the majority provides a brief discussion of the existing jurisprudence (paras 170-185). Drawing on the Haida Nation decision, the FCA states that “[t]he consultation process does not dictate a particular substantive outcome” and “does not give Aboriginal groups a veto over what can be done with land pending final proof of their claim (at para 179). However, the discussion does not further reference the principles of consent or the stringent justification test established by the Supreme Court of Canada in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII) (for my earlier ABlawg post on these principles see here). This is perhaps not surprising given that the First Nations who were parties to these proceedings had not finally proven claims to their territory and the FCA was therefore focused on discharging the duty to consult. However, when strong claims to Aboriginal title exist over lands that stand to be affected, I would argue that government decision makers need to pay attention to the Tsilhqot’in principles; merely satisfying the duty to consult it not enough. Rather, before approving a long-term project such as Northern Gateway, the government should seek the consent of those First Nations who assert strong title claims or at least satisfy itself that the infringement can be justified. Why? Because as the Supreme Court warned in Tsilhqot’in , “[i]f the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing” (at para 92). To begin a project without the consent of Aboriginal title holders, or ensuring that the incursion is not unjustifiably infringing, therefore risks its long-term viability.
This means that in addition to properly discharging the duty to consult before Northern Gateway, or any other pipeline project for that matter, is approved, the government should seek the consent of the First Nations who assert strong claims to Aboriginal title. Absent such consent, the government should ensure that the evidence is available to demonstrate: that the incursion will not substantially deprive future generations of Aboriginal title-holders of the benefit of the land (Tsilhqot’in, at para 86); that the project is necessary to achieve the government’s goal and goes no further than is necessary to achieve it; and that the benefits that may be expected to flow from that goal are not outweighed by adverse effects on the Aboriginal interest (Tsilhqot’in, at para 87).
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By: Lisa Silver
Case Commented On: R v Villaroman, 2016 SCC 33 (CanLII)
My past two blog posts have a thematic connection and this post is no exception. I have modernity on the mind and so, apparently, do the courts. You may recall that theme in my discussion of the DLW decision (2016 SCC 22 (CanLII)) in which the Supreme Court of Canada, in the name of the “modern,” or the “modern approach” to be exact, entered into the time-honoured process of statutory interpretation only to come to the decision that the 2016 concept of bestiality under s 160 of the Criminal Code was no different than the common law concept of bestiality as subsumed into our codified criminal law in 1892. Justice Abella, hoping for a more modern approach, disagreed. Then, in my last blog post, I discussed the “smart” use of technological evidence to weave a persuasive narrative at trial. In the Didechko case (2016 ABQB 376 (CanLII)), the Crown relied, to great effect, on evidence emanating from the technological traces left by the accused to construct a case based on circumstantial evidence. Didechko serves as an exemplar of a thoroughly modern approach to another centuries-old process. Now, in this post, I will make another case for the modern as the Supreme Court of Canada in Villaroman (2016 SCC 33 (CanLII)) clarifies a very old rule on circumstantial evidence, one predating our Criminal Code, found in the English 1838 Hodge’s Case (168 ER 1136).
First, a few words on circumstantial evidence. We are all probably aware, contextually, of the difference between circumstantial and direct evidence. The most popular explanation in jury instructions and the best understood example involves rain and goes as follows: Imagine we wake up in the morning and when we peek out of the window to look at the weather for the day (this example is obviously pre smart phones) we notice the road, the sidewalk, and the ground is wet and rain is falling from the sky. We accept, therefore, that it is raining, and if we have been in Calgary all summer, we might even say “it is raining again.” A similar example was used in the Villaroman charge to the jury (at para 23). This is an example of direct evidence which, according to Watt’s Manual of Evidence 2016, page 49 at para 8.0, “is evidence which, if believed, resolves a matter in issue…the only inference involved in direct evidence is that the testimony is true.”
Circumstantial evidence is trickier and involves a more complex thought process. It differs from direct evidence as its probative value is found in the inferences to be drawn from the facts. Returning to our example, if we look out of our window and we see the road is wet but the sky is clear, we cannot directly aver to what the weather was like before we woke. We can, however, draw a “rational” or “reasonable” inference from the state of wetness and say “it was raining sometime before” but we did not observe that happen. We are not “direct” witnesses to this assumed event. In fact, we could be very wrong about our inference. For instance, if the road is wet but the sidewalk and ground is not, then we cannot safely assume it rained. A more “rational” or “reasonable” explanation may be that the City of Calgary street cleaners came by and washed the road. According to Watt’s Manual of Evidence 2016, page 50 at para 9.01, “it is critical to distinguish between inference and speculation.” An inference is “logical” (R v DD,  2 SCR 275, 2000 SCC 43 (CanLII) at para 18), “justifiable” (R v Charemski,  1 SCR 679, 1998 CanLII 819 (SCC) at para 33), “common sense” (Justice Moldaver in R v Walle,  2 SCR 438, 2012 SCC 41 (CanLII) at para 63), “rational” (R v Griffin,  2 SCR 42, 2009 SCC 28 (CanLII) at para 34) or, as preferred by Justice Cromwell writing for the Villaroman court, “reasonable” (at para 30). Conversely, speculation can lead to erroneous inferences. Speculation is tenuous as opposed to probative. Mere speculation strikes at the heart of the criminal justice system as it can ultimately lead to miscarriages of justice. It can cause the trier of fact to make an improper “leap” unsupported by the evidence.
To be cognizant of these improper “leaps” as a trier of fact is vitally important. As seen in Didechko, circumstantial evidence may be the only evidence of guilt or innocence. It is therefore essential, as a defence lawyer, to be able to argue persuasively that the circumstantial evidence does not amount to proof beyond a reasonable doubt as it is not reasonably sufficient to infer guilt. It is this argument, that the circumstantial evidence is “equally consistent with the innocence as with the guilt of the accused” (Fraser et al. v The King,  SCR 296, 1936 CanLII 25 (SCC) at page 301), which was at issue in Villaroman but, as we will see, with a modern twist.
Mr. Villaroman was charged with various pornography related offences as a result of images found on his laptop computer, including a charge of possession of child pornography pursuant to s. 163.1(4) of the Criminal Code. As with most other possession offences, the possession element of the offence is where the circumstantial evidence was key to the prosecution’s case. The elements of possession are a curious mixture of statutory requirements and judicial interpretation, requiring proof of knowledge, consent, and control. Although section 4(3) of the Criminal Code clearly identifies knowledge and consent as elements of possession, the additional element of control is not found in the section. Rather, control is a judge-made requirement based on case authorities.
Thus in the Villaroman scenario, the prosecutor would have to prove Mr. Villaroman was aware of the child pornography on his computer, that he consented to the pornography being there, and that he had a measure of control over those images. The mere fact the images were found on his computer is not enough evidence of those essential elements. The Crown would need to figuratively, if not literally, place Mr. Villaroman’s fingers on the computer keys, at the time the prohibited images were knowingly captured by his computer, in order to prove possession. To do so, the Crown must rely on circumstantial evidence. In response, the defence must persuade the trier of fact that there are other reasonable or rational inferences which do not lead to guilt. As an aside, in Villaroman, Justice Cromwell equated “reasonable” with “rational” but, as mentioned earlier in this post, favoured the descriptor “reasonable” as the correct legal nomenclature (at paras 32 to 34).
The twist in Villaroman involves the source of those reasonable inferences or alternatives which lead to innocence. Traditionally, case authorities required that the inferences arise from the facts. In other words, there must be an evidential foundation for the defence’s position. However, by 2009 in the Khela decision ( 1 SCR 104, 2009 SCC 4 (CanLII) at para 58), the Court found such a requirement effectively reverses the burden of proof by necessitating the defence “prove” facts in support of inferring innocence. Justice Cromwell in Villaroman makes it perfectly clear that this modern take does not invite speculation as long as it is within the range of reasonable inferences (at paras 35 to 38). He gives two examples: one old and one new. In the 1936 case of Martin v. Osborne,  HCA 23; 55 CLR 367, the High Court of Australia considered the admissibility of similar fact evidence as circumstantial evidence that the respondent, who was driving a commercial vehicle, was transporting people for pay contrary to legislation. In allowing the appeal against acquittal, Justice Dixon noted at page 375 (see para 40 of Villaroman) that “in the inculpation of the accused person the evidentiary circumstances must bear no other reasonable explanation” and further found (at page 378) that the innocent inference was simply “too improbable.”
In the newer example from 2014, Justice Cromwell cited the Alberta Court of Appeal decision in Dipnarine (2014 ABCA 328 (CanLII), 584 AR 138) in which the court explained that circumstantial evidence need not “totally exclude other conceivable inferences” (at para 22) and that “alternative inferences must be reasonable and rational, not just possible” (at para 24). However, as the court further explained, “the circumstantial evidence analysis” (at para 25) is not a separate venture but is, in essence, the application of proof beyond a reasonable doubt. Ultimately, the trier of fact must “decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt” (at para 22). These reasonable alternate inferences can arise from either the presence of evidence or an absence of evidence. For instance, taking possession as an example, if there is no evidence of one of the necessary elements of knowledge, consent or control, the Crown has not proven the case and the accused must be acquitted. This re-affirmation of the power of none is a step in the modern direction.
So what of Mr. Villaroman? The trial judge convicted Mr. Villaroman on the basis of the circumstantial evidence while the Alberta Court of Appeal set aside the conviction and entered an acquittal for the very same reason. The Supreme Court of Canada found the trial judge’s analysis was reasonable while the Alberta Court of Appeal’s position relied too heavily on “hypothetical alternative theories” (at para 67) which were “purely speculative” (at para 70). In other words, the appellate court “retried the case” (at para 69) by making that impermissible “leap” from the “reasonable” to the “improbable.”
The final nod to modernity in Villaroman is Justice Cromwell’s consideration of the form of the jury instruction on circumstantial evidence (at paras 17 to 24). In this discussion, Cromwell J sits firmly in today as he quotes approvingly from a passage written by Charron JA, as she then was, writing for the Ontario Court of Appeal in the Tombran decision (2000 CanLII 2688). There (at para 29), she rejected the traditional “formulaic approach” to jury instructions in favour of “the modern approach to the problem of circumstantial evidence” which discusses all of the evidence, including circumstantial, within “the general principles of reasonable doubt.”
In modern terms this case suggests the jury need not be instructed in a finely constructed manner. Indeed, the Court, in a very modern turn, reiterates a theme they have been pursuing for years – that there are no “magic incantations” (WDS,  3 SCR 521, 1994 CanLII 76 (SCC) at page 533) or “foolish wand-waving or silly incantations” (a shout out to Professor Snape in Harry Potter) needed to “appeal-proof” jury instructions. The charge to the jury must remain nimble, tailored to each individual case and created by the judicial gatekeeper who is expected to weave a legal narrative for the trier of fact. Should there be no jury, then it is incumbent on the judge to be mindful in their approach to the evidence. To be modern, therefore, requires mental acuity and agility, not pondering recitations of old rules but fresh iterations, perhaps on an old theme, but yet thoroughly modern.
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By: Jennifer Koshan
PDF Version: Section 7: Superhero, Mere Mortal or Villain?
Comment On: Section 7 of the Canadian Charter of Rights and Freedoms
Many people love superheroes. My favourite was always Spider-Man – he had the most interesting back story, the coolest superpowers, and the grooviest soundtrack and visuals (at least in the cartoon of my youth). Section 7 could easily be seen as the superhero of the Charter. It has the power to strike down laws and government policies that increase the risk of death and bodily or psychological harm, as well as those that deprive people of the ability to make fundamental personal decisions free from state interference. Those powers have been used by the Supreme Court of Canada in ways that may make the members of the Court the actual superheroes in the eyes of many individuals and groups who are vulnerable to the effects of state (in)action (for recent examples see Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 (CanLII), Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII), and Carter v Canada (Attorney General), 2015 SCC 5 (CanLII)).
But the courts do not always embrace the role of superhero. They can be timid Peter Parkers who are afraid to use their powers under section 7, especially when the use of those powers is seen as imposing positive obligations on governments. Conversely, section 7 powers may sometimes be used in ways that usurp the role of other Charter sections such as section 15, leaving equality rights and the individuals and groups who are the intended beneficiaries of that section in the dust. Alternatively, the courts, like Spider-Man, may be seen as villainous, fully intending to protect society but, by overextending their powers, harming society instead. Indeed, Asher Honickman, in The Case for a Constrained Approach to Section 7, argues that the Supreme Court has expanded section 7 beyond its proper limits.
My own view is that section 7 of the Charter should be given a robust interpretation by the courts that provides a strong check on government action and inaction. To use the examples I began with, in PHS, the Supreme Court ordered the Minister of Health to extend an exemption under the Controlled Drugs and Substances Act to Vancouver’s Insite safe injection site, where the refusal to grant the extension was found to be an arbitrary and grossly disproportionate violation of the right to access lifesaving medical treatment and health-protecting services. In Bedford, the Court struck down three prostitution-related laws that were found to increase the risk of harm to the bodily and psychological integrity of sex workers in a manner that was overbroad and grossly disproportionate. In Carter, the Court declared void the Criminal Code sections prohibiting medically assisted dying, which were found to increase the threat of premature death, to deprive persons of control over their physical and psychological integrity, and to interfere with fundamental personal choices, all in ways which were overbroad.
These decisions altered the law or government policy in fundamental ways, based on strong evidence of how the underlying laws and policies impacted the marginalized individuals and groups who the Charter is intended to protect (although some people may disagree with the extent to which these decisions actually do promote the interests of vulnerable groups; see for example the facta of interveners representing prostituted women in Bedford and some disability rights groups in Carter).
For all their seeming breadth, however, these decisions also contain carefully crafted limits, and maintain a strong role for legislators in responding to the Supreme Court’s rulings. In this sense, the Court can be seen to abide by the wise words of Spider-Man’s Uncle Ben that “with great power there must also come great responsibility.” In PHS, the Court was very clear to indicate that its remedy did not “fetter the Minister’s discretion with respect to future applications for exemptions, whether for other premises, or for Insite” (at para 151). Following PHS, the federal government passed Bill C-2, An Act to amend the Controlled Drugs and Substances Act, which makes it much more difficult for other cities to open safe sites for drug consumption. The amendments enacted by Bill C-2 affirm the ability of the legislature to respond to section 7 rulings that it might believe to be too expansive. The same is true with the federal government’s follow-up to Bedford. The Supreme Court’s remedy delayed the striking down of the relevant sections of the Criminal Code, allowing the unconstitutional provisions to remain in effect for one year. According to Schachter v Canada,  2 SCR 679 (CanLII), the suspension of a striking down remedy should be granted only in exceptional cases, as it allows the rights violation to persist for a period of time. In spite of Schachter, the Supreme Court has been fairly liberal in granting suspensions, thereby showing deference to government. Post-Bedford’s one year delay, Parliament ultimately enacted a law that was more restrictive than the Court’s ruling, given the continued criminalization of sex workers in some circumstances (see Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford). And in Carter, the Court was careful to restrict its decision to competent adults who clearly consent to the termination of life and have a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition (at para 127). It also declined to grant constitutional exemptions while giving the government time to develop its legislative response, until it extended, at government request, the suspended declaration of invalidity for four months in Carter v Canada (Attorney General), 2016 SCC 4 (CanLII). The debate over Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), shows that both chambers of Parliament have an important role to play in developing policy that responds to the Supreme Court’s section 7 rulings. Like Bill C-36 post-Bedford, Bill C-14 also exemplifies the government’s ability to narrow the scope of the Court’s rulings, as Parliament added reasonable foreseeability of death to the eligibility requirements for medically assisted dying.
In my view, we must be mindful of the fact that while the Charter binds all branches and levels of government, the government sometimes fails to give adequate consideration to its Charter obligations when crafting laws and policies. In Schmidt v Canada (Attorney General), 2016 FC 269 (CanLII), the Federal Court upheld the standard of the federal Minister of Justice under which proposed legislation need not be reported to Parliament where there is a “credible argument” that it is not inconsistent with the constitution. As noted in commentary on this decision, the credible argument standard “equates to a low probability, or ‘faint hope’, of less than 5% confidence that the relevant legislation is consistent with the Charter”. Given this low standard for examination and reporting of proposed laws for their constitutionality, courts must continue to act as guardians of the constitution. The courts’ duty of constitutional review ensures that governments don’t simply kowtow to majoritarian interests that disregard the needs and experiences of disadvantaged individuals and groups. As noted in Reference re Secession of Quebec,  2 SCR 217 (CanLII), the fundamental constitutional principle of democracy requires more than adherence to majority rule, and includes consideration of the impact of laws and government policies on minorities. The same can be said of the rule of law, which “provides a shield for individuals from arbitrary state action” (Reference re Secession of Quebec at para 70). Most superheroes do use their powers for overall social good, and the Supreme Court’s exercise of section 7 powers are no different in this respect.
In the context of responding to judicial decisions legislatively, governments can also invoke the ultimate superpower of the Charter, section 33, although much has been written on the political consequences of doing so, perhaps making section 33 the Charter’s kryptonite rather than superpower (and I do realize that I am mixing superhero metaphors here).
As for the contention that an expansive reading of the Charter may lead to uncertainty in terms of legal rights and obligations, I would note that the scope of the rights to life, liberty and security of the person have been interpreted fairly consistently over the years and are relatively predictable in their application. This is especially so if one considers the breadth of these rights, even in textual terms. PHS, Bedford and Carter do not add much that is new to the scope of liberty and security of the person when compared to R v Morgentaler,  1 SCR 30 (CanLII). And in Carter, the Court declined to rule on whether the right to life protects a more qualitative right, once again showing restraint in deciding only what was necessary for the resolution of the issues in that case. If our concern should be more focused on the uncertainty of the principles of fundamental justice, and in particular the application of arbitrariness, overbreadth and gross disproportionality, it is significant that the Court recently ruled in Bedford and Carter that violations of section 7 can be saved under section 1 where societal concerns merit such an outcome.
In addition, it must be noted that many of the laws that the Court has struck down under section 7 were themselves uncertain in ways that rendered them unconstitutional. In Morgentaler, for example, the unpredictable application of the “health” criterion in the Criminal Code abortion provisions led, in part, to their demise. The same concerns arise for the reasonable foreseeability of death requirement for access to medically assisted dying in Bill C-14. Section 7 must be interpreted broadly enough to protect against laws that violate life, liberty or security of the person by virtue of being unduly vague.
What about the Supreme Court’s use of section 7 in cases involving government inaction? Although, as Honickman notes, the Court left open the possibility of doing so in Gosselin v Québec (Attorney General), 2002 SCC 84 (CanLII), it has not taken this path in subsequent cases. The most recent example of this reticence can be seen in Tanudjaja v Canada (Attorney General), 2013 ONSC 5410 (CanLII), aff’d 2014 ONCA 852 (CanLII), where the Supreme Court denied leave to appeal on the question of whether section 7 protects a right to adequate housing (see also Canadian Bar Association v Her Majesty the Queen in Right of the Province of British Columbia, Attorney General of Canada and Legal Services Society, 2008 CanLII 39172 (SCC), denying leave to appeal on the scope of government obligations to provide legal aid under section 7; both cases also involved section 15 arguments). I believe the Court is not using section 7 powers to the extent that it should in these kinds of cases. Canada is bound by international human rights obligations to give effect to social and economic rights under the International Covenant on Economic, Social and Cultural Rights, and the Court’s failure to consider so-called government inaction under section 7 does not give adequate effect to these obligations. Moreover, the distinction between action and inaction (or negative versus positive rights and obligations) is not a compelling one (see here at note 112). For example, the government’s refusal to extend an exemption for Insite could be characterized as either action or inaction; the Court’s order requiring the government to extend the exemption in PHS could be seen as imposing a positive obligation or as requiring the state to refrain from prosecuting Insite’s clients, a more negative conception of its section 7 duties. To the extent that this purported distinction forestalls legitimate section 7 claims, it is itself productive of uncertainty and undermines the rule of law.
There could be a role to play for section 15 of the Charter in cases where section 7 is (mis)interpreted to include only exercises of state power that actively interfere with the rights of disadvantaged individuals. But the Supreme Court’s reliance on section 7 at the expense of section 15 in cases such as Carter has deprived section 15 of some of its powers. David Lepofsky gave a persuasive presentation at Osgoode’s Constitutional Cases conference in April 2016 arguing that Carter was a missed opportunity for the development of the disability equality guarantee under section 15. Indeed, section 7’s protection against laws that are grossly disproportionate largely replicates section 15’s protection against adverse effects discrimination, and the way that arbitrariness has crept in to section 15 analysis also shows the influence of section 7 on equality rights (see for example Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 (CanLII), where the Court repeatedly referred to discrimination as “arbitrary disadvantage”). The problem here is that the Court’s restrictive interpretation of section 15 has made it harder to succeed in Charter claims where section 7 is not available on the facts. In Taypotat, for example, a residential school survivor was unsuccessful in his claim that his First Nation’s requirement of a minimum level of educational attainment to run for election as Chief or band councillor amounted to discrimination under section 15. As I have argued previously, framing government (in)action as a violation of life, liberty or security of the person is a promising strategy for some Charter claimants, but not all government harms can be captured under section 7, and the particular harms protected against by section 15 must be given their due. To return to my metaphor, section 7’s superpowers should not be used so as to undermine the power of other Charter sections. Real superheroes may legitimately battle for control of who gets primacy in fighting for the good (see Batman versus Superman: Dawn of Justice), but this should not be taken as a script for how the courts should interpret and apply the Charter in cases of social injustice.
In conclusion, I stand proudly on the side of those who argue for an expansive interpretation of section 7 of the Charter for the reasons articulated here. To return to my Spider-Man analogy, despite his flaws and occasional missteps, he ultimately provides for a better society, as does a broad interpretation of section 7 powers by the courts. To paraphrase another superhero, this – more so than a restrictive, originalist application of section 7 – is the path of truth, justice and the Canadian way.
This post originally appeared in the Canadian Bar Association Alberta Branch publication Law Matters: Sex, Drugs & Assisted Dying: How free should we be? (Summer 2016), edited by ABlawg contributors Joshua Sealy-Harrington & Ola Malik).
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