By: Avnish Nanda
PDF Version: Litigating Death in Care Cases in Alberta
More than 775 children with some involvement with child protective services in Alberta have died since 1999. This past year alone, approximately 31 children have died while in provincial care or while receiving protective services. The vast majority of children dying in care are of Aboriginal heritage, and all come from marginalized backgrounds. Only until recently have the deaths of all children who die in provincial care been investigated. Prior to 2014, provincial fatality inquiries were only held into select deaths, with none of the findings and recommendations binding on the province or care providers.
For the families of children who have died in care, litigating wrongful death claims against the province and care providers offers an opportunity to obtain redress. Unfortunately, very few cases have been filed, let alone litigated, due in large part, in my view, to the marginalized position of families and the opaqueness of this area of law. With respect to the latter, common law causes of action are non-existent, duties of care are not clearly defined and the jurisprudence is sparse.However, a pair of companion decisions released by Justice Robert A. Graesser in 2014, and a notable decision by the Alberta Court of Appeal on punitive damages in the wrongful death context, provides a path forward. Drawing from these decisions and a more recent one, this post outlines a potential legal framework that could be used to inform and help formulate death in care claims against the province and care providers whose wrongful conduct led to the death. It is intended to spark a conversation on how lawyers can assist families of children who have died in care obtain financial restitution and push for reform to the child protective services system in Alberta.
The common law provides no basis for families of individuals who have died through wrongful means to recover damages for the loss resulting from the death. Statutory causes of action are instead relied upon to obtain financial restitution, which in Alberta is primarily set out under the Fatal Accidents Act(the Survival of Actions Act RSA 2000, c S-27 provides another statutory cause of action but is not relevant in this particular context. For the Survival of Actions Act to be pled, claimants have to demonstrate that the deceased or their estate suffered actual financial loss as result of the death, which is unlikely here, as the deceased are children).
The Fatal Accidents Act provides the family of the deceased a statutory cause of action for non-pecuniary damages against those whose wrongful act, neglect or default caused the death of the deceased. Pursuant to section 8(2)(b), the parents of children who have died in care, and potentially the children of the children who have died in care, are entitled to damages for bereavement (defined more specifically as damages for grief and loss of the guidance, care and companionship of the deceased person). See Non-Fatal Exclusion: The Fatal Accidents Act, Stepchildren, and Equality Rights for an overview of the history and context of the Fatal Accidents Act. Any sort of negligence (including systemic negligence, which has been pled in this context), breach of fiduciary duty or other cause of action that resulted in a child in care’s death could be subsumed under the Fatal Accidents Act. Damages may be awarded without reference to any other damage awards granted and without evidence of damage. The parent or parents of the deceased child are entitled to a statutory maximum of $82,000 in damages, to be divided equally if the action is brought for the benefit of both parents.
In FRN v Alberta and SM v Alberta, Justice Graesser considers two applications to strike brought by the Crown against claims filed by families of children who have died in provincial care. In considering the applications, which are partially successful, Justice Graesser provides a template for wrongful death claims in this context. Justice Graesser thoroughly examines the pleadings for causes of action against the Crown and care providers, which in both cases are individual foster parents and not corporate care providers. While it is necessary to read both companion decisions in their entirety, for the sake of brevity, Justice Graesser examines the various causes of action pled against the defendants and narrows them to two that could be meritorious.
In addition to damages under the Fatal Accidents Act, families may also be entitled to damages under section 24(1) of the Charter of Rights and Freedoms according to Justice Graesser (FRN v Alberta at paras 50 -55 and 75-88, SM v Alberta at paras 87 – 104, 129). Damages could be awarded to the parents of children in care for the violation of their Charter rights as a result of the death. Justice Graesser identifies potential section 7 Charter rights that could be breached in such instances, including: (1) the right to nurture one’s child, to care for its development and to make decisions for it in fundamental matters, but not limited to medical care and moral upbringing; and (2) the right to physical and psychological integrity (FRN v Alberta at para 87 and SM v Alberta at para 100). It is important to recognize that the enumerated section 7 rights relate to the rights of the parents and not of the children themselves, as Charter cannot generally be asserted after death. Justice Graesser also sets out potential principles of fundamental justice that claimants could rely on to make out their section 7 Charter claims, the most relevant being: (1) that to have a right, you must have a remedy when your right is violated; (2) if a child is being provided with care under the Act, the child should be provided with a level of care that is adequate to meet the needs of the child; and (3) there should be no unreasonable delay in making or implementing a decision affecting a child (SM v Alberta at para 101).While it is not certain whether Charter arguments can be successfully made in each case, Justice Graesser makes clear that the apprehension, custody and death of a child in care could lead to such section 7 violations and corresponding damage awards under section 24(1).
In the event that the children of a child who has died in care bring a claim under the Fatal Accidents Act, the statutory award they would be entitled to is $49,000 for each child. The award is not split between the children, as it is for parents of deceased children under the Act, but represents their individual entitlement. Moreover, as indicated in Argent v Gray, 2015 ABQB 292, pursuant to section 5.1(2) of the Limitations Act, RSA 2000, c L-12 the two year limitations period for the children would be suspended until they reached the age of majority, recommencing afterwards. While this scenario may be rare, there is a distinct possibility that this could occur, and given the quantum of damages and limitations issues described above, filing on behalf of the children may provide a strategic advantage to the family of the deceased over filing on behalf of the parents.
Until recently it was generally thought that claimants were limited to non-pecuniary damages under the Fatal Accidents Act and not entitled to punitive damages. This understanding changed with Steinkrauss v Afridi, 2013 ABCA 417 (clarified in Steinkrauss v Afridi, 2014 ABCA 14 – See Punitive Damanges Now Possible in Alberta Fatal Accidents Actions for further discussion of punitive damages and the Fatal Accidents Act) For the first time, the Court acknowledged that punitive damages could be awarded under theFatal Accidents Act, and that such awards would be granted in addition to the $82,000 maximum set out for bereavement damages in the legislation. Provided that it can established that conduct related to the wrongful act, negligence or default that led to the death was so egregious that it must be punished, denounced or deterred, claimants are now entitled to punitive damages in Alberta. From my experience litigating such cases, punitive damages are a real possibility given the often tragic and preventable manner in which many children in care die.
The number of children dying in care in Alberta is alarming. While there are a multitude of factors involved, the number of deaths caused by accidental or preventable means is disturbing. For both the families, and social justice activists interested in pursuing policy reform through the law, the civil justice system can provide a method to force the province and care providers to ensure there are adequate safeguards and protections for children in their care.
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By: Martin Olszynski
This is a follow-up post to an earlier blog from May in which Alex Grigg and I described a research project looking into the new “fisheries protection” regime under the amended Fisheries Act. Interested readers are referred to that post for background. Briefly, in order to gain insight into the difference between the previous habitat protection regime and the new fisheries protection regime, we analyzed the primary permitting vehicle in this context, the Fisheries Act section 35 authorization (previously authorizing harmful alteration, disruption or destruction of fish habitat, now authorizing the death of fish and the permanent alteration or destruction of fish habitat). One hundred and eighty four authorizations (just over 1600 pages worth) issued by the Department of Fisheries and Oceans’ two largest regions (Pacific and Central & Arctic) over a six-month period for the years 2012, 2013, and 2014 were analyzed, with 2014 being the first year under the new regime. In order to help frame the analysis and provide additional baseline information, twelve statutorily required annual reports to Parliament on the administration and enforcement of the habitat/fisheries protection provisions were also analyzed (2001/02 – 2013/14). In this post, I discuss five of the most significant findings from this analysis. The full paper (from which this post borrows liberally) is available here.
My earlier post focused on DFO’s annual reports to Parliament, beginning with annual referral and authorizations rates. The results indicated that the federal government’s abandonment of the habitat protection field has been a decade’s long process, beginning with the implementation of a risk-based approach to section 35 authorizations roughly ten years ago (see Figure 1 of that post). This post focuses on Bill C-38’s effects on that process by examining the differences between the previous habitat protection regime and Bill C-38’s fisheries protection regime.
While DFO’s Fisheries Protection Policy Statement appears to adopt a generous interpretation of the new subsection 35(1) prohibition, departmental budget cuts and the strong signal sent to the regulated community by virtue of the mere fact of the 2012 amendments have resulted in a 58% reduction in the authorization regime’s scope. In concrete terms, DFO’s two largest regions went from issuing 86 authorizations in 2012 (over a six month period) to 36 in 2014. As will be seen, only a small percentage of this reduction appears attributable to the actual legislative changes to section 35. Approximately 40% of it can be attributed to DFO’s apparent adoption of an extra-legislative size threshold for impacts requiring authorization. The rest of it appears to be attributable to proponents’ views on the likelihood – or not – of being prosecuted.
Habitat v. Fisheries Protection
The primary differences between the previous habitat protection regime and the current fisheries protection regime can be summarized as follows:
To determine whether the prohibition is capturing new activities, authorizations were categorized on the basis of the primary work-type for which an authorization was granted (using categories from DFO’s annual reports). The results (Figure 1 below) indicate that the fisheries protection regime has not, as of yet, captured previously unregulated activities. This is not surprising as the primary messaging surrounding the amendments was less – not more – regulation. Figure 1 also illustrates the disproportionate number of authorizations issued for shoreline work in 2014, which are related to the Alberta floods of 2013. When shoreline work is adjusted to reflect the average of the two preceding years, the number of authorizations in 2014 decreases even further (see column 2014*).
Assuming perfect implementation of both the prior and new regime, one would expect there to be fewer authorizations in the 2014 vintage simply on the basis that one kind of impact, temporary disruptions, is no longer prohibited or regulated. This scenario is complicated, however, by the fact that DFO risk-managed low-risk projects away from the authorization stream. Consequently, we coded all of the authorizations on the basis of the type of impact that was being authorized. The results (Figure 2) suggest that harmful alterations (HA) and disruptions (d) alone or in combination constituted only a small portion of DFO’s authorization activity under the previous HADD regime. With respect to disruptions alone, there were only three authorizations issued in 2012 (3.5%) and two in 2013 (3.2%).
On the one hand, this suggests that the change from HADD to DPAD was not as drastic as some industry lawyers and environmental groups suggested, or at least may have been understood as suggesting. Practically speaking, few projects that did not involve at least some destruction of fish habitat would have been caught by the regulatory process under the previous HADD regime. This is not to say that disruptions and other harmful alterations were not prohibited (they were) but proponents were actively dissuaded from seeking an authorization and more or less assured compliance if they followed the mitigation measures set out in a non-binding Letter of Advice or applicable Operational Statement (see my previous post for an explanation of these).
Most importantly, Figure 2 makes clear that the change from HADD to DPAD cannot account for the 58% reduction in authorization activity under the new regime. At most, this change could account for a 16% reduction (86 minus 14 authorizations for harmful alteration and/or disruption only). Therefore, there must be some other basis for the observed reduction in the number of authorizations.
The foregoing suggests that if the reduction in the number of authorizations is coming from DFO, it must be through the fisheries requirement. To determine whether this requirement was having the drastic effect predicted by some (see e.g. this paper by fisheries biologists Jeffery Hutchings and John Post, who suggested that Canada’s sparsely inhabited northern lakes and rivers would not receive protection), the coordinates of all authorizations issued in 2012, 2013 and 2014 were plotted on a map using Google Maps. The results are available here, where users can view authorizations from each year or all at once. Below is a screen shot of the latter view (blue = 2012, red = 2013, light blue = 2014):
My first observation is that, apart from the fact that there are fewer authorizations in 2014, their distribution more or less resembles the distribution from 2012 (in fact, 2013 exhibits the strongest urban concentration; such authorizations accounted for 44% of the total). Although the data is obviously limited, the absence of any obvious change in pattern is consistent with the government’s talking points and DFO’s approach that the fisheries requirement does not represent a radical change to the scope of the regime.
The more striking realization, however, is that the vast majority of Canada’s freshwater lakes and rivers appear to not have had the benefit of habitat protection before the implementation of the new fisheries protection regime. It is simply untenable to suggest that there were only two instances of habitat destruction (to say nothing of harmful alteration or disruption) requiring authorization in all of northern British Columbia, Alberta, Saskatchewan, Manitoba and Ontario in 2012 and 2013 (i.e., draw a horizontal line from the Pacific coast all the way to Ontario at roughly the latitude of Smithers, B.C., and count how many authorizations you see above that line). In addition to a long-established forestry industry, this area includes the Montney and Horn River shale gas plays of northeastern British Columbia and northwestern Alberta, which have seen significant development in the past decade. It also includes Alberta’s Lower Athabasca Region, home to Alberta’s oil sands. Most of this development falls within Canada’s Peace-Athabasca watershed, the threats to which have most recently been assessed by World Wildlife Fund Canada (WWF Canada) as follows:
High levels of pollution are a concern, with all sub-watersheds except the Williston Lake sub-watershed scoring moderate or above. Transportation incidents are very high in the Central Peace–Upper, as are pipeline incidents in the Upper Peace and Upper Athabasca. Habitat loss also scores high, due primarily to forest loss and, to a lesser extent, farming and urban and industrial development. Habitat loss is greatest in the Lower Athabasca sub-watershed (very high) and the Lower Peace and Central Athabasca–Lower sub-watersheds (high)… The level of habitat fragmentation is moderate overall but high in the Central Athabasca–Upper, Williston Lake and Upper Peace sub-watersheds.
(WWF-Canada recently launched an innovative online tool, Watershed Reports (http://watershedreports.wwf.ca/), which allows users to access the assessed health of, and threats to, their watersheds and sub-watersheds. For the Peace-Athabasca watershed, see http://watershedreports.wwf.ca/#ws-6/by/threat-overall/threat).
In light of the above, an attempt was made to determine if there was any other variable that might explain the reduction in authorizations. Although the size of impact is not explicitly reflected in the new regime, it is often – if incorrectly – equated with significance; indeed, some have suggested that the term “serious harm to fish,” although defined in the Act to mean simply “the death of fish and the permanent alteration, or destruction of, fish habitat,” implies that such impacts need to reach a certain threshold. The results suggest that DFO has indeed adopted such an approach. Figures 3a and 3b (below) demonstrate that the number of authorizations for impacts less than 1000 m2 have declined from 2012 to 2014, while the proportion of impacts between 1000 m2 and 10,000 m2 has increased. This change can account for roughly 40% (20 out of 51) fewer authorizations from 2012 to 2014.
Figure 3a: Proportion of Authorizations by Impact Size (2012 – 2014)
Finally, we wanted to determine whether the addition of the section 6 factors had any appreciable effect on the content of authorizations. Generally, we observed authorizations from 2014 to be shorter and less detailed than in 2012 or 2013. With respect to offsetting plans in particular, and bearing in mind that this was a matter of policy before but now is a legally required consideration, we were somewhat surprised to find that these were being increasingly deferred to a later time (Figure 4). This is likely a reflection of the three month time limit imposed by the new section 35 regulations, coupled with resource constraints following the significant reductions to DFO’s budgets. But such an approach is also pretty clearly unlawful; section 6 is unambiguous that the Minister must consider the relevant factors prior to exercising his or her authority pursuant to section 35.
Arguably, such an outcome is made possible because sections 6 and 6.1 are half measures only; in addition to listing a series of mandatory factors, establishing a clear structure for the regulatory review process also requires transparency (e.g. by making decisions public). Notwithstanding the fact that the Supreme Court of Canada has long held that Canada’s fisheries are a public resource (see e.g. Interprovincial Co-Operatives Limited et al. v. The Queen  1 SCR 477 at 495), DFO has never maintained a public registry of section 35 authorizations. At least under the previous Canadian Environmental Assessment Act, SC 1992 c 37, this reality was offset by the fact that the need for a section 35 authorization triggered a federal environmental assessment, information about which would be posted on the Canadian Environmental Assessment Registry (CEAR). But Bill C-38 also repealed the previous CEAA regime and replaced it with the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52, whose dominant feature is abandonment of the trigger approach in lieu of a (major) project list, such that the CEAR no longer reflects DFO’s authorization activity. Consequently, the only way for the Canadian public to become aware of an authorization now is through an access to information request.
The above is just a snapshot of the findings of this research project (these and others are discussed in more detail in the full paper), but overall it is hard to escape the conclusion that the federal government has in fact all but abdicated its responsibility for fish habitat protection in Canada. The results also cast further doubt on the purported rationale for the Fisheries Act changes in Bill C-38. As is clear from my previous post, DFO had already gone to great lengths to reduce the regulatory burden on proponents (e.g. with the implementation of its risk-based framework and lax approach to enforcement). Bearing in mind also the evidence of continuing degradation of Canada’s aquatic ecosystems, one can’t help but wonder upon what basis then Minister of Fisheries and Oceans Keith Ashfield declared that “current fisheries policies go well beyond what is required to protect fish and fish habitat.”
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By: Sarah Burton
Case Commented On: Raczynska v Alberta Human Rights Commission, 2015 ABQB 494
The Alberta Court of Queen’s Bench recently rejected an application to judicially review the dismissal of a meritorious human rights claim. Why? The self-represented applicant did not name and serve the correct respondent on time. The fatality of this misstep would have been reasonably evident to any lawyer familiar with the Rules of Court, Alta Reg 124/2010 and case law governing judicial review. For self-represented litigants, however (and particularly those coming from the relatively forgiving forum of the Alberta Human Rights Commission) this is just one of the endless procedural landmines that can destroy their claim.
How should we deal with self-represented litigants who have seemingly valid claims, but lack an understanding of legal procedure? This question is at the forefront of Raczynska v Alberta Human Rights Commission. Justice Robert A. Graesser’s decision is a relatively straightforward application of the Rules as interpreted by case law. The Rules themselves, however, are undeniably harsh in this context – and the dismissal they compel invokes very little sympathy from the Court. In all, Raczynska asks the legal profession to revisit a nagging question: In light of the wave of self-representation (and the financial restraints behind it), have we struck the right balance between ensuring order and making justice accessible?
The Complainant, Krystyna Raczynska, launched a complaint with the Alberta Human Rights Commission on the grounds of age discrimination in the course of employment practices. She is a registered dental assistant whose name was on an “on call” list for temporary work. In June 2011, an employee from the Yousif Chaaban Professional Corporation (the “Professional Corporation”) left a message on Ms. Raczynska’s telephone, asking if she was interested in applying for a job. When she returned the call, the employee asked “how old are you?” Ms. Raczynska replied that this was an inappropriate question, and the employee hung up (at paras 8-11).
Ms. Raczynska filed a complaint with the Commission, who investigated and found reasonable grounds existed. The investigator recommended Ms. Raczynska receive $2,500 in compensation for loss of dignity and injury to self-respect. Ms. Raczynska originally rejected this remedy, but later verbally agreed to accept the settlement. The Commission forwarded her a signed settlement agreement for her signature, but received no reply. The Commission unsuccessfully attempted to contact Ms. Raczynska on multiple occasions over the next month, at least two of which were returned unopened to the Commission (at paras 18-19). Two months after the settlement agreement was originally mailed, the Director discontinued her claim (at paras 20-28). One month after that discontinuance, Ms. Raczynska contacted the Commission, explaining that she had been hospitalized and was unable to access her mail over the past 3 months. She requested a review of her case dismissal (at para 29). The Commission considered and rejected her appeal, maintaining that the Director appropriately dismissed her complaint (at paras 31-33).
Ms. Raczynska filed an application for judicial review of this decision. She represented herself before the Court. Her application named the “Office of the Chief of the Commission and Tribunals”. It did not name the Professional Corporation (at para 35). At the hearing, the Commission brought a preliminary application to add the Professional Corporation to the application, despite the fact that the time for doing so had expired. The Professional Corporation appeared and opposed the application.
Ms. Raczynska failed to name the correct party on her application for judicial review, and failed to repair this error or serve the Professional Corporation in the stipulated time frame (at paras 4, 5 citing Leon’s Furniture Limited v Alberta (Information and Privacy Commissioner), 2011 ABCA 94). Rule 3.15 of the Rules of Court provides that the Court lacks jurisdiction to extend the time for adding and serving a party on an application for judicial review:
3.15(2) …[A]n originating application for judicial review…must be filed and served within 6 months after the date of the decision…and rule 13.5 [which gives judicial authority to extend time periods] does not apply to this time period.
(3) An originating application for judicial review must be served on
(a) the person or body in respect of whose act or omission a remedy is sought,
(b) the Minister of Justice and Solicitor General or the Attorney General for Canada, or both, as the circumstances require, and
(c) every person or body directly affected by the application.
Case law supported Justice Graesser’s interpretation of Rule 3.15. As such, Justice Graesser dismissed the application to add the Professional Corporation (at para 66).
Flowing from that dismissal, the application for judicial review was moot. Ms. Raczynska’s application for judicial review was dismissed in its entirety (at para 77). Even if not moot, Justice Graesser would have held that the Commission’s decision to dismiss Ms. Raczynska’s case was reasonable (at para 93).
This decision, while perhaps inevitable, is unfortunate on so many fronts. It is plainly evident that Ms. Raczynska’s complaint had merit. The settlement was verbally struck before Ms. Raczynska was hospitalized rendering her unable to deal with her complaint (a fact confirmed by her doctor – at para 37). Furthermore, even though the Professional Corporation had not been properly served, it was present at the application and made limited submissions (at para 6). Lastly, Ms. Raczynska’s fatal mistake is somewhat understandable. After all, she was challenging the Commission’s decision to dismiss her complaint, not any substantive determination of the Professional Corporation’s fault. Indeed, the error of her ways would have only been evident if she had read case law on the issue – it is not explicit in the Rules (see para 4, citing Leon’s Furniture Limited v Alberta (Information and Privacy Commissioner)).
On these facts, it seems inherently unfair that her claim was dismissed.
Before jumping to conclusions, however, the decision is littered with suggestions that Ms. Raczynska’s misfortunes were largely the result of her own poor decisions. Of note, the Commission informed Ms. Raczynska on multiple occasions that she needed to name and serve the Professional Corporation in her application (at paras 59, 72, 73). It is not clear why she refused to heed this advice. Ms. Raczynska also refused the Professional Corporation’s offer to pay her the $2,500 settlement as a good faith gesture despite being out of time, and advanced some ill-founded arguments about the conduct of Commission counsel (at paras 38 -45).
With that framework in mind, I wish to expand on two questions raised by this decision.
A. The Unforgiving Universe of Judicial Review
Whether or not someone has legal training, judicial review can be a nebulous avenue to pursue. Rule 3.15 doesn’t provide much guidance. In order to understand how to conduct a judicial review, a party must understand principles outlined case law and textbooks on the topic. In light of this complexity, it is curious that Rule 3.15 has adopted an arguably harsher procedural stance that the rules governing other commencing documents.
In dismissing Ms. Raczynska’s plea for leniency, Justice Graesser explained, “Rule 3.15 provides a deadline which is essentially ‘absolute’, just like the time requirements for issuing a statement of claim under the Limitations Act” (at para 65). His analogy is correct insofar as it relates to filing requirements. However, Rule 3.15 is actually broader and stricter than the Limitations Act – it places an absolute time restriction on filing and service of an application for judicial review. A Statement of Claim has an “absolute” restriction for filing, but permits judicial discretion when it comes to service (see Rule 3.26). Rule 3.15 explicitly removes this discretion in the case of applications for judicial review.
Given that judicial review is already particularly difficult to navigate, why should the rules be harsher than those required for analogous documents? In answering this question, it is worth noting that Justice Graesser referenced three other Alberta decisions (two of which were from 2015) that faced the same or similar issues – usually involving self-represented litigants. In all cases, the applications were completely dismissed for failure to adhere to this rigid time line (see paras 53- 56).
B. A Note on the Reality of Self-Represented Litigants
Ms. Raczynska was not doing herself any favors with some of her pre-courtroom choices and arguments before Justice Graesser. That much is obvious. With that said, however, some of the Court’s commentary on her choices requires closer examination. We may be quick to dismiss the views of a self-represented person as being inherently unreasonable, but if we take a moment to consider their perspective, the views are entirely rational. For example, in dismissing the motion to add the Respondent, the Court stated:
 [Raczynska’s] communications with [Commission counsel] indicate that she thought that the Commission would notify the [Professional Corporation]. There is nothing before me to suggest that there is any reasonable basis for that belief. …
 There is nothing in the materials to support Ms. Raczynska’s submissions that she was misled as to proper process by [Commission counsel]. Nothing could be clearer from [Commission counsel’s] communications: get legal advice somewhere, serve the [Professional Corporation] and serve it within the necessary time.
Two points flow from this excerpt.
First, when a human rights complaint is launched with the Commission, it is the Commission that serves the respondent. Obviously, the Court of Queen’s Bench does not follow the Commission’s rules on service. However, I would challenge the submission that there was no “reasonable basis” for Ms. Raczynska to think the Commission would handle service. Indeed, the Commission had handled all service on the Professional Corporation up to that point.
Second, I have no doubt that Commission counsel told Ms. Raczynska that she needed a lawyer. My problem lies with any implication that she simply refused to listen to that advice. As someone who regularly encounters self-represented litigants seeking counsel, I can attest to the fact that retaining counsel in this situation this is essentially impossible without money. Low income legal service providers are not, as a matter of course, taking on judicial review applications from human rights complaints. While I have no personal knowledge of Ms. Raczynska’s personal efforts, it bears emphasizing that the vast majority of self-represented litigants are in their position out of necessity, not choice.
Justice Graesser later rejected Ms. Raczynska’s argument that her status as a self-represented litigant should have garnered more assistance from the Commission, and leniency by the Court. He explained:
 Ms. Raczynska also argued that as a self-represented litigant she was unfamiliar with the Rules of Court and filing and service requirements. She maintains that the Commission should have made her aware of these procedures.
 In answer to these submissions, being self-represented does not provide any lesser standard of compliance with the Rules of Court. There is only one set of rules and they apply equally to represented litigants and self-represented litigants. Time limits cannot be extended merely because of a lack of familiarity with those requirements...
Again, there are two points I wish to make regarding this excerpt.
First, Ms. Raczynska’s expectation may not be as unreasonable as the Court suggests. In the adversarial world of the Court, lawyers are not particularly inclined (or permitted) to help out or do favours for the other side. The Commission, however, is no ordinary litigant. The Commission is not supposed to be Ms. Raczynska’s adversary. In this situation, the Commission clearly knew that Ms. Raczynska had made an error – they told her so numerous times. While it did ultimately launch an application to add the Professional Corporation to the judicial review, it waited until the 6-month time frame had expired to do so. I am not convinced it is entirely unreasonable to consider whether there could be legal reforms permitting the Commission to have some role in serving respondents in applications for judicial review.
Lastly, Justice Graesser’s comments at paragraph 65 state that self-represented litigants should be held to the same standard as represented parties on matters of procedure. This comment arose in the specific context of an absolute time restriction in the Rules of Court. Even if Justice Graesser had wanted to extend the time limit and permit Ms. Raczynska to file and serve the Professional Corporation, the Rules prohibited him from doing so. With that said, I would hope that this excerpt isn’t taken as a suggestion that self-represented litigants are not entitled to some modification and consideration of their status in the courtroom – they are. Indeed, the Canadian Judicial Council’s Statement of Principles on Self-Represented Persons and Accused Persons (September 2006) (Statement of Principles) explicitly states that judges should modify procedure for self-represented persons, and in particular:
These Statements of Principle emphasize that judges do have an interest and obligation to modify and adjust rules, where permitted and appropriate. In the present case, Rule 3.15 prevented that modification from happening. However, the Statements of Principle recognize that the Court should not be slaves to procedural rules at the expense of justice. Rules of Court exist to make justice fair and predictable; they must not be wielded in such a way that they become barriers to justice in and of themselves.
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By: Shaun Fluker
PDF Version: Justice for the Western Chorus Frog?
Case Commented On: Centre Québécois du droit de l’environnement v Canada (Environment), 2015 FC 773 (CanLII), TransCanada PipeLines Limited King’s North Connection Pipeline Project (July 2015), GHW-001-2014 (National Energy Board)
These two decisions were issued about a week apart in late June, and have nothing in common except for the fact that both concern the threatened Western Chorus Frog species in Canada. Québécois du droit de l’environnement v. Canada (Environment) is a Federal Court judgment issued by Justice Martineau ordering the federal Minister of the Environment to reconsider her refusal to issue an emergency protection order for the Western Chorus Frog under section 80 of the Species at Risk Act, SC 2002, c 29. The King’s North Connection Pipeline Project decision issued by the National Energy Board under section 58 of the National Energy Board Act RSC 1985, c N-7 exempts TransCanada from having to obtain a certificate under section 31 and thus effectively approves the construction of an 11 kilometre gas pipeline thru known habitat for the Western Chorus Frog in southern Ontario. I consider these posts together as a means for another comment on the intersection between species at risk protection and development in Canada. These decisions also demonstrate that species at risk issues can arise in congested urban areas, not just in the far away wilds.
The Western Chorus Frog is only about 2.5 cm long and lives in and around wetland habitat. Like many threatened species in Canada, the population of the Western Chorus Frog represents the northern fringe of its larger continental numbers in the United States. The Canadian populations are in rapid decline due mainly to urbanization and agriculture destroying its habitat in southern Ontario and southern Quebec. The frog needs both aquatic and terrestrial habitat in close proximity for breeding and hibernating. The sharp decline in population numbers and loss of habitat for the Western Chorus Frog resulted in its listing as a threatened species under the Species at Risk Act in 2010. A proposed recovery strategy is on the public registry administered under the Act. The Western Chorus Frog is not a fish and its habitat lies on provincial lands, and so accordingly the strongest protections under federal Species at Risk Act – namely no take and no destruction of critical habitat – do not apply to the species absent an order by the Governor in Council.
The largest remaining population of Western Chorus Frog in Quebec is located in and around the town of La Prairie – a suburb of Montreal. The dispute in Québécois du droit de l’environnement v. Canada (Environment) concerns the impact of a controversial housing development in the frog’s habitat in La Prairie. Apparently the lands upon which the development is occurring were previously to be included in a conservation area (See here). In May 2013 Nature Quebec requested that the federal Minister of the Environment recommend that the Governor in Council issue an emergency protection order for the La Prairie population of Western Chorus Frog under section 80 of the Species at Risk Act. After some delay the Minister refused to make the recommendation, stating that the species does not face an imminent threat to its survival or recovery.
Nature Quebec commenced a judicial review application in Federal Court seeking mandamus to order the Minister to make the recommendation to the Governor in Council. Justice Martineau does set aside the Minister’s refusal as an unreasonable decision, but he does not grant mandamus and instead orders the Minister to reconsider her decision in light of this judgment. In this regard, the result in Québécois du droit de l’environnement v. Canada (Environment) is very similar to that in the previous Federal Court decision in Adam v Canada (Environment), 2011 FC 962 concerning the refusal of the Minister to recommend the issuance of a section 80 emergency protection order for the Boreal population of Woodland Caribou. For discussion of this earlier decision and the mechanics of section 80 see Nigel Bankes’ comment here.
The decision to issue an emergency protection order under section 80 of the Species at Risk Act is within the complete discretion of the Governor in Council, although section 80(2) requires the Minister to recommend that the order be issued if she forms the opinion the species in question faces an imminent threat to its survival or recovery. Accordingly litigation on emergency orders has focused thus far on the alleged duty of the Minister to form such opinion. The discretionary nature of the order itself ensures very few will be issued under section 80, and indeed the only emergency order thus far under the legislation remains the Greater Sage Grouse order issued in early 2014 (See Curious Case of the Greater Sage Grouse in Alberta for some commentary).
The scientific evidence on the demise of the Western Chorus Frog in Quebec is like that of the Sage Grouse in that it conclusively states the frog will disappear unless corrective action is taken soon to halt and reverse its current trajectory. Indeed the evidence in this case included a report from the Canadian Wildlife Service and a report from the Western Chorus Frog recovery team that both conclude the housing development in La Prairie constitutes an imminent threat to the recovery of the species (at paras 36 – 38). The Minister’s failure to address these reports leads Justice Martineau to find her refusal to be unreasonable (at paras 74-81). The Minister now has 6 months to revisit the matter (at para 87). Of course even if the Minister decides to recommend an emergency protection order it is still up to the Governor in Council to issue the order itself. Nonetheless it is a partial victory for the Western Chorus Frog and the overall tone of Justice Martineau’s reasoning is very much favourable to the plight of endangered species in Canada. He cautions against what he calls laissez-faire administrative action (at para 8) and reiterates the import of the precautionary principle and science into decision-making under the Species at Risk Act – all of which bodes well for threatened species in Canada.
The National Energy Board approval for the Limited King’s North Connection Pipeline Project provides a very different outcome for the Western Chorus Frog. The new buried pipeline will transport natural gas in the busy Greater Toronto Area, and accordingly the new line passes thru a host of environments including highways, a railyard, commercial districts, residential areas, and habitat for the Western Chorus Frog. This congestion ensured a relatively lengthy number of interveners for such a short length of pipeline. Yet it appears from the Board’s decision that considerations on the Western Chorus Frog came about largely from TransCanada’s environmental studies prepared as part of its regulatory application and a submission from Environment Canada (at para 9.4).
The regulatory approach on species at risk issues is ‘manage and mitigate’. The National Energy Board expects applicants to employ both standard and issue-specific mitigation measures to address the adverse environmental impacts of a project. The Board also requires applicants to file a plan to implement these measures. In cases where the project will impact a listed species, but that species is not a fish and does not reside on federal lands, effective legal protection for threatened or endangered species is not offered by the Species at Risk Act and we are left with the same ‘manage and mitigate’ approach that produced the species at risk problem in the first place since provincial laws generally do not offer effective protection.
The Board’s decision addresses the impacts this pipeline will have on the Western Chorus Frog at paragraph 126.96.36.199. The trenched construction of the new line will destroy habitat for the frog and restoration of the temporal wetlands to their current state is uncertain. The Board’s conditions to address this impact fall well short of real protection, requiring TransCanada to tailor its construction activity outside of breeding and hibernation times and to conduct post-construction monitoring of the population.
The cynic in me is tempted to describe the National Energy Board’s decision here as the sort of laissez-faire administrative action that Justice Martineau lambasts in his ruling. But that would seemingly overlook the conditions imposed by the Board on TransCanada to mitigate the impacts on the Western Chorus Frog. On the other hand, the Board’s conditions will do nothing to prevent the destruction of habitat which is the single greatest threat to the species. And then there are also the questions over who will ensure these conditions are met or are effective at mitigating damage.
I think Justice Martineau gets it right when he opens his judgment interpreting the Species at Risk Act as an enactment that reflects our true desire to take steps to prevent the decimation of biodiversity and an acknowledgment that ‘manage and mitigate’ will not get us there. As it stands presently there is a growing divide between Federal Court jurisprudence that interprets the Species at Risk Act to require effective legal protection for species at risk and administrative decision-making in the natural resources sector that implements the manage and mitigate approach. No doubt the limited reach of the federal Species at Risk Act – both on its terms and due to the reluctance by federal officials to actually implement its provisions – has a lot to do with this divide, but I also think there is a very different perception of the problem at work here.
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By: Alice Woolley
PDF Version: The Authority of Law?
Case Commented On: R v L.L. 2015 ABCA 222
In R v L.L. 2015 ABCA 222, the Alberta Court of Appeal reversed an award of costs made against the Crown at trial. In an earlier blog post I had strongly criticized the trial judge’s costs award, and the Court of Appeal’s reversal indicates it shared my concerns. The costs award amounted to improper second-guessing of counsel (at para 13) and also an improper interference with prosecutorial discretion given the trial judge did not find that the Crown had abused the court’s process (at para 11).
I am not going to revisit those issues here. Rather, I want to consider a question that the trial judgment raises and, somewhat surprisingly, so does the Court of Appeal’s: why do courts get the law wrong? To be clear, I don’t mean – “why do they interpret the law in a way that I don’t agree with” (although obviously I sometimes think that too). I mean – what ought we to make of the fact of judicial error?
To begin let me note the mistakes here. As the Court of Appeal’s judgment sets out, it is clear that the trial judge simply did not appreciate the Supreme Court’s definition of prosecutorial discretion or the very high standard the Supreme Court has imposed for reviewing matters of prosecutorial discretion. In its own judgment, the Court of Appeal erred in a statement of law – although not on an issue of real materiality to its decision. The Court stated that the “Crown has a constitutional obligation to lay before the jury all relevant and available legal proof of the facts” (at para 14), citing Boucher v The Queen  SCR 16 at 23. But in a more recent decision , R v Cook  1 SCR 1113, the Supreme Court said that the Crown’s obligation is only to discharge its burden of proof; once that point has been passed it “is up to the accused to call evidence or face conviction” (at para 39). Writing for the majority in Cook, Justice L’Heureux-Dubé said “I fail to see why the defence should not have to call witnesses which are beneficial to its own case” (at para 39). Given Cook, the Crown simply does not have an obligation to put before the jury “all relevant and available legal proof.”
As I said, the Court of Appeal’s error was not especially significant in the context of its judgment. And the Court of Appeal of course corrected the error of the trial judge. But both errors nonetheless lead me to reflect on the fact of mistakes in legal decision-making.
At one level, the existence of such mistakes is hardly surprising. Judges are human and so are lawyers; they write decisions, and advocate cases, with finite resources and within the limits of their own knowledge and competence. I happen to know that the Court of Appeal made a mistake because I have taught the Cook case for years in my legal ethics course, but it’s not exactly the Carbolic Smoke Ball of judgments; not every lawyer would be familiar with it. Judges are sometimes going to get things wrong, and so are the lawyers who appear before them.
At the same time, when we think about judgments we don’t think about them as fallible in the way we might, say, think about cooking dinner – that sometimes a dish is going to work out and sometimes it isn’t, because people sometimes screw stuff up when they cook. We – and even more so our students – think of judgments as authoritative, as reflecting what the law is, not just how the judge thought about the law that day, including her bloopers and mistakes. There’s a sense that if in its judgment we may not agree with it, but it’s unlikely to just be wrong.
We also tend to think that they ought not to be wrong. That whatever decision a judge makes, it shouldn’t contain an error, such as a failure to appreciate that two decades ago the Supreme Court reversed its decision of six decades ago. The system, and the expertise and wisdom of judges, should ensure that mistakes like that don’t occur.
Yet, as these cases demonstrate, those perceptions are erroneous. Judges may not make major mistakes all that often, and the system is designed to prevent them, but sometimes judges will just get stuff wrong. Further, not all the mistakes they make will be corrected. Some will just be there, existing errors in published decisions.
I honestly don’t think there’s any way that errors like this can be eliminated from law. I am confident that if I ever became a judge I’d makes mistakes too. I’d miss things, or not know them, or not have them brought to my attention, and I’d get it wrong. I’d do the judicial equivalent of forgetting to add the baking powder to the cookies.
So what does that mean? I don’t think it means that we should abandon our belief in judgments as authoritative. My sense would be that true errors like these tend to be infrequent, small or corrected on appellate review. On the other hand, I do think that they are an important reminder of the human imperfection inherent in our legal system. Our laws and judgments are only ever as good as the people and systems that create them; and as a result they will never be as good as they ought to be. Everyone who participates in the system needs to remember that, to have the humility to recognize that mistakes are inevitable. None of us is entitled to believe that because we have an authority or court in our corner that we are bound to be in the right. We may be right, but we may not be – whether because of mistakes like these or other errors that are subtler and harder to see. And if one is a judge, or in any position of authority, it’s a good idea to remember that you are likely making mistakes – and given that as a judge you don’t get the baker’s clue of the flat cookies from the missed baking power, you may not realize you have made them.
Ultimately, I think that the errors help to humanize judges and the legal system. They remind us that the judges are people, not machines or automatons, and that the ideal of judging is the exercise of the empathy and wisdom of a human being, even if that brings with it the inevitability of an occasional error.
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By: Geoff S. Costeloe
Case Commented On: MRM Estate (Re), 2015 ABQB 475
A recent Alberta Court of Queen’s Bench decision has demonstrated the lengths that the Court can go to determine the true intentions of a testator of a Will. The central issue in this case is determining whether or not the provided Last Will and Testament of the Testatrix was genuine despite several deficiencies. This case highlights one of the important changes from the previous Wills Act, RSA 2000, c W-12 which was in force until February 2012 when it was replaced by the Wills and Succession Act, SA 2010, c W-12.2 (the “Act”).
The relevant facts in the case are as follows.
The Testatrix passed away in 2014 at the age of 96. The provided Will was executed in November of 1996, making the document almost 30 years old. The alleged Will also contained several defects, specifically:
The applicable law includes sections 14 and 15 of the Act, which read as follows:
Requirements of a valid will
14 To be valid, a will
(a) must be made in writing,
(b) must contain a signature of the testator that makes it apparent on the face of the document that the testator intended, by signing, to give effect to the writing in the document as the testator’s will, and
15 A will may be made by a writing signed by the testator if
(a) the testator makes or acknowledges his or her signature in the presence of 2 witnesses who are both present at the same time, and
(b) each of the witnesses signs the will in the presence of the testator.
By these sections alone, the alleged Will would be void because it does not contain a signature of the testator as per section 14(b). However, the Act also allows the Court to examine extraneous evidence for the purpose of determining the intent of the Testatrix. Section 26 reads as follows:
Interpretation and evidence
26 A will must be interpreted in a manner that gives effect to the intent of the testator, and in determining the testator’s intent the Court may admit the following evidence:
(a) evidence as to the meaning, in either an ordinary or a specialized sense, of the words or phrases used in the will,
(b) evidence as to the meaning of the provisions of the will in the context of the testator’s circumstances at the time of the making of the will, and
(c) evidence of the testator’s intent with regard to the matters referred to in the will.
The purpose of such a section is to give as much latitude the Court as possible in allowing a justice to ensure that a Testator/Testatrix’s final wishes are given effect.
In the case of MRM Estate (Re), the Court was supplied with the Social Insurance Number card of the alleged Testatrix. Justice Donald Lee made a determination that:
In this case I am satisfied that the signature that appears on the backer of the Will is in fact the signature of the Testatrix, and in my review of the document as a whole, I am satisfied that the Testatrix intended by her signature to give effect to the Will presented to me (at para 6).
In allowing the grant for probate Justice Lee attempted to ensure that the intention of the Will was fulfilled. This was aided by the fact that the estate did not have a particularly large value ($161,000) and that bequeaths and beneficiaries were clear and straightforward.
Prior to the coming into force of the Wills and Succession Act in early 2012, a Court would almost certainly have not been able to grant probate given the significant omissions present in the Testatrix’s Will. Section 26 allows the Court to ensure that the Testator/Testatrix’s intentions are performed in situations where the Act has not been strictly adhered to, so long as those intentions are clear.
There are two important takeaways for readers interested in the validity of a Will.
Firstly, ensure that a Will is up to date and adheres to the requirements of the Act. While alternative forms of a Will are set out in the Act (including the infamous Holographic Will in section 16), Albertans should strive to meet the requirements of sections 14 and 15. Doing so will ensure the smoothest and swiftest application for probate possible.
Secondly, the intention of the Testator/Testatrix is paramount. The majority of estate disputes are caused by uncertainty or ambiguity within the Will. Something that may be clear to the writer of the Will may not be clear to the readers or beneficiaries of the Will.
Adhering to form described the Wills and Succession Act and ensuring that there are no unanswered questions regarding the intention of the Testator are the two most important objectives when drafting any Will.
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By: Jennifer Koshan
Cases Commented On: Stewart v Elk Valley Coal Corporation, 2015 ABCA 225, Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39
Last month Shaun Fluker posted a comment on the Alberta Court of Appeal’s standard of review analysis in Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 (here). In this post I will comment on the Court of Appeal’s analysis of the test for discrimination under human rights legislation in Stewart, a matter I have commented on previously in relation to the same case at the Court of Queen’s Bench level (here), as well as in posts on other cases (see e.g. here, here and here). I will include in my analysis the Supreme Court of Canada’s decision from late July in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, which also deals with the test for discrimination. I will argue that the ABCA majority (Justices Watson and Picard) affirmed the wrong test in Stewart, particularly in light of the Supreme Court’s subsequent clarification in Bombardier. The approach of Justice O’Ferrall, writing in dissent at the Court of Appeal, is more in keeping with Bombardier and other recent jurisprudence.
Facts / Issues
Stewart involves a claim of discrimination based on an addiction-related disability in a unionized workplace. Stewart was an employee at Elk Valley Coal Corporation, which had an Alcohol and Drug Policy providing that employees “with a dependency or addiction” could proactively seek rehabilitation without fear of disciplinary consequences. If they did not disclose and had a workplace accident related to drugs or alcohol, they could be disciplined or terminated. Stewart was advised of this policy in a training session and signed a form indicating that he understood it. Several months later, he had a workplace accident when the loader truck he was driving hit a stationary vehicle and damaged its mirror. He tested positive for cocaine, admitted to using the drug on his days off, and to “feeling sleepy” at the time of the accident due to cocaine use the night before. However, Stewart told Elk Valley that he did not believe he had a drug problem until after the accident, after which he realized he was addicted to cocaine. Stewart’s employment was terminated, although Elk Valley also advised him that he could return to work after 6 months if there was a vacancy and he had successfully completed a rehabilitation program and agreed to a drug-free lifestyle (2015 ABCA 225 at paras 9-19, 93).
Stewart’s union filed a human rights complaint alleging a violation of section 7 of the Alberta Human Rights Act (AHRA), RSA 2000, c A-25.5, which protects against discrimination in the employment context on grounds including disability. The Court of Appeal indicated that the appeal was moot, given that Stewart is now employed elsewhere subsequent to undergoing rehab, but it exercised jurisdiction to hear the appeal “because the decision of the Tribunal and the chambers judge are both material contributions to the law in this area” (at para 23).
There were two issues for the Court of Appeal in Stewart: (1) whether the Alberta Human Rights Tribunal applied the proper test for discrimination when considering whether Stewart’s termination was contrary to human rights legislation, and (2) whether the Tribunal applied the proper test for bona fide occupational requirement to Elk Valley’s claim that its policy provided a defence to any discrimination. The Tribunal had found against Stewart on his claim of discrimination, and in the alternative, in favour of Elk Valley’s claim of a bona fide occupational requirement (Bish v Elk Valley Coal Corporation, 2012 AHRC 7). The reviewing judge, Justice Peter Michalyshyn, upheld the Tribunal on the first issue, and reversed it on the second (Bish v Elk Valley Coal Corporation, 2013 ABQB 756). This post will focus on the Court of Appeal’s treatment of the first issue, the test for discrimination.
As noted by Shaun Fluker in his post, the Court of Appeal held that the standard of review was correctness for the issue of the appropriate test for discrimination, and reasonableness for the application of that test to the facts.
The majority noted (at paras 6 and 24) that the prevailing test for discrimination is set out in the Supreme Court of Canada’s decision in Moore v British Columbia (Education), 2012 SCC 61 (CanLII) at para 33:
[C]omplainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.
The Tribunal’s ruling in Stewart was rendered before the Supreme Court’s decision in Moore, but some case law prior to Moore had articulated a similar three-part test for discrimination which was referenced by the Tribunal (see 2012 AHRC 7 at para 116). It noted that other cases defined discrimination in terms of stereotypical or arbitrary decision-making (at para 117). The Tribunal accepted that Stewart had an addiction-related disability, but concluded that he was not fired because of his disability, but because of his use of drugs and breach of Elk Valley’s policy (at paras 120-121, emphasis added). Accordingly, the Tribunal found that Stewart’s disability was not a factor in his termination (at para 125, emphasis added). The Tribunal also considered the safety sensitive nature of Stewart’s position, and the policy’s objective of “accountability for an individual who had the capacity to make choices” (at para 126, emphasis added). Stewart was said to be such an individual: the Tribunal found, based on the evidence, that he had the capacity to control his use of drugs and chose not to do so (at paras 108, 118). The Tribunal concluded that “[t]he termination, in this context, did not act, either through its intent or effect, to perpetuate stereotypes or disadvantage suffered by drug addicts” (at para 126, emphasis added), and that a prima facie case of discrimination had not been established.
Justice Michalyshyn’s review decision, released after Moore, found that in spite of that judgment, “the test for prima facie discrimination includes some consideration of whether [the] adverse treatment was based on stereotypical or arbitrary assumptions” (2013 ABQB 756 at para 38). His reasoning was that the Supreme Court had considered factors of stereotyping and arbitrariness as relevant to discrimination in cases such as McGill University Health Centre (Montreal General Hospital) v. Syndicat des employes de l’Hopital General de Montreal, 2007 SCC 4 (CanLII) and Honda Canada Inc. v. Keays, 2008 SCC 39 (CanLII), and had not explicitly overruled those decisions in Moore (at paras 37, 47). Justice Michalyshyn also relied heavily on the Alberta Court of Appeal’s decision in Wright v College and Assn. of Registered Nurses of Alberta, 2012 ABCA 267 (CanLII), leave denied 2013 CanLII 15573 (SCC), in which a claim of addiction-related disability discrimination was denied by the majority, relying on an approach which incorporated considerations of stereotyping and arbitrariness. He concluded that “the Tribunal was correct to find no causal connection or nexus between Stewart’s disability and termination” (at para 45, emphasis added). Moreover, “it was appropriate for the Tribunal to consider, at the prima facie discrimination stage of the analysis, the drug policy context of the appellant’s employment, why for example such concerns may be rationally connected to the impugned treatment in question, and therefore not arbitrary or based on stereotypes” (at para 50, emphasis added).
Before the Court of Appeal, there was no dispute about the first two elements of the test for discrimination from Moore; Elk Valley conceded that Stewart had a protected characteristic (an addiction-related disability) and that he suffered adverse treatment from his employer (termination). The sole issue regarding discrimination was whether the disability had been a factor in the adverse impact (ABCA at para 28). This, in turn, raised the issue of how this element of the test should be interpreted and applied.
The appellant’s main submission on this point was that the “a factor” element should be “unencumbered by extra requirements” such as stereotyping and arbitrariness, which have sometimes been imported into the human rights context by applying case law decided under section 15 of the Charter (at para 60). (As an aside, in support of this argument the appellant cited an article of mine that was unpublished at the time and is referred to by the majority as such; that article is now available in the Canadian Journal of Human Rights).
In finding that the Tribunal had applied a test for discrimination “consistent with … Moore” (at para 6), the Court of Appeal majority emphasized (at para 29) the following statement by the Tribunal:
[P]roof of prejudice or stereotyping are not additional evidentiary requirements for the Complainant in proving prima facie discrimination. Once adverse treatment is shown on the basis of a prohibited ground, an inference of stereotyping, arbitrariness or perpetuation of disadvantage will usually be drawn. … It is not necessary that discriminatory considerations be the sole reason for the impugned actions in order for there to be a contravention of the Act (2012 AHRC 7 at para 117).
However, the majority also stated as follows (at para 6, emphasis in original):
We are not persuaded that the Tribunal imported into the test for discrimination a condition that the discrimination be based on arbitrariness or perpetuation of historical stereotypes inconsistent with our common right to equality. We do find arbitrariness or stereotypical reasoning to be relevant however.
The majority found that the Tribunal decision could be interpreted in two ways: (1) as focusing on whether Stewart’s disability was a “real factor in the adverse impact” (at paras 63, 66), with consideration of stereotyping and arbitrariness in the alternative (at para 67) and (2) as focusing on whether the employer’s actions were tainted by stereotyping and arbitrariness (at para 72).
On the first interpretation, the majority held that the Tribunal was correct in concluding that disability was not a real factor in the adverse treatment experienced by Stewart. It reasoned that “the Policy did not distinguish between people with disability and people without. It distinguished between people who break the Policy and people who do not” (at para 66), essentially confirming the Tribunal’s conclusion that Stewart had been disciplined not for his addiction, but for his use of drugs, which he had the capacity to control and chose not to. In other words, Stewart was not disciplined because of his disability, he was disciplined because of his use of drugs and breach of employer policy (at para 35, emphasis added). The majority stated that any other approach to the test for discrimination “would amend the meaning of s 7 of the AHRA, notably the words “because of … physical disability”” (at para 65).
This formulation of the test seems to elevate the requirement that disability be “a factor” in the adverse treatment to one of causation, and this is where the Supreme Court’s decision in Bombardier becomes relevant. Bombardier involved a claim of racial profiling by Javed Latif, a Canadian citizen born in Pakistan who held both Canadian and U.S. pilot’s licenses, but was refused training by Bombardier at its Dallas location because he had been denied security clearance by U.S. authorities. Latif filed a complaint against Bombardier with Quebec’s human rights commission, alleging discrimination on the basis of ethnic or national origin (see 2015 SCC 39 at paras 5-19). His complaint was upheld by Quebec’s Human Rights Tribunal, which based its finding of prima facie discrimination on circumstantial and expert evidence speaking to racial profiling by U.S. authorities since 9/11. The Quebec Court of Appeal overturned the Tribunal’s decision, finding that there was no proof of a “causal connection” between Bombardier’s refusal to train Latif and a prohibited ground of discrimination (at para 26).
The appeal before the Supreme Court raised the issues of how to define prima facie discrimination and what level of proof is necessary to establish it. In a unanimous decision written by Justices Wagner and Côté, the Court noted the “special quasi?constitutional status” of human rights legislation, and the corresponding requirement to undertake a “liberal, contextual and purposive interpretation”. Moreover, the approach to discrimination “does not change” on the basis of the ground(s) alleged by the claimant – it is always up to the claimant to establish a prima facie case of discrimination, and then the respondent can seek to justify their conduct on the basis of legislative defences or exemptions (at paras 31- 37).
Delving more deeply into the elements of prima facie discrimination, the Court articulated the test somewhat differently than it did in Moore, based on the language of Quebec human rights legislation and case law from that jurisdiction: there must be (1) a ‘distinction, exclusion or preference’, (2) based on one of the [prohibited] grounds, (3) which ‘has the effect of nullifying or impairing’ the right to full and equal recognition and exercise of a human right or freedom (at para 35). However, the elements are essentially the same: there must be adverse treatment, a protected ground, and a connection between the two. The issue in Bombardier, as in Stewart, was what level of connection was required in order to establish prima facie discrimination. The Quebec Tribunal held that it was not necessary for the prohibited ground to be the sole cause of the adverse treatment, echoing the Moore’s approach of whether the ground was “a factor” in the adverse treatment. As noted above, the Quebec Court of Appeal required a “causal connection” between the ground and the adverse treatment (at paras 43-44).
The Supreme Court held that the Tribunal’s approach was the appropriate one: “for a particular decision or action to be considered discriminatory, the prohibited ground need only have contributed to it” and it is “neither appropriate nor accurate to use the expression “causal connection” in the discrimination context” (at paras 48, 51). In keeping with Moore, the Court indicated that “[i]t is more appropriate to use the terms “connection” and “factor” in relation to discrimination” (at para 50; see also para 52). It noted with approval another decision involving a claim of racial discrimination, Peel Law Assn. v. Pieters, 2013 ONCA 396 (CanLII), where the Ontario Court of Appeal found that requiring a causal connection would be too burdensome in some cases given that human rights legislation protects against unintentional and effects-based discrimination in addition to direct and intentional discrimination (at para 49). Another reason the Supreme Court gave for its rejection of a causal connection requirement was particular to Quebec, where the civil code attributes a specific meaning to the term “lien causal.” The “close relationship” required by this standard was also said to “impose too heavy a burden” on human rights claimants (at para 51).
The Court went on to find that Latif had not led sufficient evidence to prove the elements of the test for discrimination on a balance of probabilities (at para 59). I will not comment on this aspect of the Court’s ruling as I am still mulling over its import. (Readers may be interested in Paul Daly’s analysis on Administrative Law Matters, where he argues that the Court did not accord adequate deference to the Tribunal’s application of the test for discrimination to the facts, despite cloaking its review in the language of “reasonableness.”)
For the purposes of commenting on Stewart, the salient part of the Supreme Court’s ruling in Bombardier is that a causal connection between the relevant ground of discrimination and the adverse treatment is not required. Accordingly, it is asking too much of human rights claimants that they prove the adverse treatment was “because of” the ground in question, as the Court of Appeal majority did in Stewart. Although the AHRA uses this language, so does the BC Human Rights Code, RSBC 1996, c 210, which was at issue in Moore, and Bombardier reminds us that human rights legislation should generally be interpreted consistently across jurisdictions (at para 31). In spite of the language of the Alberta and BC statutes, the burden on the claimant to establish a prima facie case of discrimination is simply to prove that the alleged ground was a factor in the adverse treatment they received. To the extent that the majority decision in Stewart suggests otherwise, it is inconsistent with Moore and Bombardier.
The majority decision in Stewart is also concerning for its acceptance of the Tribunal’s reasoning based on “choice.” The notion that a rights claimant’s choices can undermine their claim has recently been questioned in cases such as Canada (Attorney General) v. Bedford,  3 SCR 1101, 2013 SCC 72 (CanLII) (concerning the “choice” to engage in prostitution) and Quebec (Attorney General) v. A,  1 SCR 61, 2013 SCC 5 (CanLII), (concerning the “choice” of marital status). It appears to continue to hold sway in lower court decisions involving addictions, even though the Supreme Court also refuted the relevance of choice in this context in Canada (Attorney General) v. PHS Community Services Society,  3 SCR 134, 2011 SCC 44 (CanLII) (repudiating the use of injection drugs as a “choice”). In an example of slippery slope reasoning, the majority in Stewart expresses concern not only for the implications of allowing claims of discrimination by drug addicts, but also by those addicted to tobacco (see para 65).
As for the second interpretation of the Tribunal’s decision, the majority concluded that its references to arbitrariness and stereotyping were not erroneous. Rather, they amounted to “the Tribunal … effectively saying that the application of the Policy was not a pretext for discriminatory action against Stewart arising from his disability” and “effectively saying that the application of the Policy was not shown to be “discriminat[ion] … because of … physical disability” because neither direct nor indirect discrimination as revealed by arbitrariness or stereotypical thinking was visible in the application of the Policy by Elk Valley (at para 73).
The majority opined that this approach was “not inconsistent with Wright” (at para 73), and elsewhere noted that no leave to challenge the decision in Wright had been sought in Stewart’s appeal (at para 36). Once again, the majority put too much reliance on the language “because of”, an error linked to its consideration of arbitrariness and stereotyping. Where employers develop policies or otherwise act in ways that rely on stereotypes or arbitrary assumptions about (for example) addiction-related disabilities, we would say that the employer’s adverse treatment of the employees is because of their disabilities. This kind of discrimination is certainly prohibited by human rights legislation, absent a bona fide occupational requirement – which it is up to the employer to prove, not for the employee to disprove at the prima facie discrimination stage of analysis.
But human rights legislation also prohibits adverse effects discrimination, which applies where a law or policy is neutral on its face, yet has an adverse impact on persons characterized by a protected ground such as disability (see Bombardier at para 32). In these cases, the discrimination analysis focuses on the impact of the policy on the group identified by the protected ground, rather than the rationale for the employer’s conduct. To require the claimant to prove arbitrariness or stereotyping in discrimination claims makes it very difficult to make out a prima facie case of adverse effects discrimination (see a recent review of adverse effects discrimination cases under the Charter by Jonnette Watson Hamilton and me here).
To be fair to the majority, the Supreme Court has not entirely repudiated the relevance of stereotyping and arbitrariness in human rights claims. The majority cites Justice Abella’s 2007 concurring opinion in McGill University Health Centre, supra at paras 48 to 53, in support of the continued relevance of these concepts. More recently, I have noted that the Court missed an opportunity in Moore to explicitly discount these considerations, and in fact used the language of arbitrariness in some parts of its judgment in that case (though not in its formulation of the test for discrimination). The same is true of the Court’s decision in McCormick v. Fasken Martineau DuMoulin LLP,  2 SCR 108, 2014 SCC 39 (CanLII) (see my critique here), as well as in Charter discrimination cases such as Quebec v A, supra (see here) and Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 (CanLII) (see here). Although the Supreme Court’s decision in Bombardier does not rely on arbitrariness or stereotyping, and indeed could be seen to refute those concepts as requirements in proving discrimination in light of its causation analysis, it would be preferable if the Court would explicitly confirm this approach once and for all.
Turning to Justice O’Ferrall’s dissent, he agreed with the appellant’s interpretation of the “factor” requirement in the test for discrimination, i.e. that “the protected characteristic need only be part of the causal chain leading to the adverse impact” (at para 99). His reasons for accepting this argument are very much in line with the Supreme Court’s decision in Bombardier. He noted that this interpretation was consistent with Pieters, supra, and other appellate level jurisprudence, as well as with the “actual wording” of the test in Moore (at paras 99, 100, 106). He also noted that the concepts of stereotyping and arbitrariness had arisen under section 15 of the Charter, and were inappropriate in the human rights context, given the difficulty for claimants in knowing the motives behind their employers’ actions – these were for employers to prove as part of the bona fide occupational requirement analysis (at para 102). And, he noted that stereotyping and arbitrariness would be “virtually impossible” to prove in adverse effects discrimination cases (at para 103). Justice O’Ferrall distinguished Wright on the basis that it was decided before Moore and involved culpable behaviour (theft from an employer by employees with addictions) (at para 109), but his reasons for rejecting stereotyping and arbitrariness are similar to those of Justice Berger’s dissent in Wright.
On the question of whether the Tribunal had applied the correct test, Justice O’Ferrall emphasized that while it had initially indicated that proof of stereotyping or arbitrariness was not required, it did go on to apply those as requirements, leading it to the conclusion that a prima facie case of discrimination had not been proved (at para 113). The reviewing judge had also applied these elements, and thus the wrong test (at paras 114-116).
Applying the correct test, Justice O’Ferrall believed that a prima facie case of discrimination was made out. In his view (at para 118), “the complainant’s addiction was not just a factor leading to his dismissal, it was the entire reason for it.” This was made clear by the employer’s termination letter, which indicated that “[t]he reason why the complainant was terminated, rather than given a lesser disciplinary penalty, was because the employer wanted to deter other employees like the complainant, who were also drug dependant, from failing to report that dependency prior to a workplace accident” (at para 122). In contrast to the majority, Justice O’Ferrall found that the employer’s treatment of Stewart actually was because of his disability, even though such a high degree of connection is not required. As for the employer’s argument that Stewart’s addiction “had nothing to do with his dismissal because it would have fired him regardless of the extent of his drug use”, Justice O’Ferrall properly noted that “If an employee is fired for failing a drug test, regardless of the nature and extent of his drug use, the employer is adopting a zero-tolerance work rule that is based upon the stereotypical assumption that any amount of off-duty drug use impairs an employee from working safely.” This assumption “would satisfy even the harsher test for prima facie discrimination on the basis of a perceived disability brought on by the use of drugs” (at para 124). There was thus significant disagreement between the majority and dissent on both the appropriate test for discrimination and whether there was discrimination on the facts.
The Stewart case, like Wright before it, illustrates the difficulties that tribunals and courts have in articulating and applying the test for discrimination. This seems to be a particular problem in cases involving drug and alcohol abuse, as the Court of Appeal has previously applied the Moore test in other contexts (see e.g. Telecommunications Workers Union v Telus Communications Inc., 2014 ABCA 154 (CanLII), which was acknowledged by the majority in Stewart at para 25). In addiction-related disability cases, employers may have valid reasons for responding to employee conduct – whether culpable or non-culpable – with consequences that deter employees from substance use that may affect their job performance and create workplace safety issues. However, the place to consider these reasons is at the bona fide occupational requirement stage of analysis, not by importing causation requirements and considerations of stereotyping and arbitrariness into the test for discrimination. Although Bombardier goes some way toward clarifying this area of law, it is time for full rehabilitation of the test for discrimination, including an explicit rejection of stereotyping and arbitrariness as irrelevant factors.
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By: Jonnette Watson Hamilton
PDF Version: Section 6 of the Federal Interest Act is Obsolete
Case Commented On: David v Premiere Canadian Mortgage Corporation, 2015 ABQB 505 (CanLII)
In this decision, Justice Robert A. Graesser makes an interesting policy argument about section 6 the Interest Act, R.S.C. 1985, c. I-15, using it to bolster his conclusions about the application of the doctrine of precedent. As a result, this decision is useful for teaching about precedents, the principle of stare decisis, and how to use policy in making legal arguments. This decision also illustrates the need for reform of the 135 year old federal Interest Act.
Section 6 of the federal Interest Act provides that if a mortgage is repayable in one of three ways — on a “sinking fund plan”, by blended payments of principal and interest, or involving “an allowance of interest on stipulated repayments” — then the mortgage must contain a statement of the interest payable calculated annually or semi-annually and not in advance. If the mortgage does not contain that statement, then “no interest whatever shall be chargeable, payable or recoverable”. The consequences of not complying with section 6, if it applies, are therefore significant. In this particular case, the interest paid by the Davids, which they were seeking to have returned to them, amounted to more than $83,000. (This was not a mortgage foreclosure case. The Davids had satisfied all of their obligations under the mortgage and were suing the mortgagee for non-compliance with section 6 of the Interest Act.)
Many judges have spent a lot of time figuring out what the three types of repayment listed in section 6 mean. Professor Mary Ann Waldron, QC, reviewed the case law interpreting this “unclear and confusing legislation” in her article “Section 6 and 7 of the Canada Interest Act: Curiouser and Curiouser” (1984) 62 Can Bar Rev 146 at 147, 149-162, and in her book, The Law of Interest in Canada (Toronto: Carswell, 1992) at 103-105.
The Davids argued that their mortgage loan contained a “blended payment” type of provision. Their mortgage provided that interest was to be calculated at 9.9 percent compounded monthly; that mortgage payments of $1,445 were due monthly, on the 15th of each month; and that each mortgage payment was to be applied “firstly in payment of the interest, secondly in payment of all other charges due under this mortgage, and thirdly in reduction of the principal sum…”.
The issue was whether their mortgage required blended payments, thus triggering the application of section 6 and the need for, in the words of section 6, “a statement showing the amount of the principal money and the rate of interest chargeable on that money, calculated yearly or half-yearly, not in advance”. No such statement appeared in the mortgage in this case, only the statement showing the rate of interest compounded monthly.
So was the Davids’ mortgage one that required blended payments? The interpretation of “any plan under which the payments of principal money and interest are blended” in section 6 was addressed by the Supreme Court of Canada for the first time in Kilgoran Hotels v Samek,  SCR 3, 1967 CanLII 19 (SCC). In a unanimous judgment, the Court determined that “blended” meant “mixed so as to be inseparable arid indistinguishable” and that, because payments of principal and interest were “distinguished by the very wording of the [repayment] clause” in the case before them (which stated that payments were to be allocated first to interest and second to principal), it “could scarcely be simpler” to do the arithmetical calculations for each payment (at page 5 SCR). Thus, the mortgage did not require blended payments.
The Supreme Court of Canada again considered the meaning of “blended payments”, as well as the ratio of Kilgoran Hotels v Samek, seven years later in Ferland v Sun Life Assurance Company of Canada,  1 SC.R 266, 974 CanLII 136 (SCC). The majority held (and the concurring opinion did not differ on this issue):
In [Kilgoran Hotels v Samek] as in the case at bar, the deed, after stipulating an annual rate of interest, provided that the debtor would pay off the principal and interest in quarterly instalments of a specified amount, applicable first to interest and then to principal. The Court held unanimously that this was not a plan under which the payments of principal money and interest are blended within the meaning of the provision above quoted, because the rate of interest was clearly stipulated, and only a simple arithmetic calculation was necessary to determine the portions of each payment which were applicable to interest and principal respectively. In short, the Court held that principal and interest are blended only if the deed does not disclose the true rate of interest payable [emphasis in the original] ) (Ferland at 270-271 SCR).
Given this interpretation of “blended payments” by the Supreme Court, it should come as no surprise that Professor Waldron argued that although section 6 of the Interest Act might have been intended to require disclosure of the effective cost of borrowing (i.e., the actual amount paid for the loan secured by the mortgage) and standardize reporting of that cost for the purposes of comparison, the courts’ interpretation of the section “gravely weakened” its ability to achieve its purpose (“Curiouser and Curiouser” at 148-149).
Justice Graesser agreed with Professor Waldron’s conclusion that Kilgoran Hotels and Ferland ensured that section 6 very rarely applies (at paras 17, 20). As he put it, “unless the interest rate cannot be calculated by the information provided in the Mortgage, section 6 of the Interest Act will not apply” (at para 22).
Given this long-settled state of the law about the meaning of “blended payments” in section 6 of the Interest Act, what was the Davids’ argument? They argued that the Supreme Court decision in Kilgoran Hotels was wrong and that Justice Graesser should come to the conclusion reached in Paragon Properties (Finance) Ltd v Matthews,  A.J. No. 323, 185 AR 158, a decision of Master Alberstat.
Justice Graesser determined that he could not accept the Davids’ argument for two doctrinal reasons: first, the doctrine of precedent, and, second, the status of the Paragon Properties decision itself.
The Supreme Court’s interpretation of “blended payments” in section 6 in Kilgoran Hotels, reiterated in Ferland, may well be wrong. Professor Waldron argued that it was and it certainly seems circular. However, the Supreme Court of Canada sits at the pinnacle of the hierarchy of courts in Canada. It is the final court of appeal in the country and in a legal system based on the doctrine of precedent, that is all it takes for its interpretation to be the only one that counts. As US Supreme Court Justice Robert H. Jackson (1892-1954) wrote about the United States Supreme Court in his concurring opinion in Brown v. Allen, 344 U.S. 443 (1953): “We are not final because we are infallible, but we are infallible only because we are final.”
The doctrine of precedent is based on stare decisis, which means “to stand by previous decisions”. Once a point of law has been decided in a particular case by a higher court within in the same jurisdiction, that law must be applied in all future cases in lower courts that have the same material facts. The decision of a higher court in another jurisdiction, or of a court at the same or lower level in the hierarchy of courts, can only be, at best, a persuasive authority. See Paul M. Perell, “Stare decisis and techniques of legal reasoning and legal argument” in the Best Guide to Canadian Legal Research for a fuller explanation.
Justice Graesser quite rightly decided that “stare decisis makes me bound by the decisions of the Supreme Court of Canada. I cannot prefer a decision of a Master in Chambers over that of the Supreme Court of Canada” (at para 25). A Master in Chambers is quite a bit lower in the hierarchy of courts, below not only the Supreme Court of Canada, but also the Court of Appeal of Alberta, and a Justice of the Court of Queen’s Bench of Alberta such as Justice Graesser; see Master Funduk’s comments about “pecking order” in South Side Woodwork v RC Contr (1989) 95 AR 161, 1989 CanLII 3384 at paras 51-53.
The second reason Justice Graesser rejected the Davids’ argument was that the Paragon Properties decision of Master Alberstat was overturned on appeal to the Court of Queen’s Bench; see Paragon Properties (Finance) Ltd v Mathews, 185 AR 158, 1996 CarswellAlta 452. Master Alberstat did not refer to either of the Supreme Court of Canada decisions, Kilgoran Hotels or Ferland, in his brief judgment. Instead, he relied upon a decision of the Manitoba Court of Appeal, Standard Reliance Mortgage Corp. v. Stubbs (1916), 32 D.L.R. 57, and a passage (at 858) explaining the purpose of section 6 of the Interest Act. He failed to note that the Manitoba Court of Appeal decision was appealed to the Supreme Court of Canada (Standard Reliance Mortgage Corp. v. Stubbs,  3 W.W.R. 402) and two judges in that court specifically disagreed with the Manitoba Court of Appeal’s understanding of the purpose of section 6 (at 405 and 408). The Manitoba Court of Appeal decision relied upon by Master Alberstat was also overruled by the Supreme Court. And the Master Alberstat decision relied upon by the Davids was overturned by the Alberta Court of Queen’s Bench because of its misplaced reliance on the Manitoba Court of Appeal and because “[t]he leading cases which our Courts must now follow in considering what are blended payments are the Supreme Court of Canada decisions in Kilgoran Hotels Ltd. . . . and Ferland . . .” (1996 CarswellAlta 452 at para 10).
Justice Graesser then adds a third non-doctrinal reason for rejecting the Davids’ argument. This is the policy point that I referred to in the first paragraph of this post. He certainly didn’t need to add anything to his reasons for refusing to ignore the Supreme Court of Canada in Kilgoran Hotels and Ferland in favour of Master Alberstat’s overturned decision in Paragon Properties. That is perhaps why he refers to this third reason as merely an “observation” (at para 26). But the arid and technical nature of the doctrinal reasons, based on the doctrine of precedent and the hierarchy of courts and who overruled who and why, might leave the parties and other readers wanting a more policy-oriented analysis.
Section 6, as Justice Graesser notes (at para 26), was enacted in 1880 by An Act relating to Interest on moneys secured by Mortgage of Real Estate, SC 1880, c 42 — 135 years ago now. It was, as he also notes (at para 27), an early type of consumer protection legislation. Its requirement for disclosure of a comparable rate of interest has, however, been largely superseded by much more comprehensive and consumer-friendly legislation, such as Alberta’s Fair Trading Act, RSA 2000, c F-2, with its 43 sections devoted to the disclosure of the cost of credit. Justice Graesser notes that the purpose of section 6 of the Interest Act — “to prevent borrowers from being misled” — appears to be covered by the much newer provincial legislation (at para 27). Indeed, as he also notes, it is not clear how much disclosure of “the amount of the principal money and the rate of interest chargeable on that money, calculated yearly or half-yearly, not in advance” helps borrowers (at para 27). In addition, 135 years ago mathematical calculations were not as easily made as they are now with the help of our technology. Today, given the basis for compounding interest and the dates for compounding and paying interest, most people are able to find out the effective rate of interest on their mortgage (at para 28).
These policy reasons are not offered by Justice Graesser as reasons to ignore section 6 of the Interest Act. No matter how obscure, narrowly applicable and anachronistic that provision might be, it is still the law. Instead, Justice Graesser offers these policy reasons as further justification for refusing to challenge the merits of the Supreme Court of Canada decisions in Kilgoran Hotels and Ferland.
As a result, applying Kilgoran Hotels and Ferland, Justice Graesser finds that the mortgage in this case does not require blended payments because it contains a provision that distinguishes between interest and principal and because the mortgage contains enough information to easily calculate the interest rate with annual or semi-annual compounding (at paras 30-32).
Professor Waldron concluded 35 years ago that the purposes of section 6 of the Interest Act — accurate information for borrowers and standardization of that information for comparison purposes — are still worth pursuing (“Curiouser and Curioser” at 179). To the extent that there is still a need for federal legislation in the cost of credit disclosure area, pursuit of those goals should be updated with reform of the Interest Act. Perhaps it might become part of the current government’s “Putting Canadian Consumers First” platform?
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By: Jonnette Watson Hamilton
PDF Version: “Champagne Wishes and Caviar Dreams”
Case Commented On: Hood v Skauge, 2015 ABQB 476 (CanLII)
Those who are old enough to remember — and who liked — the 1984-1995 TV show, “Lifestyles of the Rich and Famous”, which featured the extravagant lifestyles of wealthy entertainers, athletes and business moguls, might be thrilled to know that NBC is reviving the series. They might also be delighted to read the 97-paragraph Parts V and VI in this decision by Justice Craig M. Jones interpreting a Cohabitation Agreement entered into by Cheryl Hood and Richard Skauge (see “Q&A w/ Olympia Trust Founder Rick Skauge”, Exempt Edge). The TV show was said to give special attention “to the prices paid for the various luxuries with which the rich enhanced their daily lives, ranging from spacious seaside villas, to classic cars, to gold-plated bathroom fixtures” (plot summary here). Justice Jones engages in an account of the lifestyle led by Ms. Hood and Mr. Skauge for a little over four years, between December 2004 and May 2009 — a lifestyle that included a yacht, three homes in Calgary, Mercedes automobiles, a cabin near Penticton, trips to Italy, Paris, New York, Thailand, St. Thomas, Disneyland, Fiji, and Hawaii (as well as Vancouver, Banff, Toronto, Quebec City and North Battleford), a $100,000 ring and various sexual relationships outside the relationship that is scrutinized in this case.
Those who have no time or taste for sensationalism might be interested in this case for the approach it takes to determining the date of separation and whether a ring is or is not an engagement ring and thus returnable when marriage does not follow. The decision also provides a lesson or two about how not to draft a cohabitation agreement if cohabitants want to keep their relationship out of the courts and thus the public eye.
The parties agreed “Cohabitation Agreement”, effective May 28, 2007, included Clause 9 setting out when the parties would be deemed to have separated. It provided:
(a) a continuous period of separation exceeding thirty (30) days, where either party does not intend to return to live with the other party;
(b) the written notice by either of the parties to end their relationship; or
(c) either party commencing any type of legal proceeding against the other party for divorce, alimony, support or a division of property.
Mr. Skauge commenced an action on September 1, 2009, so that would be the date of separation under clause 9(c). Clause 9(b) was irrelevant. However, Mr. Skauge argued that separation occurred in May 2007 under the terms of clause 9(a). Thus, the date of the parties’ separation became the major issue, taking up 97 of the 182 paragraph decision — despite the deeming provisions of clause 9.
Justice Jones characterized Clause 9(a) as “problematic” because it used the word “separation” to describe one of the circumstances in which separation was deemed to occur (at para 12). As he elaborated, this definition was not helpful, not simply because it was circular, but also because “it offers limited insight into what the parties may have thought a state of ‘non-separation’ involved (at para 23). For more plebian couples, ceasing to live together means they have separated (at para 27). However, Clause 9(a) did not require that this couple actually live together. Justice Jones held that, because of their unique lifestyle, the parties could be living separate and apart but not be deemed to have separated if they possessed the intention to start living together in the future (at para 28).
Justice Jones considered holding the agreement void for uncertainty because of clause 9(a) but concluded that doing so would not serve the interests of either party (not to mention the interests of the lawyers drafting the agreement) (at para 24).
Justice Jones considered relying on clause 9(c) and going with a separation date of September 1, 2009 (at para 25). However, he decided that relying on clause 9(c), while straightforward, did not allow “a more nuanced examination of the parties’ relationship” (at para 26) which he determined was necessary in order to apply clause 9(a) and give effect to the parties’ agreement. Of his approach, he had the following to say:
In my view, the best way to determine the date of separation in the context of the unique relationship between these parties is to examine the nature of that relationship, to consider how it evolved and, in that way, to determine the point at which the nature of the relationship fundamentally changed such that the parties could be said to have “separated” in the sense of abandoning the relationship with no intention of resuming it. This analytical approach permits the Court to avoid attaching moral significance to the parties’ actions. It simply looks at what the parties had and how what they had evolved over time (at para 30).
A nuanced examination of the relationship by Justice Jones translates into a lengthy description of the parties’ lifestyle, necessary because their physical living arrangements were not determinative of when they separated. They apparently “broke up” as many as ten times (at para 113), helping Justice Jones to decide that “the parties’ relationship was characterized not by physical cohabitation, but by sexual intimacy and an opulent lifestyle” (at para 123). Justice Jones therefore concluded that the relationship fundamentally changed in May 2009 when the parties were sexually intimate for the last time and when Mr. Skauge reduced his financial support of Ms. Hood (at para 125).
Once the date of separation was decided, the application of the rest of the agreement became primarily an accounting exercise. The one exception was a ring that Ms. Hood received from Mr. Skauge worth approximately $100,000. It was not dealt governed by the terms of the agreement, but rather by the common law and statutory law governing gifts in general and engagement gifts in particular.
Mr. Skauge had sued for the return of what he characterized as an “engagement ring”. Ms. Hood disputed this characterization. Apparently the ring was purchased while the parties were in St. Thomas in March 2008 and Ms. Hood testified that Mr. Skauge suggested buying it to “show my boys that you’re staying in the family.”
Justice Jones noted that Mr. Skauge had testified that the parties became engaged on four separate occasions, none of which resulted in marriage (at para 171). From this testimony, he concluded that the ring could not be said to have been given to Ms. Hood on the condition that the parties were to be married.
Justice Jones then considered whether the ring was given in contemplation of marriage. Mr. Skauge had also testified that when he gave Ms. Hood the ring, it was not coupled with a promise to marry her, but that prior to a hockey game in April 2008 during which Ms Hood was wearing the ring on her engagement ring finger, he and Ms. Hood had discussed marriage and he had formulated the intention to marry her.
Justice Jones relies upon the examination of the law with respect to engagement rings set out in Lummer v Frohlich, 2007 ABQB 295 (CanLII), 77 Alta LR (4th) 72 at paras 100-101 and McManus v McCarthy, 2007 ABQB 783 (CanLII), 431 AR 389, and upon section 102 of the Family Law Act, SA 2003, c F-4.5 which makes the question of the fault of the donor of the gift with respect to the marriage not occurring irrelevant.
In the end, who got the ring depended on whether the gift was absolute on delivery or conditional. In deciding that the gift of the engagement ring was not conditional, Justice Jones indicated that he did not believe that Mr. Skauge ever seriously contemplated marrying Ms. Hood. Instead, he found the ring to be simply “another of the gifts made by Mr. Skauge to Ms. Hood over the course of the relationship” and it did not carry with it any particular condition (at para 175).
“Champagne wishes and caviar dreams” seems an apt description of a characterization of a $100,000 ring as simply another one of the gifts made over the course of the now-ended relationship. It was the signature catch phrase used by Robin Leach, the original host of Lifestyles of the Rich and Famous, to end each episode.
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ABlawg is pleased to announce the launch of our second ebook on equality rights. Our ebooks will be accessible from a new tab at the top of the ABlawg website, and each ebook will be introduced with a post that will go out by email, RSS feed, and Twitter to our subscribers. Each ebook will have a table of contents with hyperlinks to the collected posts and will be fully searchable.
If readers have ideas for ebooks in particular areas or other feedback on this initiative we would be pleased to hear from you.
The introduction to this ebook is by Jonnette Watson Hamilton and Jennifer Koshan. We also thank Evelyn Tang (JD 2016) for her hard work in producing the ebook.
Introduction: By Jonnette Watson Hamilton and Jennifer Koshan
The Supreme Court of Canada has developed three different analytical frameworks for the analysis of claims under section 15 of the Canadian Charter of Rights and Freedoms since the equality guarantee came into force just over thirty years ago. During the first era, 1989 to 1999, Andrews v Law Society of British Columbia,  1 SCR 143, was the leading case. Between 1999 and 2008, the test crafted in Law v Canada (Minister of Employment and Immigration),  1 SCR 497 prevailed. The third and current era began in June of 2008 with the Court’s decision in R v Kapp, 2008 SCC 41. Kapp simplified the test for determining whether there has been a violation of section 15(1) — (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? — and created a separate approach to claims under section 15(2). Although there was no ABlawg post on the Kapp decision when it was first released, most of the posts focusing on the Charter’s equality guarantee are comments on the application of the Kapp analytical framework. For a review of Supreme Court section 15 equality jurisprudence from Andrews to Quebec (Attorney General) v A, 2013 SCC 5 (CanLII), readers are referred to Jennifer Koshan and Jonnette Watson Hamilton “The Continual Reinvention of Section 15 of the Charter” (2013) 64 University of New Brunswick Law Journal 19, available on SSRN.
When it was first handed down, it was not clear that Kapp did set out a new analytical framework for all Charter equality claims. The case very deliberately set out a new approach to section 15(2), the affirmative action subsection. However, the Court’s brief comments on the approach to section 15(1) initially had little impact on lower courts. Re-reading the posts written in the two years immediately following Kapp offers numerous reminders that courts were still using the test from Law v Canada. See, for example, Differential Treatment of Equality Law post-Kapp, commenting on Woodward v Council of the Fort McMurray No. 468 First Nation, 2010 FC 337 (CanLII) and the trio of posts about the Alberta Court of Appeal decision in Morrow v Zhang, 2009 ABCA 215 (CanLII): Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries, More Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries and Supreme Court denies equality claimants leave to appeal insurance cap. A post about the Supreme Court’s 2009 decision in Ermineskin Indian Band and Nation v Canada, 2009 SCC 9 (CanLII), argued that decision made it clear that the legal framework for analyzing section 15(1) claims would be very different than it has been for the past decade: The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges.
By January 2010, Kapp’s status had solidified enough that it was nominated on ABlawg as the leading equality rights case of the 2000s: A Vote for R v Kapp as the Leading Equality Case of the Past Decade. And so it has proven to be, with the addition of two further Supreme Court decisions elaborating on the framework for section 15(1) claims and one decision concerning underinclusive section 15(2) claims.
With respect to section 15(1), the Court’s decision in Withler v Canada (Attorney General), 2011 SCC 12, can be seen as a companion case to Kapp. Numerous ABlawg posts comment on Alberta cases that applied — or misapplied— the Kapp/Withler framework. See, for example, Non-Fatal Exclusion: The Fatal Accidents Act, Stepchildren, and Equality Rights, A Vital Judgment: Upholding Transgendered Rights in Alberta, and Fowl Play? A Look into Recent Canadian Reform Efforts for Backyard Chicken Legislation. For an extended critique of the Withler decision itself, see Jennifer Koshan and Jonnette Watson Hamilton, “Meaningless Mantra: Substantive Equality after Withler” (2011) 16:1 Review of Constitutional Studies 31, available on SSRN.
The Supreme Court’s second major elaboration of the Kapp approach can be found in Quebec (Attorney General) v A, 2013 SCC 5, commented on in Roundtable on Quebec v A: Searching for Clarity on Equality. That case expanded the approach to discrimination beyond Kapp’s focus on prejudice and stereotyping, but also referenced “arbitrary discrimination”, which became an emphasis in the Supreme Court’s latest section 15(1) decision in Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 (CanLII); see The Supreme Court’s Latest Equality Rights Decision: An Emphasis on Arbitrariness.
As already mentioned, Kapp was clearer in instituting a new approach to section 15(2), giving that section independent status to protect ameliorative laws, programs and activities For a comment on a case applying the new approach from Kapp to save the Aboriginal Court Worker Program under section 15(2), see Access to Justice and Representation by Agents.
The question of whether that new approach to section 15(2) would also apply to claims of underinclusive ameliorative programs was answered in the affirmative in Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37 (CanLII). A series of four ABlawg posts commented on the Alberta Court of Appeal decision in that case —the first judgment of the Court of Appeal to consider section 15 since Kapp — as well as the appeal to the Supreme Court of Canada: Evidence of Amelioration: What Does Kapp Require of Governments Under s.15(2) of the Charter? What Will Courts Permit?; Another Take on Equality Rights by the Court of Appeal; Leave to Appeal Granted by the SCC in Métis Status Case; and Interpreting Section 15(2) of the Charter: LEAF’s Intervention in Alberta (Minister of Aboriginal Affairs and Northern Development) v Cunningham.
In addition to collecting the cases that apply and extend the Kapp framework, the compilation also brings to light a few themes. Topics include the extension of the equality guarantee to grounds analogous to those enumerated in section 15; adverse effects discrimination claims challenging facially neutral laws; and the Supreme Court’s preference for deciding cases on section 2 or section 7 grounds, rather than under section 15.
A fairly large number of the cases featured in this collection focus on one particular aspect of the first step in the Kapp test: (1) Does the law create a distinction based on an enumerated or analogous ground? The contentious issue here is often whether a new ground on which a claim is advanced is analogous to the grounds enumerated in section 15. Two posts celebrate anniversaries of the Supreme Court’s decision in Vriend v Alberta,  1 SCR 493 — Vriend Ten Years Later and The Vriend Case 15 Years Later — and remind us that sexual orientation had to be recognized as an analogous ground. The issue of homelessness as an analogous ground is discussed in Should Homelessness be an Analogous Ground? Clarifying the Multi-Variable Approach to Section 15 of the Charter and Can the Homeless Find Shelter in the Courts?. Whether the status of stepchildren could be an analogous ground was the question in Non-Fatal Exclusion: The Fatal Accidents Act, Stepchildren, and Equality Rights and whether the status of parent should include a non-biological gay male who intended to be a parent is discussed in Non-biological Father from Separated Same-Sex Couple Declared a Legal Parent. As noted in A Vital Judgment: Upholding Transgendered Rights in Alberta, section 15 claims can include multiple, intersecting grounds of discrimination, some enumerated and some analogous, such as sex, mental or physical disability, gender identity, and transgender status.
Some of the claims under section 15(1) have been adverse effects discrimination claims, rather than claims of direct discrimination. In an adverse effects claim, the challenged legislation is neutral on its face and, as a result, evidence linking the legislation and the adverse impact is often a stumbling block for claimants. Notably, two 2015 judgments of the Supreme Court includes adverse effects section 15 claims: Carter v Canada (Attorney General), 2015 SCC 5 (CanLII) and Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 (CanLII). The Carter case was decided by the Supreme Court on section 7, rather than on section 15, but the equality claim made and allowed at the trial level was the subject of two ABlawg comments: Assisted Suicide and Adverse Effects Discrimination: Where Will the Supreme Court Go in Carter?, and Supreme Court of Canada Strikes Down Ban on Physician Assisted Death. The Supreme Court did decide the Taypotat case on section 15, the only Charter claim brought in that case, as discussed in The Supreme Court’s Other Opportunity to Revisit Adverse Effects Discrimination under the Charter: Taypotat v Taypotat and The Supreme Court’s Latest Equality Rights Decision: An Emphasis on Arbitrariness. Another adverse effects case that failed because the evidentiary record was found to fall short is noted in National Day of Remembrance and Action on Violence Against Women and the Failed Challenge to the Repeal of the Long Gun Registry.
A number of the posts comment on the Supreme Court’s preference for deciding cases on claims other than those brought under section 15. Assisted Suicide and Adverse Effects Discrimination: Where Will the Supreme Court Go in Carter?, for example, acknowledged that the Court was far more likely to decide Carter on section 7 grounds. The post on Teaching Bedford: Reflections on the Supreme Court’s Most Recent Charter Decision, also speaks to the relative success that section 7 claims have had in the Supreme Court in comparison to the lack of success of section 15 claims. The Supreme Court decided Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 on freedom of religion, spending only one paragraph on the section 15(1) claim: see Security Trumps Freedom of Religion for Hutterite Drivers. Nonetheless, Hutterian Brethren has been cited numerous times by the Supreme Court and other courts as a leading precedent on section 15.
Finally, it should be noted that we have not included posts about the exclusion of farm workers from Alberta labour and employment legislation even though section 15 arguments were made in some of those posts; see, for example, The Statutory Exclusion of Farm Workers from the Alberta Labour Relations Code. The primary hurdle for a section 15 challenge in this context is to establish occupational status as an analogous ground, and the Supreme Court has not been receptive to such arguments in the past — or in 2015. See The Supreme Court’s New Constitutional Decisions and the Rights of Farm Workers in Alberta. The posts commenting on the farm workers exclusions will be collected in a separate ebook.
This ebook is organized chronologically by date of post (oldest first) except that we have grouped together trial and appellate decisions so that any appellate decisions are printed immediately after the trial or first instance decision, as are other related posts. Where appropriate the text also includes any commentary and response received on the individual posts. There is no index to the volume but it should be readily searchable in this electronic form using key words and the “find” function in Adobe Acrobat or a similar program.
We are responsible for the selection of posts for this ebook. Evelyn Tang (JD 2016) is responsible for the hard work of weaving this all together.
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By: Anna-Maria Hubert
Matter Commented On: General Assembly Resolution – Development of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, A/RES/69/292
A recent review article in Science predicts a major extinction event in the oceans if human impacts on the marine environment go unchecked because of the ‘profoundly deleterious impacts’ that our activities are having on marine life (Douglas J McCauley and others, ‘Marine defaunation: animal loss in the global ocean’ (2015) 347 Science 247). Pressures on marine ecosystems, including ecosystems beyond national jurisdiction, arise from pollution, overfishing, expanded shipping, marine mining, energy development, intensified aquaculture, as well as ocean warming and acidification. The authors of the article still hold out some hope: there remains a chance that we can reverse this trend if we engage in more effective management of the oceans and if we can slow climate change.
Marine areas that lie beyond the jurisdiction of any State comprise approximately two-thirds of ocean space. However, the legal and institutional frameworks that govern marine biodiversity in areas beyond national jurisdiction (ABNJ) are widely perceived as inadequate for ensuring the long-term health and equitable use of the living resources of this vast area. Some relevant legal principles and rules are prescribed in the 1982 United Nations Convention on the Law of the Sea (LOSC) and the 1992 Convention on Biological Diversity (CBD) and other instruments of general application. But there are significant gaps in this patchwork of agreements and institutional structures; thus, measures to address these gaps could go a long way to prevent significant losses of marine species, habitats and ecosystems, and the benefits they provide.
This backdrop provides the context for the recent resolution adopted by the UN General Assembly to begin a process to develop an internationally legally binding instrument under the LOSC on the conservation and sustainable use of marine biological diversity of ABNJ. This post provides a short summary of the process leading to this decision, and the decision itself. It also outlines next steps and some of the challenges and opportunities in reaching a new legally binding instrument under the umbrella of the LOSC. In commenting on certain aspects of the law-making process, I draw upon James Harrison’s astute analysis in his book on the Making the Law of the Sea, and specifically the chapter on ‘Implementing Agreements’ (Cambridge University Press 2013).
A Short Summary of the Process to Date
The decision by the UN General Assembly to initiate a process to develop a new legally binding agreement on the conservation and sustainable use of marine biodiversity in ABNJ is the result of a long and protracted process that has spanned over a decade. The issue was first raised at the fourth meeting of the UN Open-ended Informal Consultative Process on Oceans and the Law of the Sea (UNICPOLOS) in 2003 (at paras 13–23, 80, 98–104). Concerns about the lack of effective legal and institutional mechanisms for governing ABNJ were echoed in other international fora as well. In response, in resolution 59/24 of 2004, the General Assembly established the Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (BBNJ Working Group) to clarify and examine these issues (at para 73).
By 2011, discussions under the auspices of the BBNJ Working Group began to focus on what specific changes, if any, would be required to the law of the sea. The Working Group recommended to the General Assembly that
… a process be initiated … with a view to ensuring that the legal framework for the conservation and sustainable use of marine biodiversity in ABNJ effectively address those issues by identifying gaps and ways forward, including through the implementation of existing instruments and the possible development of a multilateral agreement under [the LOSC]’ (A/66/119 Annex, at para I 1(a)).
This process would address ‘together and as a whole’ four key topics:
Political support for a new agreement under the LOSC gained momentum at the 2012 UN Conference on Sustainable Development (Rio+20), where States committed themselves to urgently address the issue of the conservation and sustainable use of marine biodiversity of ABNJ, specifically by agreeing to decide by the end of the sixty-ninth session of the General Assembly whether to develop an international instrument to address this matter under the umbrella of the LOSC (A/RES/66/288, at para 162).
In 2013, the BBNJ Working Group was charged with making recommendations on the scope, parameters and feasibility of an international instrument under the LOSC to the sixty-ninth session of the General Assembly (A/RES/68/70, at paras 198-200; see also A/RES/69/245, at para 214). In January 2015, at its final meeting on this matter, the BBNJ Working Group made the important recommendation to the General Assembly by consensus that it inter alia ‘[d]ecide to develop an international legally binding instrument under the Convention on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction …’ (A/69/780, at para I 1(e)).
On 19 June 2015, the General Assembly adopted all of the recommendations of the BBNJ Working Group under resolution A/RES/69/292, thereby taking the historic step of launching a new set of negotiations under the law of the sea.
Next Steps in the Process
In accordance with the BBNJ Working Group’s recommendations, the General Assembly has decided to establish, prior to convening an intergovernmental conference, a preparatory committee to make substantive recommendations on the elements of a draft text of a legally binding instrument under the LOSC. This work is to commence in March 2016 and carry on into 2017 (at para 1(b)). Before the end of its seventy-second session in 2018, the General Assembly will render a decision on whether and, if so when, to convene an intergovernmental conference, under the auspices of the United Nations, to consider the preparatory committee’s recommendations and elaborate the text of an international legally binding instrument under the LOSC (at para 1(k)).
Transparency and participation are increasingly regarded as constitutive ingredients in the deliberative phase of international law-making and essential to promoting sustainable development. Moreover, achieving the aim of conserving the global ocean commons is likely to require an ‘all hands on deck’ approach through enhanced cooperation and coordination between different international institutions and other sectors of society. In keeping with these objectives, the resolution mandates that the preparatory committee should be opened-up not only to Member States of the UN, but also to ‘members of specialised agencies … and other invited observers in accordance with past practice of the UN’ (at para 1(a)). If this process is managed correctly, the exchange of views and information between a wider range of participants representing civil society, international organisations, and industry associations may lend greater legitimacy and accountability to the process and outcome.
Significance of the Resolution and Challenges Ahead
The adoption of the General Assembly resolution evinces a growing recognition within the international community that the regime governing the marine biodiversity in ABNJ is no longer fit for purpose, and that further action to develop a legal and institutional framework is necessary. However, despite reaching a consensus on the feasibility of a new instrument, the discussions under the auspices of the BBNJ Working Group indicate that there remain a few States who continue to express reservations about whether a new instrument is really necessary, arguing that strengthening the implementation of existing instruments would be sufficient (A/69/780, at para 13). These countries included Canada, the United States, and the Russian Federation (see Elisa Morgera, ‘Do We Need a New Treaty to Protect Biodiversity in the Deep Seas?’ IISD Policy Update No. 8, 20 January 2015). It will be interesting to observe what impact such misgivings will have on the preparatory committee’s task to develop draft provisions. In this respect, the General Assembly resolution provides that the preparatory committee must take all efforts to reach a consensus on substantive matters (at para 1(h)). However, if the process becomes bogged down and consensus cannot be achieved, these more controversial elements of the draft text may also be included in a section of the recommendations of the preparatory committee to the General Assembly (at para 1(i)).
Regardless, the General Assembly’s decision to begin to elaborate a new instrument presents an historic opportunity to interpret and develop the core principles and rules of the law of the sea since the adoption of the 1982 LOSC. In a period in which there is diminishing appetite to negotiate new treaties, this demonstration of political will to launch negotiations under the law of the sea is to be lauded as a remarkable achievement in and of itself. It goes without saying, however, that tentative agreement on the need to rectify certain issues and gaps in the LOSC does not amount to agreement on how they should be solved. The following sections comment on the possible normative status and effects of a new instrument, as well as certain issues related to scope and content.
Relationship of a New Instrument to the LOSC and its Normative Effects
The reports of the BBNJ Working Group and the academic literature refer to the idea that a new instrument could have the status of a so-called ‘implementing agreement’ under the law of the sea. Two treaties have been designated by the international community as implementing agreements to date: the 1994 Agreement Relating to the Implementation of Part XI of the 1982 Convention on the Law of the Sea of 10 December 1982 (Part XI Agreement), and the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement). Harrison points out that what distinguishes implementing agreements from other agreements in terms of their normative status and effects is, first, the level of political support for effectively implementing the regime in a universally applicable way, similar to that of LOSC itself, and, second, their close relationship to the LOSC.
To achieve the aim of a ‘comprehensive global regime’ on the conservation and sustainable use of marine biodiversity of ABNJ, it is vital that any new instrument secure widespread acceptance. Sufficient participation from all regions is not only required to overcome externality or free-rider problems that would otherwise hamper the protection of the global ocean commons, it is also necessary to preserve the integrity and coherence of the law of the sea, particularly given that significant modifications are being proposed to clarify and develop the existing legal framework under the LOSC. The need for extensive participation in concluding a new agreement is recognised in the body of the resolution, which notes
… the desirability that any legally binding instrument relating to marine biological diversity of areas beyond national jurisdiction under the Convention would secure the widest possible acceptance … (at para (g)).
It is also significant that the United Nations will serve as the forum for concluding the new instrument, and that the process will use consensus decision-making techniques (at para (h)). All of this is important in order to achieve the political support necessary for an implementing agreement.
In considering the formal relationship between a possible new instrument on the conservation and sustainable use of marine biodiversity of ABNJ and the LOSC, it should be borne in mind that the Part XI Agreement and the Fish Stocks Agreement differ in the way in which they implement the Convention (see further Harrison, ch 4, supra). For instance, the Part XI Agreement significantly altered the regime on seabed mining in the LOSC. By contrast, although the Fish Stocks Agreement introduces important elaborations to the provisions governing fisheries in the LOSC, it does not go so far as to ‘modify or disapply’ the provisions of the LOSC. Harrison suggests that this is due to the fact that, in contrast to the Part XI Agreement, the Fish Stocks Agreement aimed at elaborating parts of the LOSC that were already accepted as law. Similar conditions exist with respect to ABNJ, where established general principles in the LOSC, such as the freedom of the high seas and responsibility to protect and preserve the marine environment, simply require further clarification and development to suit present needs and circumstances. This is also recognised in the language of the General Assembly resolution, which hints at the superior constitutional status of the LOSC in considering a new legally binding instrument ‘under the [LOSC]’. The resolution also generally emphasises that any new instrument must not ‘undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies’ (at para 3). This suggests that, similar to 1995 Fish Stocks Agreement, the present aim is not to significantly alter the existing provisions and institutional structures governing the conservation and sustainable use of marine biodiversity in ABNJ in the LOSC (or any other agreements for that matter), but rather to elaborate on general obligations and fill in the gaps of the existing legal and institutional framework. Beyond this, the objectives and manner in which any new instrument would implement the principles of the LOSC presumably begins with work of the preparatory committee. It should be borne in mind, however, that as with the Fish Stocks Agreement, significant additions might be necessary to bring the existing rules in the LOSC in line with modern conservation concepts, such as the precautionary and ecosystem approaches.
Another issue concerns what impact a new agreement on the conservation and sustainable use of marine biodiversity in ABNJ might have in terms of developing the law of the sea. The General Assembly resolution clarifies that neither participation in the negotiations nor their outcome should prejudice the legal status of non-parties to the LOSC or any other related agreements with regard to those instruments, or the legal status of parties to the LOSC or any other related agreement with regard to those instruments (at para 4). The guarantee should not preclude that any new instrument could nevertheless influence the development of customary international law in the future. Factors that would support the crystallization of new customary rules include the extent to which the provisions address States in general terms (as opposed to just ‘States Parties’) and are supported by consensus and subsequent state practice.
Scope and Content of a New Instrument
The discussions under the auspices of the BBNJ Working Group provide few specifics about the coverage and substance of a new agreement for the conservation and sustainable use of marine biodiversity in ABNJ. As a starting point, States have agreed that negotiations on a new instrument shall address the four elements of the ‘package deal’ previously agreed by the BBNJ Working Group 2011, and outlined above (at para 2). However, for each of these topics there remains considerable scope for disagreement on substance, signalling that challenges lie ahead in crafting the terms of an instrument that will be generally acceptable to all States. For instance, the issue of the legal status of marine genetic resources, in particular, access and benefit sharing, has been a complex and contentious issue throughout BBNJ deliberations. Ultimately, a balance will have to be struck between the interests of developing States in gaining a greater share of the benefits of research and products developed from marine genetic resources in ABNJ, and some developed States in not sharing the monetary benefits of research and safeguarding intellectual property rights.
In terms of content, the text of a new agreement should avoid duplication and not undermine existing instruments, but it should also take into account potential overlaps and synergies between the law of the sea and other areas of international law. For example, any new agreement on the conservation and sustainable use of marine biodiversity in ABNJ can easily draw upon the principles of the CBD and its relevant protocols and thus facilitate regime interaction.
There are also possibilities for interlinkages with the climate change regime. As recognised by the General Assembly in its 2014 resolution on the Oceans and the Law of the Sea and other international bodies, rising greenhouse gas emissions may be one of the greatest threats to marine biodiversity both in and outside of ABNJ in the coming years. The IPCC’s most recent Fifth Assessment Report (AR5) devoted significantly more attention than previous reports to the impact of climate change on the ocean system, summarising a growing body of scientific evidence predicting major adverse effects to the marine environment from climate change and ocean acidification. The International Law Association (ILA) has recently provided guidance to States by expounding Legal Principles relating to Climate Change. The ILA prescribes that ‘States and competent international organisations shall apply, interpret, implement and enforce their rights and obligations under the Law of the Sea in such a manner so as to effectively address climate change and its adverse effects’ (Draft Article 10(c)). A new treaty on the conservation and sustainable use of marine biodiversity in ABNJ can make an important contribution to realising this principle by incorporating mechanisms for increasing ecosystem resilience, for example, through the creation of marine protected areas and by requiring that environmental impact assessments be conducted for new and emerging ocean activities relating to climate change (e.g., development of marine renewable energy, marine climate engineering). Provisions may also be needed to ensure concerted information exchange, the promotion of marine scientific research, and a flexible and adaptive legal and institutional framework given that there remain large uncertainties about exactly how marine biodiversity in ABNJ will be affected by climate change.
The current legal and institutional framework represents a piecemeal approach to governing the conservation and sustainable use of marine biodiversity in ABNJ through different instruments, and a range of organisations and institutions at the global and regional levels. Elaboration of a new legally binding instrument presents an opportunity to improve upon existing sectoral and fragmented approaches by providing a more coherent and integrated regulatory and institutional architecture under the LOSC in line with contemporary concerns and understanding. The General Assembly resolution is very timely, and one can only hope that the ambition of the international community in the law-making process matches the magnitude of the current threat posed by human activities to marine biodiversity of ABNJ.
I am grateful for the insightful comments provided by Kristina M. Gjerde, Senior High Seas Advisor to IUCN Global Marine and Polar Programme, and Professor Nigel Bankes on earlier drafts of this post. Any errors or omissions remain my own.
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By: Shaun Fluker
PDF Version: Statutory Interpretation and the Traffic Safety Act
Case Commented On: R v Kirollos, 2015 ABQB 474
Anyone who drives a vehicle in Alberta knows the law requires the vehicle be registered and insured. The two requirements effectively go hand-in-hand since obtaining a current registration at a registry office will require that you produce evidence of insurance coverage for the vehicle. The legal rules themselves are set out in the Traffic Safety Act, RSA 2000 c T-6 and if you fail to comply with these rules before a police officer you may find yourself in Traffic Court. R v Kirollos is decision by Madam Justice J.B. Veit concerning the appeal by Kirollos to the Court of Queen’s Bench of his conviction in Traffic Court on two counts: (1) failure to have insurance for his vehicle; and (2) failure to produce a certificate of registration for his vehicle. Justice Veit overturns the conviction of Kirollos on count #1 and she orders a new trial on count #2. This comment serves as a reminder on the importance of statutory interpretation in the law as I prepare to introduce the subject to a new class of law students next month.
Kirollos was in a parked vehicle in a commercial parking lot during the night of May 5, 2014. He testified he was sleeping at the time. At approximately 3am that night, police officers approached Kirollos and asked for registration and insurance. Kirollos was unable to produce registration and insurance, and he was charged under sections 54 and 167 of the Traffic Safety Act.
Section 54(1)(b) prohibits a person from having a motor vehicle on a highway unless it is an insured vehicle. The legal issue in this case is whether Kirollos was on a highway. The evidence established he was in a commercial parking lot, and a sign at the entrance to the lot stated the public was not permitted to park in the lot. Is a private parking lot a highway?
When working with terms or phrases in legislation it is essential to determine whether those terms or phrases are defined in the legislation. The term ‘highway’ is defined in section 1(1) of the Traffic Safety Act. As students learn in first year law, words are usually defined in statutes to either restrict or expand their ordinary meaning. With respect to ‘highway’ in the Traffic Safety Act, the objective appears to be to expand its ordinary meaning:
(p) “highway” means any thoroughfare, street, road, trail, avenue, parkway, driveway, viaduct, lane, alley, square, bridge, causeway, trestleway or other place or any part of any of them, whether publicly or privately owned, that the public is ordinarily entitled or permitted to use for the passage or parking of vehicles and includes
(i) a sidewalk, including a boulevard adjacent to the sidewalk,
(ii) if a ditch lies adjacent to and parallel with the roadway, the ditch, and
(iii) if a highway right of way is contained between fences or between a fence and one side of the roadway, all the land between the fences, or all the land between the fence and the edge of the roadway, as the case may be,
but does not include a place declared by regulation not to be a highway;
Justice Veit overturns the 54(1)(b) conviction on the evidence that the parking lot in question did not allow for public usage (at paras 13 – 18). Justice Veit reasons this fact excludes the parking lot from being a highway under the literal reading of the term in the Traffic Safety Act, as set out above. One might also question whether a parking lot is of the same genre as the other words included under highway, all of which seem to suggest something more linear than a parking lot, but this argument is not raised in the decision.
Section 167(1)(b) requires a person who is driving or otherwise has the care or control of a motor vehicle to produce a certificate of registration when demanded by a police officer. Justice Veit orders a new trial for Kirollos on this charge because she finds the Traffic Commissioner who heard the prosecution in Traffic Court failed to consider the meaning of ‘care or control’ (at paras 20 – 25). The testimony at trial was conflicted on the exact state of the vehicle when approached by the police officers. They testified it was running, but Kirollos testified he was sleeping. Under either or both accounts, it seems Kirollos was not ‘driving’ so the issue here is whether he had ‘care or control’ of his vehicle at the time.
Justice Veit observes the phrase ‘care or control’ is not defined in the Traffic Safety Act, but she also notes the phrase is used in the Criminal Code, RSC 1985, c C-46 where it has received some judicial consideration (at para 22). The general rule of statutory interpretation in Canada is that the meaning of words in a statute adhere to the overall objective of the legislation. Where a word or phrase is not explicitly defined in a statute and its ordinary meaning is not particularly insightful, one may look to external sources of meaning such as how the words are defined in other statutes or the common law. Justice Veit does not have to engage in this interpretive act here, but presumably the new trial for Kirollos on the section 167(1)(b) charge will.
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By: Lisa Silver
Case Commented On: R v Borowiec, 2015 ABCA 232
In a few weeks the law school will be humming with activity as the newly admitted 1L students start learning the Law both in doctrine and in practice. One of the core first year courses is criminal law, which provides the future lawyer a realistic snapshot of the complexities of both areas. Here, in criminal law, they will not only gain knowledge of the prohibitions, rules, and procedures as found in the Criminal Code but also the interpretations and practices as found in Common Law. They will discover that criminal law is not about cut and dry legalese but is, at its core, about how we as a nation see ourselves and the kind of society we want to live in. It is also about ordinary people who are impacted by the decisions made by courts every day.
The key to understanding and appreciating criminal law is in the deeper discussion of the purpose of criminal law and why we as a society prohibit certain behaviors and not others. Sometimes this discussion of “why” is easy: we can agree that certain types of conduct such as stealing, murder, and assault are worthy of sanction. But we have a more difficult time in agreeing on what this prohibited conduct looks like and, therefore, what we should do about it. To answer these questions, criminal law jurisprudence considers all of these weighty issues in the context of the rule of law. It is this intersection of law and societal values, which makes criminal law so legally interesting and yet so socially conflicting. The recent decision in R v Borowiec from the Alberta Court of Appeal on infanticide is an excellent example of these tensions and the difficulty the courts have in harmonizing these issues. It is also a stark example of the reality that in some respects our criminal law is clinging to the past and in desperate need of reform.
Although homicide has been “on the books” so to speak since the inception of our Criminal Code in 1892, infanticide came to us through a 1948 amendment, which mirrored earlier changes made to English law. The then s. 262(2), deemed a woman, who willfully caused the death of her newly-born child, not guilty of murder or manslaughter but of the newly created offence of infanticide if at the time of the act or omission “she had not fully recovered from the effect of giving birth” resulting in the “balance of her mind” being “disturbed.” Later, in a 1954 amendment, the offence was broadened by offering another reason for the “mind being disturbed” by conceding infanticide could also occur when the “female person” was not fully recovered from “the effect of lactation consequent on the birth of the child.” Additionally, the word “balance” in the phrase “balance of her mind” was deleted.
The 1954 amendments also added the now s. 663 of the Criminal Code, which was not found in the English legislation. This section ensures that if a woman was charged with infanticide but was not suffering from a mental disturbance and yet intentionally killed her child, she could still be convicted. This section is not in issue in the Borowiec case, however, as mentioned by Justice Doherty in R v L. B., 2011 ONCA 153 (at paras 84 to 87), the constitutional implications of this section are troubling and worth noting. What is of import is the wording of s. 663, which still retains the English legislative nomenclature requiring a disturbance of the “balance” of the mind. This slight but significant difference will be explored later as it impacts the Borowiec decision.
Infanticide is now one of the three ways homicide is culpable or blameworthy. Homicide or the killing of a human being is culpable when the conduct amounts to murder, manslaughter or infanticide as per the Criminal Code sections. Unsurprisingly, all three categories of homicide have similarities and differences in terms of: a) the conduct or actus reus required, b) the fault element or mens rea required, and c) the punishment imposed upon conviction. But, as with all related areas, it is difficult to parse the differences between them when the conduct is on the boundaries.
To assist in this discussion, lawyers and the courts look to the rule of law as established by precedent and informed by statutory interpretation. However, in the field of criminal law, this time-honoured legalistic approach must be further informed by the purpose or reason for using the criminal law in the context of the offence. In the case of infanticide, the conduct and fault element is difficult to ascertain and the section outlining the crime is mired in archaic language based on out of date policy and dated science. For instance, the concept of “lactational insanity,” which drove the English legislation as mirrored in our 1954 amendments, is straight out of the Victorian Age and is no longer considered medically valid. When the crime does not fit the times it becomes hard to determine whether or not the crime reflects current societal interests and values.
These conflicting issues are clearly seen in the Borowiec case. According to the evidence, between 2008 and 2010, Meredith Borowiec was pregnant three times and each time she hid her true condition from her boyfriend, family and work colleagues. She gave birth, on her own, and subsequently abandoned each child in a garbage dumpster. Her actions came to the notice of the authorities when the last child was rescued from the dumpster. She was ultimately charged with two counts of second-degree murder and one count of attempted murder, to which she later entered a plea of guilty to the lesser offence of aggravated assault. At her murder trial, defence counsel raised infanticide as an alternative to murder, calling psychiatric evidence in support. The prosecutor also called psychiatric evidence to establish that the conduct did not amount to infanticide and was in fact murder. The trial judge reviewed the conflicting evidence in light of the Code provisions and case law and found Meredith Borowiec not guilty of murder but guilt of infanticide.
The case was followed closely in the media and attracted much attention. Upon her conviction for infanticide and the imposition of the total sentence before credit for time served of four and a half years, there was a public outcry with one journalist opining that it was “open season” on unwanted infants. Still other views showed sympathy for the accused, citing her mental health issues and lack of support while pregnant as mitigating factors. In fact, infanticide, according to the literature in the area (see for example, Chapter 7 of the 2013 book entitled History of Infanticide in Britain, C. 1600 to the Present by Professor Anne-Marie Kilday), does provoke very stark conflicting public emotions and has done so for hundreds of years. In this context, the Borowiec decision provides a glimpse into the legal response to a very provocative social issue.
The Crown appealed the infanticide convictions and in a split decision, the Alberta Court of Appeal upheld the decision. On appeal, the court considered three grounds of appeal. Remember, this was a Crown appeal and according to s. 676 of the Criminal Code a Crown appeal can be based only upon issues of law. The first issue asked whether or not the trial judge erred in law in his application of the law of infanticide. The second somewhat related issue asked whether the trial judge erred in his assessment of the conflicting expert evidence. The third issue, which will not be discussed in this commentary, is whether or not the reasons of the trial judge were sufficient. Justice Cote and Justice MacDonald for the majority found that the trial judge did not err in his application of the law of infanticide pursuant to the requirements of the section. Although they found some problems with the assessment of the conflicting evidence of the expert witnesses, in their view the error was not a question of law but of fact and therefore could not form the basis of a Crown appeal. The dissent, authored by Justice Wakeling, disagreed with the majority on the first issue finding that in law the trial judge did err in his appreciation and application of the infanticide requirements as required by section 233.
The majority reviewed the history of section 233 and the roots of the offence in English law. In their view, Parliament enacted the section as a legal and social compromise. Prior to legislating the offence, a mother charged with the death of her newly born child would be charged with murder and faced a possible death sentence. As a result, specious acquittals occurred as the members of the jury were not prepared to send a mother to death for the crime, particularly if there were extenuating circumstances. However, these circumstances fell short of a disease of the mind and therefore could not amount in law to a valid s. 16 or insanity defence. In response, England initially enacted the Infanticide Act, 1922 and then after subsequent amendments, enacted the Infanticide Act, 1938, which carved out a singular offence within the homicide spectrum. For an excellent and erudite discussion of infanticide’s historical beginnings, see Justice Doherty’s opus in R v L.B. (at paras 64 to 104). In this historical survey Justice Doherty explains the intricate Canadian infanticide experience by tracking the various amendments made to the now s. 233 and the other complimentary sections such as s. 663.
Upon review of the historical purpose and changes to the section, the majority listed the applicable elements of the offence or as in the Borowiec case, what was raised by the defence as a possible lesser verdict predicated on the evidence. The court described the requirements of the section that the accused a) be “not fully recovered,” b) that “her mind was then disturbed,” and c) that the disturbance be from the “effects” of childbirth or by the reason of “lactation” as “extremely woolly” (at para 31) and not representing “established” medical terminology.
It is in the legal application of the section, specifically the requirement the accused’s mind be “disturbed,” which the Court of Appeal focused on in addressing the first issue. In other words, does this term “disturbed” reflect an articulable standard and if it does, what does that standard look like as a legal principle? Put another way, what is the extent to which the accused must be “disturbed” in order to fulfill the prerequisites of the section? This problem – where to draw the line in criminalizing conduct – is a familiar one in criminal law. For instance, in the case of negligence based crimes, the courts spent decades trying to determine the appropriate level to which an accused must be negligent, finally coming to the “substantial and marked departure” from the norm as the test for the offence of criminal negligence under s. 219 but preferring a lesser standard of “marked departure” for other negligent based offences. But where does infanticide reside in the continuum of murder, manslaughter, criminal negligence and accident? More specifically, how does the “disturbed mind” requirement impact this discussion?
Added to the difficulties of delineating boundaries between differing conduct is the argument made by the Crown on appeal that what infanticide requires is not just evidence that the accused mind is disturbed but rather evidence that the “balance” of her mind was disturbed, which, in the submission of the Crown, suggests a higher standard than a mere disturbance. This argument is based on a rather puzzling aspect of the infanticide related sections. Although the infanticide section itself, pursuant to s. 233, refers to “disturbed” only, other related sections such as s. 663, the assessment order section 672.11(c), under the “Mental Disorder” Part XX.1, and s. 672.21(3)(d), also under Part XX.1, refer to the “balance of the mind” in relation to infanticide. Although the Part XX.1 sections are fairly recent, in the Criminal Code sense, having been enacted in 1991, s. 663 was added to the Criminal Code in the 1954 amendments, which also deleted the reference to “balance of her mind” in the infanticide section s. 233.
The majority deftly rejected this argument, finding, in paragraph 50, it was “unlikely that Parliament intended any significant difference” between the two phrases. In the Court’s opinion, it would make no sense to require a different standard for these sections and as Parliament has had ample opportunity to fix the difference in language, it must mean there is no difference.
Although the Court does not delve into the niceties of the difference in language found in the various sections, still a more robust application of the principles of statutory interpretation would have been in order. For example, the word “balance” does connote an ability to remain in control or have “mental and emotional steadiness” as per the Merriam-Webster definition and as understood by the related term of being “off-balanced.” Additionally, the UK legislation retains the phrase “balance of her mind.” The Court did not discuss the significance of this or the impact of this phrase in the English context.
Of course, besides the possible different legal meaning the addition of the word “balance” could have produced, it is likely the Crown had another reason to pursue the importance of the word. The Crown’s forensic psychiatrist at trial relied upon the term, “balance of her mind,” and the trial judge pointedly corrected the nomenclature as not consistent with s. 233. No doubt the psychiatrist was more comfortable with the usage of the phrase as it related to the assessment sections of the Criminal Code rather than the offence section and does illustrate the confusion the different wording invokes.
In any event, the majority preferred to defer to Parliament to lend any further guidance on the issue. The best the majority could do was recognize the “need for some standard” (at para 53) and quote approvingly from a 2003 Alberta Queen’s Bench decision in R v Coombs, 2003 ABQB 818 at para 37, wherein the trial judge found that Parliament set “a very low threshold, certainly far below … not criminally responsible.”
Although the Court recognized the imperfections of the offence/defence of infanticide, in the majority’s view it was Parliament’s responsibility to create criminal law and not the courts’ purview even where the law in the area was “woolly.” In fact, the Court suggests the use of “vague language” in the section assists the trier of fact in coming to a “just” decision as the ambiguity gives the trier of fact and the Crown “elbow room and several hints.” Indeed, the majority opined at paragraph 88 that:
The only way to find an error which “involves a question of law alone” would be to make new law and interpret one or more of the woolly words or phrases in section 233 more narrowly, injecting a good deal of the Court of Appeal’s own analysis and philosophy. In view of the history, that would override Parliament’s decision to do the opposite.
Clearly, the Court was unable (or unwilling) to reconcile the social, political, and policy issues with the rule of law.
Justice Wakeling’s dissent, on the other hand, does attempt to articulate a judiciable standard. He set the standard, using child welfare nomenclature, requiring (at para 98) the disturbance to be at a point where the woman’s “ability to make rational decisions which promote the best interests of her newly born child is substantially impaired.” He came to this “benchmark” by also recognizing that a “disturbed” mind provided an unclear marker for infanticide. In his view, (at para 140), as infanticide was a form of homicide and therefore a serious offence, “Parliament intended infanticide to assist only mothers who have a substantial psychological problem.” He too recognized that this degree of mental disturbance must be less than the level required for a finding of not criminally responsible, yet more than a mother who is merely facing “problems which most mothers of newborns face” (at para 140).
In coming to the standard as earlier stated, Justice Wakeling “considered a number of possible solutions” (at para 148) and found, based on his review of the Code, two controlling “traits” of women “with a disturbed mind” (at para 149). First, commensurate with the classification of the offence as a homicide, the “mental health” of the woman must be “substantially compromised” (at para 150). Applying this, Justice Wakeling came to the decision, in paragraphs 151 and 152, that therefore “baby blues” or “postpartum blues syndrome” as a transient and “mild” form of depression would not fulfill this first trait. At the other end of the spectrum, a woman suffering from postpartum psychosis would fulfill this requirement. Within this range, would be postpartum depression. According to Justice Wakeling, “Some women with the more severe presentation of this mental health condition may meet the first test” (at para 155).
Second, Justice Wakeling requires the “substantial” mental health condition to “substantially impair the mother’s ability to make rational decisions which promote the best interests of her infant” (at para 157). As previously mentioned, this part of the test seems to be based upon a common consideration in the child welfare or family law arenas (see Young v Young,  4 SCR 3). Whether such a concept or test is appropriate in the criminal law context highlights the difficulty in crafting a rule based on impermissibly vague legislation. In any event, Justice Wakeling gave no indication as to the genesis of this part of the test.
Although Justice Wakeling does attempt to create an articulable test, he does so by changing the legal test into a medical one. In fact, he relied heavily upon the DSMR or the Diagnostic and Statistical Manual of Mental Disorders, which attracts much controversy and criticism within the medical and psychological professions. (For example – see Chapter 7 of Clinical Psychology by Andrew M. Pomerantz). As a result, this test as fashioned necessitates a trial by experts and puts too much faith in the infallibility of science. As a stark reminder of the fallacy of this belief, we need only look to the Goudge Report (Inquiry Into Pediatric Forensic Pathology In Ontario Report authored by Justice Goudge and released October 1, 2008) and the miscarriage of justice occasioned by the courts accepting an expert’s evidence on the ultimate issue of guilt or innocence.
Further, this medically driven test seems contrary to the development of the law in the area of not criminally responsible, where the courts, starting with R v Stone,  2 SCR 290, so carefully crafted a holistic test based on legal principle and factual findings and not on a closed compendium of “established” medical disorders. Finally, Justice Wakeling’s test imposes a much too stringent standard. By using the qualifier “substantial,” the test does not reflect the mens rea required for the offence, which according to Justice Doherty’s well-reasoned comments in R v L.B. (at para 121) must include an objective foreseeability of bodily harm. In Doherty J.A.’s view, it is the “unique actus reus” which distinguished infanticide from murder or manslaughter. To imbue the actus reus with such a high threshold would be inconsistent with Justice Doherty’s conclusion.
In the final analysis, what is clear from this case is that it is an example of a law which needs to be clarified by the Supreme Court of Canada, not because the ultimate decision of the majority in the Court of Appeal was in error and not because the reasons in dissent were correct, but because “woolly” laws, whatever the underlying social issues may be, are not legally valid. Although, in this case, the accused was acquitted of murder at first instance, which went a long way in ensuring the appeal would be dismissed, imagine a different scenario, where a woman is convicted of infanticide on the basis of an ambiguous law, clearly contrary to the crucial principle of legality so finely defined and generously applied by the Supreme Court of Canada, not to mention the Charter values at risk. This risk is most palpably seen in the majority’s final statement on the issue at paragraph 89 when they state the ultimate reason for leaving the offence “as is” was because to do otherwise might “simply produce more outright acquittals, either directly or via fewer charges of infanticides. That result would be as paradoxical as the pre-1948 situations and following much the same route.” Never mind this position reflects a state of the law and the state of science and social policy long since gone, but by failing to address the real legal issues arising from infanticide on this basis, the court is not simply deferring to Parliament but deferring to the status quo. On the other end of the spectrum, the dissent offers an alternate reading, which is too categorical to meet the “unique” needs of the section.
As Justice Fish stated in the Levkovic decision,  2 SCR 204, a case considering the related offence of concealing a body of a child, (at para 32):
“The doctrine against vagueness is founded on two rationales: a law must provide fair notice to citizens and it must limit enforcement discretion. Understood in light of its theoretical foundations, the doctrine against vagueness is a critical component of a society grounded in the rule of law.”
The Borowiec decision is unsatisfactory precisely for this reason: uncertainty and arbitrariness, for whatever reason, should not be the basis of a criminal conviction. Although criminal law provides a glimpse into society’s concerns, it also highlights the enormous burden the law may shoulder in order to ensure a fair and just community. Difficult questions such as what kind of society we want may not be easily or fully answered by the rule of law but at the very least it can provide a safe place, a fair forum, in which we can test the boundaries.
True, the original rationale for legislating infanticide was based on spurious decisions driven by the harsh realities of the death penalty. The courts must step away from the past and take a hard look at the viability of the offence given the present state of the law and the societal values we share. A lesson may be drawn from England, where there have been a number of court-driven law reform initiatives on the subject from both the legal (see the 1975 Butler report on Mentally Abnormal Offenders from 1975 and the more recent Law Commission report on Murder, Manslaughter and Infanticide from 2006) and medical perspective (see the Royal College of Psychiatrists Working Party on Infanticide from 1978). Other Commonwealth countries have joined this movement towards change in this area, such as Australia (see the 1997 Report on Partial Defences to Murder: Provocation and Infanticide). Indeed, new research suggests that there is not one category of infanticide but many subcategories such as neonaticide, typically committed by sexually inexperienced teenagers. Furthermore, the gender specificity of the offence, unique in the Criminal Code, lends more voices to the discussion as some critics of the law pan the offence as criminalizing motherhood while other critics suggest the offence fails to adequately address those unique gender issues. Throughout this discourse, one thing is clear, we need the courts and our lawmakers to take a hard look at infanticide and provide legal and social guidance. Who knows, this may even be an opportunity to look deeper into the “why” of our Criminal Code with a critical eye to reform. Nevertheless, infanticide is just one example of the need to reform our laws to align with our present and act as a model for our future. Indeed, society expects the crime to reflect the times.
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By: Michael Nesbitt
Case Commented On: Dow Chemical Canada ULC v Nova Chemicals Corporation, 2015 ABQB 401 (CanLII)
This decision of the Court of Queen’s Bench concerns the admissibility of evidence given by a “lay witness” at trial and whether that evidence falls within an exception to the general rule that such a witness cannot give opinion evidence.
A central issue at trial was whether Nova failed to run at maximum capacity the ethylene production facility (E3) that it jointly owned with Dow. Nova’s defence was that there was a shortage of ethane – “the feedstock for E3” (at para 3) – which in turn meant that it could not run the E3 facility at full capacity.
Nova stated that it would call employees at E3 to offer testimony both about how E3 was operated and about the mechanical and operational constraints that may have limited the ability for E3 to run a full capacity. In other words, Nova wanted the employees to testify about the constraints they faced and why these would have prevented them from failing to run at maximum capacity. The dispute relevant to this comment arises out of the questioning of the first witness, a Mr. Ron Just, who was the optimizing engineer at E3 for much of the period at issue in the trial, and whether his testimony constituted fact evidence or inadmissible opinion evidence.
Madam Justice B.E. Romaine canvasses the law on the admission of opinion evidence tendered by lay witnesses (at paras 7-20), and for brevity I will not provide a review of this case law as it’s readily available in any text on evidence law in Canada. Instead, I will focus on the problems that arise from insisting on a blurry distinction between “fact” and “opinion” evidence, particularly when it comes to testimony concerning complex scientific or technical issues.
Justice Romaine begins her analysis with a fairly incontrovertible statement, at least in the law of evidence: an opinion is “an inference from observed facts” (at para 7 citing David Paciocco and Lee Stuesser, The Law of Evidence, 7th ed, (Toronto: Irwin Law, 2015) ch 6 [Paciocco and Stuesser]). Lay witnesses, when called to testify, may give the facts but not opinions. As Justice Romaine states, “the trier of fact determines what inferences or conclusions are to be drawn from observed facts” (at para 7), not the lay witness. Expert witnesses, on the other hand, can give opinions provided that they are properly qualified at a voir dire applying what is known as the Mohan test for admissibility (See R v Mohan,  2 SCR 9).
In Canadian law this is all now clear as mud until put into practice, and then it really gets tricky. But it does not have to be.
Consider the following statement at trial by Mr. Just, Nova’s optimizing engineer and first witness:
“So you’d have to interpolate a little bit there on what the maximum capability for E3 that day would have been. It was midway between four and five furnaces. Four furnaces at 53 Mgs. would be 212 Mgs. per hour of furnace feed and five furnaces would be 265, so you would need to take a midpoint of that and ratio that to our design feed rate of 318 and our 103.4 maximum production to have an estimate of the maximum capability that day” (quoted by Justice Romaine at para 24).
Justice Romaine rules this statement was factual and a description of what actually occurred, but that the problem here is that Mr. Just, “framed the answer on maximum capability in circumstances where such a determination had not been made at the time” (at para 24). For this reason, Justice Romaine finds that Mr. Just was offering impermissible opinion evidence as a lay witness” (at para 24). I argue such rigid characterizations are problematic.
In these sort of evidentiary disputes, it seems Canadian courts are splitting hairs to determine whether meaningful evidence can be admitted and in so doing the courts are focusing on technicalities and distinctions rather than the substance of the testimony. For example, looking at the substance of Mr. Just’s testimony in this case – rather than how he framed his answer – it is not so clear to me that what he offered was an opinion in any meaningful sense: Mr. Just does not give a theory on what the precise capacity of E3 would be, he simply states how one would come up with what he admits would be an estimate of the maximum capability on a given day. Seen in this sense – from his perspective – this is merely a statement of fact as he sees it, something that he has come to know to be true by virtue of his training and job experience. But because the Court’s focus is, in the first instance, on determining whether the evidence is opinion or factual – on how he went about framing his thoughts – his evidence was excluded.
Having courts engage in this type of binary if/then and fact/opinion reasoning takes us down a rabbit hole where we risk losing sight of what’s most important: is the evidence credible, reliable, and probative, and do the benefits of admission outweigh the potential prejudice?
The resultant struggle is compounded by demanding that the court engage not just in a fact versus opinion analysis, but that it does so while simultaneously creating a distinction between lay and expert witnesses. The forced dichotomies create in the case at hand what I would characterize as a small legal absurdity: An expert – properly qualified at a voir dire – could have given evidence such as Mr. Just provided and it would (possibly) have been admissible, but a lay witness such as Mr. Just could not. But Mr. Just is only a lay witness because he was not qualified as an expert. All of this is perhaps fair enough except that I think it is also fair to say that Nova never had Mr. Just qualified merely because he was called to give fact evidence, and not because he didn’t have the substantive expertise to offer. The result: When an expert in a subject area is called to give factual evidence on that subject area mistakenly frames an otherwise admissible factual answer as opinion, it becomes inadmissible by virtue of the fact that he or she was never qualified to give the opinion he or she did not mean to and was not asked to give. This sounds confusing because, frankly, the logic demands a convoluted explanation.
There is a solution here, and I think it is to demand that witnesses be qualified as experts before being allowed to give testimony beyond the “ken” (or knowledge) of the ordinary judge or jury, regardless of how one might in the future characterize the evidence.
Justice (formerly Professor) Paciocco notes that the concerns inherent in accepting expert opinion evidence are equally present when it comes to the admission of expert fact evidence: “If the evidence requires special training or experience to observe or understand, triers of fact are vulnerable to accepting unreliable testimony” (Paciocco and Stuesser at 206). As a result, Justice Paciocco argues: “Given the difficulty in distinguishing between fact and opinion, and that the established Mohan rule [regarding how and when to admit expert evidence and qualify a witness] provides a flexible measure of admissibility that explores credentials, probative value, and prejudice, there are strong reasons why courts should steer away from a rule that turns on the characterization of the proof that experts offer, as opposed to the quality of the evidence” (ibid at 207).
In other words, in the case at hand the solution might have been resolved by focusing less on the distinction between fact and opinion evidence, and rather on recognizing that the same concerns are present regardless of whether someone with specialized knowledge provides fact or opinion evidence. The discussion would then turn to how to qualify Mr. Just as an expert – a well-established process – and whether he should be so qualified. In other words, determining whether to accept and rely on the controversial testimony would centre on the credibility, reliability, probity, and the possible prejudicial value of the evidence – exactly where the focus should be. Notably, it does not seem that these topics came up in a meaningful way in this case.
In the result we are left with a decision that properly – based on the law as it stands in Canada – makes an ever-so-subtle distinction between fact and opinion evidence that may or may not be correct upon further examination, and that excludes evidence not because it is prejudicial or lacks credibility, reliability or probative value, but because it was given by an expert who nobody thought to qualify as such.
It is for this reason that I wished to step back from the decision and focus on the broader issues that this judgment raises in the law of evidence. When we escape from the weeds – from dissecting fact versus opinion and expert versus lay witnesses – we are left with the sense that the current approach is not a recipe for the admission of the best facts that will help us make a properly informed decision. This was an opportunity lost to try a better way forward.
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By: Jonnette Watson Hamilton
Case Commented On: Sikora Estate (Re), 2015 ABQB 467 (CanLII)
This decision indirectly raises a question about the jurisdiction of Alberta’s Court of Queen’s Bench and Court of Appeal to declare that a person cannot start or continue court proceedings without first obtaining the court’s permission, i.e., to declare that a person is a vexatious litigant. Section 23.1 of the Judicature Act, RSA 2000, c J-2 grants the courts that authority, whether on their own motion or on an application by a party to the proceedings, if notice is given to the Minister of Justice and Solicitor General. But what if notice has not been given to the Minister of Justice and Solicitor General? Does the court have inherent jurisdiction to make such a declaration? If they do, how far does it extend? Can the court enjoin only further applications without its permission in the case before it, or can the court prohibit any and all future court actions in the province without its leave? This issue was explicitly raised, but not decided, by the Alberta Court of Appeal in Pawlus v Pope, 2004 ABCA 396 (CanLII), and the issue does not appear to have been resolved in the intervening ten years. The decision in Re Sikora Estate suggests it needs to be.
In Pawlus v Pope, Justices Carole Conrad, Constance Hunt and Peter Costigan considered an appeal by Pawlus from a Court of Queen’s Bench decision that enjoined him from commencing any further actions without leave of the court. The defendants had asked that Pawlus be stopped from bringing any proceedings against either defendant without leave of the court — a much narrower order. (They probably did so because they did not have the written consent of the Attorney General, which was required by the pre-2007 vexatious litigant provisions of the Judicature Act.) The Court of Appeal noted that “[t]here are conflicting authorities as to a court’s inherent jurisdiction to prevent a litigant from commencing an action without leave of the court” (at para 16). They also noted that “there is a real question as to whether, and to what extent, s. 23 of the Judicature Act, R.S.A. 2000, c. J-2 limits a court’s inherent jurisdiction” (at para 16) and that:
The issues relating to inherent jurisdiction and the breadth of any inherent jurisdiction to deal with vexatious proceedings are very important. This Court has not dealt with s. 23. Nor do we wish to do so without notice to the Minister of Justice and Attorney General, who should have an opportunity to address the meaning of s. 23 and the extent to which it should limit the court’s inherent jurisdiction, if at all (at para 17).
As to the conflicting authorities referred to in Pawlus v Pope, but not cited, the Court of Appeal might have been referring to the following:
Although the Alberta government amended the vexatious litigant provisions of the Judicature Act in 2007 for the express purpose of giving the courts in the province more power to deal more efficiently and effectively with vexatious litigants (see “How persistent does a vexatious litigant have to be?”), the changes did not resolve the question of the interaction between the court’s inherent jurisdiction and what is now section 23.1 of the Judicature Act. The key changes in the 2007 amendments were the substitution of notice to the Minister of Justice and Solicitor General for the more onerous written consent of the Attorney General, and the more detailed definition of vexatious proceedings and conduct. It is true that section 23.1(9) does state that the provision does not diminish the court’s authority to “stay or dismiss a proceeding as an abuse of process or on any other ground.” Thus the inherent jurisdiction of the superior courts to control the particular proceedings before them is not limited by the vexatious litigants provisions. See also Law Reform Commission of Nova Scotia, Vexatious Litigants Final Report (April 2006) at 15.
But the “real question as to whether, and to what extent, s. 23 of the Judicature Act, R.S.A. 2000, c. J-2 limits a court’s inherent jurisdiction” that the Court of Appeal identified in Pawlus v Pope remains. The open nature of the issue was also noted by the Law Reform Commission of Nova Scotia in the Vexatious Litigants report, where they concluded “it might be suggested there is some case law support for expanding the concept of inherent jurisdiction to empower a court to prevent a known vexatious litigant from commencing a legal proceeding. This would, however, be at odds with the traditionally-understood nature of inherent jurisdiction” (at 11). There are also additional conflicting Alberta decisions post-2004 (especially in the criminal law context, which is not considered here), including Lymer (Re), 2014 ABQB 696 (CanLII) at para 12, Shreem Holdings Inc. v. Barr Picard, 2014 ABQB 112 (CanLII) at para 29, and now the decision of Justice Joanne Veit in Re Sikora Estate.
In Re Sikora Estate, the issue of vexatious litigation was raised in an application by the estate under the Judicature Act (at para 1). However, the estate did not give notice to the Minister of Justice and Solicitor General as required by section 23.1 (at para 18). In her July 17, 2015 oral decision, it seems that when Justice Veit declared Wayne Sikora to be a vexatious litigant and required him to get the court’s prior permission before bring any applications in the Sikora Estate proceedings, she did so on the basis of the court’s inherent jurisdiction. She begins her July 22, 2015 written reasons by stating: “ Relying on the Court’s inherent jurisdiction, at the hearing, I declared Wayne Sikora a vexatious litigant in these proceedings and ordered that he cannot file any application in this litigation without leave of the Court” (at para 2, emphasis added). She concludes that that her July 17 “declaration of Wayne Sikora as a vexatious litigant will stand for the time being” (at para 19, emphasis added), and that if the Minister of Justice does not indicate an intention to appear within 30 days of accepting notice of the estate’s application, “the Court’s orders herein will be made final” (at para 19). It is unclear whether the final order will be one made under section 23.1 of the Judicature Act, and thus applicable to all proceedings that Wayne Sikora might want to start in the future in Alberta, or whether it will continue as an exercise of the court’s inherent jurisdiction and therefore only apply to the Sikora estate proceedings. Her use of the phrase “for the time being” might suggest the declaration based on the court’s inherent jurisdiction will expire 30 days after service of the estate’s application on the Minister of Justice, when the court will have acquired the jurisdiction to make an order under section 23.1 of the Judicature Act.
There is reason to question whether an order under section 23.1 of the Judicature Act is even warranted. The hallmark of the indicia of vexatious proceedings or conduct listed in section 23(2) of the Judicature Act is “persistence”:
23(2) For the purposes of this Part, instituting vexatious proceedings or conducting a proceeding in a vexatious manner includes, without limitation, any one or more of the following:
(a) persistently bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction;
(b) persistently bringing proceedings that cannot succeed or that have no reasonable expectation of providing relief;
(c) persistently bringing proceedings for improper purposes;
(d) persistently using previously raised grounds and issues in subsequent proceedings inappropriately;
(e) persistently failing to pay the costs of unsuccessful proceedings on the part of the person who commenced those proceedings;
(f) persistently taking unsuccessful appeals from judicial decisions;
(g) persistently engaging in inappropriate courtroom behaviour. (emphasis added)
Justice Veit does not refer to these criteria. She did conclude that most of the conduct the estate complained about — things like Wayne Sikora not going along with all the other residuary beneficiaries, or his being difficult to serve, or his not retaining a lawyer — was “mere litigious, not vexatious, conduct” (at para 23). However, she did find that he “engaged in some clearly vexatious actions” (at para 24) and specifies three matters:
It is difficult to see how this conduct amounts to the type of persistent conduct required by section 23(2) of the Judicature Act. Is bringing a second application for the same remedy before the first has been decided “persistently using previously raised grounds and issues in subsequent proceedings inappropriately”? Is not withdrawing two pending applications because a judge told you it was likely the applications would be statute-barred “persistently bringing proceedings that cannot succeed or that have no reasonable expectation of providing relief”? Is failing to serve two of six residual beneficiaries, as required by court order, “persistently engaging in inappropriate courtroom behavior”?
Justice Veit concludes that these specific behaviors “are, in the circumstances here, sufficient to declare Wayne Sikora a vexatious litigant” (at para 25). This conduct seems too trivial to justify an order under the Judicature Act that would require Wayne Sikora to obtain permission of the court before commencing any future proceedings in the province against any other person. “Persistent” connotes continuing a course of conduct over a prolonged period. Two applications do not amount to a course of conduct, let alone the persistent course of conduct required by the Judicature Act. They might be enough under the court’s inherent jurisdiction to prohibit future applications in the Sikora estate action itself without the court’s permission, but it is not at all clear that Justice Veit’s order be confined to that particular action once the Minister of Justice and Solicitor General have been given notice and 30 days have expired.
There is a major difference between a court striking proceedings or applications that have been brought before it because they are vexatious, and a court requiring a person to get the permission of a court before starting any future court action. This difference is the focus of the Vexatious Litigant report of the Law Reform Commission of Nova Scotia (at 7-11). They rely on the oft-cited article by I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal Problems 23, which identified the conceptual gap between courts’ ability to control the actions of people appearing before them and their inability to prevent people from starting actions “which may turn out to be vexatious” (Jacobs at 43).
The question asked by the Court of Appeal in 2004 in Pawlus v Pope as to “whether, and to what extent, s. 23 of the Judicature Act . . . limits a court’s inherent jurisdiction” (at para 16) needs to be answered, given the conflicting decisions rendered over the past ten years and the confusing decision rendered in Re Sikora Estate. And one way to answer that question might be to first ask whether a superior court’s inherent jurisdiction has ever included the power to prevent people from starting actions which might turn out to be vexatious.
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By: Seamus Ryder
On 16 July, 2015, Ambassadorial-level representatives from all five Arctic Ocean coastal states – Canada, Denmark, Norway, Russia and the United States (the Arctic Five) – met in Oslo to sign the Declaration concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean (the Declaration). The Declaration follows up on the substantive outcome of the February 2014 Nuuk Meeting on Central Arctic Ocean Fisheries and builds upon discussions toward the development and implementation of interim measures to prevent unregulated fishing in the high seas portion of the central Arctic Ocean and related scientific matters. In this sense, the Declaration can be seen as the latest development in a so-called “Arctic Ocean coastal state process” on the regulation and management of Arctic Ocean fisheries. This blog post looks at the substantive output of this latest development and makes some initial observations regarding the contribution of the Declaration to the legal and policy framework for Arctic fisheries (background information and discussions on both the Nuuk meeting and the Arctic Ocean coastal state process on Arctic Ocean fisheries can be found in an earlier blog post). If nothing else, this post aims to clarify a number of apparent misconceptions and inaccuracies in media reports on the Declaration.
This post begins with a very brief history of the events and discussions leading towards the (delayed) signing of the Declaration. The Declaration was finalized more than a year later than the initial timeline announced at the Nuuk meeting in February 2014. The possible reasons for this delay will be considered. The post next examines the main outcome of the Declaration – namely, the declared intent on behalf of the Arctic Five to implement interim measures to prevent unregulated fishing in the high seas of the central Arctic Ocean. It should be noted at the outset that, similar to the “agreements” reached at the Nuuk meeting, the Declaration is not legally binding, but contains non-legally binding commitments on high seas fisheries in the central Arctic Ocean. Finally the post explores some issues that are raised by the Declaration (or its representation in the media), taking into consideration, among other things, its role in the future development of the legal and policy framework for Arctic Ocean fisheries.
Background to the Declaration
As stated at the outset, the Declaration can be seen as the latest development in the Arctic Ocean coastal state process on the management of Arctic Ocean fisheries, which has been introduced and explained in more detail elsewhere (see also: E.J. Molenaar, “International Regulation of Central Arctic Ocean Fisheries” to appear in M.H. Nordquist, E. Nordtveit and T.H. Heidar (eds) Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries (Martinus Nijhoff Publishers: forthcoming in 2015); N. Wegge, “The Emerging Politics of the Arctic Ocean. Future Management of the Living Marine Resources”, 51 Marine Policy 331-338 (2015)). To summarize this process briefly, following two ministerial meetings held in Ilulissat, Greenland in May 2008, and Chelsea, Canada in March 2010 – which concerned cooperation and coordination among the Arctic Five on Arctic policy/governance, in general – dedicated fisheries policy/governance meetings (for which information is publicly available) took place at the level of senior officials in Oslo in June 2010, Washington D.C. in April and May 2013, and Nuuk, in February 2014. There have also been at least three meetings of scientific experts from the Arctic Ocean coastal states – and, recently, those from other nations conducting Arctic research (China, Japan, Korea and Iceland) – the first in Anchorage, United States, in June 2011, the second in Tromsø, Norway, in October 2013, and the third, most recently, in Seattle, United States, in April 2015. As Molenaar has observed, although the spatial focus of earlier policy/governance meetings related to Arctic Ocean fisheries in general, more recent meetings have focused exclusively on high seas fisheries in the central Arctic Ocean. This is reflected in the spatial focus of the Declaration, discussed in the following section, below.
The finalization of the Declaration had been expected for some time as an output of the Arctic Ocean coastal state process described above, and in particular, as part of the substantive outcome of the Nuuk meeting, wherein the Arctic Five “agreed to finalize a Ministerial Declaration for signature or adoption by the five states based on the provisions described [in the Chairman’s Statement from the 2014 Nuuk Meeting]”. The significant delay in finalizing the Declaration was unexpected, however, as the Nuuk meeting had expressed “the desire to finalize the Ministerial Declaration for signature or adoption in June 2014” – a timeline that the now-finalized Declaration overshot by more than one year. The most common explanation for the delay, as advanced by the present author and others, is that the Arctic Ocean coastal state process was stalled, impeded, or otherwise derailed by events in Crimea in early 2014 and subsequent events in Eastern Ukraine, which led to a near-breakdown in diplomatic relations between Russia, on the one hand, and the other Arctic Ocean coastal states, on the other. However, differing views or disagreement among the Arctic Five over the actual substance of the Declaration itself or related procedural issues should not be ruled out as a contributing factor in the delay of its signature and adoption. The substance of the Declaration will now be considered further.
The Substance of the Declaration
As previously stated, the Declaration largely adopts or builds upon the substantive outcome of the Nuuk meeting – namely, the “agreements” and “provisions” described in the Chairman’s Statement from that meeting. However, at the Nuuk meeting, political agreement was only made “on the desirability of developing appropriate interim measures to deter unregulated fishing in the future in the […] central Arctic Ocean”. The Declaration, on the other hand, goes beyond expressing the mere desirability of developing appropriate interim measures, and instead expresses the intent by the Arctic Five to implement a number of interim measures. Although the legal status of the Declaration is not clear-cut, it is likely best understood as containing a number of non-legally binding commitments, amounting to so-called “soft law”, expressing a preference (but not an obligation) that the states concerned should act, or should refrain from acting, in a specified manner.
The Declaration adopts the same spatial focus as the Nuuk meeting, focusing exclusively on “the high seas portion of the central Arctic Ocean” and using the term to denote “the single high seas portion of the Arctic Ocean that is entirely surrounded by waters under the fisheries jurisdiction of Canada, the Kingdom of Denmark in respect of Greenland, the Kingdom of Norway, the Russian Federation and the United States of America”. It begins by recognizing the dramatic reduction of sea ice and other environmental changes in this area as a result of climate change, and the limited scientific knowledge or understanding of the effects of these changes on the marine ecosystems of the Arctic Ocean. It further recognizes the common view among the Arctic Five that, despite these changes, commercial fishing in the high seas portion of the central Arctic Ocean is unlikely to occur in the near future, and, therefore, that there is no need at present to establish any additional regional fisheries management organization for the area.
Nevertheless, “recalling the obligations of states under international law to cooperate with each other in the conservation and management of living marine resources in the high seas areas, including the obligation to apply the precautionary approach,” the Declaration expresses the shared view of the Arctic Five “that it is desirable to implement appropriate interim measures to deter unregulated fishing in the future in the high seas portion of the central Arctic Ocean.” Accordingly, through the Declaration, the Arctic Five declare their intent to implement the following interim measures:
It is also declared that these interim measures “will neither undermine nor conflict with the role and mandate of any existing international mechanism relating to fisheries, including the North-East Atlantic Fisheries Commission. Nor will these interim measures prejudice the rights, jurisdiction and duties of States under relevant provisions of international law as reflected in the 1982 United Nations Convention on the Law of the Sea, or the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, or alter the rights and obligations of States that arise from relevant international agreements.”
Finally, the Declaration includes an undertaking on behalf of the Arctic Five, in implementing these interim measures, to “continue to engage with Arctic residents, particularly the Arctic indigenous peoples, as appropriate”, and recognizes the interest of these peoples, and other Arctic residents, “in the proper management of living marine resources in the Arctic Ocean”. Similarly, the Arctic Five commit themselves “to work together to encourage other states to take measures in respect of vessels entitled to fly their flags that are consistent with the interim measures”. In this regard, the Declaration provides that the Arctic Five “acknowledge the interest of other States in preventing unregulated high seas fisheries in the central Arctic Ocean and look forward to working with them in a broader process to develop measures consistent with this Declaration that would include commitments by all interested States.”
A ‘Ban’ on High Seas Fisheries in the Central Arctic Ocean?
Many media reports have described the substance of the Declaration, overviewed above, as amounting to a “ban” or “moratorium” on fishing in the Arctic. However, as this section of the post aims to demonstrate, this is an inaccurate characterization of the substantive outcome of the Declaration. First, it is important to recall the spatial focus of the Declaration and the interim measures it describes: the interim measures apply only to the high seas portion of the central Arctic Ocean. Second, it must also be recalled that the Declaration and the interim measures it describes are not legally binding upon the Arctic Five. Although the Declaration indicates the intent by on behalf of the Arctic Five to comply with the interim measures it describes, such measures are legally non-enforceable. Thus, even if the interim measures amounted to a ‘ban’ or a ‘moratorium’ on fishing, such a ban or moratorium would be limited in spatial scope to the high seas portion of the central Arctic Ocean, and would not be legally enforceable amongst the parties to the Declaration. However, it is submitted that the interim measures do not amount to a ban or moratorium on fishing, even in a general sense.
For the present discussion, the key component of the interim measures is the agreement among the Arctic Five that they will:
… authorize [their] vessels to conduct commercial fishing in the high seas portion of the central Arctic Ocean only pursuant to one or more regional or subregional fisheries management organizations or arrangements that are or may be established to manage such fishing in accordance with recognized international standards.
This interim measure therefore only restricts commercial fishing. Thus, the restrictions or conditions imposed by the provision do not apply to subsistence, scientific, recreational, or other types of non-commercial fishing that may take place in the high seas portion of the central Arctic Ocean. This understanding of the provision is reinforced by the fact that the fourth interim measure described in the Declaration actually envisages the possibility of “non-commercial fishing in this area”. Further, although the interim measure appears to restrict commercial fishing in the high seas portion of the central Arctic Ocean, it is apparent that such restriction does not amount to a prohibition of commercial fishing of any sorts, but instead, imposes two conditions that must be met before the Arctic Five can authorize their vessels to engage in commercial fishing in the area. These conditions are that such fishing can only occur (1) pursuant to one or more regional or subregional fisheries management organizations (RFMOs) or arrangements (RFMAs) that (2) “are or may be established to manage such fishing in accordance with recognized international standards” (see also, Molenaar, “International Regulation of Central Arctic Ocean Fisheries” (Forthcoming, 2015), 19). Therefore, far from imposing an outright ban or moratorium on commercial fishing in the high seas portion of the central Arctic Ocean, the interim measure actually allows such fishing subject to the two above-mentioned conditions. A few brief comments regarding these conditions are warranted.
It is clear from the first condition that commercial fishing in the high seas portion of the central Arctic Ocean could be compatible with the interim measure, so long as such fishing is conducted pursuant to one or more RFMOs or RFMAs. However, uncertainty exists as to which RFMOs or RFMAs might be relevant for the purpose of this condition. The Declaration explicitly acknowledges that the North-East Atlantic Fisheries Commission (NEAFC) is an existing “international mechanism relating to fisheries” relevant to the central Arctic Ocean. Thus, the interim measure likely permits those members of the Arctic Five that are also members of NEAFC to authorize their vessels to conduct commercial fishing in the central Arctic Ocean segment of the NEAFC regulatory area pursuant to NEAFC’s conservation and management measures. In contrast, there is no explicit acknowledgment of the Joint Norwegian-Russian Fisheries Commission (Joint Commission). At least according to the assertions of its members (Norway and the Russian Federation), the Joint Commission has spatial competence extending throughout the central Arctic Ocean even if such spatial competence is not explicitly defined in its constitutive instrument. Uncertainty also exists in relation to whether or not the Joint Commission is an RFMO or RFMA for the purpose of the Declaration and its interim measures (See, again, Molenaar, “International Regulation of Central Arctic Ocean Fisheries”, (Forthcoming, 2015), for more detailed treatment of this issue). Notwithstanding these uncertainties, there clearly exists at least one potential scenario in which the interim measure would not prohibit the Arctic Five from authorizing their vessels to conduct commercial fishing in the high seas portion of the central Arctic Ocean, even under the existing institutional framework, without any additional RFMOs or RFMAs for the area. In this regard, the interim measure cannot be seen as imposing a ban on high seas fisheries in the central Arctic Ocean.
As regards the second condition of the interim measure – namely, that the RFMOs or RFMAs (pursuant to which commercial fishing may take place) “are or may be established to manage such fishing in accordance with recognized international standards” – the wording used in the Declaration is evidently adopted from, and nearly identical to, wording used to describe an envisaged interim measure in the Chairman’s Statement of the 2014 Nuuk Meeting. However, whereas the wording in the Declaration links fisheries management by RFMOs and RFMAs to the phrase “recognized international standards”, the Chairman’s Statement links fisheries management by RFMOs and RFMAs to the phrase “modern international standards”. It is not clear why this change was made in the Declaration. The term “modern” may be more preferable from the perspective of conservation, for example, by placing greater emphasis on more recently developed approaches in international fisheries law and management, such as the precautionary approach and ecosystem-based fisheries management. Alternatively, the term “recognized” can be viewed as more closely aligned with the phrase and concept of “generally recommended international minimum standards” – a phrase and concept which features extensively throughout international law of the sea and international fisheries law (see, eg, Articles 61(3) and 119(1)(a) of the 1982 United Nations Convention on the Law of the Sea; Articles 5(b) and 10(c) of the 1995 United Nations Fish Stocks Agreement; cf., Article 30(5) of the Agreement, which uses the phrase “generally accepted standards for the conservation and management of living marine resources”). One or more of the Arctic Five may have ultimately insisted on using the term “recognized” in the Declaration, to signify that it is of more importance that any fishing is managed in accordance with recognized international standards, rather than modern ones.
Of course, both terms are quite general and non-specific, and one phrase is likely intended to comprise the same key obligations as the other, so it may not be very significant that different wording is used in the Declaration and the Chairman’s Statement of the 2014 Nuuk meeting. In analyzing the phrase “modern international standards” in the context of the Chairman’s Statement, Molenaar submits that the phrase is likely to be intended to comprise the following key obligations and in particular the ecosystem approach to fisheries (EAF) and the precautionary approach to fisheries management (see Molenaar, “International Regulation of Central Arctic Ocean Fisheries” (Forthcoming, 2015)):
Molenaar further observes that, in view of the particular characteristics of the Arctic Ocean, the phrase is likely to require specific attention to international standards relating to new and exploratory fisheries (directing attention to, inter alia, Article 6(6) of the 1995 United Nations Fish Stocks Agreement.) Since the above obligations and standards are, in fact, recognized as key obligations and standards within the global component of international fisheries law, the phrase “recognized international standards” used in the Declaration is also likely to be intended to comprise these same obligations and standards.
As observed earlier, both phrases are linked to fisheries management by RFMOs or RFMAs. However, in both the Declaration and the Chairman’s Statement of the 2014 Nuuk meeting, the meaning of the wording chosen for this linkage is unclear. The Declaration and the Chairman’s Statement are similar enough in this respect that comments made in relation to one are equally relevant for the other. As Molenaar observes in relation to the wording used in the context of the Chairman’s Statement (see Molenaar, “International Regulation of Central Arctic Ocean Fisheries” (Forthcoming, 2015)):
The wording chosen for this linkage is “established to manage” rather than, for instance, ‘established and manage’. The literal meaning of the chosen wording is therefore that existing and future RFMOs or RFMAs are ‘merely’ required to have the mandate to manage fishing in accordance with “modern international standards”. Rather than actually managing fishing in accordance with international standards, it would thus be sufficient for RFMOs or RFMAs to have the ability to manage fishing in this way. It is submitted, however, that this is unlikely to have been what the Arctic Five had in mind at the 2014 Nuuk Meeting. If correct, this could be clarified in the envisaged commitment.
Obviously, the envisaged commitment – the Declaration – did not clarify the meaning of the wording used in the Chairman’s Statement, given that it also adopted the wording “established to manage” verbatim. This is regrettable, as the lack of clarity in regard to this linkage arguably weakens the potential impact of the interim measure on fisheries management.
The above discussions have thus far explained various reasons why the substance of the Declaration cannot be characterized as imposing a legally binding ban or moratorium on commercial fishing in the high seas portion of the central Arctic Ocean – at best, the Declaration can be seen as a political agreement among the Arctic Five to prevent unregulated commercial fishing. This post advances one final reason why characterizing the Declaration as imposing an outright ban on commercial fishing in the high seas portion of the central Arctic Ocean is inaccurate. Even if the Declaration can be considered as imposing a ban on commercial fishing in the high seas portion of the central Arctic Ocean (and it was submitted in discussions above that it cannot), it does not establish an outright ban because it only applies to vessels flying the flags of the Arctic Five. There is nothing in the Declaration to suggest that it applies to non-signatories. If it did, however, such a ban would be prima facie incompatible with the freedom of fishing on the high seas (see Article 116 of the 1982 United Nations Convention on the Law of the Sea), and could therefore be challenged by other states outside of the Arctic Five. Although it might be possible to overcome this incompatibility by achieving broader support among these other states, thus enhancing the legitimacy of any proposed measures, such support has not yet been achieved in the case of the interim measures described in the Declaration. The Arctic Five seemingly acknowledge that the legitimacy and effectiveness of interim measures related to high seas fishing in the central Arctic Ocean – amounting to a ban or otherwise – would benefit from the support of other key states and entities. Accordingly, the Arctic Five allude to “a broader process to develop measures consistent with this Declaration that would include commitments by all interested States.” The next section considers this broader process in more detail.
A Broader Process
As previously stated, the Arctic Five conclude the Declaration by acknowledging “the interest of other States in preventing unregulated high seas fisheries in the central Arctic Ocean” and that the Arctic Five “look forward to working with them in a broader process to develop measures consistent with this Declaration that would include commitments by all interested States.” The Chairman’s Statement from the Nuuk meeting also contained similar statements, and a number of largely speculative observations on the broader process as envisaged at the Nuuk Meeting have already been made. To comment on the broader process as now envisaged by the Declaration is to further speculate, but a few brief comments are nonetheless warranted.
First, it is notable to observe that, whereas the Chairman’s Statement from the Nuuk meeting indicated a time by which the envisaged broader process could be expected to begin (“before the end of 2014”), the Declaration provides no indication of the timeline the envisaged process will follow. The Arctic Five likely sought to avoid repeating the scenario they found themselves in following the Nuuk meeting – where a timeline for the broader process was provided at that meeting, only to be overshot by a considerable margin. Still, even today, no significant concrete action seems to have been taken. Of course, the delay has been attributed to the events that took place in Crimea and the subsequent events in Eastern Ukraine, which may no longer be a source of delay. However, considering that diplomatic relations among the Arctic Five have not significantly improved since those events, the five states are likely (and understandably) reluctant to fuel any further expectations regarding the pace of developments. By omitting temporal elements from the description of the envisaged broader process, the Arctic Five have perhaps spared themselves some further embarrassment due to missed timelines and delays. Another notable difference between the broader process as envisaged by the Declaration, on one hand, and the broader process as envisaged by the Chairman’s Statement from the Nuuk meeting, on the other, regards the envisaged final outcome of this process. In the Chairman’s Statement from the Nuuk Meeting, the Arctic Five explicitly acknowledge that the final outcome of the envisaged broader process “could be a binding international agreement”. No such acknowledgement is given in the Declaration. One can only speculate as to what reasons may underlie this change. There is presumably no longer consensus on the need or desirability to mention that the broader process could culminate in a legally binding instrument. This may be due to lack of support for such an outcome by one or more of the Arctic Ocean coastal states. However, the omission of a reference to the outcome of the broader process should at the same time also not be overstated, as it would clearly not preclude a legally binding outcome
Another topic of speculation surrounding the envisaged broader process concerns its participants. The prevailing view seems to be that participation in the broader process would be exclusively based on invitation by the Arctic Five. Based on communications between the author, other commentators, and government officials from Norway, Canada, and the United States, the following non-Arctic Ocean states and entities are expected to be participants: China, the EU, Iceland, Japan and South Korea. The participation of scientific experts from China, Iceland, Japan, and South Korea at the most recent scientific meeting in Seattle, United States, in April 2015 is publicly acknowledged, which seems to support the above position, at least in part. However, no such acknowledgment was provided regarding scientific experts representing the EU, which perhaps allows for the entity’s role in the broader process to be questioned. Further, one of these non-Arctic Ocean states, Iceland, has publicly expressed regrets that, although it has repeatedly asked to participate in the collaborative process, the Arctic Five have decided to keep Iceland outside consultations and preparations on the Declaration. The Arctic Five would do well to consider the concerns of Iceland and other non-Arctic Ocean states in future consultations and preparations. Participation by other states outside the Arctic Five remains an important factor in the overall legitimacy and effectiveness of any outcome from the broader process, and especially in addressing possible potential inconsistencies with the freedom of high seas fishing (see, again, see Article 116 of the 1982 United Nations Convention on the Law of the Sea) and the concept of real interest (see Articles 8(3),(5) and 9(2) of the 1995 United Nations Fish Stocks Agreement).
As regards non-state actors, the Arctic Ocean coastal state process has so far involved considerable participation by non-governmental organizations (NGOs) (notably, Pew, which has been exceptionally active) and Arctic indigenous peoples (see, N. Wegge, “The Emerging Politics of the Arctic Ocean. Future Management of the Living Marine Resources”(2015)). However, it is worth noting that such participation was only possible by inclusion of the representatives of non-state actors within the delegations of the Arctic Five, but not through participation in their own right (e.g., through independent representation in separate delegations). It is not clear whether participation of non-state actors in the broader process will continue in this way, adopt some other format, or cease altogether. The Declaration suggests that participation by Arctic indigenous peoples can at least be expected to continue as the broader process develops. It is submitted that further participation by both Arctic indigenous peoples and NGOs, as well as other non-state actors (such as members of the fishing industry), could enhance the overall legitimacy of the evolving broader process.
Despite the speculation and uncertainties surrounding the Declaration, or some of the other issues that have been discussed in this post, it is nonetheless a significant step in the Arctic Ocean coastal state process on central Arctic Ocean fisheries. Although the interim measures that the Arctic Five have, by way of the Declaration, committed themselves to implementing do not amount to an outright ban on fishing in the Arctic, they should nonetheless be viewed as a precautionary and proactive step forward in the conservation and management of central Arctic Ocean fisheries. The Declaration appears to recognize the significant lack of science and data that is required for ecosystem-based fisheries management, and seeks to remedy this knowledge gap before commercial fisheries are established. This demonstrates commitment to fundamental principles of international fisheries management, and, in particular, international standards for the management of new and exploratory fisheries. Further, the interim measures appear to be largely consistent with the global elements of the international legal framework, although the legitimacy and effectiveness of a future international instrument on high seas fisheries in the central Arctic Ocean will ultimately depend on the support of other key states and entities.
More significantly, the Declaration signals the desire and will, by the Arctic Five, to put aside disputes emerging from beyond the Arctic, at least when dealing with Arctic issues, and to prevent such broader disputes from derailing cooperation on such issues. Hopefully, this type of cooperation on central Arctic Ocean fisheries can inspire cooperation on other Arctic issues and across different sectors. The need for such cooperation will only likely grow stronger, as the region continues to experience unprecedented and rapid changes as a result of climate change, and new challenges and opportunities emerge. Hopefully, cooperation on central Arctic Ocean fisheries continues, and provides a useful template for other sectors and subject areas.
The author is very grateful for assistance and comments received by Professor Nigel Bankes, Professor Tore Henriksen and Professor Erik Molenaar on earlier drafts of this post. Notwithstanding, any errors or omissions in this work are the author’s own. This comment will also be cross-posted on the blog of the KG Jebsen Centre of the Law of the Sea, Tromsø. Readers interested in law of the sea issues might wish to follow that site.
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By: Hannah Buckley
Statute Commented On: Strengthening Canadian Citizenship Act, SC 2014 c 22
On June 11, 2015 the final host of amendments created under the Strengthening Canadian Citizenship Act (Bill C-24) came into force. Among those were amendments to section 10 of the Citizenship Act, RSC 1985 c C-29 greatly expanding the government’s ability to revoke Canadian citizenship. The amendments apply to naturalized Canadians, dual citizens and Canadian-born citizens who are eligible to obtain dual citizenship. Prior to Bill C-24, only naturalized citizenship could be revoked, and revocation was limited to cases where citizenship was obtained by means of fraud or false pretenses (See Parliamentary Information and Research Service, Legislative Summary of Bill C-24: An Act to amend the Citizenship Act and to make consequential amendments to other Acts by Julie Béchard, Penny Becklumb, & Sandra Elgersma (Ottawa: Library of Parliament, 2014) available here). Now treason, terrorism, aiding the enemy, espionage, and communicating safeguarded or operational information have been added to the list of exile-worthy offences.
The government announced that the measures, “underscore the government’s commitment to protecting the safety and security of Canadians and promoting Canadian interests and values [and] reinforces the value of Canadian citizenship” (See the backgrounder published by Citizenship and Immigration Canada). However, opponents contend that the amendments are unconstitutional and create a highly-problematic two-class system of citizenship in which naturalized Canadians are vulnerable to having their citizenship arbitrarily revoked.
I have three main issues with the recent amendments to the Citizenship Act. First, in a globalized world, readopting the long-abandoned archaic practice of banishment is not an effective response to terrorism. Second, Bill C-24 and the Anti-terrorism Act, 2015 Bill C-51 (which received royal assent on June 18, 2015) work together to reimagine the word “terrorist” in broad, amorphous terms, potentially encompassing people who would not typically be considered terrorists. Third, providing the Minister with discretionary powers to revoke citizenship denies people due process in what is likely one of the most critical decisions of their lives. Each of these concerns are addressed below.
We live in a globalized world. Never has it been easier to share ideas, transport goods, and exercise personal mobility. Consequently, terrorism is no longer an issue that can be confined within borders. The legislation must reflect this conceptual evolution. Terrorism is a global issue that requires a global response. It is irresponsible for Canada to revoke citizenship of convicted terrorists and send them to countries that may not have the ability to adequately or appropriately deal with the situation. In a featured article by the Canadian Security Intelligence Service (CSIS), Director Michael Coulombe astutely wrote , “even if a Canadian extremist does not immediately return, he or she is still a Canadian problem. Just as Canada expects other nations to prevent their citizens from harming Canadians and Canadian interests, we too are obligated to deny Canadian extremists the ability to kill and terrorize people of other countries.” (emphasis added). If every country were to adopt Canada’s response to terrorism, the solution would look like a global conveyer belt of terrorists being transferred between countries.
In recent headlines is the case of Hiva Alizadeh. In September 2014, Alizadeh pled guilty to the offence of possessing explosive materials for the purpose of endangering life or causing serious property damage involving Canadian citizens in their homeland (R v Alizadeh, 2014 ONSC 5421). Though Alizadeh did not in fact carry out a terrorist attack, he admitted to travelling to Iran and then Afghanistan in 2009 to attend a terrorist training camp and to smuggling customized circuit boards into the country with the intention to build explosive triggering devices, upon his return to Canada. During sentencing Justice Colin McKinnon stated, “you are now a convicted terrorist. The fact carries with it an utterly deplorable stigma that is likely impossible to erase … . You have betrayed the trust of your government and your fellow citizens” (Alizadeh at para 1). Alizadeh was sentenced to 24 years in prison. Alizadeh is a dual Canadian and Iranian citizen. This month the government began to take the initial steps under the Strengthening Canadian Citizenship Act to revoke Alizadeh’s Canadian citizenship (See here). The question for me is whether deporting Hiva Alizadeh or similar cases actually increase Canadian security?
Since 2012 Canada has listed Iran as a state that supports terrorism (See Foreign Affairs, Trade and Development Canada on Terrorism). It is difficult to believe that Canada’s solution to terrorism is to send a known terrorist to Iran instead of keeping him in a Canadian prison where we can have confidence that the risk to the public is low and he may even be able to rehabilitate. Terrorists do not need to be on Canadian soil to undertake attacks. Canadians and consular services can be found in almost every country in the world. By sending known terrorists to foreign countries Canada is shirking its responsibilities and naively relying on other governments to keep Canadians safe.
For many supporters of the amendments to the Citizenship Act, Canadian citizenship is a privilege not a right (See Debates of the Senate, 41st Parl, 2nd Sess, Vol 149, Issue 73 (17 June 2014) at 1930 (Hon Nicole Eaton)). Canada prides itself on being a peaceable and safe nation. It is easy to sympathize with those who hold the position that a person who has committed a terrorist offence (naturalized or Canadian-born) does not deserve to be a Canadian citizen. What makes this position more difficult to grasp is when it is accompanied with an understanding of the recent redefining of what it means to be a terrorists. When one imagines a “terrorist” they may conjure up images of groups such as the Islamic State of Iraq and the Levant (ISIL), the Irish Republican Army (IRA), Boko Haram, or the Revolutionary Armed Forces of Columbia (FARC). What one likely does not picture is someone who shares a blog over social media or who was convicted of a terrorism offence in a country that does not respect the rule of law. However, as a result of the passing of Bills C-51 and C-24, such expressions and situations may constitute a terrorism offence and could lead to revocation of citizenship.
Changes to the definition of terrorism:
“Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general-other than an offence under this section-while knowing that any of those offence will be committed or being reckless as to whether any of those offences may be committed, as a result of such communication, is guilty of an indicatable offence and is liable to imprisonment for a term of not more than five years” (emphasis added)
Opponents contend that this provision is problematic because it is written in broad vague terms and consequently has the potential to convict people who may have no intention of promoting a terrorism offence.
(2) The Minister may revoke a person’s citizenship if the person, before or after the coming into force of this subsection and while the person was a citizen,
(b) was convicted of a terrorism offence as defined in section 2 of the Criminal Code — or an offence outside Canada that, if committed in Canada, would constitute a terrorism offence as defined in that section — and sentenced to at least five years of imprisonment (emphasis added)
To understand opponents’ concerns with this provision, take for example the case of Saudi Arabian human rights activist Waleed Abu al-Khair. Waleed Abu al-Khair is currently serving a 15 year sentence in Saudi Arabia, convicted on terrorism charges stemming from his “peaceful activism, including comments to news outlets and on Twitter criticizing Saudi human rights violations” (See Human Rights Watch “Saudi Arabia: Prominent Activist Marks Year Behind Bars”). Commentators worry that if someone like Waleed Abu Al-Khair were to one day become a Canadian citizen, they would be vulnerable to having their citizenship revoked under section 10(2)(b) of the Citizenship Act. It is difficult to imagine a court of law interpreting this section to encompass Al-Khair’s acts (since the provision specifies that the offence committed abroad must constitute a terrorism offence as defined by the Criminal Code). However, a court would not be making this interpretation; the decision is left to the Minister or one of his delegates.
An enormous amount of trust has been placed in the hands of the Minister or one of his delegates to make the critical decision as to whether or not an individual’s citizenship should be revoked. The government claims that by separating this process from the judicial system, they are cutting financial costs and increasing efficiency. While this may be true, we must ask, “at what social cost”? In allocating this power, the government is denying due process. All citizens should be entitled to a federal court hearing to determine whether their citizenship should be revoked. It is fundamentally unjust to leave a decision of this magnitude to an arbitrary body.
The changes to the Citizenship Act introduced through Bill C-24 are a smoke and mirrors response to terrorism. In an effort to appear “tough on terrorism” Canada is placing its energy and focus on reintroducing a model of security that it outgrew hundreds of years ago. Canada owes a responsibility to the global community to deal with Canadian terrorists on Canadian soil. This is no longer an era of kingdoms, castles, and moats. We can’t simply throw someone outside of the Kingdom walls and expect that the problem is exiled along with the perpetrator. The changes introduced by Bill C-24 fail to protect the safety and security of Canadians from what is today, a threat that has no boundaries.
Update: the government has recently started a second application under the Strengthening Canadian Citizenship Act to revoke the Canadian citizenship of Misbahuddin Ahmed.
This post originally appeared on Rights Angle.
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By: Shaun Fluker
Case Commented On: Kon Construction v Terranova Development, 2015 ABCA 249
This Court of Appeal decision concerns a dispute over the performance of a contract. Terranova retained Kon Construction to grade lands for residential development. The work was to be done in 2005 but was delayed into 2006 and the agreement went sour. Kon Construction filed a claim for unpaid invoices and Terranova counterclaimed that Kon Construction breached the agreement on a number of grounds thereby allowing it to retain another firm to complete the grading work. At trial Madam Justice B.A.Brown ruled that Terranova did not have grounds to terminate its contract with Kon Construction and was therefore liable for a portion of the unpaid invoices which she found had been improperly inflated (Kon Construction v Terranova Development, 2014 ABQB 256). The issues on appeal were primarily on the admissibility of certain electronic records.
Under the contract Kon Construction was to be paid on the basis of earth moved in the grading work. The evidence in dispute here was entries and calculations made by site surveyors to measure the amount of work completed. Terranova argued these electronic records were inadmissible because they consist of expert evidence which was not properly admitted through a qualified expert (at paras 11 and 12). The Court rejects both of these arguments, and in doing makes some remarks on electronic records and expert evidence. The Court makes reference to some law with respect to qualifying expert witnesses (at paras 30 to 43), which I do not comment on here. Terranova also argued the records are inadmissible as hearsay because the raw data was entered by surveyors who did not testify to its accuracy, and the Court rejects this argument on the business records exception to the hearsay rule (at para 49).
Evidentiary issues is not an area of law that I spend much time with, but the reason this decision caught my attention is because I do think about how the computer age – and the capability of the internet in particular – is affecting how we make and practice law. The Court of Appeal makes some brief remarks in this regard as it relates to electronic evidence:
The electronic age has affected many aspects of society and business, and has had a particular impact on record creation and management. Information gathering is increasingly automated, and record keeping is now commonly done in electronic format. This appeal requires an examination of the effect of electronic record management on the laws of evidence, which were formulated on different assumptions about how records are kept. The laws of evidence must adapt to accommodate the current reality of record management (at para 13).
Electronically generated information is not a new concept for the law – but I do think the capacity of the internet and ever-increasing reliance on computers is stretching these issues into new territory: Consider the proliferation of Facebook or Twitter to communicate, and how email has almost replaced traditional means of information delivery. These mediums have and will continue to require some adjustments to traditional ways in the law.
One issue the Court looks at here is the reliability of mechanically generated records. A primary objective of the law on evidence is to screen out unreliable information. The Court observes that computer-generated records are generally admissible because of an inherent reliability, even though we are unable to precisely examine how the information is generated, and the person seeking to rely on this information does not have to prove the underlying processing technology works. The disputed evidence here consisted of survey data collected by electronic means and compiled in software, and the Court concludes this information easily passes the test for reliability (at paras 17 – 19).
Terranova also argued the compilation of information constitutes expert opinion and was not provided by a qualified expert. The admissibility of expert opinion evidence is a noted exception to the principle that opinions are generally not admissible (at para 21). The Court observes that the interpretation of computer-generated information may constitute expert opinion and require a properly qualified expert, but not in every instance. Certain programs are sufficiently routine or within common-usage such that the interpretation of information generated does not require specialized training or knowledge – the Court gives Excel as an example:
An example of a software program that does not usually rise to the level of “opinion”, for the purposes of the law of evidence, is the commonly used data spreadsheet program Microsoft Excel. That program is specifically designed to record raw data in rows and columns. The program can then be told to automatically organize (alphabetically, by date, etc.) and process that data (add, subtract, multiply, divide, etc.). It can also be told to isolate out data by characteristics (by date, amount, or other ascribed characteristic). The ordinary use of arithmetic formulas, and sorting of data by type, does not require “specialized knowledge”; just because a computer can do it faster does not change its categorization as evidence. Many people use Microsoft Excel, but few could actually describe how it works or what it is doing to the data. Few users could actually explain why the data are reliable, yet the results it produces are routinely relied on. That is because the program has been designed, tested, and used so repeatedly that it has been shown to be inherently reliable. The results from such a program are not “opinion evidence”, and they do not require introduction by an expert: R v George (1993), 146 AR 107 at para 34, 14 Alta LR (3d) 106 (PC) (at para 23).
The line where information generated by software crosses into the realm of expert opinion is drawn on a case-by-case basis, and in the Court’s words “[t]here is no automatic or universal rule that computer-generated reports are inadmissible hearsay, or only admissible through expert evidence” (at para 25). The Court rules that the records here did not require specialized knowledge to interpret and pass the test for reliability (at para 29).
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By: Caroline Law
PDF Version: The Law on Mr. Big Confessions
A Big operation is a common police sting tactic used to obtain confessions from suspects. It usually involves undercover police officers posing as members of a criminal organization and developing a friendly relationship with the suspect. The suspect is then asked to perform a series of seemingly illegal tasks, and is told those are tests to gain trust from the head of the criminal organization, Mr. Big. In the process, the police officers involved try to obtain evidence or a confession from the suspect in relation to an alleged crime. The operation culminates with a “job interview” between the suspect and the crime boss Mr. Big, which entails Mr. Big interrogating the suspect into his past criminal activities. Once the suspect admits to committing the crime, he or she is arrested. In this post I look at recent decisions in Alberta that have applied the law concerning the admissibility of Mr. Big confessions.
In R v Magoon the father of the victim and his partner were suspected of causing the death of 6-year-old Mieka Jordan through a series of physical abuses. A covert police operation was staged to try to discover the truth about the treatment of the victim. Two undercover officers posed as a couple to befriend the two suspects, Spencer Jordan and Marie Magoon, and involved them in what appeared to be a smuggling operation. During one of the scenarios in the Mr. Big operation, the police in Calgary attended the residence to arrest Jordan for the murder. This provided the pretext for a meeting between Jordan and Vic, an undercover officer who acted as a powerful member of the criminal organization. The meeting was for Vic to learn the truth of what happened in order to assist Jordan in getting rid of the charges. During this meeting, Jordan made admissions of violence against Mieka to Vic. The two suspects then went on to discuss the death of the victim in their hotel room, where their confessions were wiretapped (Magoon, at para 14-23).
In deciding the admissibility of these testimonies in Magoon, Madam Justice R.E. Nation applied the law set out by the Supreme Court of Canada (SCC) in R v Hart, 2014 SCC 52. This landmark 2014 SCC decision redefined the law concerning the admissibility of Mr. Big evidence. The Mr. Big tactics have been frequently used by police forces in Canada. However, Hart put into question the admissibility of confessions obtained under such method. In Hart, the SCC held that a Mr. Big confession could be unreliable, prejudicial and would encourage police misconduct. In Hart, the police suspected Hart of murdered his twin daughters. They targeted him for a Mr. Big operation where the undercover officers were trying to lure him to join a fictitious criminal organization. Hart was shown attractive benefits of working for the gang—he was taken to expensive restaurants and was flown across the country to carry out paid simulated criminal tasks carefully crafted by the police (Hart at para 58). This marked a stark contrast to his lifestyle prior to meeting the undercover officers–he was socially isolated, unemployed, and living on welfare (Hart at para 133). At first, Hart told Mr. Big that the death of his daughters was accidental, but after some further probing, he confessed to killing them (Hart at para 34-35).
The SCC recognized that the benefits of working for Mr. Big were powerful inducements for Hart to falsely confess. In recognizing the vulnerabilities of a target in a Mr. Big operation, Hart proposes a new test to assess the admissibility of Mr. Big confessions. Under this new test, confessions obtained during a Mr. Big operation are presumptively inadmissible unless the Crown can establish on a balance of probabilities that the probative value of the confession outweighs its prejudicial effects (Hart at para 85). In addition, the doctrine of abuse of process is considered in the second prong of the test to guard against state conduct that “society finds unacceptable, and which threatens the integrity of the justice system” (Hart at para 113). Furthermore, the trial judge retains the discretion to exclude evidence where its admission would compromise trial fairness (Hart at para 88).
R v Mack, 2014 SCC 58 was the first SCC ruling on a Mr. Big operation after Hart, and gave further clarification on how the Hart framework is to be applied. The confession obtained during a Mr. Big operation can be highly probative when there is confirmatory evidence and that the prejudicial effects to the accused is low. In Mack, the accused was gainfully employed and the amount of payment he received from working for Mr. Big was not significant (Mack at para 34-35, 59). Mack also provides guidance to trial judges on how to instruct juries in considering evidence stemming from a Mr. Big operation in order to reduce the prejudicial effects to the accused (Mack at para 51-54).
In Magoon, Justice Nation stated that confirmatory evidence is not necessarily a decisive factor to determine whether a Mr. Big confession is admissible. Rather, the existence of confirmatory evidence can provide a powerful guarantee of reliability (Magoon at para 10). The Mr. Big testimonies obtained from the two suspects in this case corroborated closely with the expert evidence concerning how the victim’s body injuries were caused. This made the evidence highly probative.
Mr. Big Evidence in Implicating a Party to the Crime
In R v Campeau the Alberta Court of Appeal has expanded the law to allow Mr. Big evidence to be admitted to implicate a party to the actus reus. Campeau suggests that Mr. Big evidence can be admissible against a third party of the crime provided that the evidence falls under the principled exception of hearsay as prescribed by R v Khelawon, 2006 SCC 57. In this case, Campeau challenged his conviction for manslaughter as a party to a robbery and killing. Up to this point, all the Mr. Big cases had involved only the accused’s own confession to a Mr. Big character. In Campeau, however, the Court of Appeal ruled the evidence made by the co-accused Worme concerning Campeau and others was admissible.
The Court found that the evidence of Worme against Campeau met the criteria of necessity and reliability under the principled exception in Khelawon (Campeau at para 14) as the testimony was not obtained by abusive police conduct. The Campeau Mr. Big operation used a truth verification strategy which involved telling the target that the fictional criminal organization could cover up the crime for him if the crime boss knew the truth. This was distinguished from the technique used in Hart, which was a strategy of false bragging (were you tough enough for our organization) (Campeau at para 21).
The Court of Appeal distinguished Campeau from the decision of the British Columbia Court of Appeal in R v Bradshaw, 2015 BCCA 195 on the basis of the facts. In Bradshaw, the accused was implicated in two murders by a former co-accused Thielen who refused to testify at trial, but agreed to re-enact the case for the police. The re-enactment was videotaped but was not under oath. During the re-enactment, Thielen inculpated Bradshaw to the murders (Bradshaw at para 6). The British Columbia Court of Appeal overturned the guilty verdict of Bradshaw from the lower court as it deemed that the re-enactment was hearsay evidence that did not demonstrate circumstantial guarantees of trustworthiness necessary to meet the threshold reliability test (Bradshaw at para 32). Thielen initially took full responsibility for the murders during his conversation with Mr. Big. Sometime later he implicated Bradshaw. As both Bradshaw and Thielen were present at the crime scene, forensic evidence could not decisively prove Thielen’s story. As it was not possible for the jury to determine the truth of Thielen’s testimony without cross-examining him, the court set aside the verdict of Bradshaw.
Mr. Big Evidence in Other Jurisdictions
The Mr. Big technique is a Canadian invention (Hart at para 56), and it has solved many cold cases in Canada. Nonetheless, Australia is the only jurisdiction outside Canada that adopts the technique (see Timothy E Moore et al, “Deceit, Betrayal and the Search for Truth: Legal and Psychological Perspectives on the ‘Mr. Big’ Strategy” 55 Crim LQ 348 2009-2010 at 353).
The Mr. Big technique is not used in the United Kingdom and the United States (see Moore et al, at 353). Nevertheless, the confession obtained from the suspect during the Mr. Big operation in R v Proulx, 2005 BCSC 184 conducted by Canadian authority on UK soil was admissible for the purposes of an extradition proceeding in the UK, where the accused was extradited and tried in Canada (Proulx at para 28). Nonetheless, whether the evidence itself would be admissible in a criminal trial in the UK was never determined (Proulx at para 51).
The Mr. Big technique is not used in the United States (see R v Osmar, 2007 ONCA 50 at para 55) and no cases have been found using the Mr. Big technique on American soil (see Hart, Factum of the amicus curiae at para 25 n 51). Nonetheless, it is worth noting that the American authorities used the evidence collected in a Mr. Big operation conducted in Canada to convict Sebastian Burns and Atif Rafay—two Canadians accused of a triple murder that took place in the US (see here).
The Implication to Future Mr. Big Operations
The SCC in Hart raised concerns that the Mr. Big technique could induce false confession (Hart at para 72). Although there is an absence of precise data, false confession has been recorded by researchers around the world as a phenomenon that occurs with regularity (see Steven M Smith et al, “Using the ‘Mr. Big’ Technique to Elicit Confessions: Successful Innovation or Dangerous Development in the Canadian Legal System?” (2009) 15:3 Psychology, Public Policy & L 168 at 180). Innocent people falsely confess due to psychological pressure placed upon them during police interrogations and confession contamination (see Brandon L Garrett, “The Substance of False Confessions” (2010) 62 Stan L Rev 1051, at 1053). Confession contamination could happen when police, inadvertently or intentionally, prompt the suspect on a little known detail of the crime, which provokes innocent people to not only falsely confess but also offer “surprisingly rich, detailed, and accurate information” (Garrett, at 1054) of the crime. Also, targets in Mr. Big operations are often exposed to simulated violent retribution by the crime boss first hand such as seeing a fellow member of the crime group being severely beaten as a result of disloyalty (see R v Bonisteel, 2008 BCCA 334 at para 15). The coercive nature of some of the scenarios could be a factor that induces unreliable confessions.
The presence of highly probative corroborative evidence seems to be an important element of the admissibility of Mr. Big confession, particularly considering a person could potentially lose his or her liberty, the possibility of dishonest witnesses giving a false testimony, the frailties of human eyesight and memories, and the increased availability of forensic and DNA testing. In Mack, the confessions were subsequently confirmed by the finding of physical evidence that were highly probative. The Hart framework has tightened the rules on admissibility for evidence obtained during a Mr. Big operation, but it is still possible to admit Mr. Big confessions that are not corroborated by physical evidence and obtain a conviction. Campeau the Alberta Court of Appeal has extended the rule further to allow Mr. Big confession to be used against a third party of a crime, but there is a strong argument to be made that such evidence should only be admissible if other evidence exists to corroborate the Mr. Big confession.
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By: Nigel Bankes
Regulations Commented On: [Draft] Canada Oil and Gas Operations Financial Requirements Regulations and accompanying Regulatory Impact Assessment Statement (RIAS), Canada Gazette, vol. 149, No. 28, July 11, 2015, [Draft] Canada-Newfoundland and Labrador Petroleum Financial Requirements Regulations, Canada Gazette, vol. 149, No. 28, July 11, 2015 and [Draft] Canada-Nova Scotia Petroleum Financial Requirements Regulations, Canada Gazette, vol. 149, No. 28, July 11, 2015
The current liability and assurance rules for oil and gas operations on federal lands and for the east coast offshore are, by any account, outdated and inadequate. The federal government undertook to review these rules following the Montara and Macondo spills and the National Energy Board (NEB) undertook its own review, The Past is Always Present: Review of Offshore Drilling in the Canadian Arctic, Preparing for the Future (2011). As a result of these initiatives the government introduced Bill C-22 which became the Energy Safety and Security Act, SC 2015 c.4 (ESSA). ESSA obtained Royal Assent on February 26, 2015 but will not (s.119) enter into force until 12 months after Assent or on an earlier date prescribed by Order in Council. The delay permits the development of the necessary regulations, including the three related regulations (supported by a common RIAS), that are the subject of this post. Bill C-22 once in force will, inter alia amend the liability and financial assurance provisions of the Canada Oil and Gas Operations Act, RSC 1985, c. O-7 (COGOA), the Canada-Newfoundland and Labrador Atlantic Accord Implementation Act, SC 1987, c.3 and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, SC 1988, c.28. This post will focus on the COGOA rules although what is said here for the most part applies equally to the areas covered by the Accord Acts. The first part summarizes the current COGOA provisions. The second part summarizes the changes that ESSA makes to COGOA. The third part discusses the regulations and the accompanying RIAS. The fourth part offers some comments on the regulations while the final part asks what is missing from this regime.
What follows is complicated. It is complicated still further because ESSA contains what are known as “co-ordinating amendments”. These are additional amending provisions which are contingent on amendments to other statutes. In this particular case s.118 of ESSA provides that COGOA will be further amended when both ESSA and Bill C-15, the Northwest Territories Devolution Act enters into force. Since that Act has already entered into force as SC 2014, c.2 the relevant trigger is that described above for ESSA to enter into force. Suffice it to say that these additional amendments will, inter alia, change our understanding of the application of the new liability cap provisions of COGOA. I am grateful to Nicole Godbout, legal counsel with the NEB, for drawing these coordinating amendments to my attention.
COGOA makes use of both absolute and fault based liability to try and create a regime to ensure that “the polluter will pay” for any costs associated with a spill from drilling or production. The Act channels absolute liability to the person who holds the drilling authorization (effectively the operator) (s.26(1)) for damage to third parties and clean-up expenses, up to a “prescribed amount”. The liability is absolute rather than strict because there are no grounds for exculpation listed in the statute. In addition, COGOA imposes fault-based liability on any person whose fault or negligence caused the spill or who by law are responsible for others whose fault or negligence may have caused the spill. Fault based liability is unlimited but requires proof of negligence. Under the current regime, the Oil and Gas Spills and Debris Liability Regulations, SOR/87-331 limits the absolute liability of the holder of the well authorization to between $10 and $40 million (the “prescribed amount”) depending on the location of the well (e.g. onshore or offshore). These amounts were first fixed in 1987 and have not changed in the intervening years. Experience with other spills, especially offshore spills such as Montara and Macondo, demonstrate that these amounts are completely inadequate. As for financial assurance (i.e. proof and security arrangements demonstrating ability to pay) the Act requires the holder of the well authorization (s.27) to provide the NEB “with proof of financial responsibility in the form of a letter of credit, a guarantee or indemnity bond” or other form satisfactory to the NEB and in an amount satisfactory to the NEB. The holder of the authorization must ensure that the “proof of financial responsibility” remains in force for the duration of the work or other activity. In the event of an incident, the Board may (s.27(2)) require that monies be paid out of funds made available through the financial instrument to satisfy “any case or class of cases” in respect of any claim that might be made under the statute, regardless of whether or not proceedings have actually been instituted. Neither the Act nor the regulations provides any guidance as to the amount or form of financial assurance that the NEB should require, neither as to a specific amount nor as to the criteria or methodology that the Board should apply in determining an appropriate amount. A Q & A statement on the Board’s website prepared as part of the Board’s Arctic Review describes the Board’s actual practice:
There is nothing in the Canadian Oil and Gas Operations Act that limits the amount of financial responsibility. In the past, the Board has required security in an amount equal to the limits of absolute liability. It has also required proof of financial responsibility in the form of audited financial statements or guarantees as evidence that the company is able to meet any financial liability that might be incurred as a result of drilling the well. It is up to the NEB to determine the amount of proof of financial responsibility.
It is perhaps worth emphasizing for the discussion that follows that the NEB’s discussion to some extent conflates two distinct concepts, financial security and financial resources. “Financial security” (or financial assurance or evidence of responsibility) generally refers to particular financial instruments such as letters of credit or promissory which serve to guarantee that an operator (and the regulator) will have funds on hand to cover losses and clean-up expenses. “Financial resources” on the other hand may simply refer to the idea that an operator’s assets exceed its liabilities by a sufficient amount that it can be expected to have resources on hand to pay for the costs (clean-up and compensation for damage) entailed by a spill.
ESSA keeps the basic structure of absolute and fault-based liability outlined above but makes five main changes to the liability and financial assurance provisions of COGOA. First, the amendment adds a new head of recoverable damages in the form of liability for “all loss of non-use value relating to a public resource that is affected by a spill…”. For some discussion of the non-use value issues under ESSA as well as a broader discussion of Bill C-22 see the post by my colleague Martin Olszynski here. Second, the amendments significantly change the upper liability caps from $40 million to $1 billion, with the actual amount varying depending upon the same sorts of locational factors as before. In some cases, however, (e.g. onshore wells not located close to a waterbody in Nunavut) the cap (s.26(2.2)(c)) for absolute liability remains low – $10 million.
Third, the amendments effectively adopt the distinction (described above) that the Board has made in its practice with respect to financial assurance (responsibility) and available financial resources (although the Board’s terminology as suggested above is not completely consistent with that adopted in the Act). As for the provision of actual security (or financial assurance (responsibility)), the Act continues to require (s.27(1)) that this principally shall be in the form of a letter of credit, guarantee or indemnity bond. It is here that the coordinating amendment provisions become important. As the text will ultimately appear when these amendments are triggered s.27 will require that in any application for approval of a well, or for production, in any offshore area within the geographical scope of COGOA (hereafter COGOA offshore well) this shall be $100 million or such greater amount as might be determined by the Board (and in a particular case as described below, a reduced amount). In other areas, and for other types of authorization, the Act (s.27(1)(b)) reverts to the current approach and stipulates that this shall be “in an amount satisfactory to the Board.” There is nothing however which requires the Board to follow the practice referred to above of requiring an applicant for an authorization to provide financial assurance (responsibility) in an amount that equals the amount of its absolute liability. A further innovation in ESSA is that the amendment will permit an applicant (s.27(1.01)) to comply with the prescribed $100 million financial assurance requirement (i.e. COGOA offshore wells, but not other cases) by providing proof that it “participates in a pooled fund … established by the oil and gas industry … maintained at a minimum of $250 million” and meeting other prescribed requirements.
As for the availability of financial resources (not financial assurance (responsibility)), a new s.26.1 will require that a person proposing to drill a well or to produce oil or gas must provide proof “in the prescribed form” that it has the financial resources to pay up to the amount of its absolute liability limit (see above) or, if the NEB considers it necessary, a greater amount. The Act does not provide any specific guidance to the Board as to the matters that it should take into account in determining whether it is necessary to prescribe a greater amount, although it does provide that the NEB (s.26.1(3) “is not required” to consider the potential loss of non-use values.
Fourth, while the new Act, as noted above, prescribes absolute liability amounts and in one case (COGOA offshore wells) the amount of financial assurance (responsibility) that must be provided ($100 million), the new Act also introduces a power to prescribe lesser amounts under certain circumstances. The power is laid out in a new section of the Act (s.27.1) which provides that the Board may make a recommendation to reduce the prescribed amount of absolute liability (s.26(2.2) or the amount of financial assurance (responsibility) required under s.27(1)(a) (which deals exclusively with the provision of financial assurance for COGOA offshore wells). It is important to recognize that the section conflates two different concepts: that of the cap on absolute liability and that of the amount of financial assurance that should be made available. In any event the new s.27.1(2) & (3) goes on to provide that the lower adjusted amount, if approved by the Minister, serves to cap the amount of financial assurance that the applicant must provide (but note that, except in the case of operations within Nunavut, the actual amount of financial assurance (responsibility) to be provided is in the discretion of the Board and is not prescribed by the Act). The RIAS accompanying these draft regulations describes the power to prescribe a lesser amount as follows:
…. the Act also establishes the authority for the Boards to recommend to the ministers (i.e. in non-Accord Act areas: the Minister of Natural Resources or the Minister of Indian Affairs and Northern Development; and in the Accord Act areas: the federal Minister of Natural Resources as well as the provincial minister with jurisdiction over offshore oil and gas) that the absolute liability limit and corresponding financial resources amount, or the amount of financial responsibility, be lowered for certain low-risk projects on a per-project basis (emphasis supplied).
Finally, the Act (s.14) creates some new regulation making powers including the power to make regulations with respect to a pooled fund and concerning the circumstances under which the NEB might make a recommendation to reduce the level of financial assurance in any particular case. There is, however no regulation making power, either in the current Act or in the provisions introduced by ESSA, to limit the discretion of the Board with respect to fixing the amount of financial assurance that is to be provided by the applicant (but note, as above, that the amount is prescribed in respect of COGOA offshore wells (the new s.27(1)(a) as further amended by the coordinating amendment provisions).
In sum, it is important to emphasize that the new Act makes four distinctions as to “amounts” as follows:
The result is that an applicant may not be required to post financial assurance (responsibility) as to the full amount of its absolute liability although it will always have to demonstrate that it has available financial resources up to that amount. The amendments to COGOA involved a trade-off between dramatically increasing the cap on absolute liability and a refusal to draw a tight connection between the cap and the provision of financial assurance.
The regulations deal with three issues which the Act left to be prescribed by regulations. These are, in the order discussed above: (1) details as to the pooled fund as a means of establishing financial assurance (responsibility); (2) the circumstances under which the Board should be able to recommend lesser amounts for financial assurance and\or the applicable absolute liability limit; and, (3) the means by which an applicant might be able to establish the availability of financial resources (not, financial assurance (responsibility)).
The Pooled Fund
As noted above, the Act provides that an operator may be able to meet its financial assurance (responsibility) requirements (at least in some cases) by membership in a pooled fund operated by industry. The regulations flesh out some of the requirements that an industry fund must meet. Thus, s.3 prescribes that a pooled fund must be located and administered in Canada and that it can be used “solely to make payments” with respect to oil and gas operations occurring in areas covered by the Accord Acts and at least some of the areas falling under COGOA (more on this below). The same section requires that such payments must be made to the relevant Board on demand and that the administrator of the fund must provide the Board with certain information including audited financial statements which establish that the fund is maintained at a minimum of $250 million. In addition, s. 4 effectively repeats the requirement of s.27(5) of the Act which stipulates that where there is a payment out of the fund the holder of the authorization in respect of which the payment was made has a duty to reimburse the fund. The regulation prescribes that this amount is due within seven days of the date of payment.
These provisions together make it clear that the fund is not a liability pooling fund or a mutual assurance fund of some sort. Instead, it is a simply a means by which an operator can share with others the duty to provide security (financial assurance (responsibility)) up front. The liability remains that of the holder of the authorization. While the fund will bear the loss if the authorization holder fails to pay, the fund has a right to reimbursement from the holder of the authorization.
The Case for Reduced Financial Assurance
As noted above, s.27.1 allows the Minister to reduce the applicable amount of financial assurance on the recommendation of the Board. Section 5 of the Regulations aims to describe the circumstances under which the NEB may make such a recommendation and as such establishes a number of conditions precedent. First, the Board must be satisfied in respect of a particular applicant that the estimated total of the losses, damages, costs and expenses (but not non-use value losses) for which the applicant could be held to be absolutely liable ($1 billion or $100 million as the case may be) is in fact less than that. The Board’s recommendation must (s.5(2))
… identify the hazards that are relevant to the proposed work or activity to which the application pertains and must include an assessment of the risks associated with each event that could reasonably be expected to occur in connection with each of those hazards and that could result in debris, in a spill or in an authorized discharge, emission or escape of petroleum.
The Board must also provide additional supporting information including
(a) the estimated total of the losses, damages, costs and expenses referred to in subsection (1);
(b) the recommended amount that is less than the amount referred to in paragraph 26(2.2)(a) or (d) or 27(1)(a) of the Act, as the case may be;
(c) a summary of the reasons for the recommendation;
(d) a summary of any information provided by the applicant to the Board that the Board considers to be pertinent.
The structure of the Act and regulations make it clear that the minister can only act on the basis of a Board recommendation.
Opportunities for Establishing Financial Responsibility\Resources
As noted above, s.26.1 of COGOA requires an applicant to establish that it has the financial resources (not financial assurance (responsibility)) to cover the amount of absolute liability. The regulations elaborate on this requirement. Section 2(1) requires the applicant for an authorization to provide the Board with “a statement of its net assets or of funding arrangements that it has made that demonstrates to the Board’s satisfaction that it is able to pay the applicable amount.” Section 2(2) provides that the statement must be accompanied by
… one or more of the following documents that substantiate it:
(a) the applicant’s most recent audited annual financial statement and, if the applicant has been given a credit rating by a credit rating agency that is current at the time the application is made, a document that indicates that credit rating;
(b) a promissory note;
(c) an insurance policy or a certificate of insurance;
(d) an escrow agreement;
(e) a letter of credit;
(f) a line of credit agreement under which the funds identified in the statement are available;
(g) a guarantee agreement;
(h) a security bond or pledge agreement or an indemnity bond or suretyship agreement.
This section comments on three matters: (1) the industry pooled fund provisions, (2) the “lesser amounts” issue, and (3) proof of financial assurance.
The Ability of an Applicant to Use an Industry Pooled Fund to Establish Financial Assurance
The RIAS described the intent behind the pooled fund provisions as follows:
Establishing the parameters for the use of a pooled fund as an alternative to other financial responsibility instruments will afford added flexibility to those interested or involved in exploring for, and developing, oil and gas resources in Canada’s offshore areas, while safeguarding the Boards’ ability to have access to liquid funds, as required. This flexibility could be beneficial to operators, as it could potentially save them some of the administrative costs associated with having to renew or maintain financial instruments with a financial institution (e.g. there are costs associated with having a bank issue a letter of credit and ensuring it remains valid and accessible for a predetermined period of time [one year or more]).
It seems fairly clear from this that the pooled fund is intended to be used for offshore operations on the east coast and in the Arctic where absolute liability levels are at $1 billion. In the case of the Arctic this idea is carried through into the regulations by providing that the pooled fund can be used for oil and gas operations for what was described above as COGOA offshore wells (here again one has to read the ESSA amendment through the lens of the additional co-ordinating amendment provisions to make sense of this; the regulations are premised on this contingency).
The reduced financial requirement provisions are designed to accommodate offshore projects that don’t reflect the usual risk profile of such projects. The RIAS gives as examples shallow water natural gas extraction and onshore to offshore drilling. Such activities may not necessarily be low risk since much will depend on the geology and many such inshore areas may present highly valued environments both ecologically and for traditional use by aboriginal populations. Consider, for example, inshore areas in the Beaufort Sea and the Mackenzie Delta. Thus, while in principle it might be appropriate to lower the amount of financial assurance to be provided, this should only be permitted following a rigorous assessment premised on a worst case scenario review. While the regulations represent a valuable effort to limit the circumstances under which an applicant might be able to make a case for reduced financial assurance they do not seem to go this far and in particular do not use the language of worst case scenario planning. The regulations might usefully clarify this. For example, the provisions of the Inuvialuit Final Agreement (IFA) are much clearer in prescribing the importance of worst case scenario planning (IFA, s.13(11)).
Finally, I was surprised to see that the Act apparently contemplates (and certainly as interpreted in the RIAS) lesser amounts not only for the provision of financial assurance (responsibility) but also reductions in the amount of an operator’s absolute liability. It is also remarkable to me that this can be accomplished by means of a ministerial order (albeit on the recommendation of the NEB).
Proof of Financial Resources
The Regulation (s. 2(2)) offers an applicant a number of ways in which it can substantiate its claim that it has adequate financial resources to meet its level of absolute liability. While items (b) to (h) (quoted above) all require some form of security or assurance, item (a) is little more than a balance sheet exercise in which the applicant establishes that its assets exceed its liabilities by at least the amount of any level of potential absolute liability. It is obvious that most if not all applicants will aim to rely on this paragraph in order to demonstrate proof of available financial resources and will seek to avoid providing any form of additional assurance. Some will never qualify (see “Giving Away the Arctic Farm” post), but other cases may prove more difficult. Consequently it would be useful if the Regulation provided some guidance as to when the Board should require additional assurance under one of the remaining paragraphs. Clearly it should require additional assurance if the applicant cannot meet the basic coverage ratio as described above, but it is doubtful if that should be regarded as adequate, especially given the volatility of commodity prices. An oil and gas company that can demonstrate an appropriate coverage ratio when oil stands at $100 per barrel will be in a very different position if oil is at $55. Given this volatility the Board needs to demand a coverage ratio in excess of 1.0 and\or the opportunity to require additional proof where coverage falls below a prescribed amount. While the Act imposes a duty on the holder to maintain its “proof of financial resources” “in force” for the duration of the activity, it is not clear what this means in the context of an audited financial statement of assets and liabilities.
What is Missing from this Scheme?
I think that there is one important element that is missing from this scheme and that relates to the rules pertaining to the provision of financial assurance (responsibility). As noted above, the Act makes a distinction between the provision of financial assurance (responsibility) and proof of financial resources. The distinction is an important one for several reasons. First, the Act is prescriptive as to the form of financial assurance (s.27(1) – letter of credit, guarantee or indemnity bond), and, once provided, that assurance results in a dedicated fund that can be used to pay any claims that fall within the ambit of the statutory causes of action (s.27(2)). The Act is far less prescriptive in relation to proof of financial resources. Second, amounts provided by way of financial assurance (responsibility) are available to the Board to pay claims and make payments to those who incur costs or suffer losses in dealing with a spill (s.27(2)) without recourse to the ordinary courts. This would not be the case with respect to proof of financial resources, at least where such proof takes the form of balance sheet coverage of assets over liabilities. Thus at least from the perspective of potential victims of an oil spill it is clear that financial assurance (responsibility) has significant advantages over proof of financial resources. It is therefore unfortunate that both the Act and these new regulations are far more concerned with proof of financial resources than they are with the provision of financial assurance (responsibility).
The default rule under the Act (the new s.27(1)(b)) is that the amount of any financial assurance (responsibility) is to be determined by the Board (s.27(1)(b)). The one exception to this is for what are described above as COGOA offshore wells for which the assurance is fixed at a minimum of $100 million. Beyond this, neither the Act nor the regulations create a presumption as to the level of assurance that the Board must require, or offer the Board any guidance as to the factors that it should take into account in setting that level of assurance. In this area of financial assurance therefore the Act and the Regulations mirror the status quo (except for Nunavut). At the end of the day this is more a problem with the legislation than with the regulations; this is too big of a problem to be fixed by means of regulations and will require an amendment to the Act.
The draft regulations are open for comment for thirty days from gazetting, July 11, 2015.
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