By: John-Paul Boyd
Case Commented On: R v Armitage, 2015 ONCJ 64 (CanLII)
A few weeks ago, Mr. Justice Nakatsuru of the Ontario Court of Justice released a remarkable judgment in the case of R. v Jesse Armitage. A flood of decisions in criminal matters are released every day, and in that sense Justice Nakatsuru’s sentencing decision in Armitage was not exceptional. What sets the judgment apart are the judge’s decisions to direct his opinion to the offender and to write that opinion entirely in plain language.
Here are the first five paragraphs of Justice Nakatsuru’s judgment, in which he explains how and why he has chosen to write his judgment:
 This case was heard in the Gladue court at Old City Hall in Toronto. Jesse Armitage is a troubled man of Aboriginal heritage who was sentenced by me a number of months ago. At the time I gave my decision, I said that I would draft and release a written decision. This is that decision.
 Before I get to this, I would like to make two short comments. First of all, I want to say something about the style of this decision. For those who have read some of my past judgments, the reader may notice a change. For Jesse Armitage, I have tried to say what I wanted to say in very plain language. I believe that this is very important for judges to do in every decision. However, judges often do not do a good job of this. I would describe myself as one of the worst sinners. As lawyers first and then judges, we get used to using words that are long and complicated. This only muddies the message we are trying to say. That message is very important when it comes to passing a sentence on an offender. That the message is clear is even more important in the Gladue courtroom.
 I say this because in the Gladue court at Old City Hall, accused persons who share a proud history of the first people who lived in this nation, not only have a right to be heard, but they also have a right to fully understand. Their voices are heard by the judges. And they must also know that we have heard them. I believe that the accused persons who have been in this court have had good experiences in this. This is something that they have come to appreciate. This is something they have a right to expect.
 I know that all accused, whether they have any Aboriginal blood or not, should have this right. Judges struggle to make sure they do. However, when judges write their decisions, they are writing for different readers, different audiences. Judges write not only for the parties before them. Judges write to other readers of the law. Lawyers. Other judges. The community.
 In this case, I am writing for Jesse Armitage.
What follows over the next 67 paragraphs is an eloquent discussion of the offender’s past, the circumstances of the offence and the offender’s hopes for the future, and an elegant explanation of the judge’s rationale for the sentence imposed.
The marvellous compassion of the court aside, the relevance Justice Nakatsuru’s decision has for those interested in access to justice lies in this statement:
For Jesse Armitage, I have tried to say what I wanted to say in very plain language. I believe that this is very important for judges to do in every decision.
I have written about the importance of communicating in plain language in an earlier post on writing and sharing information on the law and in a post on writing for people who are not lawyers, and elsewhere on the difficulties presented by legislation that is not written in plain language.
In that last post, in fact, I frame the unintelligibility of legislation as a serious barrier to justice. Of course, statute law is only one source of the law; the other main source is case law. In our civil system of justice, case law not only articulates uncodified legal concepts, such as the doctrine of paramountcy, the principle of comity or the concept of unjust enrichment, quite frequently it serves to interpret statute law. As a result, the law applicable to a particular legal issue is more often than not an amalgam of the two sources of the law, and incomprehensible judicial decisions are just as much of a barrier to justice as incomprehensible legislation.
Regrettably, plain language writing requires effort and time, and our trial judges are often bereft of the latter. It can be challenging to express complicated legal concepts without slipping into legalese, and such explanations usually require far more words than you’d expect to achieve accuracy. (Lawyers understand, for example, the meaning of aper stirpes estate distribution merely by uttering the phrase. How many words are necessary to explain the concept in plain language?) As a result, writing in plain language is unquestionably burdensome, particularly when the burden of accuracy is encumbered by a wish to avoid being overturned on appeal.
Plain language writing, however, is also a skill which can be honed and refined merely by dint of repetition like any other skill, and I exhort all judges and lawyers to the effort. It is a foundational principle of the rule of law in civil democratic societies that the law be clear, comprehensible and certain, and we cannot continue to talk about the law in our secret language if we are to meaningfully improve access to justice.
For those interested, I have a number of resources on plain language I can provide upon request, and I recommend to judges the National Judicial Institute‘s excellent bench book, Self-Represented Litigants and Self-Represented Accused, which provides “suggested language” to express many common, complicated legal concepts to persons without counsel.
Here, by way of conclusion, are the articulate and touching final six paragraphs of Justice Nakatsuru’s judgment:
 There is a post-script to my decision. Mr. Armitage did not make it to his first attendance with me after his sentence. Within days he was again arrested for doing very much the same thing he has always done.
 In writing this part of my decision, I first thought I would say that I was disappointed or that it was with sadness that I had to report this. However, I decided against writing this.
 First of all, it was not unexpected to me. How could it be? I was only surprised how quickly this happened. I asked Mr. Armitage about that. He had no money. He had little to do. I don’t think he really knows why. Even before I had passed sentence I sensed that Mr. Armitage’s path along this journey would not be straightforward.
 More importantly though is what happened when he came back before me on his conditional sentence breach. Mr. Armitage asked that 9 months of the remainder of his conditional sentence order be served in jail. He did this so that he could be sent to St. Lawrence Valley Treatment Center. He asked for this because he wanted to be sure he had enough time in custody to fully make use of the help available. This was not something that came from me or the Crown. It came from Jesse Armitage. I add that Ms. Kelly was very thoughtful and careful in her representation of him. This will be by far the longest jail term he will have done to date. To be frank, I would have considered something less.
 Mr. Armitage asked for this because I believe he knew that there was no other way for him to get healthy. I believe that he had come to a point in his life where he was ready. Ready for a chance to change.
 When an offender has come to this point, no matter how long, tortuous, or difficult the path taken to get there, there cannot be sadness or disappointment. There can only be hope.
This post originally appeared on Access to Justice in Canada.
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By: Jonnette Watson Hamilton
Case Commented On: Re FJR (Dependent Adult), 2015 ABQB 112 (CanLII)
Although the Alberta law giving the courts more power to deal with “vexatious litigants” in a simplified process has only been in effect a little more than five years — since October 30, 2009 — the law is quite well settled. Under section 23.1(1) of the Judicature Act, RSA 2000, c J-2, on application or the court’s own motion, and with notice to the Minister of Justice and Solicitor General, if a Court is satisfied that a person is instituting vexatious proceedings or is conducting a proceeding in a vexatious manner, then the court may order that the person not commence or continue proceedings without the court’s permission. Section 23(2) provides a non-exclusive list of examples of vexatious proceedings and conduct. These provisions have been considered in approximately 70 cases over the past five years. Recently and helpfully, in Chutskoff v Bonora, 2014 ABQB 389 (CanLII) at paras 80-93, Justice Michalyshyn undertook a comprehensive review of this case law. As a result of all of this consideration, most vexatious litigant proceedings now simply involve application of the established principles to the particular facts of each case. Nonetheless, the occasional new legal issue arises, as it does in Re FJR. This post considers a case in which the person found to be a vexatious litigant had only made two applications, and both of them were made in only one court proceeding.
In November 2013, IR filed an application to have herself and her two sisters appointed as joint guardians of their father, FJR, under the Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2. FJR requested a hearing, which was held before Justice Gross in June 2014, at which time the application was granted with the requirement that it be reviewed within 60 days. In August of 2014, Justice Yungwirth conducted the review and continued the appointment of the three daughters as guardians. In October 2014, FJR applied to have further neurological and capacity assessment reports ordered and the guardianship order repealed, but Justice Manderscheid in November 2014 dismissed this application. In December 2014, FJR filed a further application seeking substantially the same remedies, as well as invalidation of a 1996 Enduring Power of Attorney that allowed IR to handle his financial matters. This application was heard by Justice Shelley in December of 2014. She adjourned the matter in order to read the extensive materials and then rendered her decision — the case commented upon in this post — denying FJR’s application in February 2015.
Four different Court of Queen’s Bench judges had thus, over the space of four applications and nine months, determined that FJR required a guardian. Under section 26(6) of the Adult Guardianship and Trusteeship Act, a court may make an order appointing a guardian for an adult — who then becomes a “represented adult” — if the court is satisfied that the adult does not have the capacity to make decisions about personal matters; that less intrusive and less restrictive alternative measures than the appointment of a guardian have been considered and would not likely be effective; and that it is in the adult’s best interests to make the order. “Personal matters” is a defined term in the Act and includes non-financial matters such as health care, where the represented adult is to live, their education, their employment, their social activities, etc.
The guardianship order was granted based upon nine medical reports, including three obtained by FJR, which indicated he suffered from dementia and paranoia, and that he lacked capacity. FJR disputed the numerous reports based on his belief that the symptoms noted in those reports were attributable to the lingering effects of a concussion he suffered in a fall. However, the medical reports indicated that symptoms of his dementia were present prior to any fall.
Vexatious litigant order
Justice Shelley also issued an order under section 23.1(1) of the Judicature Act, prohibiting FJR from commencing or continuing any action in the Alberta courts without permission from the court, setting out the procedures for any application for permission, and staying her order for 30 days to allow the Minister of Justice and Solicitor General to make submissions. Justice Shelley issued this order on her own motion, as is provided for in section 23.1(1).
Justice Shelley granted the vexatious litigant order after IR expressed concern that her father would continue to bring applications to repeal the guardianship order. IR advised the court that FJR had consulted at least 17 lawyers since December 2012 in an attempt to retain one who would challenge the guardianship order and the Enduring Power of Attorney. He had also consulted at least 11 different medical practitioners in an effort to obtain a favourable capacity report. (FJR had also filed a complaint with the Law Society of Alberta against IR’s lawyer, but this was not mentioned as a part of the reasons for granting the vexatious litigant order.)
Justice Shelley indicated that the underlying rationale for the vexatious litigant provisions in the Judicature Act is “an acknowledgement of the unreasonable burden placed upon courts by groundless litigation, which prevents expeditious resolution of proper litigation” (at para 22). However, she explicitly stated that in this case she did not see FJR’s conduct as a deliberate attempt to bring groundless litigation, acknowledging that he sincerely believed he did not lack capacity (at para 23).
Justice Shelley did not refer to any of the examples of vexatious proceedings or of conducting proceedings in a vexatious manner in section 23(2) of the Judicature Act. She did not cite a single precedent applying that provision. Instead, she held that it was not in FJR’s best interests to continue to try to have the guardianship order lifted and the Enduring Power of Attorney repealed, or to continue to try to find doctors and lawyers who would support his position (at para 21). She also found that his medical condition prevented him “from appreciating that his daughters’ actions, and those of the court, are aimed at protecting him” (at para 23). The only attention that Justice Shelley paid to the requirement for persistent vexatious proceedings or conduct was her statement that “[i]t is clear that FJR will likely continue his efforts to have the guardianship order set aside,” noting his attempts to do so before Justice Yungwirth (even though that hearing was the review hearing required by the initial order of Justice Gross) and Justice Mandersheid (at para 24). Thus, she concluded that “the issuance of a vexatious litigant order . . . is appropriate order in these circumstances and may assist in preventing further similar applications being brought by FJR in his attempt to revisit matters already well settled by this Court” (at para 24). Justice Shelley also justified her order as preventing FJR from incurring further substantial costs (at para 25), a reason that appears to go to FJR’s perceived best interests.
The granting of the vexatious litigant order in this case is unusual — and inappropriate — for three reasons. First, there were very few applications, both of them in only one proceeding, rather than the usual large number of applications in multiple proceedings. Second, Justice Shelley specifically found that FJR’s conduct was not a deliberate attempt to bring groundless litigation. Third, the main reason advanced for granting the vexatious litigant order was that it was in the vexatious litigant’s best interests. I will address each of these points in turn and then suggest what might be a better way to handle this type of situation, albeit a way requiring a statutory amendment to the Adult Guardianship and Trusteeship Act.
On the first point, FJR brought only two applications, albeit in very short order, after the mandated review of the initial guardianship order: one before Justice Manderscheid in October 2014 and this one before Justice Shelley in December 2014. Two applications in only one proceeding that had only been commenced 15 months before the vexatious litigant order — these are very paltry numbers in the vexatious litigation context. Usually a far greater number of proceedings, applications, and appeals have tried the patience of the courts and the resources of a large number of defendants before a vexatious litigation order is applied for. Allen v Gray, 2012 ABQB 66, involved twelve different lawsuits in the province of Alberta. There were at least eight different actions and numerous applications within each recounted in Wong v Giannacopoulos, 2011 ABCA 206 (CanLII), leave refused 2011 ABCA 277 (CanLII). In Onischuk v Alberta, 2013 ABQB 89 there were only three separate actions but numerous appeals, all about one cause. Persistent behaviour — i.e., a prolonged or insistently continuous quality to behaviour — is key under section 23(2) and the case law interpreting it. Every subsection in section 23(2) setting out the examples of vexatious conduct starts with the word “persistently”. The persistent conduct is supposed to have occurred in the past, and it serves as an indication that it will persist into the future if not restrained. In this case, however, it was only the likelihood that the litigious conduct would persist into the future that was given as a reason for granting the vexatious litigant order.
Second, Justice Shelley specifically found that FJR’s conduct was not a deliberate attempt to bring groundless litigation. However, in Onischuk v Alberta, Justice Rooke relied upon Del Bianco v 935074 Alberta Ltd., 2007 ABQB 150, Jamieson v Denman, 2004 ABQB 593, Prefontaine v Pairs, 2007 ABQB 77, and O’Neill v Deacons, 2007 ABQB 754 to synthesize a definition of a “vexatious litigant” as “one who repeatedly brings pleadings containing extreme, unsubstantiated, unfounded, and speculative allegations against a large number of individuals to exploit or abuse the court process for an improper purpose, or to gain an improper advantage” (at para 9, emphasis added). This definition acknowledges the provision’s roots in the court’s inherent jurisdiction to control abuses of the courts’ processes. It also points out that motive is important. Justice Jack Watson, in Jamieson v Denman at paras 126-127, in a passage quoted with approval by then Associate Chief Justice Neil Wittmann in O’Neill v Deacons at para 22, and by Justice Hawco in Allen v Gray, discussed the notion that “vexatious” is a normative as well as a legal concept:
My view of the word “vexatious” is that it connotes not simply that the party was acting without the highest motives, or was acting in a manner which was hostile towards the other side. “Vexatious”, as a word, means to me that the litigant’s mental state goes beyond simple animus against the other side, and rises to a situation where the litigant actually is attempting to abuse or misuse the legal process. (Emphasis added)
In this case, Justice Shelley specifically found that the applications were not an attempt to abuse the court process. The problem was that FJR lacked capacity, and not that he was exploiting the court process for an improper purpose or to gain any improper advantage. The vexatious litigant provisions of the Judicature Act seem inappropriate in his circumstances.
Third, while Justice Shelly did refer to the prevention of unsupported and duplicative proceedings, the main reason for granting the vexatious litigant order was FJR’s best interests. The best interests of a represented adult are certainly a primary concern under the Adult Guardianship and Trusteeship Act, but irrelevant under the vexatious litigant provisions of the Judicature Act. Hopeless proceedings are one of the recognised indicia of vexatious proceedings; see point #2 in para 92 in the review of the vexatious litigant jurisprudence in Chutskoff v Bonora, 2014 ABQB 389 (CanLII). And Justice Shelley does refer to FJR’s proceedings as “unsupported” (at para 23), as well as noting that further neurological reports are unnecessary (at para 18) and the ample evidence in the record that his mental condition would deteriorate over time (at para 18). But it is the best interests of FJR that she relies upon and this is simply not something that can be taken into account under section 23 or section 23.1 of the Judicature Act.
Finally, a person might wonder how FJR, a person found to be a “represented adult”, could bring applications in court without his guardian deciding to do so on his behalf. After all, a guardian has exclusive authority with respect to “personal matters” and section 1(bb)(vii) of the Adult Guardianship and Trusteeship Act provides that “personal matters” can include “the carrying on of any legal proceeding that does not relate primarily to the financial matters of the adult.” In this case, FJR’s applications did not relate primarily to his financial affairs. It is true that section 34(1) of the Act provides that a guardian may act only with respect to those personal matters of the represented adult that the guardian has been granted authority over in the guardianship order, and Justice Shelley does not indicate whether or not the guardianship order granted to IR included “the carrying on of any legal proceedings.” If it did, why could FJR bring the application that he did? The answer is found in section 40(1) of the Adult Guardianship and Trusteeship Act which provides that a represented person may apply to the Court for a review of a guardianship order. There appears to be no limit on how often or how many times a represented person may apply to the court for such a review. Perhaps there should be. Dealing with the course of conduct undertaken by FJR under the Adult Guardianship and Trusteeship Act, rather than under the vexatious litigants’ provisions of the Judicature Act, might be more appropriate. The former act focuses on the represented person’s best interests, and the latter does not. A limitation under the former does not carry the stigma that a vexatious litigant order does.
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By: Dylan Finlay
Case Commented On: R v Soucy, 2014 ONCJ 497
Obtaining breath samples from those suspected of driving while impaired is a necessary practicality in enforcing impaired driving law. A police officer must have a legal authority to demand that an individual supply a sample of his or her breath, and there must be legal ramifications should that individual decline. Consequently, s. 254(5) of the Criminal Code, RSC 1985, c C-46 makes it an offence to fail or refuse to comply with a breath demand, without a reasonable excuse. As a criminal offence, s. 254(5)’s necessary elements include both an actus reus and a mens rea. Two deeply divided lines of authority arise from interpreting s. 254(5)’s requisite mens rea, or culpable state of mind.
The first line of case law has become known as the ‘Lewko approach,’ or ‘Lewko position,’ after the Saskatchewan Court of Appeal case of R v Lewko, 2002 SKCA 121. To convict, the Crown must prove the accused intended to fail or refuse to comply with the breath demand. The case’s articulation of the offence’s elements is reproduced below (at para 9):
The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove the existence of a demand having the requirements of one of the three types mentioned in ss. (2) and (3). Second, the Crown must prove a failure or refusal by the defendant to produce the required sample of breath or the required sample of blood (the actus reus). Third, the Crown must prove that the defendant intended to produce that failure (the mens rea).
The second line of case law is the ‘Porter approach,’ named after the Ontario Superior Court of Justice case of R v Porter, 2012 ONSC 3504. To convict under this approach the Crown must prove the accused had knowledge or awareness of the offence. In Porter, the Court intentionally departed from the Lewko approach (at para 34):
It seems to me that the flaw in [cases following the Lewko approach] is that they treat the mental element enacted by s. 254(5) as a specific intent rather than a general intent, that is, they read in the term “wilfully”. It must be remembered that s. 254(5) is silent as to the mens rea and so the legislative intent on this point, as to the level of mens rea, is a matter of judicial interpretation. There is a strong line of binding authority to the effect that where a criminal offence is silent as to the mens rea, and where the actus reus is the doing of some immediate act without any ulterior consequence, then knowledge or recklessness as to the doing of the prohibited act is a sufficient mens rea.
Multiple cases follow both decisions, and neither Lewko nor Porter was the first authority on their respective interpretations. This post will side with the Ontario Court of Justice’s reasoning in R v Soucy, 2014 ONCJ 497, in which Justice David M. Paciocco adopts the Lewko approach. For the sake of brevity, this post will not comment on the related but separate analysis arising from the wording “without reasonable excuse”.
As the above passage from Porter displays, the justification for its approach is derived from the fact that Parliament omitted the word “wilfully” from s. 254(5). And indeed, there is jurisprudence suggesting that such an omission leads to the presumption that the mens rea must then be knowledge or recklessness. One of the earliest precedents for this presumption – and a case cited by Porter (at para 34) – is R v Beaver,  SCR 531. The case involved two co-accused – Max and Louis Beaver – who were in joint possession of a package that contained heroin. Both were caught when Max Beaver attempted to sell the package to an undercover police officer. The issue of mens rea arose because Louis Beaver was unaware that the substance contained in the package was heroin, believing it to be sugar or milk. The offence was outlined in the Opium and Narcotic Drug Act, RSC 1952, c. 201, a precursor to today’s Controlled Drugs and Substances Act, SC 1996, c 19. Section 4(1) of the Act prohibited an individual from “[having] in his possession any drug . . .”. The Act was silent on whether one must know the substance he or she possesses is a prohibited one. The Court in Beaver applied a rule of statutory interpretation, citing (among others) the 1819 case of Margate Pier v Hannam et al., 106 ER 661, which holds that:
Acts of Parliament are to be so construed as no man that is innocent, or free from injury or wrong, be by a literal construction punished or endamaged.
Although now subject to the Canadian Charter of Rights and Freedoms, the Supreme Court in Beaver also cites a number of cases holding that Parliament can create an offence which does not require a culpable state of mind, but only if the wording of the statute explicitly provides for this. The Court holds that:
It would, of course, be within the power of Parliament to enact that a person who, without any guilty knowledge, had in his physical possession a package which he honestly believed to contain a harmless substance such as baking-soda but which in fact contained heroin,… but I would refuse to impute such an intention to Parliament unless the words of the statute were clear and admitted of no other interpretation.
Although the reasoning in Beaver is sound, its application to s. 254(5) is flawed. If one refuses to provide a breath sample, knowledge that a sample was demanded would rationally suffice for the Crown to prove a culpable state of mind. The act of refusing necessarily implies the individual who refused intended to do so. The difficulty arises in cases where one attempts to provide a sample, but fails. To apply Beaver in this situation, as the Porter approach does, has the consequence of deeming an individual who does not intend to break the law a criminal.
The nature of possession offences makes ‘knowledge’ the most relevant mens rea. One must know he or she possesses a prohibited substance. However, the Court in Soucy asserts (at para 45) that even with possession offences “‘knowledge’ is not a self-standing mens rea.” The Court cites R v Chaulk,  OJ No 4627 in holding that “[t]o be guilty of possession an accused person must intend to exercise control over the thing they know they possess” (at para 45). By making this assertion, Paciocco J. attacks the very foundation of the Porter approach.
R v Buzzanga,  OJ No 4345 is another case cited by Porter (at para 34) as standing for the position that silence on mental state leads to the presumption that the mens rea must then be knowledge or recklessness. However, Soucy points out that the case has been misquoted. Martin J.A. in R v Buzzanga states that (at para 32):
The general mens rea which is required and which suffices for most crimes where no mental element is mentioned in the definition of the crime, is either the intentional or reckless bringing about of the result which the law, in creating the offence, seeks to prevent . . .
As such, Soucy regards the presumed mens rea for offences that are silent on mental state as “‘intention or recklessness’ not ‘knowledge or awareness of the prohibited act’” (at para 43).
Recall that the Porter approach asserts that the Lewko approach treats s. 254(5) as a crime of specific rather than general intent by reading in the term “willfully.” Paciocco J. responds to this, arguing that the Porter approach is based upon a confusion between crimes of general and specific intent. R v George,  SCR 871 is cited to provide a definition of the two (Soucy at para 35):
In considering the question of mens rea, a distinction is to be drawn between “intention” as applied to acts done to achieve an immediate end on the one hand and acts done with the specific and ulterior motive and intention of furthering or achieving an illegal object on the other hand.
Therefore general intent offences require intent to bring about an immediate end, such as pushing a button with the intent of causing the button to be pushed, while specific intent offences require intent to cause an ulterior purpose, such as pushing a button with the intent of firing a rocket. Soucy holds that “[o]n this standard, the act of refusing or failing in order to bring about the immediate end of avoiding the provision of a suitable sample would be an example of general intention” (at para 35). In this way, Soucy takes issue with Porter’s assertion that the Lewko approach “interpret[s] the element of intention as meaning a desire or purpose of bringing about an unsuitable test result” (Porter at para 33). On this, Paciocco J. states that “requiring proof that someone produced a result ‘on purpose’ is different from proving ‘desire’” (Soucy at para 38). Thus under the Lewko approach the Crown can convict an individual under s. 254(5) without proving that the individual had an ulterior purpose or motive, but he or she must prove that the individual intended to fail or refuse to provide a breath sample. Applying this interpretation of the law would avoid convicting an individual who chose to provide a suitable sample, but could not do so due to his or her inability (Soucy at para 36).
It is telling that Beaver read ‘knowledge’ into s. 4(1) of the Opium and Narcotic Drug Act to avoid convicting an individual who had no guilty state of mind. Likewise, intent must be read into s. 254(5) of the Criminal Code. The Lewko approach is consistent with the basic principles of criminal law, the foremost being that an individual cannot be found guilty without a guilty state of mind. However, despite the persuasive reasoning of Paciocco J. in Soucy, the Porter approach continues to be applied in Alberta’s courts. In R v Le, 2014 ABPC 177, Fraser Prov. Ct. J. held the mens rea of s. 254(5) to be “‘knowledge and awareness of the prohibited act’” (at para 21, explicitly following Porter) despite finding that the accused “intended to provide samples that resulted in failures” (at para 22). A more nuanced approach was taken by Fradsham Prov. Ct. J. in R v Ennis, 2015 ABPC 9, yet he explicitly disagreed with Soucy in finding that the requisite mens rea “is the intention to commit the acts which then resulted in the non-compliance with the breath demand. The Crown does not need to prove that the accused person intended the result of non-compliance” (at para 64). In any event, he found that “on either of the Porter or Soucy/Lewko tests, Ms. Ennis had the requisite mens rea to commit the offence” (at para 67).
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By: Jennifer Koshan
Cases Commented On: Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 (CanLII); Meredith v Canada (Attorney General), 2015 SCC 2 (CanLII); Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 (CanLII); Carter v Canada (Attorney General), 2015 SCC 5 (CanLII)
As I was saying to my constitutional law students the other day, the first few weeks of 2015 have been remarkable for the sheer number of Charter decisions released by the Supreme Court of Canada, including several that have overturned previous decisions in important ways. Of the eight SCC decisions released to date in 2015, five are major Charter rulings. Several of these decisions have implications for a project on the rights of farm workers that I worked on with a group of constitutional clinical students in the winter of 2014. The students’ posts on the constitutionality of excluding farm workers from labour and employment legislation are available here, here, here and here. In this post, I will outline the impact these recent Charter decisions have on the students’ arguments. In a nutshell, they make the claims of farm workers for legislative protection even stronger, refuting the argument of Premier Jim Prentice that we need “more research and debate” before taking action on these unconstitutional exclusions.
In the first decision relevant to farm workers, Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1, the Court built on its earlier ruling in Health Services and Support — Facilities Subsector Bargaining Assn. v British Columbia, 2007 SCC 27,  2 SCR 391, where the majority had found that section 2(d) of the Charter protects collective bargaining. In Mounted Police, the majority reasons by McLachlin CJ and LeBel J found that the exclusion of RCMP members from federal collective bargaining legislation violated section 2(d) of the Charter, overruling the Court’s earlier decision in Delisle v Canada (Deputy Attorney General),  2 SCR 989.
The majority defined freedom of association to contain constitutive, derivative and purposive elements. The constitutive formulation of section 2(d) is the narrowest, and protects the freedom to belong to or form an association (at para 52); the derivative element protects associational activities that relate to other constitutional freedoms (at para 53); and the purposive approach adds the protection of collective activities that enable “those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict” (at para 54, citing the dissenting judgment of Dickson CJ in Reference re Public Service Employee Relations Act (Alta.),  1 SCR 313 at 366). The purposive approach dictates the protection of a meaningful process of collective bargaining, which includes elements of choice (i.e. input into the selection of collective goals) and independence (i.e. autonomy from managerial power) (at paras 81-83). The majority also affirmed that the test for a violation of section 2(d) is one of substantial interference with associational activities, not the “impossibility” of achieving workplace goals (at paras 74-75, clarifying its decision in Ontario (Attorney General) v Fraser, 2011 SCC 20,  2 SCR 3 (which had used the language of “impossibility”)).
Applying these principles, the majority held that the regime imposed on RCMP members interfered with a meaningful process of collective bargaining, in violation of section 2(d) of the Charter. This was not a case involving “a complete denial of the constitutional right to associate” (at para 105), since RCMP members did have some ability to put forward workplace concerns via a Staff Relations Representative Program (SRPP). However, the SRPP was an organization that RCMP members “did not choose and [did] not control”, and it “lack[ed] independence from management”, leaving members “in a disadvantaged, vulnerable position”, thus amounting to substantial interference with their collective bargaining rights (at para 106). This violation could not be justified under section 1 of the Charter, as the government’s objectives – “to maintain and enhance public confidence in the neutrality, stability and reliability of the RCMP by providing a police force that is independent and objective” – was not rationally connected to a separate labour relations regime (at paras 142, 143-153). The Court struck down the impugned provisions of the relevant legislation, noting however that it was not mandating a specific labour relations regime for the RCMP, such as inclusion with other public sector workers in the Public Service Labour Relations Act, SC 2003, c 22 – “Parliament remains free to enact any labour relations model it considers appropriate to the RCMP workforce, within the constitutional limits imposed by the guarantee enshrined in s. 2(d) and s. 1 of the Charter” (at para 156).
In the second relevant decision, Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, a majority of the Court found that the right to strike was guaranteed under section 2(d) of the Charter. This decision was long-awaited by the labour rights movement, though it was foreshadowed in Mounted Police, where the majority noted the importance of “recourse to collective action by employees” (at para 72). The majority in Saskatchewan Federation of Labour affirmed the goals underlying freedom of association: “[h]uman dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy” (at para 53, quoting Health Services at para 81), and found that the right to strike was “essential to realizing these values and objectives” (at para 54). This finding was said to be supported by international law, including guarantees of the right to strike in article 8(1) of the International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3; article 45(1) of the Charter of the Organization of American States, Can TS 1990 No 23; and ILO Convention No. 87 concerning freedom of association and protection of the right to organize, as interpreted by the Committee of Experts on the Application of Conventions and Recommendations, Freedom of Association and Collective Bargaining (1994) (at paras 65-67). The majority also recognized “an emerging international consensus that, if it is to be meaningful, collective bargaining requires a right to strike” (at para 71), citing case law from the European Court of Human Rights, and case law and constitutional protections in Germany, Israel, France, Italy, Portugal Spain, and South Africa (at paras 72-74).
On the basis of these principles, the majority found that Saskatchewan’s Public Service Essential Services Act, SS 2008, c P-42.2 [PSESA], substantially interfered with section 2(d) of the Charter because it denied workers designated as “essential” the ability to participate in any work stoppages (at para 78). Importantly, the Court recognized that the availability of alternative dispute resolution mechanisms as an alternative for addressing the breakdown of collective bargaining were relevant to the justification analysis under section 1 of the Charter rather than to whether there was a violation of section 2(d). In this case, the government could not meet its burden under section 1 because the PSESA failed the minimal impairment test by unilaterally authorizing public employers to designate workers as “essential” with no adequate review mechanism and no meaningful dispute resolution mechanism (at para 81). The PSESA was declared unconstitutional, with the declaration suspended for one year (para 103).
The third decision relevant to farm workers is Carter v Canada (Attorney General), 2015 SCC 5, which I blogged on here. The key points to reiterate from Carter are that the right to life under section 7 of the Charter protects individuals from government actions that increase the risk of death directly or indirectly (at para 62), and the right to security of the person protects against state actions that cause physical or serious psychological suffering (at para 64).
Significance of the Decisions for Farm Workers
These decisions are important in several ways to the claims of Alberta farm workers that their exclusion from labour and employment legislation violates the Charter.
First, the argument that the exclusion of farm workers from the Labour Relations Code, RSA 2000, c L-1, violates section 2(d) of the Charter is strengthened. Mounted Police affirmed an expansive definition of freedom of association, with constitutive, derivative and purposive elements. Moreover, while Fraser had suggested that the test for a violation of section 2(d) may have changed from “substantial interference” to the “impossibility” of achieving workplace goals, the Court clarified in Mounted Police that the test remains one of substantial interference. In the case of farm workers, their exclusion from the Labour Relations Code fails to accord them even the narrowest level of protection under section 2(d), the constitutive freedom to belong to or form an association. The exclusion thus substantially interferes with their freedom of association. This conclusion is supported by international law and comparative law, and the Court’s decision in Saskatchewan Federation of Labour supports the reliance on a broad range of sources in this regard. Mounted Police and Saskatchewan Federation of Labour also support the conclusion that the complete exclusion of farm workers from Alberta’s labour relations regime could not be justified under section 1 of the Charter. However, farm workers must be aware that both cases allow for the possibility of specialized labour relations regimes for certain types of workers, consistent with the Court’s decision in Fraser (upholding a specialized labour regime for farm workers in Ontario).
Second, the argument that the exclusion of farm workers from the Employment Standards Code, RSA 2000, c E-9, Occupational Health and Safety Act, RSA 2000, c O-2, and Workers’ Compensation Act, RSA 2000 c W-15 violates section 7 of the Charter is affirmed by Carter. The exclusion of farm workers from these protective benefit regimes makes their working conditions more dangerous or their post-accident health more precarious, thus increasing the risk of death or serious bodily harm, and the exclusions therefore violate the rights to life and security of the person. The section 7 claims remain novel, as there are few Supreme Court decisions involving the rights to life and security of the person in the context of labour and employment legislation, and the Court has shown reluctance to protect economic rights under section 7 and to apply it outside the adjudicative context. For example, in Gosselin v Québec (Attorney General),  4 SCR 429, 2002 SCC 84 at paras 80-83, a majority of the Court found that section 7 does not protect the right to a particular level of social assistance adequate to meet basic needs. On the other hand, in Chaoulli v Quebec (Attorney General),  1 SCR 791, 2005 SCC 35, three out of seven justices applied section 7 outside the adjudicative context, finding that Quebec’s legislative prohibition on private health insurance violated the rights to life and security of the person. Based on Carter, and provided that a sufficient causal connection can be shown between the exclusions and the increased risks to farm worker health and safety, violations of the rights to life and security of the person could be established. And, as noted in the students’ earlier posts, there are strong arguments that these violations are also contrary to the principles of fundamental justice under section 7 for being arbitrary, overbroad, and grossly disproportionate.
A third point of note is that none of the decisions blogged on here included findings that the impugned legislation or government actions violated section 15, the Charter’s equality guarantee. That claim was made but not ruled on in Carter (see here), but discrimination claims were not advanced in the labour rights decisions, even though the laws in those cases targeted particular groups of workers. This is likely because the Court has not been receptive to section 15 arguments in the workers’ rights context in the past. The Court rejected a section 15 claim brought by RCMP members in Delisle, avoided ruling on a similar claim brought by farm workers in Dunmore v Ontario (Attorney General), 2001 SCC 94,  3 SCR 1016 (relying on a violation of section 2(d) of the Charter instead), and, by a majority, rejected such a claim by farm workers in Fraser. It is interesting to note that the decisions in Mounted Police and Saskatchewan Federation of Labour are steeped in language about the vulnerability, disempowerment and inequality of workers in the context of freedom of association, even in the case of workers who are relatively privileged compared to farm workers. However, the Court has still shown a reluctance to protect occupational status as an analogous ground under section 15, even in the case of more limited forms of occupational status such as being a farm worker. Perhaps the decisions in Mounted Police and Saskatchewan Federation of Labour will facilitate equality claims in future cases, but at present, the potential success of section 15 claims by farm workers remains uncertain.
Concluding Thoughts on a Fourth Case
On the same day that it released Mounted Police, the Court handed down Meredith v Canada (Attorney General), 2015 SCC 2, which stands as a contrast to the other decisions discussed in this post. In Meredith, the majority applied its test from Mounted Police to a different scenario facing RCMP members – the unilateral rollback of wage increases by the Treasury Board and via the Expenditure Restraint Act, SC 2009, c 2 (ERA) following the global financial crisis in 2008. Writing for the majority once again, McLachlin CJ and LeBel J noted that while section 2(d) of the Charter protects the right to meaningful collective bargaining, it does not guarantee a specific outcome (at para 25). In this case, the RCMP’s collective bargaining regime had been found unconstitutional in Mounted Police, but the majority indicated that the process for wage negotiations – a Pay Council – still “attract[ed] scrutiny” under section 2(d). I find this part of the judgment rather confusing, so I will set out the Court’s reasoning in full (at para 25):
[T]he record here establishes that, in the absence of a true collective bargaining process, RCMP members used the Pay Council to advance their compensation-related goals. In our view, the Charter protects that associational activity, even though the process does not provide all that the Charter requires. The legal alternatives available are not full collective bargaining or a total absence of constitutional protection. Interference with a constitutionally inadequate process may attract scrutiny under s. 2(d). Accordingly, we must examine whether the ERA substantially interfered with the existing Pay Council process, so as to infringe the appellants’ freedom of association.
It is difficult to understand how government action that interferes with a “constitutionally inadequate process” would not only “attract scrutiny” under the Charter, but would itself be tainted by the same constitutional inadequacy. Here we have not only a constitutionally inadequate wage negotiation process, but also an interference with that process in the form of unilateral rollbacks. One would have thought that the federal government’s unilateral actions – which clearly attract scrutiny under section 32 of the Charter, as the Charter applies to actions of the executive and legislative branches – would have compounded the violation of freedom of association, but that the government could nevertheless attempt to justify its actions under section 1 of the Charter based on the specific context at hand. In Meredith, however, the majority found that the federal government’s interference with the constitutionally inadequate bargaining process did not violate section 2(d). It noted that the wage roll-backs over 2008, 2009 and 2010 were “consistent with the going rate reached in agreements concluded with other bargaining agents inside and outside of the core public administration” and “did not preclude consultation on other compensation-related issues, either in the past or the future” (at para 28).
With respect, these are considerations that are relevant to justification under section 1 of the Charter, not whether there was a Charter violation. As noted by Justice Abella in dissent (at para 62):
The unilateral rollback of three years of agreed-upon wage increases without any prior consultation is self-evidently a substantial interference with the bargaining process… The fact that the rollbacks were limited to a three-year period does not attenuate the key fact that they were unilateral. Nor does the fact that consultation was possible on other more minor compensation issues minimize the severity of the breach.
She was of the view that this violation of section 2(d) could not be saved by section 1, as the government’s fiscal restraint objectives “[did] not give the government an unrestricted licence in how it deals with the economic interests of its employees” (at para 65). This was particularly so since the government consulted with “almost every other bargaining agent in the core public service” (at para 71).
Interestingly, neither the majority or dissenting opinions (nor the concurring opinion by Rothstein J) cite the Court’s earlier decision in Newfoundland (Treasury Board) v NAPE,  3 SCR 381, 2004 SCC 66, where the Court unanimously upheld the cancellation of pay equity payments under section 1 of the Charter based on a “fiscal crisis” in spite of the discriminatory impact of that action on female workers. NAPE has been widely criticized (see e.g. the alternative judgment of the Women’s Court of Canada here), but the majority in Meredith went even further by failing to find a breach of section 2(d) in the case of unilateral wage rollbacks implemented without any consultation.
Meredith sounds a cautionary note in the midst of the Court’s other, more expansive rulings on section 2(d) of the Charter. In my opinion, the majority in Meredith should have taken heed of a compelling line from Justice Abella’s reasons in Saskatchewan Federation of Labour (at para 76): “If the touchstone of Charter compliance is deference, what is the point of judicial scrutiny?” As it stands, the Court’s affirmation of the constitutionality of unilateral wage rollbacks in a time of fiscal constraint may be a little too close to home for some of us in this province.
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Editor’s Note: Several Faculty members signed this letter, the full version of which is available here.
An open letter to members of Parliament on Bill C-51
Dear Members of Parliament,
Please accept this collective open letter as an expression of the signatories’ deep concern that Bill C-51 (which the government is calling the Anti-terrorism Act, 2015) is a dangerous piece of legislation in terms of its potential impacts on the rule of law, on constitutionally and internationally protected rights, and on the health of Canada’s democracy.
Beyond that, we note with concern that knowledgeable analysts have made cogent arguments not only that Bill C-51 may turn out to be ineffective in countering terrorism by virtue of what is omitted from the bill, but also that Bill C-51 could actually be counter-productive in that it could easily get in the way of effective policing, intelligence-gathering and prosecutorial activity. In this respect, we wish it to be clear that we are neither “extremists” (as the Prime Minister has recently labelled the Official Opposition for its resistance to Bill C-51) nor dismissive of the real threats to Canadians’ security that government and Parliament have a duty to protect. Rather, we believe that terrorism must be countered in ways that are fully consistent with core values (that include liberty, non-discrimination, and the rule of law), that are evidence-based, and that are likely to be effective.
The scope and implications of Bill C-51 are so extensive that it cannot be, and is not, the purpose of this letter to itemize every problem with the bill. Rather, the discussion below is an effort to reflect a basic consensus over some (and only some) of the leading concerns, all the while noting that any given signatory’s degree of concern may vary item by item. Also, the absence of a given matter from this letter is not meant to suggest it is not also a concern.
We are grateful for the service to informed public debate and public education provided, since Bill C-51 was tabled, by two highly respected law professors — Craig Forcese of the University of Ottawa and Kent Roach of the University of Toronto — who, combined, have great expertise in national security law at the intersection of constitutional law, criminal law, international law and other sub-disciplines. What follows — and we limit ourselves to five points — owes much to the background papers they have penned, as well as to insights from editorials in the media and speeches in the House of Commons.
Accordingly, we urge all MPs to vote against Bill C-51 for the following reasons:
Above, we have limited ourselves to five central concerns, but it is important to reiterate that some or all of the signatories have serious concerns about a good number of other aspects of C-51 – and/or about detailed aspects of some of the concerns that were generally expressed in the above five points. The following are some (but only some) of those concerns, in point form. They are included by way of saying that signatories believe these all need to be looked at closely and rigorously during House of Commons committee study of C-51, now that it has passed Second Reading:
We end by observing that this letter is dated Feb. 23, 2015, which is also the day when the government has chosen to cut off Second Reading debate on Bill C-51 after having allocated a mere three days (in reality, only portions of each of those days) to debate. In light of the sweeping scope and great importance of this bill, we believe that circumventing the ability of MPs to dissect the bill, and their responsibility to convey their concerns to Canadians at large before a Second Reading vote, is a troubling undermining of our Parliamentary democracy’s capacity to hold majority governments accountable. It is sadly ironic that democratic debate is being curtailed on a bill that vastly expands the scope of covert state activity when that activity will be subject to poor or even non-existent democratic oversight or review.
In conclusion, we urge all Parliamentarians to ensure that C-51 not be enacted in anything resembling its present form.
By: Ola Malik and Sarah Burton
Consider these two ads which deal with the subject of honour killings. You are told that the maker of these advertisements, the American Freedom Defence Initiative (“AFDI”) published the ads in order to raise awareness of the subject and to provide support to young girls whose lives are in danger. These ads are similar with the exception of the revisions made to the second ad in italics.
Girls’ Honor Killed by their Families. Is Your Family Threatening you? Is Your Life in Danger? We Can Help: Go to FightforFreedom.us
Muslim Girls’ Honor Killed By Their Families. Is Your Family Threatening You? Is there a Fatwa On your Head? We Can Help: Go to FightforFreedom.us
The second ad has the initials “SIOA”, or “Stop the Islamization of America” added at the bottom.
Advertising for the second ad has been purchased from the Edmonton Transit Service (“ETS”). It will appear in the form of a large panel covering the rear of an Edmonton city bus. AFDI has purchased 5 such ads which will run for 4 weeks.
Do you believe either of these ads constitutes lawful expressive activity such that they are protected by freedom of expression as provided by section 2(b) of the Charter?
What do you make of the second sign? It doesn’t expressly advocate violence or hate, nor is it expressly hateful of the Muslim community. It is a matter of fact that thousands of Muslim girls around the world have been killed in this way.
But is it misleading to suggest that honour killings only happen in the Muslim community and might this expose the Muslim community to vilification and harmful stereotyping by those who don’t know better? Is the logo “Stop the Islamization of America” a laudable aim worthy of protection, or is it simply hateful?
The right to freedom of expression is one of the most jealously guarded Charter rights we enjoy, but it is not limitless. We would argue that the protection afforded by section 2(b) is not merely concerned with a person’s right to express their views but with fostering a society which promotes a vibrant and respectful market place of ideas in which everyone, not merely those with the loudest or most raucous voice, can be heard. In that respect, it is important to keep the comments of Justice McLachlin (as she then was) in Irwin Toy Ltd. v Quebec (Attorney General),  1 SCR 927 (“Irwin Toy”) in mind where she recognized the values which the right to freedom of expression seek to further (at para 243):
We have already discussed the nature of the principles and values underlying the vigilant protection of free expression in a society such as ours. They…can be summarized as follows: (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfilment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.
Short of expressing messages which consist of hate speech, do we have a responsibility to treat each other with respect? To communicate in a way that recognizes our differences and which promotes a truly free exchange of ideas in which everyone is entitled to participate as equal? To make people feel valued members of our civic culture rather than making them feel marginalized, vulnerable and devalued?
The questions which we’ve raised above aren’t the basis of a law school exam. They lie at the heart of the fascinating case of American Freedom Defence Initiative v The City of Edmonton, which will be heard by a Queen’s Bench Justice in Edmonton in early 2016 (see documents related to the case here). After the second ad was approved and placed on ETS buses, The City of Edmonton received numerous public complaints. Following an internal review, ETS removed the ads due to their offensive nature. AFDI is seeking a declaration that ETS violated its section 2(b) right to freedom of expression, and that, in the result, ETS must run the ad as it originally contracted to do.
In writing this post, we are not intending to prejudge the decision that the Court of Queen’s Bench will have to make in this case, which is already complicated enough (cross-examinations have yet to be conducted on the affidavits filed by the parties and written briefs have not yet been submitted). Rather, our purpose is to discuss the issues which arise in a more general manner because the advertising of political, religious, or public policy messages on municipally-owned buses or property by activist groups is likely to grow. We should add that this post is a companion piece to an article to be published this spring in the Digest of Municipal & Planning Law (DMPL) where we discuss the constitutionality of various existing advertising policies being used by municipalities across Canada, including those used by ETS in the AFDI case (look for that in the May issue of the DMPL).
Who is AFDI?
Together, AFDI and its sister entity, Stop Islamization of America (SIOA), form the American branch of the controversial international organization, Stop Islamization of Nations. Readers may recall AFDI’s highly publicized campaign to stop a mosque from being constructed in New York city near ground zero. The self-described human rights advocacy group “go[es] on the offensive” when it perceives government capitulation to Islamic supremacism (article here). Its 18-point platform includes, among other things:
(the full is platform available here)
AFDI primarily spreads its message through bus and billboard campaigns, grassroots protests, and political lobbying. Its bus campaigns have already garnered significant attention (and litigation) south of the border. In 2012, AFDI successfully argued that the New York transit authority’s ban on demeaning advertisements violated the First Amendment in American Freedom Defence Initiative v Metropolitan Transportation Authority, 1:11-cv-06774 PAE (S.D.N.Y., 2012). In so doing, it won the right to place ads on New York City buses which read:
In any war between the civilized man and the savage, support the civilized man. Support Israel Defeat Jihad.
In that decision, the judge classified the ad as protected political speech occurring within a designated public forum.
Encouraged by this and other victories in the U.S., AFDI has continued to expand its bus campaigns to other major American cities. Like New York, these municipalities have struggled to balance free expression guarantees with the rights of an Islamic community that, perhaps unsurprisingly, is feeling picked on (see further examples of AFDI’s advertising campaigns and public pushback here and here).
This case is, as far as we know, the first court challenge that AFDI has commenced in Canada, but it will likely not be its last. We can only assume that AFDI is seeking to expand its brand of messaging to other cities throughout Canada and that this case is the first of many.
The Right to Advertise on Canadian City Buses
Interestingly, the facts in the AFDI case are similar to those in the Supreme Court of Canada’s decision in the case of Greater Vancouver Transportation Authority v Canadian Federation of Students,  2 SCR 295 (“GVTA”). In GVTA, the Canadian Federation of Student sought to place advertising on the sides of buses operated by the Greater Vancouver Transportation Authority and by British Columbia Transit. The purpose of the ads was to encourage young people to vote in the upcoming provincial election. The transit authorities refused to place the ads on the basis that they did not comply with their policies regarding advertising on buses. The Canadian Federation of Students argued that the policies, which only allowed commercial but no political advertising, violated its freedom of expression.
The specific policies which were the subject of the challenge:
Writing for the majority, Justice Deschamps applied the three-part test established in the earlier decision, Montreal (Ville) v 2952-1366 Quebec Inc.,  3 SCR 673) (“City of Montreal”) (at para 57) to determine whether the policies infringed upon the CFS’ section 2(b) right (at paras 37-47). First, Justice Deschamps confirmed that the CFS ads consisted of expressive content which triggered the application of section 2(b) (at para 38). Second, she concluded that the buses were government owned property on which expressive activity was protected, and she likened the advertising space made available on buses to other public spaces, such as sidewalks and parks, which have historically supported such a use (at para 42):
…While it is true that buses have not been used as spaces for this type of expressive activity for as long as city streets, utility poles and town squares, here is some history of their being so used, and they are in fact being used for it at present. As a result, not only is there some history of use of this property as a space for public expression, but there is actual use – both of which indicate that the expressive activity in question neither impedes the primary function of the bus as a vehicle for public transportation nor, more importantly, undermines the values underlying freedom of expression.
Justice Deschamps further held that advertising space made available on buses would not undermine the values underlying constitutional protection (at paras 43-47):
…The very fact that the general public has access to advertising space on buses is an indication that members of the public would expect constitutional protection of their expression in that government-owned space. Moreover, an important aspect of a bus is that it is by nature a public, not a private space… The bus is operated on city streets and forms an integral part of the public transportation system. The general public using the streets, including people who could become bus passengers, are therefore exposed to a message placed on the side of a bus in the same way as to a message on a utility pole or in any public space in the city…
Justice Deschamps concluded that advertising space on buses was a type of public space which attracted the protection of section 2(b) of the Charter and that the policies infringed upon CFS’s right to freedom of expression. The question turned to a justification of that infringement under section 1 of the Charter.
Justice Deschamps agreed that there was a substantial pressing purpose for the policies, namely to provide for “a safe, welcoming public transit system” (at para 76) but she did not understand how mere political speech would, in itself, jeopardize public safety and she therefore held that the policies were not rationally connected with their purpose (at para 76):
…I have some difficulty seeing how an advertisement on the side of a bus that constitutes political free speech might create a safety risk or an unwelcoming environment for transit users. It is not the political nature of an advertisement that creates a dangerous or hostile environment. Rather, it is only if the advertisement is offensive in that, for example, its content is discriminatory or it advocates violence or terrorism – regardless of whether it is commercial or political in nature – that the objective of providing a safe and welcoming transit system will be undermined.
Justice Deschamps further held that the means chosen to carry out the purpose of creating safe and welcoming transit system were not reasonable or proportionate and she objected to the policies because they effectively prohibited all forms of political messages (while allowing commercial advertising) and because excluding advertisements which “create controversy” was overbroad (at para 77).
Justice Deschamps concluded that the restrictions the policies imposed on CFS’ right to advertise its political views constituted an unjustifiable infringement that was not saved by section 1 (at para 80), and she consequently declared them to be of no force and effect pursuant to section 52 of the Constitution Act (at para 90).
The Court’s decision in GVTA really should not come as any surprise. It is consistent with two previous Supreme Court of Canada decisions, namely Committee for the Commonwealth of Canada v Canada ( 1 SCR 139) and the City of Montreal case, above, which discuss the limits of public protest and expression in government owned public space.
In our view, the GVTA decision makes it difficult for municipalities to prohibit or limit a group’s right to advertise its political views or social advocacy messages on existing advertising space located on municipally owned lands or infrastructure. This is because advertising space made available for public use serves the same function as venues such as public streets, parks, or other public spaces where freedom of expression is already protected.
This doesn’t mean, however, that municipalities are entirely without recourse and we can think of at least three options which might be available:
The Limits of Offensive Expression
GVTA imposes a heavy burden on a municipality seeking to regulate its advertising space, but it doesn’t render government authorities powerless. Indeed, Justice Deschamps expressly acknowledged that discriminatory speech may be justifiably restricted if it undermines the existence of a safe and welcoming transit system (GVTA at para 76). While her comment on offensive speech was left largely unexplored in GVTA, it will be central to AFDI’s success: How far can a municipality go in restricting ads that are not merely political, but are hateful or offensive? The answer to this question will likely be drawn from Canada’s jurisprudence on hateful or offensive speech.
Saskatchewan (Human Rights Commission) v Whatcott,  1 SCR 467 (“Whatcott”) is the leading decision on hate speech in Canada. Here, the Supreme Court of Canada upheld Saskatchewan’s human rights ban on hateful expression, but read down the law to only catch expression that exposed vulnerable persons to hatred – which it equated with vilification or detestation (Whatcott at para 109).
Whatcott dealt with the publication and distribution of various homophobic fliers in mailboxes across Regina and Saskatoon. The fliers sought to keep homosexuality out of public schools, and to this end, equated homosexuality with pedophilia. Several complaints were lodged with the Saskatchewan Human Rights Commission. The Commission held that the fliers exposed LGBTQ persons to hatred and ridicule in contravention of the Human Rights Code (the “Code”), and prohibited their future distribution. Whatcott appealed the decision, and challenged the constitutionality of the Code’s limit on his expression.
The Supreme Court of Canada upheld the Code’s prohibition on hate speech, but significantly narrowed the scope of the provision. In reaching this conclusion, the unanimous Court agreed with Whatcott that section 2(b) of the Charter applied to his case, and that the Code infringed his freedom of expression. This conclusion was not surprising. In Canada, all attempts to convey meaning attract section 2(b) protection unless they constitute violence or a threat of violence. The fliers were a non-violent attempt to convey meaning, and the Code expressly restricted that expression. Therefore, the section 2(b) violation was not seriously contested.
The government was nevertheless able to justify its restriction on Whatcott’s freedom of expression through the section 1 analysis. This win did not, however, come without sacrifice. In order for the government to pass the section 1 reasonable justification test, the Code’s prohibition on offensive speech was significantly narrowed. While the original prohibition applied to speech that exposed persons to hatred, ridicule, belittlement or otherwise affronted dignity, post-Whatcott, only the prohibition on hateful speech remained (Whatcott at paras 92, 108).
The Court’s reasoning was driven by the serious interests at stake and the degree of state intrusion into what a person can or cannot say. Given the importance of free expression, and the fact that the Code prohibited speech under the threat of state proceedings, only the most extreme forms of expression (exposing groups to “detestation” or “vilification”) could fall within its bounds.
The Court’s section 1 analysis was thorough and instructive. The objective of prohibiting hate speech under a human rights regime is more than individual – it seeks to reduce the societal costs caused by discrimination at large (at paras 71 – 74). This social objective was sufficiently “pressing and substantial” as the marginalization of vulnerable groups harms our entire society (at para 74). Since the goal was focused on group rather than individual harms, expression that targeted individuals, hurt individual feelings, or impugned an individual’s dignity failed to meet the rational connection stage of the test. Hateful or offensive expression rises beyond the level of individual harm where it seeks to “…marginalize the group by affecting its social status and acceptance in the eyes of the majority”, and is therefore prohibited (at paras 80, 82). For similar reasons, only the most extreme language of hatred that targeted marginalized groups would be minimally impairing. Prohibiting language that was merely offensive or hurt feelings was impermissibly overbroad.
Lastly, in assessing the overall proportionality of the prohibition, the Court called upon the values underlying section 2(b) of the Charter – truth seeking, political discourse, and personal fulfillment (Irwin Toy at para 243). Since hateful speech strays from these core values, the Court was more willing to defer to the government’s chosen course of action. This approach renders hate speech an easier target for government restrictions, because it often obscures the truth and shuts down democratic discourse (Whatcott at paras 44, 45, 75, 148; Lemire v Canada (Human Rights Commission), 2014 FCA 18 at para 60).
The narrowed ban on hateful expression caught only two of Whatcott’s four fliers. The remaining fliers, while extremely offensive, failed to demonstrate the degree of hatred required by the prohibition.
With this context in mind, what (if anything) can Whatcott tell us about offensive advertisements on city buses? The policies that ETS employs entitles it to pull ads that fall far short of the “hateful” speech outlined in Whatcott (for more on this, see our companion piece to be published in the DMPL). Nonetheless, Whatcott will be useful in predicting where the line will be drawn for acceptable expression on city transport. As we see it, three themes emerge from Whatcott that will help municipalities and Courts distinguish between acceptable and unacceptable expression on city transit: (1) Not all speech is created equal; (2) State restrictions on speech must be proportional and balanced; (3) The reasonable apprehension of harm governs.
Each of these themes is examined in more detail below.
Free expression protections are tied to the core values underpinning section 2(b): self-fulfillment, political discourse and truth-seeking (Irwin Toy, supra). Starting with Keegstra, the Supreme Court used these three goals to build a value assessment into its examination of impugned speech. As a result, even though all restrictions on non-violent speech are subjected to section 1 justification, not all speech is equally worthy of protection (Whatcott at para 29, R v Keegstra,  3 SCR 697).
City transport operations may be able to draw on this reasoning to demonstrate that offensive ads are “less worthy” of protection. Although a group such as AFDI may argue that its ability to advertise on city buses promotes self-fulfillment, there are some factors that indicate the ad in question may not promote the values of truth seeking and open political discourse.
In the present context, truth seeking could present an obstacle to AFDI’s case. The website listed in the advertisement, which purports to be a resource for vulnerable individuals, is a conspiratorial anti-Muslim blog with a few (mainly broken) links to other anti-Muslim resources. The ad is more likely an attempt to further AFDI’s mission than it is a source of help for girls in crisis.
The ad may also discourage political discourse, rather than enhance it. The ad does not attack Muslims or advocate AFDI’s platform outright. Rather, it attempts to paint the Muslim community as perpetrators of a heinous crime reviled in our society. This “hallmark of hate” raises concerns similar to those in Whatcott – if Muslim persons would like to enter into a democratic debate on their rights, they must first disprove the allegation that they tolerate (or accept?) honour killings within their community (Whatcott at paras 44, 45, 76). If minority groups are required to overcome an unfair and unreasonable threshold question in order to participate in debate, their contribution to society’s political discourse will be stifled.
Despite being less worthy of protection, a limit on offensive speech still must be justified as a reasonable limit under section 1 of the Charter. Restrictions on speech will only be viewed as reasonable if the degree of state intrusion is proportional to the harm the state seeks to avoid. In order to preserve constitutionality in Whatcott, the Supreme Court was forced to narrow the hate speech provisions so that only the most severe and vitriolic expression would fall within their scope. In other words, if the government is entitled to prosecute a person based on their expression, that targeted expression must be extraordinarily narrow.
Municipal transport policies often entitle the authorities to pull ads at a much lower threshold than that described in Whatcott. However, it is possible that this broader scope could be justified, because there is a comparatively lower degree of state intrusion. In other words, a transport authority may be able to limit a broader range of expression on buses because it is merely restricting advertising space. When the government intrusion at issue involves criminal prosecution or human rights proceedings, the scope of expression that may be limited will be much narrower.
Whatcott demonstrates that the government can restrict offensive speech if it causes a reasonable apprehension of harm to society. This harm does not have to be empirically measured – the Court is entitled to look at the entire context and reach conclusions based on its own common sense. However, evidence of societal harm must be broader than an individual’s hurt feelings.
In order to demonstrate that the ads were pulled to restrict a reasoned apprehension of societal harm, ETA may draw on the numerous public complaints it received, but it must do so carefully. As we’ve discussed above, Whatcott is clear that one or more individual complaints are inadequate to justify curtailing someone’s free speech. However, Justice Deschamps’ reference to a “community standard of tolerance” in GVTA may provide a workable answer for municipalities.
The community standard test has thus far only been applied in cases dealing with obscenity bans (see, for example, R v Butler,  1 SCR 452). GVTA suggests that the concept may be extended to demarcate the reasonable limits on offensive advertisements. This is what Justice Deshamps suggested in the GVTA case (at para 77):
…While a community standard of tolerance may constitute a reasonable limit on offensive advertisements, excluding advertisements which “create controversy” is unnecessarily broad. Citizens, including bus riders, are expected to put up with some controversy in a free and democratic society. [emphasis added]
Allowing municipalities to identify and prohibit those messages which are offensive to their communities’ standard of tolerance would certainly provide an effective way to combat the proliferation of problematic messaging. Indeed, municipalities are well-versed in Charter litigation and with arguing that their legislation was enacted to address some pressing and substantial problem found in their communities. Ultimately, the municipality defending the prohibition of certain problematic messages would have to demonstrate that the harm caused by the message is significant enough to warrant the limitation and that the limitation constitutes a minimal impairment of the affected party’s section 2(b) rights.
But allowing for community standards of tolerance also creates the spectre of patchwork consistency where minority interests are over-represented through political correctness or under-represented because they lack a political voice rather than the uniform application of Charter principles. While there are sure to be small, rural or isolated communities in Canada which require special considerations, are cities like Calgary, Edmonton, Vancouver, Toronto, Montreal, Saskatoon, Halifax really that different? Aren’t all these cities representative of our worlds’ cultures, religions, and all the challenges these bring with them?
What are municipalities to do? They are caught in very difficult position.
It is clear from Canadian case law that restrictions on expressive activity in government-owned space which can be likened to public parks, sidewalks, or other spaces which support the values underlying freedom of speech, will likely constitute an infringement which must be justified under section 1 of the Charter. But is the threshold for excluding certain hateful or hate speech practically too onerous? There are messages which fall short of hate speech but which, through inadvertence or design, will nevertheless be deeply offensive to certain groups within our communities. Don’t those types of messages also run contrary to the purposes articulated in Irwin Toy for promoting freedom of expression?
One could argue that AFDI’s second ad, or indeed any ad with the logo “Stop the Islamization of America” is not ultimately concerned with seeking and attaining truth, encouraging Muslims to participate in social and political decision-making, or fostering an environment for tolerant and respectful speech. One could argue that these types of ads serve no real purpose in promoting the values underlying free speech and only serve to make the Muslim community feel picked-on, marginalized and shamed.
Even if you disagree, do messages like AFDI’s ads raise special considerations for a municipality which is required by law to place these messages on the side of its buses or other municipally-owned advertising space? Should the balancing exercise in section 1 of the Charter attract special considerations here? We believe that these types of messages pose special challenges for municipalities and warrant special consideration for some of the following reasons:
Defining the limits of appropriate speech isn’t just an exercise in legal abstractions, nor does it just involve lawyers. Rather, it goes to the heart of how we can live together in peaceful community with our neighbours and what we, as a community aspire to be. What role should our municipalities have in deciding whether to allow advertising in its space which might be hurtful or offensive? Should municipalities have input in deciding what expression might not be appropriate for its communities? Or, should the courts be the sole arbiters of what constitutes acceptable expression?
Whatever its outcome, the AFDI decision raises fascinating public policy implications and we will be there to blog about it.
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By: Alice Woolley
Case Commented On: Attorney General (Canada) v Federation of Law Societies, 2015 SCC 7
In Attorney General (Canada) v. Federation of Law Societies, 2015 SCC 7 the Supreme Court of Canada precluded the application to lawyers of certain provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17, and the Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations, SOR/2002?184. The Court held that, as applied to lawyers, those provisions violated s. 7 and s. 8 of the Charter. The violation of s. 8 arose from the provisions’ failure to protect adequately solicitor-client privilege in the context of searches permitted under the legislation. The violation of s. 7 arose because the provisions put lawyers’ liberty at risk and were inconsistent with fundamental justice. Specifically, because of the “conclusion that the search aspects of the scheme inadequately protect solicitor-client privilege” (at para 105) and, for a majority of the Court, because the provisions interfered with a newly articulated principle of fundamental justice: that the state may not impose duties on lawyers that undermine a lawyer’s commitment to her client’s cause. The Court declined to hold that independence of the bar was a principle of fundamental justice.
The conclusion by the majority that fundamental justice prevents improper interference with lawyers’ commitment to their clients is welcome. The rule of law requires legal counsel committed to protecting the ability of clients to enjoy the respect for their dignity and autonomy that the law provides (see my articles setting out this position here and here). The Court’s view of the legislation as unconstitutional also appears warranted; certainly the legislation’s search provisions seem plausibly to permit improper intrusions into privileged documents and information.
There are, however, some analytical deficiencies in the majority judgment. First, the Court never analyzes the question of whether the recording and retention provisions of the legislation – i.e., the provisions at issue other than the search provisions – intrude on solicitor-client privilege. The BC Court of Appeal held that they did not (Federation of Law Societies v. Canada (Attorney General), 2013 BCCA 147 at paras 88 and 118); the Chambers’ judge held that they did (SCC decision at para 25). In its judgment the Supreme Court simply states that it does “not approach this case on the basis that all the materials that lawyers are required to obtain and retain by the Act are privileged” (at para 42). This suggests that the Court believes that some materials may be privileged, but also that it is unwilling to determinatively conclude that they are, or why. This makes its broader analysis of why the recording and retention provisions violate s. 7 uncertain.
Second, assuming that the Court agrees with the BC Court of Appeal (and the quote seems to suggest that it generally does, or at least that it is not disagreeing with that court), that creates some interesting complexities in its s. 8 analysis. Specifically, assuming that the recording and retention provisions do not themselves violate solicitor-client privilege, then it is at least possible to imagine that a carefully tailored search to ensure compliance with those provisions would not do so either. The Court does not consider this possibility. This suggests the Court views the legislation as creating one of two problems (or, conceivably, both): (1) that there is no way to see whether the recording and retention provisions have been complied with without more broadly intruding into the solicitor-client communications, including privileged communications; or (2) that an authority with the sort of broad powers contained in the legislation will inevitably search more widely, and potentially intrude into solicitor-client privilege, even if doing so is not necessary to ensure compliance with the reporting and retention requirements.
Unfortunately, we do not know the precise nature of the Court’s concerns with the search provisions; they do not tell us whether the recording and retention provisions properly respect privilege and they do not tell us, if they do respect privilege, how the search provisions designed to enforce them nonetheless violate privilege.
Third, assuming that the Court does not agree with the BC Court of Appeal, and thinks that the recording and retention provisions could violate solicitor-client privilege it would have been helpful for them to have explained why – why some of the materials obtained are privileged even if not “all” of them are (at para 42). The scope of solicitor-client privilege is a matter of argument – how do we define the boundaries of communications for the purpose of giving/receiving legal advice? – and understanding how the reporting and retention provisions breach those boundaries would have been helpful.
Fourth, and most significantly, the Court’s explanation of why the provisions of the legislation improperly interfere with the lawyer’s commitment to his client’s cause is thin and, frankly, unpersuasive. The Court’s position is that since the profession has reached a consensus that more minimal disclosure was appropriate than did Parliament, Parliament’s view must constitute an improper interference. But at no point did the Court explain how the sort of disclosure Parliament proposed would, in fact, interfere with the lawyer’s commitment to her client other than because of the over-breadth of the search provisions. The position ‘if it is different than what the profession thinks then it is prima facie excessive’ seems to grant status to self-regulation of the legal profession that the Court purported to reject.
The rest of this post will summarize the Court’s decision before briefly returning to these points.
The Act and Regulations considered by the Court have two central attributes. First, they require that financial intermediaries, including lawyers “collect information in order to verify the identity of those on whose behalf they pay or receive money, keep records of the transactions, and establish internal programs to ensure compliance” (at para 2). Second, the legislation permits searches of the material that financial intermediaries “are required to collect, record and retain” (at para 2). The legislation in its disclosure requirements does not require “legal counsel to disclose any communication subject to solicitor-client privilege” (at para 19) and in its search provisions provides some protection of solicitor-client privilege, although only where a lawyer has asserted a privilege claim on the client’s behalf (at para 19).
In his reasons for the majority Cromwell J. noted that none of the legislative provisions against lawyers have been enforced pending the Court’s decision. Instead, lawyers have been subject to a separate regulatory regime developed by the Federation of Law Societies and adopted across the country (at para 23 – I summarized and compared those in my post on the BCCA decision in this matter, here).
For his s. 8 analysis Cromwell J. began by reviewing the provisions of the legislation. He noted that the provisions do not simply require production of information, but rather permit authorities to embark on a general examination of “records” and an inquiry “into the business and affairs of any person or entity” to ensure compliance with the legislation (at para 32). He noted that law office searches are unreasonable absent “a high level of protection for material subject to solicitor-client privilege” (at para 36). Cromwell J. rejected the Attorney General’s position that a different standard applied here because this was an administrative or regulatory matter rather than a criminal one. The expectation of privacy in relation to privilege “is invariably high, regardless of the context” (at para 38) and, as well, there was no reason to distinguish this case from a “search by other law enforcement authorities” (at para 39).
Cromwell J. emphasized the broad scope of the provisions in the legislation, noting that they “give the authorized person licence to troll through vast amounts of information in the possession of lawyers” and that this creates “a very high risk that solicitor-client privilege will be lost” (at para 40). Even though he did not assume that “all” the materials obtained and retained by lawyers under the Act are privileged, the prior jurisprudence on law office searches “aims to prevent the significant risk that some privileged material will be among the records in a lawyer’s office examined and seized” (at para 42). Here “there is a significant risk that at least some privileged material will be found among the documents that are the subject of the search powers” (at para 42).
The protection given to privilege by s. 64 of the legislation is insufficient to save it. It only allows privilege claims to be made by legal counsel, it does not provide for notice to the client and it does not provide for “independent legal intervention” when notification of the client is not feasible (at para 50). It also does not allow a judge “to assess the claim of privilege on his or her own motion” (at para 52). Some searches under the legislation “do not require prior judicial authorization” (at para 54) and it only stops review of documents after the lawyer asserts a privilege claim (at para 55). Finally, it requires the lawyer to name the client when asserting privilege and, in some instances, the name of a client may itself be privileged (at para 55).
Cromwell J. found that these deficiencies amounted to a violation of s. 8 that could not be saved under s. 1 because they failed the minimal impairment test (at para 61).
In terms of s. 7 Cromwell J. found that the provisions “engage the liberty interests of lawyers” given that they are “liable to prosecution and impairment” if they fail to comply with them (at para 71). The Court did not consider whether the liberty interests of clients were also engaged, finding that this would not make any analytical difference (at para 72).
Cromwell J. further found that the risk to lawyers’ liberty interests was not consistent with fundamental justice given the violations of s. 8 and the fact that solicitor-client privilege is a principle of fundamental justice (at para 73). He also, held, however, that the provisions violate fundamental justice because they are inconsistent with a new principle of fundamental justice, namely, that the state may not improperly interfere with a lawyer’s commitment to the client’s cause (at para 77).
Cromwell J. declined to consider whether lawyers’ freedom “from incursions from any source, including public authorities” – i.e., self-regulation – was a principle of fundamental justice. In a framing similar to that set out in my earlier blog post on this case, he noted that independence of the bar as described in the earlier ruling by the BC Court of Appeal could be understood in that broader sense and also in a more focused way, as reflecting “concern about state interference with the lawyer’s commitment to the client’s cause” (at para 77). Cromwell J. held that the relevant principle here was the narrower one, and the broader framing did not need to be assessed (at para 80).
That narrower principle, Cromwell J. held, should be given constitutional status, “as a principle of fundamental justice that the state cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes” (at para 84). The duty of commitment to a client’s cause has been recognized by the courts (at para 91) and demonstrated to be “sufficiently precise to enable the courts to apply it in widely divergent fact situations” (at para 92). It is not unlimited, and does not allow the lawyer to “assert claims that he or she knows are unfounded or to present evidence that he or she knows to be false or to help the client to commit a crime” (at para 93). It is also broadly recognized in case law and in international documents, and is “essential to maintain public confidence in the administration of justice” (at para 97).
The legislation is inconsistent with this principle of fundamental justice because it imposes standards on lawyers beyond those that the profession itself has recognized as “necessary for effective and ethical representation of clients” (at para 107). While the profession’s standards “cannot dictate to Parliament what the public interest requires or set the constitutional parameters for legislation” they “provide evidence of a strong consensus in the profession as to what ethical practice in relation to these issues requires” (at para 108). And the “legislation requires lawyers to gather and retain considerably more information than the profession thinks is needed for ethical and effective client representation” (at para 108). Further, the lawyer gathers that information knowing that the search and seizure provisions do not adequately protect solicitor-client privilege (at para 108), which further undermines the ability of that lawyer to provide committed representation; a “reasonable and informed person” would view this the same way (at para 109).
This does not mean, Cromwell J. stated, that lawyers are “above the law”; constitutional problems only arise where the state has imposed duties that undermine the lawyer’s “ability to comply with his or her duty of commitment to the client’s cause” (at para 111).
In concurring reasons Chief Justice McLachlin and Moldaver J. agreed with the result based on s. 8 and s. 7’s protection of solicitor-client privilege. They were of the view, however, that commitment to a client’s cause is insufficiently certain “to constitute a principle of fundamental justice” (at para 119).
My main issues with the judgment are largely set out above. In essence, the unwillingness of either the majority or concurring reasons to explain whether the retention and recording provisions violate solicitor-client privilege and, if so, how and why, renders the judgment unclear. It is not clear whether there is an independent s. 7 violation from the reporting and retention provisions and on what basis that violation is made out. It is also not clear whether the issue in s. 8 is a risk of over-zealous searching or inevitable violations of privilege because of the information relevant to whether a lawyer has complied with the recording and retention provisions. We do know that the legislation does not adequately respond if solicitor-client privilege is at risk, but we do not know whether that privilege is at risk because an authority is searching in a lawyer’s office, or because of the nature of the documents that the authority would inevitably be looking for to determine compliance with the recording and retention aspects of the legislative scheme. That is not to say that no s. 8 violation occurs here – indeed, on either of these grounds it seems safe to say that it does – but the judgment’s scope and meaning is unclear absent some more thorough explanation.
I also want to reiterate how thin and unpersuasive is the Court’s analysis of the legislation’s breach of the new principle of fundamental justice. The Court tells us (a) the legislation requires more of lawyers than does the Federation of Law Societies’ requirements; (b) the Federation’s position reflects a professional consensus on what ethical and effective representation requires; (c) that professional consensus is not determinative; but (d) the legislation is unconstitutional because it is inconsistent with that consensus. There is no analysis of why the greater information required by Parliament would interfere with a lawyer’s representation, no detailed explanation of what that information is, or how the gathering of it could be problematic. The clearest point made by the Court is with respect to the search and seizure provisions but those provisions can be struck without striking the whole. Yet the Court never explains why that is not – or should not be – an option in order to protect a lawyer’s commitment to her client’s cause.
As noted earlier, I do welcome the majority’s recognition of the centrality of lawyers being committed to their clients’ causes; it is a recognition I have argued for. It is unfortunate that in this case it was not coupled with a more rigorous explanation of the meaning of that principle for the articulation of rules governing lawyers’ conduct when representing their clients. The Court is right not to have recognized self-regulation as a constitutional principle, and to have focused instead on protection of client representation. But that approach required the Court to itself consider what protection of lawyers’ representation of clients’ required, not to defer to the judgment of the profession without any independent analysis of why the profession got it right.
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By: Jennifer Koshan
Case Commented On: Carter v Canada (Attorney General), 2015 SCC 5
In a landmark decision, on February 6, 2015 the Supreme Court of Canada unanimously struck down the criminal prohibition against physician assisted death (PAD) in Carter v Canada, 2015 SCC 5. By declining to follow its 1993 decision in Rodriguez v British Columbia, 1993 CanLII 75 (SCC),  3 SCR 519, which had upheld the prohibition, Carter marks the third time in the first few weeks of 2015 that the Court has overruled previous Charter decisions (see also Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 and Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, which will be the subject of a future ABlawg post). In Carter, the Court held that the ban on PAD violates the rights to life, liberty and security of the person contrary to the principles of fundamental justice under section 7 of the Charter, and could not be justified as a reasonable limit under section 1. As predicted, however, the Court declined to deal with the claim that the ban on PAD also violates equality rights contrary to section 15(1) of the Charter.
Carter focuses on persons who have a grievous and irremediable medical condition causing suffering that is intolerable to them, and who clearly consent to the termination of life. The Court indicated that for such persons, denial of PAD presents a “cruel choice” – they can take their own lives prematurely, or suffer until they die from natural causes (at para 1). This choice engaged the right to life under section 7 of the Charter, which protects individuals from government actions that increase the risk of death directly or indirectly (at para 62). While the Court took no position on whether the right to life also includes a more qualitative right to die with dignity, it did affirm that section 7 does not create a “duty to live” (at para 63). The prohibition against PAD also violated the right to liberty, which protects individual autonomy and life choices, and the right to security of the person, which protects physical and psychological integrity free from state interference. As noted by the Court, “an individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy” (at para 66).
Section 7 of the Charter requires proof that the violation of life, liberty or security of the person is contrary to the principles of fundamental justice. In Carter, the Court considered several arguments concerning these principles. First, it held that the prohibition against PAD was not arbitrary, as the objective of the prohibition – to protect the vulnerable from ending their lives in times of weakness – was furthered by a total ban on PAD (at para 84). However, the ban was seen to be overbroad, as its objective went further than necessary given that not all persons seeking PAD are vulnerable to such inducements (at paras 86-88). In light of this conclusion, the Court found it unnecessary to deal with the argument that the ban violated the principle of fundamental justice concerning gross disproportionality (at para 90). It also declined to consider the argument that a new principle of fundamental justice, parity between criminal sanctions and moral blameworthiness, should be recognized (at paras 91-92).
The overbreadth of the law also led to the finding that it could not be justified as a reasonable limit under section 1 of the Charter. While protecting the vulnerable – including persons with disabilities and the elderly – was seen as a pressing and substantial objective, the Court rejected the government’s argument that an absolute ban on PAD was reasonably necessary to achieve this objective. The justification argument thus failed the minimal impairment stage of the Oakes test (R v Oakes,  1 SCR 103). The evidence showed that a regime permitting PAD with safeguards to allow physicians to ensure patient competence, voluntariness, and the absence of coercion, undue influence and ambivalence was feasible and would minimize the risks associated with PAD (at para 106). Evidence of risks of a “slippery slope” from other jurisdictions permitting PAD – such as Belgium and the Netherlands – was not considered persuasive in the Canadian context. The Court clarified that some of the controversial cases arising in these jurisdictions, including euthanasia for minors and for persons with psychiatric conditions, would not fall within the scope of its decision (at para 111). It also clarified that its decision was not intended to compel physicians to provide PAD, noting that their freedom of conscience and religion – protected under section 2(a) of the Charter – would need to be reconciled with the rights of patients (at para 132).
The relevant sections of the Criminal Code, RSC 1985, c C-46, were declared void as applied to persons with grievous and irremediable medical conditions causing suffering intolerable to them who consent to the termination of life (at para 127). The Court suspended this remedy for 12 months to allow Canadian lawmakers to respond with legislation meeting the requirements of its decision in Carter. In keeping with the Court’s reasons for rejecting the argument of inter-jurisdictional immunity put forward by the claimants and the government of Quebec (at para 53), new laws governing PAD could be passed by the federal and/or provincial governments in light of their shared jurisdiction over the regulation of health. The Court declined to grant exemptions during the period of suspended validity given that none of the claimants were in need of immediate relief (at para 129).
Carter is consistent with other recent decisions of the Supreme Court giving broad scope to section 7 of the Charter (see e.g. Canada (Attorney General) v PHS Community Services Society,  3 SCR 134, 2011 SCC 44 and posts on that case here, here and here; Canada (Attorney General) v Bedford,  3 SCR 1101, 2013 SCC 72 and a post on that case here). In that context, Carter was not an unexpected decision. While its ultimate conclusion on the constitutionality of the ban on PAD is hugely significant, the Court’s reasons do not add much to the existing jurisprudence defining the scope of section 7.
It is therefore unfortunate that the Court did not find it necessary to consider the claim under section 15 of the Charter that the ban on PAD had an adverse impact on persons with physical disabilities who were unable to take their lives without physician assistance (see para 93). As Jonnette Watson Hamilton and I have argued, consideration of the equality dimension of the case would have allowed the Supreme Court to clarify the law of adverse effects discrimination in Canada. It may also have allowed the Court to engage more deeply with the competing arguments of disability rights groups who intervened in Carter. Those arguments and the literature supporting them did not get very much attention from the Court – in fact it does not reference any of the arguments of these groups, and only cites one academic article from 1995 (Thomas J. Singleton , “The Principles of Fundamental Justice, Societal Interests and Section 1 of the Charter” (1995), 74 Can Bar Rev 446). Given that new legislation for PAD is now in the hands of government, it can be expected that the debates about PAD and its implications for the rights of persons with disabilities will continue in that realm.
An earlier version of this post was published on the Oxford Human Rights Hub blog.
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By: Nigel Bankes
Matter Commented On: AER Bulletin, 2015-05 and an amendment to the Oil and Gas Conservation Rules creating the concept of a “Subsurface Order”
On February 10, 2015 the Alberta Energy Regulator (AER) issued Bulletin 2015-05 announcing a change to the Oil and Gas Conservation Rules. This change authorizes the AER to issue something called a Subsurface Order:
11.104 Notwithstanding sections 3.050, 3.051, 3.060, 4.021, 4.030, 4.040, 7.025, 10.060, 11.010, 11.102 and 11.145, if the Regulator is satisfied that it is appropriate to do so, the Regulator may, on its own motion, issue a subsurface order that
(a) designates a zone in a specific geographic area, and
(b) prescribes requirements pertaining to spacing, target areas, multi-zone wells, allowables, production rates and other subsurface matters within that zone,
in which case if there is a conflict or inconsistency between the subsurface order and any of the sections referred to above, the subsurface order prevails to the extent of the conflict or inconsistency.
The Bulletin provides additional guidance as to how the AER will use this significant new power – which evidently allows it to suspend and vary the default rules relating to important issues such as spacing, target areas, allowables and production rates over broad geographic areas. The amendment likely has something to do with the AER’s experimentation with the play-based approach (see post welcoming that development here). The Bulletin does not specifically mention that initiative although it does indicate that the change is particularly directed at tight oil and gas resources.
So what about the above values? I confess these are not the same values identified by the AER’s Best in Class project of protective, effective, efficient and credible (PEEC), although there is some common ground – efficiency is common to both, and how can a regulator be credible absent opportunities to participate in its rule development exercises? The Rule scores well on efficiency and obviously on flexibility: no surprises there. It also scores reasonably well on transparency (at least on ex post basis) since the Bulletin stipulates that “When complete, a subsurface order will be implemented with a bulletin announcing the order, and AER information systems, including the well spacing map, will be updated accordingly.”
But it gets a poor grade on participation. The Rule itself is silent (except to state that the AER will proceed “of its own motion”); it does not, for example, say that the AER will seek input from affected parties prior to issuing an Order. It does not provide that a draft of the Order will be published on the AER’s website for comment before being finalized. The Bulletin provides the following guidance:
AER staff, as part of ongoing regulatory system performance evaluation, will assess trends in down-spacing and other resource applications to identify potential opportunities for subsurface orders. Assessments will consider input from AER stakeholders, including industry and other government entities.
There are a number of concerns here, the first being the AER’s (traditional) conception of its stakeholders (industry and government – no mention of ENGOs, landowners or First Nations), and the second being its failure to articulate how this input will be solicited.
The Bulletin makes some effort to assure other interests (such as those listed in the last paragraph) that they need not be concerned since Subsurface Orders will not address surface activities and surface interests will continue to be protected by the Alberta Land Stewardship Act, SA 2009, A-26.8 and regional plans. But that is hardly completely convincing. We know that subsurface rules will have an impact on surface activities; and we only have two regional plans in place (the South Saskatchewan Plan and the Lower Athabasca (LARP)). Even these plans lack some of the necessary implementing frameworks (e.g. LARP’s biodiversity management framework and the landscape management plan)). Furthermore, there is at least some evidence that LARP doesn’t operate at the necessary level of granularity to have an impact on AER decision-making: see AER Decision, 2014 AER 13 re Prosper Petroleum). Finally, it seems more than a little odd for the integrated single-window regulator to be emphasizing the distinction between subsurface and surface approvals. It should be possible for this body to do a better job of integrating the two and was that not supposed to be one of the goals of play-based regulation?
So how can the AER do a better job on the participation value? First, it needs to recognize in all that it does that its stakeholders are not limited to industry and government departments. Second, on the process side, it could take a leaf from the book of its fellow Alberta energy regulators (and quasi-regulators) like the Alberta Utilities Commission (AUC, Rule Development), the Market Surveillance Administrator and the Alberta Electric System Operator (AESO) – all of whom seem to have better and more developed ideas as to how to engage in rule making than does the AER.
Best in Class? I don’t think so; not yet anyway.
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By: Theresa Yurkewich
PDF Version: Uber & Calgary – A Modern Day Romeo & Juliet
The days of ride-sharing programs are nothing new, but with Uber’s recent opening in Edmonton, there is no doubt that it will soon make its way to Calgary. However, Uber is not the first taxi-alternative to make a run at the Calgary market. Blue & white Car2Gos can be seen populating the city, and especially the downtown core, where users sign up with their payment information and driver’s license in order to rent easy-to-park vehicles on a per-minute basis. These cars can be reserved using a mobile app or web browser and payment is electronically transferred when the ride ends.
But Car2Go isn’t the only ride-sharing program in Calgary – a simple search on Kijiji will find various drivers offering rides, Carpool.ca will match riders with drivers, and there are other start-ups in the works. This post will consider the legal regime governing ride-sharing, with a focus on Calgary, while identifying some of the legal issues that these programs might face when operating within a municipality.
What is Uber?
Uber is a ride-sharing mobile application which allows users to book drivers (similar to a taxi brokerage service), input their credit card information, and track the location of those drivers on their way to pick up. The drivers, hired by Uber (after conducting a criminal background check), arrive in their personally owned sedans and their fares are based on time and distance. Prior to booking, both the rider and driver can view each other’s profiles (built from customer feedback) and see the estimated fare. Upon acceptance, the money is electronically transferred.
The app searches for riders travelling the same direction and encourages them to share rides by providing incentives such as a reduced fare. For riders who agree to share an Uber, the payment is divided and their credit cards are charged equally. As www.uber.com states, in enabling customers to split fares, their service is the end of pay-me-backs and IOUs.
There are four divisions within Uber. UberTAXI is similar to a standard taxi service with licensed drivers. UberBLACK and UBERLUX are made up of professional chauffeurs with commercial licenses, and UberX is made up of drivers over 21 years of age, who possess personal auto insurance and a well maintained vehicle. All rides are covered by Uber’s commercial liability insurance policy, and vehicles must be safe and of high quality. Rides are requested through the app and then each trip is archived within the application, which includes reviews of both the driver and rider.
Uber is currently available in 252 cities (and 53 countries) and is expanding. But, in recent months it has received a heavy dose of backlash from taxi companies and law makers. The fact that Uber operates through a mobile application, allowing individuals to hail a ride with the click of a button, is what makes it unique. However, it is possibly Uber’s laissez-faire approach to the law and its vocalized “play to win” attitude that has spawned negative attention from municipalities and taxi companies in the past year.
Regulation of Taxi Services by Municipalities
A municipality has the power to regulate the taxi industry provided it acts within the boundaries of provincial legislation and confines its regulation to business occurring within the municipality itself. Under the Municipal Government Act, RSA 2000, c M-26, municipalities have the power to make bylaws regulating transportation systems (section 7) and regulate, prohibit, and provide for a system of licenses (section 8). Through limiting the number of taxi licenses available, municipalities create a market and increase or decrease the value of a license.
Revenue received through regulating licenses must be closely related to the municipality’s licensing costs; otherwise, the municipality is ultra vires its constitutional powers. For example, in Surdell-Kennedy Taxi Ltd v Surrey (City of), 2001 BCSC 1265, the power to sell licenses by auction was not fairly implied from the municipality’s power to license and regulate. In order to characterize an auction price as a license fee, the price was required to be directly related to the municipality’s cost of administering the licensing (see paras 35-36, 57).
Case Study: The City of Calgary
Are Uber vehicles subject to regulation?
The first step to determine whether regulation of the Uber service is valid is to examine whether the service fits within the definitions provided by the City of Calgary’s Livery Transport Bylaw, 6M2007. The Bylaw does not apply to a motor vehicle, other than a taxi, accessible taxi, or limousine that is carrying passengers pursuant to a contract with the city.
A Limousine is a motor vehicle including a stretch-limousine, sedan-limousine or specialized limousine with a valid limousine plate license attached to it. The term of note is a “Sedan-limousine” – a Lincoln or Cadillac, which has not been altered in any way, seats 6 people maximum, has a frame 6 inches longer than a standard Lincoln or Cadillac, and is no more than 8 years old (section 42).
The definition of taxi is much simpler – a motor vehicle with a valid taxi plate license affixed to it (section 12 (qq)). This definition raises the question of whether a driver can avoid regulation by merely not affixing a license so that their vehicle does not meet the definition of a limousine or taxi. This would certainly be the position Uber takes, as their drivers do not carry taxi or limousine licenses.
The short answer to this question is no. The Bylaw provides that “No person shall advertise or offer a motor vehicle for hire unless that motor vehicle has a valid taxi plate license, accessible taxi plate license, or limousine plate license joined to it” (section 25). The same goes for charging a fare to carry passengers or even just operating a motor vehicle suggesting it is for hire (sections 26 and 27).
Regardless of whether Uber vehicles are taxis or limousines, it is clear the service is captured by the Bylaw. In the most basic sense, vehicles are offered for hire and charge fares to carry passengers. Fines for operating, charging a fee, or suggesting a vehicle is for hire without a license range from $800-$1500 (Schedule “D”) per offense.
Bylaw Logistics and the Regulation of Minimum Fares
Under the Livery Transport Bylaw, limousines must be previously arranged (section 50), which means entering into an agreement 30 minutes prior to pick up. Although this can be achieved by booking a ride through Uber’s mobile app, the strict 30 minute requirement means users will have to put some foresight into their ride requests.
The annual license fee for a limousine plate in 2015 is $703, $877 for a taxi plate, $1753 for a brokerage license application, and $1753 for an annual brokerage license (Schedule “B”). Additional to these fees are others such as those for inspection, bylaw, police check, and license replacement. The fee may be steep for drivers, but Uber would likely recoup these fees in profits.
But setting aside the waiting time and the costly license fees, it appears Uber’s main challenge in being classified as a limousine service is the minimum fare requirement. A limousine cannot be offered or advertised for a trip less than $84.60 per hour, regardless of the length of trip, time of trip, or number of passengers (sections 47-49, Schedule “A”). All of a sudden, that quick 10 minute “Uber” to work is costing close to $85. Drivers who disobey the bylaws will face fines ranging from $200-3,000.00 per offence (Schedule “D”).
An $85 fare for a 10 minute ride is preposterous, and will easily destroy the benefit of Uber. This would explain why Uber is adamant to operate outside the confines of the Bylaw, or often limits itself to the development of UberX, which does not use limousines.
However, even UberX faces its challenges. It constantly battles with the media and taxi industry to prove its methods of hiring are safe and reliable and to convince the public that an insurance policy does exist. Examples of this debate are seen in Calgary taxi companies join national anti-Uber campaign, The Calgary Herald (November 9, 2014) and Jesse Kline: Uber offers salvation for taxi-starved cities like Calgary. Why do they resist?, National Post (December 22, 2014).
Further, the strict fare regulations (Schedule “A”) make it difficult for Uber to compete by introducing lower prices. In addition to the rules surrounding minimum fares, there are conditions surrounding requirements such as transfers and the maintenance of log books.
There has been a constant battle between The City of Calgary and the public over the accessibility and cost of taxi services. As stated in Jesse Kline’s article on Uber (above), in 1986, the City capped the number of taxi licenses at 1,311. In the years up to 2014, only 255 licenses were added – even though the population had vastly grown. Finally, in September 2014, the City issued 383 new licenses in attempts to curb public outrage, however, as of December 5, 2014 only 37 new taxis had actually been added. This is not due to a lack of interest in purchasing new licenses, but due to delays in process. In fact, according to Taxi license auction adds 126 plates, The Calgary Herald (October 28, 2014), there were nearly 2,000 applicants for one of these taxi plate licenses.
Advancements in technology such as Uber or FastCab attempt to deregulate the industry and solve the problem of supply, demand, and driver wages; however, they are stifled by onerous regulations such as minimum fares and advanced booking requirements.
Can a Municipality Regulate Competition?
To determine the validity of a bylaw, its purposes must first be examined. Reading the preamble of the Livery Transport Bylaw, its purpose is to ensure public safety, service quality, and consumer protection in addition to establishing a regulatory mechanism and maintaining a sustainable industry.
This sounds like an important objective – but what if through the municipality’s attempts to protect consumers, it is really preventing lower fares, limiting efficiency, and pushing away start-ups that offer to meet consumer demands in the free-market? What this really sounds like, is a municipality regulating competition.
As stated above, municipalities are given the power to regulate under the Municipal Government Act. Further ability is provided through delegation of the provincial power to legislate on property and civil rights (section 92(13) of the Constitution Act, 1867), but, this power often intersects with the exercise of the federal government’s power to regulate trade and commerce through developing competition legislation (section 91(2) of the Constitution Act, 1867; see also General Motors of Canada Ltd. v City National Leasing Ltd.,  1 SCR 641).
A municipality’s decision to act must be for a bona fide purpose (reviewable on the standard of correctness) as stated in Edmonton Flying Club v Edmonton (City), 2013 ABQB 421 (see para 89). Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2 clarified that this means councillors may consider social, economic, and political factors relevant to voters (see para 30).
In Associated Cab Limousine Ltd. v Calgary (City of), 2006 ABQB 32, the court stated:
There is nothing to prevent the Province from delegating to municipalities the regulation of local business. The regulation of the limousine and taxi business in the City of Calgary is a bona fide municipal purpose…Implicit in the power to regulate such business is the power to consider and regulate the issue of competition between such local businesses (see para 17).
Further, citing Shell Canada Products Ltd. v Vancouver (City),  1 SCR 231, “the incidental regulation of competition between industries is not incompatible with the broad purpose of providing services that are necessary or desirable for all of a municipality, or with the regulation of the City’s transportation systems” (2006 ABQB 32 at para 22).
Municipal powers must be interpreted with a “broad and purposive approach”, as stated in Municipal Parking Corp v Toronto (City) (2009), 314 DLR (4th) 642,  OJ No 5017 (SCJ). In United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City), 2004 SCC 19, the Court applied a broad and purposive interpretation to the Municipal Government Act, in determining that a municipality has the power to limit the number of taxi plate licenses as a result of this power to regulate and provide for a system of licenses.
Further, in Associated Cab Limousine Ltd. (above), the Court found that section 8 of the Municipal Government Act permits municipalities to treat businesses differently (i.e. a taxi and a limousine service). Imposing minimum hourly rates for limousine services has been justified on the basis that they are an upscale alternative and not a necessity. These minimum hourly rates, higher than those of a taxi, were upheld by the Alberta Court of Appeal in Associated Cab Limousine Ltd. v Calgary (City of), 2009 ABCA 181.
Parks West Mall Ltd. v Hinton (Town),  3 WWR 759, 15 Alta LR (3d) 400 has illustrated that courts are very reluctant to quash a bylaw and rule that a municipality has not acted in the public’s best interest. A policy will not be overturned without sufficient evidence of bad faith – meaning, made with an improper purpose, impropriety, improper conduct, or illegality.
Merely a corrupt motive or dislike of the policy by the public is not sufficient, as demonstrated in Hollett v Halifax (City), (1975), 66 DLR (3d) 524 (NSCA). In this case, the applicant illustrated that their notice of application for a permit was a catalyst to the bylaw, that their economic interests would clearly be affected, and that the municipality operated against the advice of their advisors, yet, this was not sufficient to quash the bylaw.
To disturb a municipality’s determination of the public interest, a “good and sufficient” reason must be given. Discussed in Nanaimo (City) v Rascal Trucking Ltd., 2000 SCC 13, this high standard requires evidence of a “clear demonstration” (see para 36). Without proof of bad faith or improper purpose, a party cannot establish that the City has not acted in the public interest or for a bona fide municipal purpose – regardless of how individuals feel about it. The effect of limiting competition is not improper provided the initial reasoning behind it was made with good intentions.
But what about the federal Competition Act, RSC 1985, c C-34? Surely that must prevent a municipality from inadvertently regulating competition? Edmonton Regional Airports Authority v North West Geomatics Ltd., 2002 ABQB 1041 describes the Competition Act as “consumer protection legislation designed to protect the public from business practices which interfere with the operation of normal market practices such as to allow the public access to goods and services in a competitive market environment” (see para 130).
However, in Toronto Livery Association v Toronto (City), 2009 ONCA 535, the Court found that regulation of the taxi and limousine business is a bona fide municipal objective, incidental to which can include the power to “consider and regulate competition” in the public interest (see para 84). As such, Toronto’s bylaw regulating the limousine business did not offend the Competition Act.
Similar regulation of competition has been upheld in cases such as 698114 Alberta Ltd. v Banff (Town of), 1999 ABQB 59, in which a municipality wished to limit commercial growth and preserve uniqueness. In doing so, it established an annual lottery which regulated commercial development. Without this restriction, development in the area would have been highly competitive. The Court however upheld the bylaw based on the powers given to a municipality to regulate (which inadvertently can include decreasing competition itself).
There is an exception to this general rule – a bylaw which creates a monopoly will violate a municipality’s powers of regulation. A municipality’s right to regulate must be general and affect all who come within the scope of the legislation. As stated by the Alberta Court of Appeal in United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City of), 2002 ABCA 131, “where a bylaw is not prohibitory altogether but prohibitory to one and permissive to another, in effect, it is discriminatory in nature, open to favouritism and tends to create a monopoly” (see para 76). Although competition can be regulated, it must not be unduly inhibited.
A further limit is that without an express statutory provision, a municipality’s power to regulate does not include the authority to completely prohibit individuals from engaging in an occupation or trade. A license or permit process that is so onerous that it practically prohibits the obtaining of a permit or license constitutes an impermissible prohibition. However, this is not to be interpreted in the same manner as regulation of entry into an employment or profession (see 2002 ABCA 131 at paras 83-84, 117).
The requirement for minimum fares – whether for taxis or limousines – doesn’t do much to help competition, but it is entirely within the purview of The City of Calgary’s powers. However, at the end of the day, consumers are looking for the quickest ride at the lowest price. By regulating the lowest fare a driver can charge (or imposing higher rates for more “luxury” vehicles), there is no ability – or incentive – for a service like Uber to cut costs and offer cheaper service. The public may not back the City’s decision, but without evidence of bad faith, the municipality is presumed to operate in the public’s best interests.
With the courts supporting a municipality’s power to inadvertently regulate competition and the ability of the municipality to justify a bona fide purpose for regulation, it appears that if Uber wishes to operate legally, it has no recourse but to avoid Calgary, play by the rules, or lobby policy makers. Surely their “play to win” attitude suggests a preference for the latter. But, without a change of heart by local regulators, it seems Calgary and Uber will forever be kept apart.
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By: Linda McKay-Panos
Case Commented On: BC Civil Liberties Association v University of Victoria, 2015 BCSC 39
In Pridgen v University of Calgary, 2012 ABCA 139, one member of the Alberta Court of Appeal, Justice Paperny, came to the conclusion that the Canadian Charter of Rights and Freedoms could apply to the actions of the University of Calgary in disciplining the Pridgen brothers for non-academic misconduct (see a post on that decision here). In BC Civil Liberties Association v University of Victoria, 2015 BCSC 39 (“UVic”), the British Columbia Supreme Court ruled that the Charter did not apply, and distinguished Pridgen on several grounds.
Pridgen involved a number of University of Calgary students in the Faculty of Communication and Culture (now Arts) who posted derogatory comments about one of their instructors on Facebook, and who were disciplined for non-academic misconduct. The discipline included writing mandatory letters of apology and lengthy periods of probation. Some students appealed the faculty’s decision to the General Faculties Council Review Committee, which upheld the finding of non-academic misconduct. The Pridgens sought further appeal to the University’s Board of Governors. One of the grounds of appeal was that their freedom of expression under the Charter had been violated by the University. Justice Jo’Anne Strekaf of the Alberta Court of Queen’s Bench granted the Pridgens’ application for judicial review on both Charter and administrative law grounds (see Pridgen v University of Calgary, 2010 ABQB 644).
On appeal, only one Alberta Court of Appeal Justice in Pridgen, Marina Paperny, directly addressed the issue of whether the Charter could apply to the University; the University argued that there was an “evidentiary vacuum” that should preclude that analysis (at para 62). For a number of reasons, Justice Paperny held that the Court of Appeal should determine the issue of whether the Charter applied to the University in the context of the case. She provided a thorough review of the previous case law on Charter section 32 (which provides that the Charter applies to government), and concluded that there are five categories of cases in which the Charter may apply. These include (at para 78):
While Justice Strekaf had determined that in this case, the University was a “non-governmental body implementing government objectives”, Justice Paperny would have found that the University, in imposing disciplinary sanctions, was a “body exercising statutory authority” (at para 105). Thus, the statutory authority to discipline students for non-academic misconduct (Student Misconduct Policy) must be interpreted and applied in light of the Charter right to freedom of expression. Furthermore, the breach of the Pridgens’ right to freedom of expression by the decision of the Review Committee could not be saved by Charter section 1.
The remaining two justices at the Alberta Court of Appeal did not consider the Charter’s application directly and decided the matter on administrative law grounds.
Pridgen is one of a number of cases that address the issue of whether and when universities are subject to the Charter (see, for example: McKinney v University of Guelph,  3 SCR 229; Harrison v University of British Columbia,  3 SCR 451; R v Whatcott, 2012 ABQB 231). In the UVic case, Cameron Côté, a former student at the University of Victoria, was on the executive of a student club called Youth Protecting Youth (“YPY”). He was informed by the President of the Students’ Society that the University had prohibited YPY from using campus space because of its prior activities (i.e., anti-abortion activities). The activity proceeded and YPY and Côté were admonished for defying the direction of the president of the Students’ Society. Mr. Côté and the British Columbia Civil Liberties Association (BCCLA) asked the BC Supreme Court, among other things, for a declaration that any restrictions or regulations placed by the UVic on students who wish to use the school for “expressive purposes” be consistent with the Charter.
In addressing the issue of whether the University policies were subject to the Charter, the BCCLA and Côté relied on Justice Paperny’s judgment in Pridgen to support their position that any regulation of speech on University property is subject to Charter scrutiny (at para 137). Recall that Justice Paperny’s reasoning was based on the determination that the university was exercising statutory authority and thus was subject to the Charter.
Chief Justice Hinkson of the BCSC distinguished Pridgen for a number of reasons. First, he noted that neither Justices O’Ferrall nor McDonald agreed with Justice Paperny in Pridgen in terms of the Charter issue. In particular, Justice O’Ferrall had held that a ruling on the application of the Charter was unnecessary to the lower court’s disposition of the case and to the disposition of the University’s appeal. He was further influenced in his conclusion because the issue of Charter infringement had not been explored in the original hearing (at para 138). Justice McDonald had held that it was neither appropriate nor necessary for the lower court to have embarked on a Charter analysis in Pridgen (at para 132).
Second, Justice Hinkson noted that Côté, unlike the Pridgens, was not subject to any actual discipline by the University (at para 141).
Third, Alberta’s applicable legislation differs from that of British Columbia, because the BC University Act, RSBC 1996, c 468, specifically prohibits the Minister from interfering with certain powers granted to the University, and also gives the president and senate authority over student discipline (at para 141).
Fourth, Justice Hinkson accepted the University’s submission that in booking space for student club activities, the University is neither controlled by government, nor performing a specific government policy or program (following Lobo v Carlton University, 2012 ONCA 498).
Fifth, the Charter did not apply to the impugned decisions as they were undertaken “by the University with respect to the management of its privately owned land, and not to the exercise of governmental policy or the implementation of a specific government program regulating the use of University land” (at para 147). Thus, the decisions made by the University were within the University’s “sphere of autonomous operational decision-making” and not subject to the application of the Charter (at para 148).
Justice Hinkson thereby concluded that the Charter did not apply to the activity of booking space by students (at para 152). He declined to grant the declarations sought by Côté and the BCCLA.
John Dixon of the National Post has criticized this decision and indicated it will likely be appealed (see here). Dixon notes that it is rather ironic the UVic case begins with a quotation from University of Victoria’s Vice President, Jim Dunson:
Universities are places where difficult ideas and issues are often discussed and debated. Freedom of speech is a core component of intellectual inquiry and is a fundamental value of the University of Victoria …
Yet it was Dunson who issued the order to stop the activities and threatened further punishment of the pro-life students in the case at issue.
While Chief Justice Hinkson relied on several factors to distinguish Pridgen, some similar distinguishing factors were present in R v Whatcott, 2012 ABQB 231. In that case, however, the result was very different. The Alberta Court of Queen’s Bench determined that the University of Calgary had used anti-trespassing legislation to prevent an opportunity for participation in a learning activity, and this created a direct connection between the University’s governmental mandate and the impugned activity. The Charter applied, even to a non-student, who was using university property to distribute printed material without university permission. In contrast, in Lobo v Carlton University, 2012 ONCA 498, the activity—refusal of Carleton Life Line’s request to display its Genocide Awareness Project in outdoor area of campus—was characterized as “book[ing] university space for non-academic extra-curricular use,” and thus not subject to the Charter (at para 4).
Whether the Charter applies appears to be dependent on whether the activity is characterized as one that is related to learning or is determined to be purely non-curricular. However, when very similar activities are characterized differently, confusion results. It looks like the Supreme Court of Canada will have to settle this issue.
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By: Shaun Fluker
Case Commented On: R v Gibson, 2015 ABCA 41
On the evening of December 6, 2012, Ryan Gibson was intoxicated and driving a truck on highway 22 south of Cochrane. He moved into the northbound lane to pass 2 semi tractor-trailers and after passing them he did not move back into the southbound lane. He continued to travel at highway speed on the wrong side of the highway, and subsequently struck 3 oncoming vehicles. After side swiping and striking the first 2 vehicles, Gibson’s truck collided head-on with the car being driven by 17 year-old Brandon Thomas who lived in Cochrane. Brandon Thomas died at the scene as a result of the collision. Gibson pled guilty to impaired driving causing death and one count of impaired driving causing bodily harm. In May 2014 the sentencing judge rejected a joint submission by the Crown and defence for a 2 year custodial sentence and instead imposed a sentence of 2 years and 8 months imprisonment. In R v Gibson, 2015 ABCA 41, the Alberta Court of Appeal has dismissed an appeal by Gibson who argued the sentencing judge erred by rejecting the joint submission on sentencing.
The determination of an appropriate sentence in a case like this has to be one of the more difficult aspects of being a judge. A young man has been killed and his family and friends devastated. No words can truly explain their loss, and no penalty imposed by the legal system will bring back Brandon Thomas. The man to be sentenced accepts full responsibility for his conduct and has no prior criminal history. Ryan Gibson was only 22 years old in December 2012 and has expressed sincere remorse for his actions.
Sentencing has been the topic of previous comments on ABlawg (for recent comments by Joshua Sealy-Harrington and Professor Jennifer Koshan see here and here respectively) and scholarship in recent years (Julian Roberts discusses the scholarship in “Sentencing Scholarship and Sentencing Reform in Canada” (2001) 46 McGill LJ 1163). A good place to find Canadian literature on criminal sentencing would be the Criminal Law Quarterly published by Carswell. In the context of impaired driving specifically, a quick search of this journal revealed at least one article directly on point: Tammy Law, “Sentencing of Impaired Driving Cases: Should Harm be Considered?” (2004) 49(2) Criminal LQ 198.
Principles of sentencing are closely informed by theories of justification for punishment by the State. Such theories are generally categorized into 2 groups. One group justifies punishment based on its effects. For example, punishment for crimes is justified because it removes a dangerous offender from society or the imposition of such punishment on the offender deters others from committing a similar offence. The other group justifies punishment based on the principle of just deserts – the commission of the criminal act itself justifies the punishment or the offender is punished because they deserve such. This group argues that the effects-based theories can perhaps be too lenient in imposing a penalty (see generally Mark Tebbit, Philosophy of Law (Routledge, 2000) c 10). In his 2001 review of sentencing decisions by the Supreme Court of Canada in the context of legislated mandatory minimum sentences, Professor Kent Roach observed a trend of increasing reliance on just deserts in sentencing decisions by the Court (see Kent Roach, “Searching for Smith: The Constitutionality of Mandatory Sentences” (2001) 39 Osgoode Hall LJ 367 at 395-399).
Principles and factors to consider in criminal sentencing are set out in sections 718 to 718.21 of the Criminal Code, RSC 1985, c C-46. These sections appear to incorporate all the various theories justifying punishment. Section 718.1 in particular stands out as the section states the fundamental principle in sentencing is that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Parliament added this section to the Criminal Code in 1996 and it has been considered by some as evidence of an intention by Parliament to assert a just deserts approach over other principles such as deterrence (see e.g., Roach above at 395).
In Gibson, the Court of Appeal refers explicitly to section 718.1 in asserting the proportionality principle to rule that the sentencing judge was correct to reject the joint submission on sentencing by the Crown and defence counsel. The Court further rules that the sentencing judge was not bound to follow a joint submission which was not proportionate to the crime. The Court clearly asserts that it is the role of the court – not counsel – to decide on the appropriate sentence in a given case (see generally paras 14 – 19). The Court of Appeal also seems to strongly endorse just deserts as the fundamental principle of criminal sentencing.
In the circumstances of this crime, the Court states that the 2 year sentence proposed by the Crown and defence counsel would be “profoundly unfit” because (1) the gravity of this offence was on the high end of the spectrum – Gibson was driving on the wrong side of a highway at highway speeds and took no evasive action to avoid collisions; and (2) Gibson drove his vehicle while impaired at more than twice the legal limit (at paras 21-24). The Court concludes that a fit sentence in this case would be no less than 4 years imprisonment (at para 26). However, the Court declines to interfere with the decision of the sentencing judge to impose a sentence of 2 year 8 months because the Crown did not give prior notice of an intention to seek an increased sentence (at para 27, citing R v Holloway, 2014 ABCA 87).
The Court of Appeal has corrected the error in these proceedings for future application, but ruled it was precluded from addressing the problem here. There is perhaps no greater sorrow than that experienced by a grieving parent who outlives her child. The Court’s confirmation that just deserts were not implemented in this case likely serves only to accentuate this grief for Brandon’s family.
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By: Sarah Burton
Consultation Commented On: Rocky Mountain Civil Liberties Association, Consultation on Gay Straight Alliances, January 27, 2015
The Rocky Mountain Civil Liberties Association (RMCLA) recently conducted public consultations to continue Alberta’s ongoing conversation about Gay Straight Alliances (GSAs) in schools. This post discusses the main themes revealed at the public consultation held at the University of Calgary on January 27, 2015.
In December 2014, the Prentice government introduced Bill 10: An Act to Amend the Alberta Bill of Rights To Protect Our Children, 3rd Sess, 28th Leg, 2014 (Bill 10) in response to public pressure driven by Liberal Private Members’ Bill 202, the Safe and Inclusive Schools Statutes Amendment Act. Without rehashing the details (which were discussed in an earlier post here), Bill 10 permitted school boards to deny a student’s request to create a GSA, and gave recourse to the Minister of Education in the event of such a denial. Amid a growing wave of public scrutiny, on December 4, 2014 Bill 10 was “put on hold for more consultation”.
The government has not, however, announced any plans to conduct a public consultation. The RMCLA stepped in to fill this void and create a platform for Albertans to voice their opinions on this issue. Oral and written submissions were welcome from everyone. They will be incorporated into a formal report that will be submitted to the Alberta government in March 2015. More information on the public consultation, as well as copies of the written submissions, is located on RMCLA’s website (here).
I had the opportunity to attend the Calgary branch of the public consultation process on January 27, 2015. It was an informative and poignant expression of public interest in the creation of GSAs. The audience heard from students, teachers, social workers, politicians, religious representatives, civil liberties groups and other interested community members. While their stories were varied, the following common themes emerged.
A GSA is not a gay club, and it does not only benefit LGBTQ students. Everyone is welcome to join, and in practice, membership includes a wide variety of students who are looking for a safe and welcoming place in their school.
GSAs have a positive impact outside the four-corners of the group. Parents, teachers and students repeatedly emphasized the difference that a GSA makes in creating a more positive school culture. As one student noted, just the presence of a GSA is a conversation starter. It sparks curiosity and questions from other students, creating a perfect opportunity to educate people about what GSAs are and why they are needed. It also is a useful launch point to explain to the larger student population the effect that homophobic put-downs have on persons in the LGTBQ community. Several students and teachers noted that the use of homophobic slurs decreased after a GSA was up and running at their institution.
Bill 10 protects the right of parents to control how their child is exposed to human sexuality in school. For instance, it modifies but continues the controversial practice of sending a notice to parents whenever “human sexuality” (as opposed to “sexual orientation”) will be taught (Bill 10, s. 2(5)). While GSAs themselves are not expressly subject to parental control, the appeal structure created by Bill 10 would not function without parental involvement or awareness.
On its face, parental controls are appealing – they respect the right of Alberta parents to present sexuality to their children in a way that accords with their deeply held beliefs. However, this approach is flawed in its assumption that all students come from supportive and accepting families, and that those students possess no rights independent of their parents.
In handing over significant control to parents, Bill 10 ignores the tragic fact that parents are often the worst bullies of their LGBTQ children. There is no shortage of news stories involving parents who isolated or abused their LGBTQ children, often with dire consequences (for example, read reports of Leelah Alcorn’s story). It is sad but undeniable that family bullying contributes to LGBTQ youth suicide rates, and the overrepresentation of LGBTQ youth among Alberta’s homeless populations (see here and here).
GSAs create a safe space for students to be themselves. When they lack family support, it may be the only place they have. If parental control takes precedence, this undermines ones of the core benefits GSAs have to offer the most vulnerable students. A GSA with a parental override clause will not serve those who most need it.
Two Jewish community leaders spoke out in support of GSAs. Their submissions sought to demonstrate that there is more than one way to interpret and contextualize religious beliefs on homosexuality. Members representing the Christian faith were asked to make oral submissions in Calgary, but regrettably declined. This is unfortunate, as it would have provided an opportunity to clarify one of the central sticking points on GSAs – their application to the separate Catholic School Boards.
When Alberta became a province in 1905, s. 17 of the Alberta Act, 1905 (an appendix to the Constitution Act, 1867) affirmed the right of minority faith communities, either Protestant or Roman Catholic, to form a separate school district. This was affirmed by s. 29 of the Charter, which preserves existing constitutional rights. As such, the province of Alberta must contend with constitutionally enshrined rights bestowed on denominational schools when it seeks to enact legislation affecting Alberta schools.
This has caused tension with Alberta’s prohibition on discrimination based on sexual orientation, which has bubbled over periodically into lawsuits and human rights complaints (see, for example Vriend v Alberta,  1 SCR 493).
In an ideal world, matters should not have to proceed to court before the status of GSAs in denominational schools can be settled. As the Jewish community leaders demonstrate, the tension between religion and the LGBTQ community is not inevitable, nor is it universal. Given the demonstrated benefits of GSAs, religious teachings on support and inclusivity, and the fact that membership and involvement with GSAs is entirely voluntary, the Jewish representatives have shown that it is possible to respect one’s faith and facilitate the creation of GSAs.
One of the most valuable features of a GSA is that it is student led and controlled. No two GSAs are identical, because they adapt to the specific student needs at each school. It is this individuality and ownership of interested students that have made GSAs so successful.
A blanket obligation that all schools “shall” have a GSA blunts this spirit and sense of control. While the GSA supporters agreed that all schools should permit GSAs when asked, they were equally clear that the impetus for creating the GSA should rest with the students.
5. There is Importance in a Name
Legislation on GSAs must stipulate that the name “Gay Straight Alliance” is permitted, although not required. While students didn’t care about the name “Gay Straight Alliance”, politician Laurie Blakeman and the RMCLA panelists recalled Ontario’s problems with school boards creating “diversity” or “equality” clubs while simultaneously prohibiting the name “Gay Straight Alliance” (see, for example, news coverage of Windsor Ontario’s Catholic School Board here).
By permitting the GSA title, legislation will be clear that school boards must adhere to the spirit and the letter of the law. Students may, however, choose a name other than GSA.
As you may gather from the comments outlined above, participants in the public consultation were overwhelmingly pro-GSA. This may not be surprising, as the RMCLA would likely appeal to advocates who are, by and large, supporters of equality rights. While I believe that Albertans who are skeptical of GSAs would have been received respectfully and openly at the hearing, their absence demonstrates that they likely felt otherwise.
The relative one-sidedness of the oral public consultation highlights how much a government-sponsored public forum would have been useful on this issue. A government sponsored consultation would give the appearance of a more neutral platform for Albertans to voice their concerns, and perhaps to settle their differences.
Unfortunately, after the firestorm died down late last year, the Alberta government has been largely silent on Bill 10, its potential successor, and GSAs generally. Given the headache it caused the government, this silence is disappointing but not at all surprising. Amidst this silence, however, it is important to remember that the issue of GSAs has not been settled. While attention has been diverted, the Alberta students who would benefit from a GSA have been left waiting in limbo. All schools in Alberta have LGBTQ children. Given the risks facing marginalized LGBTQ youth in schools, and the demonstrated benefits of GSAs, we owe it to these students to make comprehensive legislation on GSAs a priority that actually serves their needs.
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By: Jennifer Koshan
Case Commented On: R v Schmaltz, 2015 ABCA 4
A decision from the Alberta Court of Appeal has garnered attention from the media (see here and here) for its contribution to recent debates about rape culture and rape myths. In the context of discussions about Ghomeshi (see here and here), Cosby, Dalhousie and the ongoing challenges that prevent many women from coming forward with complaints about sexual assault and harassment, the Court of Appeal has weighed in on the role that judges can play in curtailing the perpetuation of rape myths in the courtroom. In R v Schmaltz, 2015 ABCA 4, the majority (Justices Russell Brown and Thomas Wakeling) ordered a new trial based on their view that the trial judge had gone too far in limiting cross-examination of the complainant. Justice Marina Paperny, writing in dissent, would have dismissed the appeal and upheld the conviction of the accused.
The alleged facts are sparse in the majority judgment, and it is only in the dissenting judgment where we learn that the accused digitally penetrated the complainant in her daughter’s home. Media reports indicate that he was a friend of her daughter’s boyfriend. The complainant testified that she woke up to find this assault underway and that she did not consent. The accused also testified, and while he did not deny the sexual activity, he claimed that the complainant consented to it. The key issue at trial was therefore whether the complainant consented to the sexual activity in question. Following a preliminary inquiry, the trial proceeded before a judge alone. After rejecting an application for a mistrial made by the defence, Judge D.J. Greaves convicted the accused of sexual assault, contrary to s 271 of the Criminal Code, RSC 1985, c C-46.
At the Alberta Court of Appeal, the appellant framed the issues as follows: (1) whether the trial judge’s conduct created the appearance of an unfair trial, and (2) whether the trial judge’s conduct raised a reasonable apprehension of bias and thus resulted in a miscarriage of justice (at para 12). The conduct of the trial judge that was alleged to give rise to these issues was a series of interventions he made during the cross-examination of the complainant by defence counsel.
On the first issue, the majority articulated the following test: “whether the appellant’s right to make full answer and defence was breached by significant and unwarranted constraints imposed by the trial judge upon defence counsel’s cross examination of the complainant” (at para 20, citing R v Lyttle, 2004 SCC 5 (CanLII),  1 SCR 193 at 196). This question is to be answered from an objective perspective, namely “whether the accused or an observer present throughout the trial might reasonably consider that the accused had not had a fair trial” (para 21). Put another way, trial fairness should be looked at in terms of whether justice was seen to be done, again assessed from the perspective of a reasonable, “well-informed and right-minded observer” (para 23). The majority rejected the Crown’s argument that there should be a presumption in favour of trial fairness, with a declaration of trial unfairness reserved for the clearest of cases. They indicated that this higher standard was applicable only to allegations of reasonable apprehension of bias, and not to allegations of unfairness based on judicial interventions in cross-examination (at paras 21, 24), noting however that there was authority to the contrary (see R v Hamilton, 2011 ONCA 399 (CanLII)). The majority’s reasoning was that the fairness of judicial interventions can be “objectively viewed and assessed” on appeal, while allegations of bias cannot be similarly tested due to the difficulty of knowing a trial judge’s “mind or motivations” (at para 24).
Justice Paperny indicated that while she agreed generally with this approach, the reasonable observer (and the reviewing court) “must look beyond mere appearances and consider whether, in fact and in law, interventions by the trial judge deprived the appellant of his right to make full answer and defence” (at para 62). She noted that the right of an accused to cross-examine witnesses, while essential, is not absolute, and must comply with the rules of evidence and avoid “harassment, misrepresentation … [and] questions whose prejudicial effect outweighs their probative value” (at para 63, citing Lyttle at para 44). In the sexual assault context, legislation and case law places further restrictions on cross-examination related to the complainant’s sexual history / reputation and discredited “rape myths”. Unlike the majority, Justice Paperny accepted the existence of a presumption “that a trial judge has not unduly intervened in a trial” and indicated that trial unfairness based on interventions should be found “only in the clearest of cases” (at paras 64, 66, citing Hamilton). She reasoned that a reviewing court should be deferential to the trial judge’s decisions given the advantageous position of the trial judge in assessing the demeanour of witnesses and the conduct of cross-examining counsel (at para 64), and emphasized that ensuring a fair trial is intended to protect the rights of both the accused and the complainant (at para 68).
The appellant contended that there were four instances of judicial intervention in cross-examination that had the effect of impairing the defence strategy of showing inconsistencies in the complainant’s testimony and testing her credibility. The majority and dissenting justices applied their approaches to trial unfairness to each of these allegations individually as well as cumulatively.
The first argument was that the trial judge had improperly interfered in defence questioning about the complainant’s consumption of marijuana. The defence had been trying to expose a possible contradiction between the complainant’s testimony, where she indicated that she had not consumed drugs on the occasion in question, and a medical report which showed THC in her blood. The trial judge had intervened in the cross-examination to express concerns about the lack of expert evidence, and took judicial notice that traces of THC can remain in a person’s blood for some time. The appellant argued that this intervention “amounted to advocacy on the part of the Crown” and “provided the witness with an answer to counsel’s questions”, thus preventing effective cross-examination (at para 31).
The majority agreed with this argument, finding that the trial judge’s conduct had deprived the accused of an opportunity to test the complainant’s credibility (at para 32). Justice Paperny disagreed. She noted that the trial judge’s questions were directed at ensuring that proper legal procedures for introducing the medical report were followed, that his intervention had not influenced the complainant’s response, and that the defence strategy of showing a possible inconsistency in the complainant’s testimony had been accomplished (at paras 75-78).
The second allegation of inappropriate interference in cross-examination went to the trial judge’s intervention in defence questions about flirting. Defence counsel was trying to suggest a contradiction between the complainant’s evidence in chief, where she denied any flirting having taken place, and her statement to the police, which suggested there had been flirting. The trial judge intervened to indicate that the police statement made it clear the complainant had said it was the accused who had been flirting with her, and the defence then abandoned that line of questioning. The Crown returned to this issue in its re-examination of the complainant, where she confirmed that the accused had been flirting with her, not vice versa.
The majority found that this intervention was also inappropriate, suggesting that the passive language used by both the Crown and police “left open the question of who was flirting” (at para 36). They believed that the trial judge’s conduct “not only effectively shut down cross-examination by defence counsel on a potentially critical ambiguity in the complainant’s statement to police, it suggested a resolution to that ambiguity that Crown counsel was able to exploit” (at para 38). Justice Paperny disagreed , indicating that defence counsel could have, and in fact later did continue with cross-examination on this issue, and that the accused had given a different account in his testimony, making it possible to find a contradiction in the complainant’s testimony about flirting (at paras 80-81). More importantly, she questioned the relevance of this line of questioning, as any flirting was irrelevant to the issue of consent, and was only “tangentially” relevant to the complainant’s credibility (at para 82).
The third argument concerned the trial judge’s intervention in defence questions about whether the complainant was wearing a bra. Again, this line of questioning was said to be intended to expose possible inconsistencies between the complainant’s evidence at trial and her statement to the police. The majority found this intervention to be appropriate, as the complainant had not accepted the police transcript as an accurate reflection of what she told police, and the judge’s intervention was merely to indicate that the defence would need to prove the veracity of the transcript (at para 40). Justice Paperny did not deal with this issue in her reasons, perhaps because the majority had already dismissed its relevance to trial fairness. But her point about the flirting line of questioning is also pertinent here – evidence about the complainant’s clothing was irrelevant to the issue of consent, and only tangentially relevant to credibility at best.
The fourth area of concern related to evidence of the complainant’s sobriety. The defence strategy was to show contradictions between the complainant’s testimony and that of her daughter as to whether she was drunk at the time of the alleged incident, and between the complainant’s testimony at trial and at the preliminary inquiry in terms of how many beers she had consumed. The trial judge intervened to indicate that defence counsel’s questions were unclear, that there appeared to be no contradiction, and that she should move on.
The majority found that the trial judge had improperly interfered with the ability of the defence to cross-examine the complainant on the inconsistencies in evidence regarding her sobriety, which went to her credibility (at paras 44-46). The dissent disagreed, indicating that the trial judge had properly sought to have defence counsel conform to evidentiary procedures for introducing contradictory statements, and that he was alive to the contradiction between the evidence of the complainant and her daughter (at paras 84-85).
Overall, the majority found that the cumulative impact of the trial judge’s interventions rendered the trial unfair: “he frustrated, to a significant and unwarranted degree, defence counsel’s strategy to test the complainant’s credibility. This would lead a reasonable, well-informed and right-minded observer to conclude that the appellant was not able to make full answer and defence” (at para 48). The majority did acknowledge the important role to be played by trial judges in sexual assault cases to protect complainants “from questions tendered for the purpose of demeaning and pointing to discredited, illegitimate and irrelevant factors personal to the complainant” (at para 47). However, their view was that the defence strategy was to test the complainant’s credibility rather than to suggest she had consented, and that this strategy did not propagate rape myths. A new trial was therefore required.
In contrast, Justice Paperny concluded that the trial judge’s interventions were either proper or immaterial, and she found that the interventions did not deprive the appellant of his right to make full answer and defence. She found that the defence had been able to make its position clear “that the complainant was a liar, a possible drug user, was drunk at the time of the assault, and consented to the sexual activity” (at para 86). Overall, “the high threshold required to establish an injustice warranting a new trial has not been met” (at para 87).
On the second issue, whether there was a reasonable apprehension of bias, the majority found that a more onerous standard was appropriate, with a “strong presumption that judges discharge faithfully their oath to deliver justice impartially” (at para 50), such that a new trial should be ordered only in the clearest of cases. The majority held that the appellant could not meet this threshold on the facts presented (at paras 52-59), and Justice Paperny agreed with this outcome (at para 61).
It is interesting that the majority refers to rape myths several times, but without defining the term, explaining its origins, or offering relevant examples. The only elaboration of rape myths in their judgment appears at para 19, where they indicate that trial judges in sexual assault cases may intervene to protect complainant witnesses from “random shots at the complainant’s reputation or groundless questions directed to discredited “rape myths” to the effect that the complainant’s unchaste or aroused state made it more likely that she would have consented to the sexual activity in question.”
But rape myths are about much more than reputation and consent. In the Supreme Court of Canada’s first decision recognizing rape myths, R v Seaboyer; R v Gayme,  2 SCR 577, 1991 CanLII 76 (SCC), McLachlin J (as she then was), writing for the majority, stated that rape myths include the discredited beliefs “that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief” (at 604). Justice L’Heureux Dubé’s dissenting reasons went further, providing a non-exhaustive list of rape myths including the following:
Justice L’Heureux Dubé also explained the operation of rape myths in the criminal justice system (at 654):
Like most stereotypes, they operate as a way, however flawed, of understanding the world and, like most such constructs, operate at a level of consciousness that makes it difficult to root them out and confront them directly. This mythology finds its way into the decisions of the police regarding their “founded”/“unfounded” categorization, operates in the mind of the Crown when deciding whether or not to prosecute, influences a judge’s or juror’s perception of guilt or innocence of the accused and the “goodness” or “badness” of the victim, and finally, has carved out a niche in both the evidentiary and substantive law governing the trial of the matter.
Another Supreme Court decision which includes a lengthy discussion of rape myths is R v Ewanchuk,  1 SCR 330, 1999 CanLII 711 (SCC), where Justice L’Heureux Dubé, in concurring reasons, added to her list from Seaboyer the following (at paras 82, 87):
In Schmaltz, to the extent that the trial judge’s interventions reined in questions targeted at undermining the complainant’s credibility based on her clothing and her alleged flirtatious behavior, or what she said about these matters earlier, he was appropriately rejecting the perpetuation of rape myths. As recognized by Justice Paperny, these matters were immaterial to the issues at trial. Potential inconsistencies in the complainant’s testimony about them should not have been exploited by the defence in the name of credibility testing. Questions about drinking and drug use are a bit more complicated, as they may go to the complainant’s ability to recall the events in question, but caution must also be taken to ensure that such questions do not lead to inappropriate inferences about the likelihood of consent or the overall trustworthiness of the complainant. The trial judge’s interventions in cross-examination on these issues, while not clearly linked to the rejection of rape myths, were still appropriate.
Justice Paperny’s judgment is also to be preferred because of the high threshold she recognized for overturning a trial decision based on allegations of unfairness in limiting cross-examination. Inappropriate cross-examination of the complainant that perpetuates rape myths remains an issue in many sexual assault cases, and the Crown and trial judges should be encouraged to object to and limit such questioning, with appropriate deference shown to such interventions on appeal (for more on this topic see the excellent essays in Elizabeth Sheehy’s collection Sexual Assault in Canada: Law, Legal Practice and Women’s Activism (Ottawa: University of Ottawa Press, 2012) and a review of the book by Doris Buss and myself here). The competing views of the proper threshold offered by the majority and dissent, and the contradictory decision of the Ontario Court of Appeal in Hamilton, suggest that this may be an appropriate case for an appeal to the Supreme Court of Canada.
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By: Sarah Burton
PDF Version: A Constitutional Right to Free Transcripts?
Case Commented On: Taylor v St. Denis, 2015 SKCA 1
Last fall, the Supreme Court of Canada found a hearing fee scheme unconstitutional because it prevented people from accessing courts (see Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 (Trial Lawyers)). In Taylor v St. Denis, 2015 SCKA 1 (St Denis), the Saskatchewan Court of Appeal was asked to extend this reasoning to exempt a self-represented litigant from the cost of mandatory trial transcripts. The Court declined this request, choosing instead to distinguish the landmark Supreme Court decision. Unfortunately, the decision in St Denis was impacted by deficits in the applicant’s evidence and arguments. Despite these shortcomings, St Denis serves as a useful indicator to highlight how the Supreme Court’s decision will function as a future precedent.
The applicant, Taylor, appealed the judgments in two defamation actions he commenced. Under the Saskatchewan Court of Appeal Rules, Taylor was required to pay for and file a trial transcript as part of the appeal record (Court of Appeal Rules, Sask Gaz April 18, 1997, Rule 19; The Court Officials Act, SS 2012, c C-43-101, s. 14(2)). Without relevant transcripts, the appeal would not proceed. If the parties could not agree on relevant extracts to produce, the entire transcript was required. The transcript fee in this case was $20,500. Taylor alleged that he could not afford to pay for the transcripts, and sought an order directing an exemption from the fee. He lost that battle on jurisdictional grounds because, in Saskatchewan, transcribing services are provided by and paid to private third parties. The presiding justice lacked jurisdiction to order a private non-party to forego the fee for their services. Taylor then amended his application to request that the Attorney General pay the transcript fee. The Attorney General intervened in opposition to the amended application.
Reasons for Decision
Taylor’s application failed. As is unfortunately the case with many self-represented litigants, Taylor was not his own best advocate, and many of his arguments were hindered by unfamiliarity with complex legal principles. As such, several of his arguments (including a claim under the doctrine of state necessity, Charter ss. 7 and 15(1) breaches, reliance on Criminal Code provisions, and an assertion that the trial judge’s reasoning breached the rule of law) were dismissed with little difficulty (St Denis at paras 12 – 37).
However, Taylor’s submission that the transcript fee violated a constitutional right to access superior courts merited more detailed discussion. This argument rested on the Trial Lawyers decision, wherein the Supreme Court held that hearing fees impermissibly encroach on s. 96 of the Constitution Act, 1867 and the rule of law if they effectively block access to courts (Trial Lawyers at para 2).
Taylor argued that his situation mirrored that in Trial Lawyers. Madam Justice Ryan-Froslie was less convinced, and distinguished Trial Lawyers on four grounds:
Alternatively, even if she was wrong in her assessment of Trial Lawyers, Justice Ryan-Froslie noted that Taylor failed to meet the evidentiary standards established in that case. In particular, Taylor failed to demonstrate that he could not afford the $20,500 fee, as the evidence he submitted regarding his financial position was lacking on several vital points (St Denis at paras 33-35, 63, 65).
On a conciliatory note, Justice Ryan-Froslie adjourned opposing counsel’s cross-application demanding that Taylor’s appeal be perfected. She directed the parties to a pre-hearing conference where they could determine what portions of the trial transcripts were actually necessary to the appeal.
Distinguishing the Trial Lawyers Decision
Given the burden that a broad reading of Trial Lawyers could impose on courts and government, this application would have been difficult to win even with an ideal fact pattern and experienced counsel. Unfortunately, neither of these factors was present here. As such, the Court did not hear a clear and compelling argument about how the hearing fees in Trial Lawyers are comparable to mandatory trial transcripts. This missed opportunity permitted the Court of Appeal to emphasize the differences between these two cases and draw on Taylor’s evidentiary weaknesses to reach its decision.
For example, unlike Trial Lawyers, Taylor’s $20,500 transcript fee was not a flat and unavoidable charge. Instead, it depended on the scope and style of appeal being launched. While not stated expressly, it seems that Taylor was demanding that the full trial record from the 29-day trial be transcribed. As Justice Ryan-Froslie correctly noted, there were a variety of methods open to Taylor to reduce the $20,500 fee to a more affordable level. Even though a much more reasonable fee (say $5,000) could still have been too expensive to afford, Taylor’s role in reaching the $20,500 figure significantly weakened his argument that the government should bear the cost.
The Court of Appeal further emphasized the difference with Trial Lawyers by reference to government policy. The Supreme Court in Trial Lawyers was notably influenced by the fact that hearing fees were a tool to implement government policy (in that case, encouraging the efficient use of court time). However well intentioned, this policy had the effect of entirely blocking some people with valid claims from accessing court, and that was unacceptable (Trial Lawyers at paras 22, 51, 52). In St Denis, the transcript fee was not a government fee. Justice Ryan-Froslie used this discrepancy to distinguish the Supreme Court’s decision (St Denis at para 60). A persuasive argument could have been made that that the privatization of transcribing services is indeed a government policy. Arguably, this policy accomplishes the same goal, and has the same shortcomings, as the policy at issue in Trial Lawyers. Unfortunately, this argument was not pursued by Taylor.
Lastly, the St Denis decision was likely influenced by the fact that Taylor sought access to the Court of Appeal as opposed to the Court of Queen’s Bench. Justice Ryan-Froslie correctly noted that Courts of Appeal are “superior courts” (The Court of Appeal Act, SS 2000, c C-42.1 s 3(1)), and that the reasoning in Trial Lawyers applied equally to Courts of Appeal (St Denis at para 57). Nonetheless, this unquestionably lessened the persuasiveness of Taylor’s argument. The Court in Trial Lawyers provided inspired passages on the fundamental importance of superior courts and their core jurisdiction in resolving disputes (Trial Lawyers at paras 31-33). This rhetoric does not resonate as strongly when discussing the Court of Appeal, as Taylor already had his day in court. Given the broad nature of the appeal he was launching, it seemed that he was seeking the right to re-argue that case. In short, Taylor’s facts did not create any incentive for the Court of Appeal to stretch the reasoning in Trial Lawyers to help him out.
Developing Law with Self Represented Litigants
Unfortunately, Taylor’s self-representation clearly hindered his ability to launch a successful argument, and the evidentiary shortcomings may have defeated his case before it began. One cannot help but feel Taylor’s frustration with the complexity of the process. From his perspective, Taylor faced a $20,500 cover charge to launch an appeal. Finding this burden insurmountable, he applied to have the fee waived. His application was dismissed on a jurisdictional point and before he knew it, Taylor was arguing about the constitutionality of s. 14 of The Court Officials Act against counsel for the Attorney General.
This complexity is commonplace in the legal profession, but it does little to make the justice system appear accessible to our community. It also does not help the justice system’s struggling public image as a broken and insular entity (see Dr Julie MacFarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants (May 2013) at 110); Canadian Bar Association, Reaching Equal Justice Report (November 2013)). Indeed, the Court of Appeal’s written decision itself is legalistic and formal, and I suspect it will serve lawyers looking for a precedent more than it will ever help Taylor understand why he lost his application.
Having said all that, there is a significant positive development in the decision. Justice Ryan-Froslie should be commended for providing a much-needed beacon of practical insight when she directed that the matter proceed to a pre-hearing conference. In so doing, she cut through the complex legal concerns to address the real issue, the $20,500 price tag. Even though there may be no constitutional right to free transcripts, this direction recognizes the Court’s discomfort with fees preventing someone from launching an otherwise meritorious appeal.
By stepping into a role more akin to case management, Justice Ryan-Froslie will be able to achieve more for both parties than any court application would ever accomplish. This step is often invaluable when dealing with self-represented litigants, who have repeatedly expressed their increased satisfaction with Court processes when they can deal with judges in this capacity (see MacFarlane, supra at 13, 14, 126). Shifting to case management orientation is a move that, at first, may appear to strain an already stretched legal system. I would suggest, however, that it will save time and money in clearing the courtroom of many inefficient applications, and will increase public confidence and support of our justice system.
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By: Martin Olszynski, Scott Allen and Allan Ingelson
When it rains, it pours. And so it is that the first half of 2015 has the University of Calgary Faculty of Law hosting a series of national environmental law conferences.
2015 Canadian Association of Environmental Law Students (CAELS) Conference: “Igniting a Spark”, February 13 & 14, 2015
Formed in Ottawa a couple of years ago by the membership of the-then University of Ottawa Environmental Law Students Association, CAELS is a networking body connecting environmental law students across Canada. This past year, responsibility for organizing CAELS’ annual conference was transferred to the University of Calgary’s Environmental Law Society (ELS).
This year’s theme, “Igniting a Spark,” focuses on innovations and solutions to the pressing issues of Canadian environmental, energy and natural resources law and policy. The student-run ELS has done an impressive job of securing expert panellists from the private bar, academia, government and non-governmental organizations to discuss a wide range of issues including pipelines, liquefied natural gas development, climate change, federal environmental law reform and Aboriginal law issues.
Supported by the Alberta Law Foundation and the Shell Experiential Energy Learning Program, the 2015 CAELS Conference welcomes students and practitioners from all relevant disciplines to take part. The full program and registration are available here.
CIRL/CBA NEERLS Symposium on Environment in the Courtroom IV: “Evidentiary Issues in Environmental Prosecutions and Hearings”, March 6 & 7, 2015
Over the course of the past three years and with financial support from Environment Canada (EC), the Canadian Institute for Resources Law (CIRL) has organized a series of symposia intended to strengthen the understanding and application of environmental law in Canadian courtrooms (see here for an overview of previous symposia). This year, CIRL has teamed up with the National Environmental, Energy, and Resources Law Section (NEERLS) of the Canadian Bar Association (CBA) to deliver the fourth instalment of this highly successful series, which will focus on evidentiary issues in environmental prosecutions and hearings.
Session topics include a cross-country check up on environmental prosecutions across Canada, a primer on the relevant science (everything you needed to know but were afraid to ask), issues with causation, the law on expert evidence, as well as more practice-oriented sessions, including how to prepare and cross examine expert witnesses. The full program is available here.
This year’s symposium is being held concurrently with the CBA NEERLS Annual Summit, which means networking opportunities for environmental lawyers throughout Canada and opportunities to discuss the most recent developments and current issues in environmental law more generally. Registration is available at CBA NEERLS.
Journal of Environmental Law and Practice (JELP) 5th Conference: “Après…le Deluge: Future Directions for Environmental Law and Policy in Canada”, June 6 & 7, 2015
Finally, the first weekend in June will see environmental law scholars, practitioners, as well as analysts from both government and non-governmental organizations, gather at the Faculty of Law and at the Kananaskis Field Station for the JELP’s 5th biennial conference.
This year’s conference theme, “Après… le Deluge,” invites participants to assess the current state of federal environmental law and policy, especially in the wake of the 2012 omnibus budget bills that introduced a new environmental assessment regime and amended several other acts, including the Fisheries Act, RSC 1985, c F-14 and the recently renamed Navigation Protection Act, RSC 1985, c N-22. Participants will also consider potential responses to what is widely perceived as a federal retreat in the environmental arena, whether by other levels of government (e.g. provincial, territorial, Aboriginal) or in other areas of law, such as the common law or international law.
A call for papers was sent out in mid-December, 2014 (proposals are still being accepted), and a finalized program should be available by the end of February, 2015. The program, as well as instructions for general registration, will be made available on JELP’s website at that time.
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By: Nigel Bankes
Decision Commented On: AUC Decision 790-D02-2015, Milner Power Inc. and ATCO Power Ltd, Complaints re the ISO Transmission Loss Factor Rule and Loss Factor Methodology, Phase 2 Module A, January 20, 2015
In this decision the Alberta Utilities Commission (AUC) has decided that it has the jurisdiction to grant tariff-based relief in a case where a rule of the Independent System Operator (ISO) is found to be unlawful on the basis that it was unjust, unreasonable, unduly preferential, arbitrarily and unjustly discriminatory and inconsistent with various provisions of the Electric Utilities Act (EUA) (now SA 2003, c. E-5.1) and the Transmission Regulation (now Alta Reg 86/2007). Such relief may involve retrospective or retroactive adjustments to the ISO tariff going back to the date when the Rule first entered into force (January 1, 2006, Milner Power having originally filed its objection to the ISO Line Loss Rule in August 2005 before the rule came into force).
In AUC Decision 2014-110, the AUC confirmed its earlier conclusion in Decision 2012-104 to the effect that the ISO’s Line Loss Rule was unjust, unreasonable, unduly preferential, arbitrarily and unjustly discriminatory and inconsistent with various provisions of the Electric Utilities Act and the Transmission Regulation on the grounds that the rule disadvantages generators that are loss savers and does not properly charge loss creators for their losses. The AUC’s Decision 2014-110 is the subject of an ABlawg post by Sean Bullen here.
Having made that determination the AUC then had to assess what remedy might be available. This decision comprises the first step in that procedure. The AUC’s comprehensive 80 page decision sets out the basis on which the Commission concluded that it had the jurisdiction to grant tariff-based relief. In doing so the Commission had to grapple with two principal issues. First, there was the reality that the terms of both the both the EUA and the Transmission Regulation had changed over the time period in question. Second, there is a long standing principle that a utility commission generally does not have the jurisdiction to engage in retroactive or retrospective rate making.
As to the first issue the Commission concluded that while there had been changes in the Act and Regulation these were not such as to deprive the complainants of their right to a remedy (at paras 221 and 239).
As to the second issue, the Commission concluded that there were a number of established exceptions to the principle that a utilities commission cannot engage in retroactive or retrospective rate making and that the present case fell within a number of these exceptions. The exceptions are as follows (at paras 153-212):
The Commission relied on the first four exceptions in concluding that it had the jurisdiction to proceed with tariff-based relief. That said, the knowledge exception seems to function more as overarching principle that connects the first three exceptions rather than as an independent source of authority. Furthermore it should be noted that while the version of the legislation in force at the time of Milner Power’s original complaint was a negative disallowance scheme the current provision is (at para 219) “strictly prospective in application”.
This is a well-crafted decision which reaches a practical and just conclusion; any other conclusion would have rendered the entire complaint process (at least as it originally stood) completely hollow. It is true that there will be challenges ahead in working out the details of “tariff-based relief” but, as the Commission noted (at para 167), the Supreme Court’s 1989 decision in Bell Canada makes it clear that perfection is not required in crafting a set of retrospective or retroactive rates designed to rectify what would otherwise be unjust and unreasonable rates (the earlier version of the EUA) or which fail to support the fair, efficient and openly competitive operation of the market (the FEOC principle which now animates the test for a valid rule – see para 258).
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By: Jennifer Koshan
Case Commented On: Orr v Peerless Trout First Nation, 2015 ABQB 5
In December Jonnette Watson Hamilton and I wrote a post commenting on Taypotat v Taypotat, 2012 FC 1036; rev’d 2013 FCA 192; leave to appeal granted 2013 CanLII 83791 (SCC), a case currently before the Supreme Court which involves the constitutionality of a First Nations election code. A similar case arose in Alberta recently. In Orr v Peerless Trout First Nation, 2015 ABQB 5, Master L.A. Smart dismissed a claim by a member of the Peerless Trout First Nation alleging that that Nation’s Customary Election Regulations were unconstitutional.
Peerless Trout First Nation (PTFN) is described as “a self-governed First Nation in the Treaty 8 Territory of Northern Alberta” (at para 4). Section 74(1) of the Indian Act, RSC1951, c 29 empowers the Minister of Indian Affairs and Northern Development to permit a First Nation to develop its own election code for the purposes of electing the Chief and members of Band Council. The PTFN has adopted an election code, the Customary Election Regulations, the relevant provisions of which are as follows:
9.3 Electors Eligible for Nomination
(a) All Electors must be 18 years of age or older.
(b) Any Elector convicted of an unpardonable indictable offence or who is charged with an indictable criminal offence at the time of Nomination is not eligible to be Nominated.
(c) Any Elector who is a Plaintiff in a civil action against the PTFN is not eligible to be Nominated.
(d) Electors employed by the PTFN or a PTFN Business Entity are not eligible to be Nominated.
Master Smart noted that Taypotat had decided that First Nation election codes are subject to the Charter (2013 FCA 192 at paras 34-42). In Taypotat, the Federal Court of Appeal considered the application section of the Charter, section 32, which provides that the Charter applies “(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament…; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.” The Federal Court acknowledged that a First Nation is “clearly a sui generis government entity”, yet it “exercises government authority within the sphere of federal jurisdiction under the Indian Act and other federal legislation” (Taypotat at para 36). The Supreme Court had previously held that First Nations elections are subject to the Charter (see Corbiere v. Canada (Minister of Indian and Northern Affairs),  2 SCR 203), and although the Charter must be interpreted so as not to “abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada” (see section 25 of the Charter), there were no aboriginal or treaty rights at issue in Taypotat (at paras 37, 42). For these reasons, the Charter was found to apply to the First Nations election code at issue in Taypotat. Master Smart did not review these reasons in the specific factual context of the PTFN election code, and simply adopted the holding from Taypotat that the Charter applied.
Orr’s argument was that section 9.3(c) of the Customary Election Regulations – which makes any elector who is a plaintiff in a civil action against the PTFN ineligible to be nominated as a candidate for election – violated several sections of the Charter. Master Smart dismissed each of these arguments in turn.
Orr’s first argument was that section 9.3(c) of the Customary Election Regulations violated section 2(b) of the Charter, which protects freedom of expression. The specifics of this argument were not clear, but Master Smart relied (at para 13) on Baier v Alberta,  2 SCR 673, 2007 SCC 31, which decided that although a prohibition against school employees standing for election as school trustees may have limited access to a platform for expression, it did not violate section 2(b) of the Charter. Section 2(b) generally protects against government interference with expression rather than providing a positive right to particular methods or locations for expression, and was therefore not engaged here.
Second, Orr argued that section 9.3(c) of the Customary Election Regulations infringed section 2(d) of the Charter, which protects freedom of association. Violations of section 2(d) turn on whether “the state [has] precluded activity because of its associational nature, thereby discouraging the collective pursuit of common goals?” (at para 14, citing Dunmore v Ontario (Attorney General),  3 SCR 1016, 2001 SCC 94 at para 16). Noting that Orr had not provided the specifics of this argument either, Justice Smart dismissed the claim on the basis that the restriction on eligibility to stand for election did not interfere with Orr’s “ability to establish, belong to [or] maintain an association” (at para 16).
Orr’s third argument – that section 9.3(c) of the Customary Election Regulations violated section 3 of the Charter – was also dismissed. Section 3 protects democratic rights, but has previously been found to apply only to federal and provincial elections (Haig v Canada,  2 SCR 995, 1993 CanLII 58 (SCC)), and not to band council elections (Crow v Blood Band,  FCJ No 119 at para 23). A similar dismissal of section 3 Charter arguments occurred in Taypotat (at paras 27-29).
More attention was devoted to Orr’s fourth argument – that section 9.3(c) of the Customary Election Regulations was discriminatory, contrary to section 15(1) of the Charter – perhaps because section 15 was also the focus of Taypotat. Master Smart noted that the discrimination argument was successful in Taypotat on the grounds that the grade 12 education requirement at issue in that case was found to create an adverse impact on the claimant and others based on age and aboriginality-residence. Age is a ground expressly protected under section 15(1) of the Charter, and aboriginality-residence qualifies as an analogous ground pursuant to the Supreme Court decision in Corbiere v Canada (Minister of Indian and Northern Affairs),  2 SCR 203, 1999 CanLII 687 (SCC). In Orr’s case, however, being a plaintiff in a civil action against the PTFN did not relate to any enumerated grounds protected under section 15(1), nor did it constitute an analogous ground, which includes only personal characteristics that are “immutable or changeable only at unacceptable cost to personal identity” (Corbiere at p219, cited in Orr at para 20). Master Smart also found that the restriction on election eligibility in section 9.3(c) of the Customary Election Regulations was not discriminatory – it did not perpetuate any “pre-existing disadvantage, vulnerability, stereotype or prejudice suffered by the Applicant which might support a finding of discrimination” (at para 22).
Finally, Master Smart dismissed Orr’s argument that section 9.3(c) of the Customary Election Regulations infringed the protection of aboriginal and treaty rights under section 35 of the Constitution Act, 1982, noting that the argument was without basis (at para 24).
We argued in our post on Taypotat that there are some strong arguments that the community election code at issue in that case does infringe section 15(1) of the Charter. Even if the Supreme Court upholds the Federal Court of Appeal decision in Taypotat, however, the arguments made by Orr under section 15(1) are weak in light of the requirement of proving a distinction based on a protected ground that results in discrimination. Orr’s other constitutional arguments were similarly weak, and Master Smart’s decision to dismiss the claim was a sound one.
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By: Dylan Finlay
PDF Version: Deconstructing Investigative Detention
Case Commented On: R v Rowson, 2014 ABQB 79
Crime scenes are often intense and dynamic environments. This presents a challenge to investigators who – prior to making an arrest – must collect enough evidence to satisfy the standard of ‘reasonable and probable grounds.’ The recent case of R v Rowson, 2014 ABQB 79 displays this hurdle. The scene of the alleged crime – a motor vehicle collision – was attended by paramedics, firefighters, the police, and an air ambulance helicopter. Collecting enough evidence to make an arrest was not the police’s immediate priority. To mitigate the challenge that inevitably arises in situations such as this, police are armed with the common-law power of investigative detention. This post will deconstruct this power.
The common law power of investigative detention was developed incrementally and recognized by the Supreme Court of Canada in R v Mann, 2004 SCC 52. This case involved two police officers who, while responding to a break and enter, encountered an individual who matched the description of the offender. The individual, Mr. Mann, was stopped and made subject to a pat-down search during which one of the officers felt a soft object in his pocket. Upon reaching inside the pocket, the officer found 27.55 grams of marijuana and a number of small plastic baggies. Mann was subsequently arrested; prior to this he had only been under a state of detention. At trial, Connor Prov. Ct. J. held that while the police were justified in searching Mann for security reasons, reaching into the appellant’s front pocket after feeling a soft item therein was not justified in the circumstances. The conduct thus contravened s. 8 of the Charter, the right to be secure against unreasonable search or seizure. On appeal, the Manitoba Court of Appeal held that it was not unreasonable for the police to continue the search inside of the pocket. This was further appealed to the Supreme Court of Canada.
Iacobucci J., writing for the majority, recognized “a limited police power of investigative detention” (at para 18). The scope of the term ‘detention’ within ss. 9 and 10 of the Charter was held to cover only delays that involve “significant physical or psychological restraint” (at para 19). Section 9 of the Charter provides that everyone has the right “not to be arbitrarily detained.” Since a lawful detention is not arbitrary, an investigative detention that is carried out in accordance with the common law power recognized in Mann will not infringe an individual’s Charter rights (at para 20).
To make a warrantless arrest an officer must have reasonable and probable grounds to believe the individual has committed an indictable offence, or the officer must have found the individual committing a criminal offence, or the officer must have reasonable and probable grounds to believe that a warrant is in force for arrest (s. 495(1) of the Criminal Code, RSC 1985, c C-46). It is important to note that the Criminal Code uses the term ‘reasonable grounds,’ rather than ‘reasonable and probable grounds.’ However, R v Loewen,  2 SCR 167 confirms that the standard of ‘reasonable grounds’ as prescribed by s. 495(1) actually requires ‘reasonable and probable grounds.’ Thus the two phrases can be used interchangeably in the context of a warrantless arrest.
In contrast to the standard required to make a warrantless arrest, what is the threshold test for lawful investigative detention? The first articulation of such a test occurred in the English Court of Criminal Appeal case of R v Waterfield and Another,  1 QB 164 (cited in Mann at para 24). A police officer’s conduct is prima facie an unlawful interference. To be deemed lawful, a two-pronged test emerges: it must be asked if the detaining officer’s conduct first fell “within the general scope of any duty imposed by statute or recognised at common law, and, secondly, if the conduct did so fall, whether it involved an unjustifiable use of powers associated with the duty” (Mann at para 24). The first branch is derived from the nature and scope of police duties, including the common law duty to preserve the peace, prevent crime, and protect life and liberty, subject to reasonableness (Mann at para 26). The second branch was elaborated upon by the Ontario Court of Appeal in R v Simpson (1993), 12 OR (3d) 182 (CA), holding that the detaining officer must have “some ‘articulable cause’ for the detention,” a concept borrowed from American jurisprudence (Simpson at para 58). This threshold is both lower than reasonable and probable grounds, being closer to that of ‘reasonable suspicion,’ and involves the objective and subjective aspects established by R v Storrey,  1 SCR 241 (Simpson at para 61).
Despite considering the ‘articulable cause’ standard, the majority in Mann preferred the phrase ‘reasonable grounds to detain’ (at para 33). The test is articulated as follows (at para 34):
The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individuals to be detained and a recent or ongoing criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular investigation is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference.
In other words, the officer must have reasonable grounds to believe there is a nexus between the individual detained and a criminal offence. The detention must also be reasonably necessary and assessed against the totality of the circumstances as reasonable. It should remain brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police (Mann at para 45).
Where does ‘reasonable grounds to detain’ figure into the myriad of standards associated with arrest, search, and detention? The majority left out the term ‘probable,’ possibly because with ‘reasonable and probable grounds’ the officer could make an arrest. However, the problem with making the above assumption is that it is possible that the Court used the term ‘reasonable grounds to detain’ but meant ‘reasonable and probable grounds to detain.’ Mann occurred before Loewen confirmed that the two articulations are interchangeable. Deschamps J., writing for the dissent in Mann, adds some clarity to this quandary. The dissent in Mann prefers the term ‘articulable cause’ to ‘reasonable grounds to detain’ primarily because “‘[r]easonable grounds’ has traditionally been employed to describe the standard which must be met in order to give rise to the power to arrest a suspect . . . Using this term in the present context could lead to the erroneous conclusion that the same degree of justification is required for a detention as is required in order to carry out an arrest. This cannot be the case. It would undermine the very purpose of the common law power to detain, which is to provide police with a less extensive and intrusive means of carrying out their duties where they do not have sufficient grounds for arrest” (at para 64). Therefore the standard of ‘reasonable grounds to detain’ must be interpreted as somewhere below ‘reasonable and probable grounds’ and closer to that of ‘reasonable suspicion.’
The true issue in Mann was not whether the investigative detention was lawful, but rather whether the pat-down search was lawful as a search incident to investigative detention. In the context of an arrest, the Supreme Court has held that police officers are empowered to search without a warrant for weapons or to preserve evidence (R v Golden,  3 SCR 679 at par 94). Mann recognizes that the common law police power of search incident to arrest applies to search incident to investigative detention (at para 38). This is again subject to the test articulated in Waterfield. The first prong of the test recognizes search incident to investigative detention as arising from the general scope of police duty (at para 38). The second prong limits the first to searches that are reasonably necessary (at para 39). In reference to a pat-down search, the Court explicitly states that such a power to search does not exist as a matter of course, but rather only if the detaining officer has reasonable grounds to believe his or her own safety or the safety of others is at risk (at para 40). In the context of the facts in Mann, it was reasonable for the officers to conduct a pat-down search because there “was a logical possibility that the appellant, suspected on reasonable grounds of having recently committed a break-and-enter, was in possession of break-and-enter tools, which could be used as weapons” (at para 48).
An officer making an investigative detention does not only have to comply with the appropriate standard and refrain from making unreasonable searches, he or she must also comply with s. 10 of the Charter. To do this, he or she must first advise the detained individual of the reasons for the detention, as s. 10(a) of the Charter provides (Mann at para 22). Section 10(b) of the Charter, the right to retain and instruct counsel without delay and to be informed thereof, is not strictly adopted by the Supreme Court; the Court instead held that it “must be purposively interpreted,” and left further articulation to the lower courts, noting only that mandatory compliance cannot be turned into an excuse to prolong the detention, which must remain brief (at para 22).
R v Orbanski; R v Elias,  2 SCR 3 further articulates the s. 10(b) requirement in relation to investigative detention. The issue in this case centered upon whether an officer may ask questions about alcohol consumption and request a driver perform sobriety tests prior to complying with s. 10(b) (at para 22). The Court held that in the context of investigating a driver’s sobriety at the roadside, s. 10(b) is suspended. However the scope of s. 10(b) rights in the broader context of investigative detention was left unanswered.
The Court in R v Suberu,  2 SCR 460 held that subject to a few conditions, s. 10(b) rights arise immediately upon detention. Paragraph 42 of Suberu states:
In our view, the words ‘without delay’ mean ‘immediately’ for the purposes of s. 10(b). Subject to concerns for officers or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.
Despite the strict interpretation in Suberu, one’s thoughts must turn to the potential remedy. In Rowson, the police placed Mr. Rowson under investigative detention for dangerous and possibly impaired driving. At a voir dire on the Charter issues, it was conceded that the detaining officer did not inform Rowson of his right to counsel at this time, but rather a few minutes later when he was placed under arrest. In terms of remedy for the breach of s. 10(b), it was held that statements made by Rowson were to be excluded up until he was informed of his right to counsel. The investigative detention remained lawful, however.
Breath samples obtained after Rowson was informed of his right to counsel were found to be admissible, and he was convicted of a number of impaired driving related charges following a trial. The Crown advises that the accused is pursuing an appeal.
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By: John-Paul Boyd
In many of Canada’s family law courts, especially our provincial courts, the majority of litigants now appear without counsel. This state of affairs should have been a foreseeable consequence of the diminution of legal aid representation in family law cases coupled with the relative absence of market forces impelling private family law lawyers to reduce their rates or embrace new service models, but it is nonetheless where we find ourselves today.
It is easy enough to point to the observable consequences of this superabundance of litigants without counsel – chief among them the increased number of ill-conceived chambers applications, the ever-expanding length of trials and the congestion presently plaguing court registries – and shudder in horror. However, it must be borne in mind that the justice system is not our system, a system for judges and lawyers, but their system, a system that belongs to the users of the system, the litigants themselves. As a result, despite the inconveniences enuring to the mutual discomfort of bench and bar, I am hard pressed to conclude that there is anything fundamentally wrong with the growing presence of unrepresented litigants; the situation is infelicitous, to be sure, but not iniquitous.
The engagement of so many litigants without counsel in court processes could be viewed as prima facie evidence that family justice is accessible, however as the recent work of Professor Julie Macfarlane and the Canadian Research Institute for Law and the Family demonstrates, this sort of “access” is superficial and doesn’t go much further than being able to find the front door of the courthouse; there would still be lineups to get into the only hospital in town even were it staffed by a third of the necessary doctors and equipped with a third of the necessary beds, but we wouldn’t call that accessible health care. The research produced by Macfarlane and the Research Institute shows that litigants have enormous difficulty understanding and navigating the rules of court, the rules of evidence, court processes and the legislation applicable to their cases, and that, unsurprisingly, they find the justice system to be impossibly intimidating, incomprehensible and inaccessible.
This raises a special set of problems for litigants involved in family law disputes. Family law is a unique species of civil law for many reasons, but primarily because of: the frequency with which disputes brought to court concern social, psychological and emotional issues rather than legal; the almost complete absence of circumstances in which a specific legal conclusion invariably and inevitably results from a particular set of facts; and, the range of other areas of the law that may be concurrently applicable, such as contracts, tax, conflicts, real property, negligence, torts and trusts. Family law, in other words, is complex, and the questions this note seeks to explore are the extent to which complexity is necessary or desirable, and the extent to which complexity is compatible with fairness and an accessible system of family justice.
To begin with, it must be noted that the federal and provincial legislation on domestic relations is an expression of social values and government social policy. Divorce is bad, and accordingly the 1857 UK Divorce and Matrimonial Causes Act made it very difficult to get a divorce a vinculo, especially if you were a woman; adultery and abuse are bad, and accordingly the 1968 Canadian Divorce Act required the court to take matrimonial misconduct into account when determining issues of custody and support. Today, some of the clearest examples of social policy questions resolvable by legislation concern:
Given that the moderation of conflict is a critical psychological, social, legal and economic value, it also stands to reason that certainty would inform the manner in which social policy is expressed through legislation, particularly in family law matters. Certainty is, by and large, a valuable and useful quality, particularly for litigants without counsel. Knowing that only X equals Y saves a great deal of time and money arguing about the possibility that Z might also equal Y; it helps to improve the predictability of litigated outcomes; it depersonalizes disputes, insofar as it’s not anyone’s fault that X equals Y; and, it promotes settlement by limiting the available options and thus circumscribing litigants’ hopes and expectations.
Financial issues have proven to be most amenable to certainty in family law matters, as a result of which we have the tables of quantum provided by the Child Support Guidelines, the formulae set out in the Spousal Support Advisory Guidelines for the calculation of duration and quantum, and legislation establishing presumptions of varying strength with respect to the division of matrimonial property. Despite the efforts of MP Maurice Vellacott and his perpetually recurring Bill C-560, certainty as to the care and control of children after separation remains elusive, with, I suggest, good reason.
Nevertheless, certainty is the enemy of complexity in most legal matters save those relating to taxation. Certainty must yield results fulfilling government’s social policy goals and those results must be objectively fair, however, because justice systems are human rather than mechanical in nature, the correct expression of this principle is that certainty must tend to yield results fulfilling government’s social policy goals and those results must be subjectively fair for most people most of the time. It is important to observe that in adding even these modestly temporizing qualifications, abstract conceptions of objective certainty already begin to be undermined by subjective considerations, and a hint of the complexity that must necessarily fill the void begins to emerge.
Attempts to reconcile social policy, certainty and complexity produces legislation that is ultimately, although perhaps unintentionally, utilitarian in design, inasmuch as it is generally intended to produce the greatest good for the greatest number, and therefore also normative. The classic bell curve that models the normal statistical distribution of many human qualities, from IQ scores to height, to the likelihood that the bus will arrive on time, can also be used to model the impact of family law legislation on dissolving families.
For most people, the application of the rules and principles set out in normative legislation will yield a fair, if not actually good, result. Assuming a normal statistical distribution, this should be the experience for almost 70% of the population, those grouped within the first standard deviation on either side of an average result. However, the more a family’s circumstances tend to depart from those of the hypothetical everyman family for whom the legislation was written, the less satisfactory are the results produced by the application of that legislation.
It’s entirely reasonable, for instance, that spousal support would be permanently payable for a couple leaving a long-term, traditional marriage of the Leave it to Beaver variety, in which the dependent spouse has sacrificed her career and employability to manage and nurture the family while the payor worked outside the home supporting the family and incidentally improving his earning potential. It’s far less just for a couple leaving a two- or three-year relationship during which the dependent spouse became permanently unemployable as a result of a drunk driving accident or botched suicide attempt, and yet the indefinite payment of spousal support in such a case is the probable outcome, barring a hefty insurance settlement or another source of income.
Thankfully, relatively few families should find themselves in the tail areas of the bell curve; again assuming a normal statistical distribution, the outcomes obtained by less than 5% of the total population, those in the third and fourth deviations, ought to be unfair or very unfair compared to an average result. In my experience as a family law lawyer, however, it has seemed to me that the bell curve modeling the impact of legislation on my clients has perhaps a higher standard of deviation than the norm, giving the bell curve a greater population at the extremes and thus fatter tails than suggested by the normal distribution; in other words, my impression is that quite a bit more than 5% of separating couples experience an unfair or very unfair result from the application of family law legislation. (This is certainly the experience of many of the unrepresented litigants discussed in Macfarlane’s research and the Canadian Bar Association’s recent report on access to justice.) My views may be the result of sample error, given that the families who consult counsel tend to be those whose circumstances are complex or conflicted; whether this is an error or not, it is also the experience of our judges, who deal with a still higher proportion of families in complex and conflicted circumstances.
In anticipation of just such unfairness, most if not all of the legislation on domestic relations come with built-in safety mechanisms. British Columbia’s repealed Family Relations Act, for example, provided that spouses would each receive a one-half share of the family property, unless an equal division would be “unfair” considering a non-exhaustive list of six factors; its new Family Law Act prescribes an equal division unless an equal division would be “significantly unfair” upon consideration of an even longer non-exhaustive list of factors. The Family Law Act offers similar exemptions in respect of presumptions that would otherwise require parenting time and parental responsibilities to be shared equally, that all parental responsibilities after the death of one guardian be vested in those which survive, and deem a proposed relocation to be in the best interests of a child once certain conditions are met.
Other, better-known examples of such safety mechanisms are found in the Child Support Guidelines, a regulation that presumptively determines the quantum of support awards according to the payor’s income and the number of children for whom support is being paid. The Guidelines provide escape valves that allow the court to depart from the tables of quantum when: a dependent child is an adult; the payor’s income is more than $150,000 per year; the payor is a stepparent; each parent has the primary care of one or more siblings, known as “split custody;” the parents share the children’s time equally or near-equally, known as “shared custody;” or, a parent would suffer “undue hardship” were the table amount to be paid. (These safety mechanisms are particularly important for married parents given that the Divorce Act prohibits the granting of divorce orders unless “reasonable arrangements,” usually interpreted as payment according to the Guidelines tables, have been made for the support of the children.)
To put things another way, the drafters of our family law legislation, being aware that all families are neither cut from the same cloth nor use the same tailor, have included in their work certain presumptions, providing objective fairness, along with means of avoiding those presumptions, providing an element of subjective fairness for those families in the tails of the bell curve. Although this approach is sensible and laudable, the discretion demanded by subjective considerations undermines the certainty provided by the presumptions, resulting in the exacerbation of complexity, particularly where the exceptions themselves are couched in ambiguous language that cannot be understood without reference to the case law interpreting that language.
Returning to child support for an illustration, section 8 of the Guidelines discusses the calculation of quantum in situations of split custody and section 9 concerns situations of shared custody. Section 8 requires that the parents’ table obligations be offset against one another, with the parent having the greater financial obligation paying the difference:
Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.
Section 9, on the other hand, says this:
Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
While section 8 provides a concrete and readily calculable formula, section 9 simply lists three factors that need to be considered when fixing an appropriate amount of support, and the amount payable is therefore indeterminate. As a result, parents with shared custody of their children must be able to access and understand the case law interpreting section 9 in order to have any hope of gauging the amount of support they may be obliged to pay or entitled to receive, and indeed whether they meet the 40% threshold for shared custody at all.
Two problems follow from the complexity entailed by discretion. First, complexity gives courts the opportunity to craft judgments that are precisely and often uniquely tailored to the particular circumstances of the family before them. Few litigants or lawyers would argue that this sort of bespoke justice is anything other than a highly desirable outcome, but the end result is the fraying of the tapestry of the common law with inconsistent and sometimes incoherent case law that becomes increasingly intricate as exception after exception is carved out of general, normative principles to meet the needs of individual families.
Second, it means that the law that applies to a particular legal problem becomes obfuscated and ceases to be intelligible merely upon review of the applicable legislation. The case law describing the range of circumstances invoked by open-ended lists of factors and interpreting phrases such as “undue hardship,” and similar idiomatic expressions such as “unless the court otherwise orders” and “unless it would be inappropriate,” must be consulted to properly understand the law, creating a significant barrier to justice for people not trained in legal research and the jurisdictional nuances of stare decisis. Although organizations like CanLII have done a wonderful job making newer case law accessible and searchable, it can be incredibly challenging for even highly educated laypeople to separate the wheat from the chaff and find relevant case law illuminating and elucidating the text of statute law.
Interestingly, these problems are often explicitly renounced by legislation intended to promote certainty and objective fairness, such as the rules of court. The Guidelines, for example, are introduced with this statement of purpose at section 1:
The objectives of these Guidelines are
(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;
(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;
(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and
(d) to ensure consistent treatment of spouses and children who are in similar circumstances.
Despite their noble intent, the latter three objectives are significantly undermined by the extensive use of escape valves, often couched in frustratingly vague language, that pepper the subsequent provisions of the Guidelines and facilitate subjective fairness and single-serving justice.
To boil all of this down somewhat, in my view our legislation on domestic relations does in fact tend to yield generally fair results for most people most of the time, arguments over the correctness of social policy aside. There are, however, families for whom the legislation yields results that are unfair or very unfair, and there are more of these outliers in family law disputes than one would expect from utilitarian legislation yielding a normal distribution of fair and unfair outcomes. Our legislation anticipates, and is drafted so as to accommodate, these outliers, however in so doing: the plain meaning of the legislation becomes obscured; a critical body of uncodified case law necessarily accumulates that is external to the legislation yet must be accessed to understand it; certainty of result is diminished as complexity increases and expectations are less bounded; opportunities to pursue subjective fairness multiply, and along with them conflict and the likelihood that litigation will be required to resolve any given dispute; and, ultimately, the accessibility of family justice is significantly impaired.
In the end, the dilemma posed by the conflicting principles of objective certainty and subjective justice resolves into a question of values and priorities to which there is no easy answer.
We could adopt relatively inflexible legislation of the X equals Y variety, which offers very little room for judicial discretion but results in a correspondingly higher degree of certainty. A separating couple would be able to read the legislation and determine the range of likely outcomes, without needing to read the case authorities except to seek explanations. A limited range of potential outcomes would reduce opportunities for conflict and the likelihood that unreasonable positions will be adopted. Separating couples would be more able to resolve legal disputes without the need for costly court proceedings. Pressure on the system would ease and more judicial time could be given to non-adversarial processes. Frankly, it’s not hard to imagine simplified versions of the Guidelines and Advisory Guidelines that admit of fewer opportunities to escape their presumptions, mathematical approaches to the division of matrimonial property that are more determinate, or even automated dispute resolution systems that at least provide a starting point for settlement discussions where disputes aren’t resolved completely.
Unfortunately, the rigidity inherent in such an approach will damn those individuals stuck in the fat tails of family law to their unfair or very unfair results, with little opportunity for redemption. The approach is poorly compatible with the principle that decisions about the post-separation care of children must be based on their best interests as well. It may stifle innovation and the evolution of the law. It also conflicts with the shrill yet compelling demand for custom-fit outcomes. Justice will be accessible, although it may not be just.
On the other hand, we could have a system much like that we already have, which generously accommodates individuals stuck in the tails and their pleas for subjective fairness. However, excessive deference to demands for custom-fit outcomes raises critical barriers to justice. Such an approach demands complexity, often becoming involute to an extraordinary degree, resulting in systemic inefficiencies and unintelligible legal principles; it exacerbates conflict in the highly emotional circumstances of family breakdown, depleting family resources and risking serious long-term harm to children; and, it diminishes the likelihood that someone without counsel will achieve a fair result even at trial, a concern raised by Justice Victoria Gray in her paper on litigants without counsel and the judicial system.
Although there may be a hybrid approach which lies somewhere in the middle of these two options, it is clear that the present system is inordinately complex, requires enormous funding to maintain, and is largely inaccessible to litigants without counsel at a time when such litigants are flooding the courts. I fear that efforts toward reform which are conducted without a radical reexamination of our fundamental assumptions about the expression of social policy and the nature of family justice will produce results no better than what we have at present.
The tension in the justice system between the law that is good for the group and the law that is good for the individual reaches a critical mass in family law disputes as the call for bespoke justice is so clear in such cases. However, the emphasis on subjective fairness and individual exceptionalism in family law matters comes at a very high price and it is not at all clear that the benefits to the individual outweigh the psychological, social, legal and economic cost of complexity. As we deliberate on the barriers to justice and explore avenues of improvement in the age of the litigant without counsel, it seems to me that we need some degree of resolution to the debate on the extent to which complexity in family law matters is necessary or desirable, and the extent to which complexity is compatible with an accessible system of family justice. Should we accept some impairment of the needs of the few on the condition that such vitiation redounds to the benefit of the many, or should the needs of the few prevail at the risk of access to justice for all? Should family justice be designed for we or just me?
This post originally appeared on Slaw.
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