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Trinity Western University and Some Finer Points of Trans and Intersex Diversity

Thu, 03/26/2015 - 12:18pm

By: Saul Templeton

In the comments to my first post on Trinity Western University, it was suggested that TWU should be given the benefit of the doubt concerning its policy on admitting trans students (or, more accurately, its lack of any policy on this issue). Perhaps TWU simply has not considered whether and if it would admit trans students, and joint submissions could be made to TWU on why it ought to admit trans students.

I appreciate the sincerity of this offer. However, I must respectfully counter that accepting trans students in principle would solve none of the problems with TWU’s Community Covenant. I raised the question of what TWU would do with trans students and applicants in a previous post because there are really two issues here: (1) would TWU accept trans people at all, even if they were married and sexually active with their spouses; and (2) if trans people were accepted at TWU, how could TWU possibly apply the Covenant to trans people in a way that is both logical and in accordance with biblical morality?

Trans people come with as broad a range of gender expression and sexual orientation as exists in the general population. Trans people can be straight, gay, asexual or bisexual just like cisgender (non-trans) people. Many trans people do not identify as either male or female, and may be more comfortable identifying as neither binary identity, or as somewhere in between. There is currently litigation ongoing in Quebec over the ability of trans and intersex individuals’ ability to choose their gender markers on government identification. The Plaintiffs’ Amended Notice to the Attorney General in that case reflects some of the range of binary and non-binary identities within both the trans and intersex communities.

For the sake of simplicity, here I will just use the examples of straight trans men and gay trans men to illustrate how absurd it is to try to enforce gender-based prohibitions on sex to the spectrum of gender identity and expression that exists in the real world.

To define my terms: trans men are people who were assigned female at birth but identify as male. A straight trans man would only be interested in sexual interaction with women; a gay trans man would only be interested in sexual interaction with men. The reality is much more complicated of course because many trans people are not attracted solely to one form of gender expression, and trans people may be attracted to other trans people. A straight trans man might be interested in both cisgender and trans women, regardless of how far (or whether) a trans woman pursues medical transition. A gay trans man might be interested in both cisgender men and trans men, regardless of the physical configuration of either category of male-identified persons.

Category 1: Straight Trans Men

Many straight trans men who can, and are willing to, undergo medical transition will end up looking like muscular pinnacles of masculinity. I assume this is the category of trans men most likely to be accepted by TWU, if they are accepted at all. When these hyper-masculine trans men marry women (cis or trans) they may indeed look to all observers like a heterosexual couple in accordance with the Covenant’s prescription of marriage between one man and one woman.

But not all trans men can, or are willing to, undergo medical transition. Some trans men have medical contraindications for taking testosterone, or their bodies may not tolerate its side effects. A trans man can identify as male without wanting to undergo hormone replacement therapy at all. For medical, personal or financial reasons, he may delay or forego hormonal and/or surgical transition entirely. Trans men who do not undergo medical transition, for whatever reason, deserve to have their gender identities respected. It is a legal requirement that these identities be respected, at least in British Columbia, Alberta and in other provinces that have struck down surgical requirements for trans people to change their gender markers (See C.F. v Alberta (Vital Statistics), 2014 ABQB 237, and Jennifer Koshan’s ABlawg post on that case). If these trans men are straight (i.e., date and marry women) they may appear to mistaken external observers as lesbians, even though they identify as male and ought to have their straight identity respected when dating women.

How would TWU deal with the latter category of trans men? In the best case scenario, TWU would respect these straight trans men as reserving sexual intimacy for marriage between one man and woman, even if these trans men do not medically transition, and even if external observers mistakenly perceive them as lesbians. Otherwise, TWU would set itself up as the arbiter of which members of its community are trans enough to have their straight sexual orientation respected under the Covenant. This would be a morally unacceptable position for TWU to take, in my view. It would not be supported by statistics on the extent of medical transition for most trans people, or by all of the trans community.

Category 2: Gay Trans Men

Here things get even more complicated. It is possible, and not incredibly uncommon, for trans men to become pregnant and give birth, even if they have been on testosterone for some time and look phenotypically male. How can the Covenant possibly accommodate this reality, if trans men are allowed to study at TWU? The Covenant specifies, “according to the Bible, sexual intimacy is reserved for marriage between one man and one woman, and within that marriage bond it is God’s intention that it be enjoyed as a means for marital intimacy and procreation”. Gay male couples can procreate through ordinary sexual intercourse, where one man is trans. So a gay male couple could be in violation of the “one man and one woman” rule, but also have sexual intercourse that is a “means for marital intimacy and procreation”. And, as in the example above, a gay trans man might be unable or unwilling to medically transition, so a gay male couple could appear to mistaken observers as heterosexual. Would only the latter kind of gay male couple be acceptable under TWU’s Covenant?

There is no biblical prescription that I am aware of for resolving these problems with enforcing the Covenant. That is why I suggested in my second TWU post that TWU might have to force students and employees to swear that they do not, and never will, identify as trans. Otherwise, TWU runs into irresolvable conflicts in any attempt to enforce the Covenant against trans people.

Intersex Individuals: One of Many Possible Examples

We could assume for simplicity that TWU would accept married, sexually active trans students only if they had medically transitioned and only if they identified as heterosexual. (Although this would not be a logically or morally defensible position, for the reasons outlined above). If TWU took this position, it might be defensible under the Covenant and would not be logically inconsistent with denying gay and lesbian equality. However, this still does not answer the issue raised in my second TWU post of what TWU would do about existing and future students who are intersex. As pointed out earlier, it is not an option for intersex students to simply attend another university, since they might discover their intersex status while studying at TWU, and after they are already married. (And query whether such students should be required to seek education elsewhere even if they are aware of their intersex status when applying to TWU, assuming they meet all other criteria for admission and hold beliefs in accordance with the Covenant). There are documented cases of mistaken homosexual marriage dating back to at least the late-nineteenth century, resulting from intersex difference and that doctors tried, and often failed, to break up. It would be discriminatory to expel, or reject an application from, an intersex person because TWU deems their marriage to be “same sex”. And if TWU decides not to discriminate against intersex people because of their choice of marriage partner, it cannot defensibly continue to discriminate against gay and lesbian married couples.

I did not want to get into medical details in these blog posts, but it seems necessary at this point to provide at least one example of intersex persons who could suffer harm from TWU’s Covenant. And again, if TWU makes exceptions for intersex students, it is absurd to not also make exceptions for gays and lesbians.

There are many ways a person could experience intersex difference, either from a variation in sex chromosomes or from other natural causes of intersex difference in phenotypical development. Some people with XY chromosomes (that we would usually consider to correspond with the male sex) have androgen insensitivity syndrome (AIS). A person could be mildly, partially or completely insensitive to androgens: this means their cells will be partly or completely unresponsive to masculinizing hormones like testosterone. Such an individual with the typical “male” XY chromosomes may develop testes that produce androgens, but may develop to otherwise appear female.

AIS was the subject of an episode of House, MD that has been sharply criticized by members of the Intersex Society of North America (ISNA) for homophobia and for its complete disregard of gender identity as independent from sex chromosomes. House misgenders his patient, calling her male because her chromosomes and genetics supposedly determine her gender. According to the ISNA, individuals with AIS are “clearly women”; but the ISNA still advocates against the surgical removal of the testes of a person with AIS in infancy. Instead, the ISNA recommends waiting to offer surgery until an individual with AIS can make an informed decision about whether or not to accept surgical intervention. Gender identity must be left for the individual to determine – for those with AIS and indeed for the general population as well.

Whom would TWU permit an individual with XY sex chromosomes and testes, but presenting as phenotypically female, to marry? Why should this be any of TWU’s business, and why should we even find it necessary to ask these questions? It is only because TWU defines marriage as between “one man and one woman” that these questions arise – and because the definitions of “man” and “woman” are not watertight compartments. In my view, it would be unacceptable for TWU to place any restriction on the marital options of a person with XY chromosomes and AIS. Intersex people must be permitted to define their own gender identity, and must be permitted to marry people of any sex, binary or otherwise. But if intersex people are given this free rein to determine their own gender and the gender of those they pursue as life partners, it follows that everyone else must be permitted the same freedoms.

Here is another pressing question: if a person discovers their intersex difference while studying at TWU, what kind of psychological harm will be inflicted by TWU’s refusal to acknowledge any category of sex or gender outside the biblically prescribed binary? As explained in my previous post, the number of current TWU students and past alums make it almost certain that TWU has, or had and will have, intersex students. This is the case even at the lowest estimates of intersex difference in the general population of one person in 2,000. It is simply the case that there are or were, and certainly will be, intersex individuals at TWU, even if TWU’s administration sincerely believes that the bible only prescribes binary sex categories.

Will TWU expel students who appear to be in heterosexual marriages but discover they are intersex? For example, if they are in the 3% of men seeking fertility treatment who turn out to have XXY sex chromosomes? Or will it permit those students to continue their studies and preserve their marriages? I would be surprised if anyone argued that the former option is acceptable by any moral standard. If TWU takes the latter position, that intersex people should be permitted to remain in marriages that may or may not appear heterosexual to outside observers, there is no reason to deny gay, lesbian and trans people the same freedom.

Constitutional Concerns about Being “In the Company” of a Gang-Affiliate

Wed, 03/25/2015 - 10:00am

By: Sarah Burton

PDF Version: Constitutional Concerns about Being “In the Company” of a Gang-Affiliate

Legislation Commented On: Gaming and Liquor Act, RSA 2000, c G-1

Six years ago, the Province of Alberta amended the Gaming and Liquor Act, RSA 2000, c G-1 as part of a broader policy to crack down on gang related activity. Section 69.1 of the Act allows police officers to “exclude or remove from licensed premises any person the police officer believes to be associated with a gang.” Almost immediately, the amendment raised a number of serious constitutional concerns (see here). Political pressure to shut down gangs, however, proved more powerful than any protest from civil libertarians and Charter enthusiasts. Despite the multitude of objections, the amendment came into effect and has been in force since 2009.

Given this history, it strikes me as odd that the provision has never been considered (or even mentioned) in any reported decision. Why is that? Perhaps the law is not being used at all. Maybe persons who resist are being charged under different provisions, or charges are being dropped before trial. It is difficult to fill in the reasons for a gap in judicial consideration, but given the constitutional concerns that were immediately evident, the absence of any case law is a puzzling cause for concern.

This post is intended to circle back on the “gangbuster” amendment to explore what has transpired since its enactment. It also reconsiders and fleshes out questions about the amendment’s constitutionality.

Details of the Amendment

Section 69.1 of the Gaming and Liquor Act seeks to remove gang members or their affiliates from any licenced premises in Alberta. While this is a laudable goal, the means used to reach this end are problematic. Most notably, the amendment permits police officers to exclude or remove a wide range of individuals from the premises, some of whom would have very tenuous links to a gang, if any. Specifically, the law authorizes the police to remove or exclude from any licenced premises (a) gang members, (b) anyone who supports, facilitates, or associates with gangs, or (c) anyone “in the company” of (a) or (b).

This exclusionary power is triggered based on a police officer’s good faith belief. This belief can stem entirely from third party information that, for example, the targeted person was present at the scene of unlawful gang behaviour, whether or not they participated in the activity. The third party information could also indicate that a person receives benefits from a gang, or associates with someone who, in turn, associates with a gang (see subsections 69.1(4) and (5)).

If the targeted individual refuses to comply with the order of exclusion or removal, they are deemed to be a trespasser (see subsections 69.1(6) and (7)). The full text of the provision is available here (see section 69.1).

Some (Hypothetical) Fact Patterns

As outlined above, the anti-gang amendment has never been judicially considered (in a reported case at least). This interesting gap, and the consequences flowing from it, is discussed in more detail below. Before that, however, I’ve included a few hypothetical situations that would seem to fall within the four corners of the provision. These scenarios are theoretical, and are intended to give context to the law and highlight potential problem areas. The anti-gang amendment has the power to capture the following individuals:

  • The mother of a prostitute at a bar with her daughter. Prostitution is a specified unlawful behaviour associated with gangs (see section 69.1(1)(b)(ii)). The mother is in the company of someone who participates in gang activities, and may be excluded from the premises.
  • To take that example one step further, let’s suppose the prostitute lives with her mother on occasion. During those times, the mother cooks and cleans for her daughter, and lets her live rent-free. In this situation, is the mother supporting her daughter’s ability to engage in gang-related activities? If so, she may be excluded from the premises even if her daughter is not with her.
  • The ex-wife of a drug dealer eating at a restaurant. If the drug dealer is linked to a gang, a police officer is entitled to rely on the fact that the ex-wife receives benefits (e.g. spousal support payments) from a suspected gang member to conclude she is associated with the gang. As long as the restaurant is licenced to serve alcohol, her presence would trigger the amendment.
  • A former gang member at a liquor store. The law makes no reference to how recently one must have been associated with a gang in order to trigger the provision. Gang affiliation from 20 years ago may be reasonably relied on to remove a person from any licenced premises, and this would include a liquor store.
  • A witness to gang-related violence. The express wording of section 69.1(4)(a)(iii) permits a police officer to rely on a person’s mere presence, without involvement, at the scene of unlawful gang behaviour to conclude they are affiliated with a gang. This police officer does not need to have personal information on this point – third party information will suffice.

These examples highlight two issues, each of which will be discussed in more detail below:

  1. The constitutional concerns raised by this legislation, namely, overbreadth and guilt by association. Efforts to crack down on gang-related activity are undoubtedly an important and pressing objective for legislators. Having said that, section 69.1 may cast the net too wide to accomplish its goals while respecting our rights.
  1. The lack of oversight attracted by the provision. Section 69.1(5) requires police officers to act in good faith – a requirement that hopefully would weed out many of the examples provided above. One of the conundrums presented by this law, however, is that there has been no public oversight or accountability to gauge how these powers are being exercised.

Questions of Constitutionality

On its face, the anti-gang provision raises two constitutional red flags.

  • Guilt by Association

Section 69.1 plainly targets association. Its goal is to remove or exclude persons who are associated with a gang – a conclusion reached if a police officer believes that a person is “in the company” of (a) a gang member, or (b) a person who supports, facilitates or participates in gang activities.

Freedom of association is protected by section 2(d) of the Charter. It protects people’s right to associate with others “both to satisfy [their] desire for social intercourse and to realize common purposes” (Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313, 1987 CanLII 88 (SCC) at para 152, as cited in Fraser v Ontario (Attorney General), 2011 SCC 20 at para 20). While the vast majority of section 2(d) cases deal with labour disputes (see a post on several recent decisions in that area here), freedom of association is not constrained to that sphere. Any law that targets association itself will draw section 2(d) scrutiny. As Chief Justice McLachlin explained in a non-labour context, “[s]ection 2(d) will be infringed where the State precludes activity because of its associational nature” [emphasis in original removed] (Harper v Canada (Attorney General), [2004] 1 SCR 827 at para 125).

Like all Charter provisions, section 2(d) is not limitless. The first relevant limit is implicit within Chief Justice McLachlin’s quotation above. Section 2(d) inquiries in a non-labour context are focused on the state’s attack on the association itself, not the activities flowing from the association (Harper at para 126). In the present situation, however, the anti-gang amendment appears to be squarely targeting the association itself. The provision is triggered by being in the company of a suspected gang affiliate.

In addition, the right to free association only protects the freedom to join with others in lawful common pursuits (Dunmore v Ontario (Attorney General), 2001 SCC 94 at para 14). Thus, gangs have no constitutionally protected freedom to associate with each other. The anti-gang amendment, however, appears to target association that is not necessarily unlawful. It targets people who are merely in the company of others that may be gang members. Moreover, it specifically targets these individuals while they are partaking in legal activities. Thus, the amendment stands on a shaky foundation as a result of interference with the Charter-protected freedom of association.

  • Overbreadth

The second constitutional red flag raised by the anti-gang amendment is overbreadth. A law’s potential overbreadth is relevant in two areas of Charter law.

First, it arises under section 7 of the Charter. Section 7 provides that any deprivation of life, liberty or security of the person shall not occur except in accordance with the principles of fundamental justice. An overbroad law offends the principles of fundamental justice (R v Heywood, [1994] 3 SCR 761, 1994 CanLII 34 (SCC) [Heywood]; Canada (Attorney General) v Bedford, [2013] 3 SCR 1101, 2013 SCC 72; Carter v Canada (Attorney General), 2015 SCC 5).

Second, the government would have a difficult time demonstrating that an overbroad law is minimally impairing under the section 1 proportionality analysis. An overbroad law is neither minimally impairing nor proportional.

Section 69.1 may be characterized as overbroad in a number of ways:

  • It targets facilities where there is little or no threat or evidence of gang activity. One can conceptually understand why the Province would want to limit the presence of gang activities in locations like clubs, bars, or casinos. However, the law permits police officers to remove or exclude persons from any “licenced premises”. This would include liquor stores, as well as many hotels and restaurants.
  • It captures a wide spectrum of persons with very tenuous links to gang members, if any. The law applies to any person in the company of a gang member, affiliate, facilitator, or supporter. It is not difficult to imagine situations where this law could adversely impact someone who has done nothing wrong other than knowing (or standing near) a suspected gang affiliate or supporter. The relatives or former relationship partners of suspected gang affiliates would be particularly vulnerable to unfair targeting.
  • The source of information used to form the basis of the police officer’s good faith belief may not be reliable. Police officers are entitled to rely on unverified third party information to reach their belief that someone is associated with a gang. The potential for racial profiling and stereotyping to influence this process is significant. Sadly, this is not just a hypothetical problem. In 2012, the Alberta Human Rights Commission held that an Edmonton establishment discriminated against a complainant when they refused to admit him based on his race. The Panel accepted evidence that on at least one evening, bar staff were not admitting persons who looked Asian because of a “tip” about possible Asian gang activity (Simpson v Oil City Hospitality, 2012 AHRC 8). While this example involved bar staff, and not the police, it demonstrates the broad racialized undertones influencing unconfirmed “tips” about gang affiliation. It also demonstrates that such outrageous and egregious acts of discrimination and racial profiling are not theoretical, imaginary, or confined to the past.

Before concluding that this overbroad law breaches section 7 of the Charter, however, we must first determine that section 7 applies. Section 7 is only “triggered” when there is a state deprivation of life, liberty, or security of the person. Typically, it is engaged when criminal laws impose a threat of jail time (and hence, the liberty interest). Section 69.1 does not impose a direct link of imprisonment. Instead, it deems targeted persons to be trespassers that may be levied with a fine. This creates a possible, but tenuous, link to imprisonment down the road. Nonetheless, I would argue that section 69.1 restricts liberty and engages section 7, because it prohibits people from being somewhere they are otherwise entitled to be. This reasoning was adopted in the Heywood decision to conclude that a prohibition on loitering engaged section 7 (Heywood at 789-790). While Heywood dealt with public property and a more direct link of imprisonment, I would argue that its conclusion on section 7’s application applies to the present case.

Presuming a violation of section 2(d) or section 7 could be demonstrated, the Province would have a steep hill to climb to justify the violation under section 1. Section 69.1 has the ability to adversely impact many people who have done nothing wrong, including the family members of gang affiliates and other people who happen to know a suspected gang member. It also has great potential to be used in a way that targets minority groups. It is difficult to imagine a situation where a court would find that this is a minimally impairing or proportional response to the threat of gangs at a licenced premise.

The Lack of Oversight

The concerns outlined above are interesting fodder, but they are so far purely academic. Whether by design, implementation, or Crown policy, this law is simply not coming before the courts. We can only speculate as to why. Maybe it isn’t used at all, but somehow I doubt that. Perhaps it is being used as a trigger for the exercise of more serious police powers, including weapons searches. Maybe persons who resist are being charged under different provisions, or the charges are being dropped before trial. While it is impossible to conclusively determine the cause of this gap, given the interests at stake and the Charter concerns evident on the face of the legislation, the absence of any case law is unsettling.

The anti-gang amendment has the potential to be used with reasoned restraint or excessively as an abuse of power. The distinguishing feature between these two results is the requirement that a police officer act with good faith belief and on trustworthy third party information. Given the real or de facto policy of not prosecuting these cases, however, we have no idea whether or to what extent the law is being practically implemented. This is not meant to serve as a blanket criticism of the police officers who are acting in good faith to rid bars, casinos and other licenced premises of gang activity. There is no doubt that this is a worthy goal, and that police officers require sophisticated tools to deal with organized criminality. However, the constitutional uncertainty presented by this law serves no one. It is possible to support anti-gang policies, and yet oppose this hazy and imprecise exercise of power. In any situation where police powers are exercised, a consistent and systematic lack of oversight should always be a cause for concern and scrutiny.

Conclusion

The anti-gang amendment was sold as a tough on crime call to action (see here). It came into force amidst public support from Albertans who are reasonably concerned about curbing gang related violence. Given that no one wants to be seen siding with gang members and their possible affiliates, cries that this law went too far fell on unsympathetic ears. Six years out, however, it is time to objectively look at the amendment. How many people have likely been targeted by it despite a lack of any wrongdoing on their part? Who do you think they are, and how do you think they feel? I would imagine that they feel wronged and humiliated by a seemingly arbitrary exercise of police power. The anti-gang amendment may have a laudable goal, but its means and lack of oversight are alarming, and ought to be reconsidered.

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Family Justice 3.5: Fostering a Settlement-Oriented Legal Culture

Tue, 03/24/2015 - 10:00am

By: John-Paul Boyd

PDF Version: Family Justice 3.5: Fostering a Settlement-Oriented Legal Culture

This is the note on rethinking our approach to family justice that I never thought I’d find myself writing, and as a result I need to begin with an explanation and an apology. In this short post, I describe what I see as lawyers’ duties to promote settlement, to respect informed compromise and to refrain from litigating family law disputes without good and sufficient reason. First, however, I’ll explain the circumstances that have provoked me to write.

I’m involved in a number of the present efforts to reform family justice. In one particular group, I have received a certain amount of kickback when I suggest that lawyers should play a larger role at the front end of family law disputes, in order to steer as many of those disputes away from court as possible. (Well, perhaps not kickback so much as dismay.) I would invariably respond that the early involvement of lawyers would result in the parties receiving an explanation of the law and the range of likely outcomes, thereby minimizing unreasonable positions and moving the parties toward settlement, as I have described elsewhere. Although this struck me as self-evident, it is not.

I recently had the pleasure of a lengthy road trip with a colleague that gave us lots of time to talk about access to justice, the nature of the reforms required and the barriers to those reforms. I was taken aback to learn that many of the members of her local bar preferred to take adversarial positions in family law disputes, were generally disinclined to pursue out of court resolution and often took a hard line when giving independent legal advice on mediated settlements that encouraged litigation. She suggested that there were two reasons why the family law bar took this approach, firstly because litigation is where the money is (which is true), and secondly because lawyers have a duty to zealously advocate for their client’s interests (which is sort of true). Another lawyer, a leader within his province’s bar, independently made this latter point later the same day. Upon reflection, I suspect that there are other factors that explain this sort of antagonistic approach, including tradition – “this is the way we’ve always done it” – and a sort of old school lawyerly machismo that views willingness to negotiate as a sign of weakness.

Needless to say, these perspectives on the attitudes of the local bar surprised me, and as a result I must apologize for my misapprehensions and whatever scant degree of priggish self-righteousness may perchance have escaped my lips. I should also thank Rob Harvie, QC for his thoughtful comments on an earlier draft of this note.

Let me now explain, and perhaps persuade, why lawyers have a duty to promote settlement and encourage their clients toward reasonable positions, and why Dante wasn’t too far off when he placed barratry in the eighth circle of hell.

Clients in Family Law Disputes

The clients of family law lawyers are uniquely vulnerable. They are not investment bankers dispassionately considering an IPO, nor are they career criminals facing another eight months for yet another B&E. They are people who often have had no prior involvement with the justice system, who are recovering from the breakdown of a important romantic relationship, who find themselves at odds over the very things that matter most in their lives, and who have little to no knowledge of the law that applies to their dispute or the courts that will process it. By and large, they are wracked by fear and anxiety about how their dispute will turn out, what will become of their children, how they’ll make ends meet and what their futures hold.

Although most clients’ fear and anxiety will dissipate over time, the emergence of a family law dispute is a time of profound uncertainty and unease. Legal advice given in such circumstances must be delivered with the deft and delicate touch that only experience provides. The right advice, in my view, can help the client reframe his or her experience of the dispute, rein in unreasonable expectations and improve the long-term chances of settlement. The wrong advice can needlessly damn a family to the conflict and enmity litigation engenders, and risks a permanently dysfunctional co-parenting relationship.

The advice provided by a skilled family law lawyer takes into account not just the text of the applicable legislation, but the case law interpreting that legislation, the applicable common law principles and the specific circumstances of the family as described by the client. Such advice is rarely if ever exact, in the sense of if-X-then-Y; in family law matters the best that can usually be offered is the lawyer’s opinion as to the range of potential values Y might hold. Although the ultimate value of Y is unknown, the lawyer’s advice should give the client an understanding of the basic law, some expectation of what lies ahead and a sense of the limitations of probability. It has been my experience that clients invariably appreciate this sort of advice at initial consultations, regardless of whether I’d given them good news or whether I’d agreed to take their case; even those clients for whom I was unable to find a silver lining left my office with a weight off their shoulders and a palpable sense of relief. All of those clients left my office better informed about the law and range of likely outcomes.

The conduct of a file after this initial consultation requires ongoing legal advice as to the client’s options, the range of outcomes and opportunities for negotiation, adjusted to account for improvements in the information available as a result of disclosure and discovery, and the evolving circumstances of the parties and their children. The client’s emotional state has a significant impact on the advice given about options for settlement; I have consistently found that the further my clients moved toward accepting both the end of their relationship and the parameters imposed by operation of law, the more opportunities for compromise and settlement arise. Contrary to the general rush to conclusion urged by studies such as the report of the national Action Committee’s family justice working group, files that would be impossible to settle at the beginning of the case often prove remarkably tractable once the passage of time has worn away the sharp edges of the parties’ emotions. Of course, trial always remains available in the event negotiations fail.

This, mind you, is just one way of doing things. An alternative approach might be to uncritically validate the client’s fears and anxieties and take the resulting instructions without assessing: the potential fallout from carrying them out; whether they are in the client’s interests or not; their odds of success; and, their probable long-term repercussions on the client’s relationships with the opposing party, the children and the children’s extended family.

Of course, these two approaches are merely points on a continuum; I do not mean to suggest that family law lawyers either do one or the other. Some lawyers place greater emphasis on negotiation and mediation; others are more inclined to start with litigation and work toward settlement as an end game. Some are more forceful in addressing unreasonable positions; others are less willing to challenge a client’s wishes and instructions. However, the difference between these approaches is not just a matter of personal style, there are professional obligations at play as well, and it is here that my concerns lie.

Lawyers’ Duties to their Clients

My colleagues are correct that lawyers have a duty to advocate for their client’s interests. That and integrity are probably the defining professional characteristics of being a lawyer. However, where I and my colleagues’ impression of the views of their local bar differ concerns the extent to which this duty is compatible with a settlement-oriented approach.

First, lawyers’ duty is not to provide zealous advocacy, that is a concept found in, and likely unintentionally borrowed from, the Model Rules of Professional Conduct of the American Bar Association, not those of the Canadian Bar Association. Our duty as advocates is much more restrained, an attitude that is especially appropriate for those practicing family law. Rule 2.1-3(e) of the Code of Professional Conduct for British Columbia, for example, says:

A lawyer should endeavour by all fair and honourable means to obtain for a client the benefit of any and every remedy and defence that is authorized by law.

Rule 4.01(1) of the Alberta Code of Conduct says:

When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law …

The rule in Chapter IX of the Canadian Bar Association’s Code of Conduct says:

When acting as an advocate, the lawyer … must represent the client resolutely, honourably and within the limits of the law.

The job of an advocate, then, is to “endeavour” to “obtain” for the client the benefit of remedies “within the limits of the law,” and to do so in a “resolute” manner. This really doesn’t have quite the ring of “zealous” advocacy, does it?

The annotations to these rules are roughly similar between the codes. The Alberta commentary says, among other things, that:

In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will advance the client’s case … in a way that the promotes the parties’ right to a fair hearing in which justice can be done.

This too speaks of a restrained yet resolute advocacy. Lawyers must advance the issues and arguments necessary to “advance” their clients’ cases, not those necessary to “grind the opposing party into a crushing defeat.” Moreover, lawyers have a duty to present their cases in a manner that promotes the parties’ – plural! – right to a fair hearing.

Lawyers’ obligation as advocates to resolutely pursue the benefits authorized by law for their clients is set off, or supplemented, as I see it, by an obligation to pursue settlement. Rule 2.1-3(c) of the British Columbia code says:

Whenever the dispute will admit of fair settlement the client should be advised to avoid or to end the litigation.

Rule 2.02(7) of the Alberta code is a bit more forceful (emphasis added):

A lawyer must advise and encourage a client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and must discourage the client from commencing or continuing useless legal proceedings.

For an otherwise milquetoast code, those are some strong words. They are mirrored by the rule in Chapter II of the CBA code, which provides that “the lawyer must be both honest and candid when advising clients.” The sixth comment on the CBA rule says:

The lawyer should advise and encourage the client to compromise or settle a dispute whenever possible on a reasonable basis and should discourage the client from commencing or continuing useless legal proceedings.

These rules impose on lawyers a duty to “encourage” settlement “whenever possible,” providing always that the settlement be “fair” and “reasonable.”

Without a doubt, lawyers have an obligation to honourably and resolutely work toward such relief for their clients as is available under the law. This obligation, I suggest, is in no way incompatible with lawyers’ equal and ongoing obligation to pursue reasonable settlement and avoid litigation. It seems to me that the obligations are in fact complementary and that, at least in family law, the pursuit of reasonable settlement is resolute advocacy.

Lawyers’ Duties to Clients in Family Law Disputes

The litigation of family law disputes is rarely a happy and convivial affair. When a dispute heads to court, spouses who once trusted each other implicitly and gladly sacrificed their personal interests for the greater good of the whole suddenly and jarringly find themselves embroiled in an adversarial contest, and paying handsomely for the pleasure out of the equity in their home or their children’s patrimony. The negative consequences of litigation on families are legion, and are not limited to lawyers’ fees alone.

  • The intense personal rivalry engendered by litigation can entrench negative views and unreasonable positions.
  • The adoption of particularly negative views and unreasonable positions is highly predictive of repeated applications before trial, a trial that will be lengthier than usual and repeated applications after trial.
  • The negative views of parties can persist for years even after the litigation has concluded, poisoning the possibility of cooperation and constructive dialogue.
  • Parental conflict can have severe short- and long-term consequences on children, and the consequences of protracted conflict on children are far more severe than the consequences of brief periods of conflict.
  • Superior court filing fees can cause hardship for those with low incomes, as can the costs of court reporters for examinations for discovery and the reproduction of documents for disclosure.
  • The time required for pre-trial and trial processes can require lengthy periods of unpaid time off work or away from the tasks involved in self-employment.
  • The stress and uncertainty resulting from drawn out litigation can have adverse impacts on litigants’ mental and physical health.
  • Conflict and prolonged litigation can result in the loss of important relationships between litigants and their friends and extended family and between parents and their children.

Surely, the avoidance of litigation, and the concomitant hazards it brings, is in the interests of most parties to a family law dispute and in the interests of their children as well. Encouraging our clients to consider alternatives to litigation is resolute advocacy and is in no way contradictory to our obligation to achieve a result within the limits of the law.

This is not to say that litigation is not necessary. It most certainly is. Litigation is required whenever orders are needed for the protection of persons or property, to prevent a child from being abducted or relocated in advance of trial, or to resolve a truly intractable dispute between truly intractable parties, including the mentally disordered. The commencement of proceedings can also be used to exploit the disclosure and discovery provisions of the rules of court, to chivvy an uncooperative individual into negotiations and to signal the commitment of a party to a particular position. That being said, litigation should generally be eschewed whenever possible, in my view, if its myriad harmful effects on the family are to be avoided.

Thankfully, there are alternatives to court for the resolution of family law disputes, many of which are quite popular within the bar. Lawyer-to-lawyer negotiations are often successful where counsel are prepared to take a pragmatic, solution-oriented approach to the points of difference between their clients and have the maturity to acknowledge the weaknesses of their clients’ positions. Mediation, with the right mediator with the right skill set, can resolve even the most unyielding differences – I’ve even successfully mediated mobility disputes, if you can believe it – particularly if the consequence of failure is trial. I am particularly fond of the holistic approach offered by collaborative processes that address the family’s emotional needs along with their legal issues, although I acknowledge that the cost of involving the required professionals can be prohibitive at times.

What duties, then, do family law lawyers owe to their clients? In my humble and likely mistaken opinion, they are these.

  1. Lawyers owe to their clients the duty of scrupulous honesty and candour described in the CBA code. This entails obligations to: refrain from gilding the lily and exaggerating chances of success; bluntly identify areas of weakness and irrationality in the client’s position; and, explain not only the range of possible results but the range of probable results.
  2. Along with this, it seems to me that lawyers owe to their clients and the court a duty to refrain from headlong pursuit of the best possible outcome for the client in favour of the best probable outcome. This implies corollary obligations to: provide clients with a coherent cost/benefit analysis of the available options; make bona fide efforts to moderate clients’ expectations; and, consider the overall fairness of a proposed result in light of the present and future circumstances of the family as a whole.
  3. Lawyers have a duty to critically assess instructions given by the client. An instruction to jump should not be met with a query about the preferred height, but a considered analysis of the advantages and disadvantages of jumping to different altitudes, and of jumping at all, and the alternatives to jumping that might achieve the same result.
  4. I suggest that lawyers have a further duty to refrain from acting on unreasonable instructions. This ought to be a question of simple self-preservation for those wishing to avoid assessments of their accounts and protect their reputation among the bench and bar, but it also avoids unnecessarily escalating the conflict between the parties and the possibility of the client being faced with an adverse award of costs.
  5. Lawyers have a duty to consider and propose to the client options for settlement on an ongoing basis, throughout the course of the client’s file, as the parties’ emotional states shift and the family’s circumstances evolve. Different strategies for settlement will present themselves at different times and it is important to recognize when the time for evaluative mediation is ripe, when a four-way meeting will be most productive or when informal lawyer-to-lawyer discussions are all that is required.
  6. Lawyers also have a duty to respect informed compromise. All settlements require trade offs to one degree or another, and where a client freely exercises his or her discretion to effect a compromise, informed by legal advice and knowledge of the law, and in the absence of pressure or undue influence, the lawyer should respect the client’s choice. This does not mean that lawyers shouldn’t explain the range of likely outcomes – this is of course a key obligation when giving advice on a settlement – but lawyers should give some deference to the client’s decision and to refrain from encouraging litigation by unreasonable promises of vastly improved outcomes. It is not irrational to accept an outcome that is less that ideal.
  7. However, lawyers must not sell their clients short in the pursuit of settlement. As the various codes stipulate, the compromise we are directed to seek must be reasonable, and I suggest that “reasonable” might easily be defined by reference to the range of likely outcomes, taking into account the chances of a different result at trial and the cost to the client of getting to trial. A $20,000 aggregate shortfall on spousal support, for example, ought not justify a $50,000 trial even though the shortfall on its own might pass the lawyer’s impression of gross unfairness.

Now, I am well aware that litigation is where the money is. Nothing satisfies monthly billing expectations quite like a one-week trial; certainly none of the files I have resolved through negotiation, mediation or collaborative processes have ever paid as handsomely as the files that went to trial. However, the economics of a practice focusing on the pursuit of reasonable settlements are not as grim as I think most people expect, and in my experience a settlement-oriented practice yields pleasant collateral benefits from a quality of life perspective. Those adopting a settlement-oriented approach to their family law cases will need to maintain more active files to make ends meet (or satisfy the partners) than those persistently engaged in more adversarial approaches, however lawyers with such an approach deal with ex parte and short-leave applications less often, have equally fulfilling practices, are much more likely to go home before six o’clock, engage in fewer rancorous exchanges with opposing counsel, have smaller accounts receivable and are less likely to develop ulcers.

Curiously, in the end we do tend to resolve our files out of court, or in court with the assistance of a judge in a non-adversarial context. A national survey conducted by the Canadian Research Institute for Law and the Family in partnership with two prominent academics found that the bulk of lawyers’ family law files are resolved by lawyer-to-lawyer negotiations and that trial placed ahead of only arbitration and collaborative processes in the resolution of disputes:

The opinions of my colleagues suggest that these findings do not translate into how we handle initial consultations and independent legal advice on settlements, and this is where I think change is urgently required. The ultimate resolution of a file is one thing, but we have a positive duty to be settlement-minded right from the start.

The initial advice we give to our clients should be the sort of advice that identifies and discourages unreasonable expectations and dampens the flames of conflict. We should approach agreements with an attitude of respect for voluntary compromise, and accept that clients are motivated to settle by a host of intangible values in addition to their legal interests. We should discourage unnecessary litigation to the extent possible, even if it comes at the cost of a heavier personal file load. We should emphasize the need for global fairness to the family over unfair but optimal results for the individual, and address this consideration openly and frankly with our clients. We can be strong advocates for our clients while diligently pursuing our duty to encourage settlement as our codes of conduct require.

This post originally appeared on Slaw.

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What Makes a Law School Great?

Fri, 03/20/2015 - 10:00am

By: Alice Woolley

PDF Version: What Makes a Law School Great?

What makes a law school great? What should a law school curriculum seek to accomplish in light of the school’s obligations to its students, its university, the pursuit of knowledge, the profession, and society as a whole? What should a law school strive to be?

Every law school has to answer these questions one way or another, and events of the last few years – the crises of American legal education and Canadian articling, and global and technological shifts in the legal services market – have given them greater urgency.

In this post I want to share our law school’s recent efforts to answer them, and the significant curricular changes we have adopted in our attempt to bring ourselves closer to our standard for a great law school. This is not to suggest that our perspective and approach are the right ones (although I am in no way going to pretend to be neutral given I was Chair (later Co-Chair with Jennifer Koshan) of the committee leading the process). It is simply to put them out there as one law school’s view on what it should strive to be.

Our answer started at the level of general principles. In particular, we decided that a great law school program must focus on three things: competence, performance, and engagement.

Competence requires knowledge and understanding of the concepts, methods, analysis, reasoning and critical perspectives in and about law. It requires intellectual engagement and rigour, and is directly connected to the scholarly mandate of a University education. Performance requires the ability to translate knowledge into action. It is where intellect meets practice, and learning turns into judgment or – aspirationally – wisdom. Engagement requires intensity and resolution in learning, investing time and effort in preparing for and attending classes, in completing course work and through participating in extra-curricular activities.

Competence and performance are distinct yet connected. Knowing something does not wholly teach you how to use what you know. And using what you know may require abilities – communication, inter-personal skills, practice management – which are distinct from substantive knowledge. At the same time, however, performance is impossible without substantive knowledge. And the ability to use and apply substantive knowledge will deepen it.

Engagement connects to both competence and performance. To put it bluntly, the only way students will achieve competence and performance is through a program which engages them – in which they are motivated to do the work necessary to gain knowledge and to learn how translate that knowledge into action.

From that level of principle we moved to the more specific – and more difficult and contentious question – of how we could change the delivery of our program to better ensure our students are engaged in achieving both competence and performance. After a year and half of work by a Committee made up of a quarter of faculty, and another eight months of working with faculty as a whole and consulting with students, the Law Society of Alberta and the profession, we adopted significant changes to all three years of our curriculum. The new Calgary curriculum contains most of our existing courses, and maintains our strong specialization in natural resources, energy and environmental law. But it gives students more opportunities to develop performance, deepen their competence and to be engaged in their learning.

Performance-Based Learning

Traditional legal education teaches competence well. Most Canadian law school grads, including ours, have knowledge and understanding of the concepts, methods, analysis, reasoning and critical perspectives in and about law. What law schools don’t do particularly well is allow students to deepen competence through performance, or to learn the aspects of performance that are distinct from competence. The new Calgary curriculum aims to deepen competence and enhance performance. Specifically:

  • Core courses in each year will be taught entirely through Performance-Based learning (PBL). Rather than using 100% examinations, students will be evaluated through their ability to use what they’ve learned in more realistic and practical ways. PBL courses will include Legislation, Foundations in Law and Justice 1 and Foundations in Law and Justice 2 (first year), Civil Procedure, Ethical Lawyering and Negotiation (Selected Topics) (second year) and Advocacy (Selected Topics) (third year).

As an example, in Ethical Lawyering students will be evaluated through assignments that may include writing a short policy paper on a regulatory issue (e.g., ABS), drafting a law society complaint against a lawyer, drafting an originating notice to remove a lawyer for a conflict, drafting a statement of claim or defence given an allegation of professional negligence, writing a memorandum of argument in a case of ineffective assistance of counsel or writing a reflective essay on the lawyer’s obligation to pursue (or not) lawful but immoral actions for a client.

Over time the number of PBL courses will be expanded.

  • All first year doctrinal courses, and some upper year courses (in the winter term), will be taught in shorter (10 week) terms with longer class times to allow professors to use innovative and interactive teaching methods.
  • The second year Negotiation and third year Advocacy courses will be expanded to allow students to focus on particular substantive areas of their choice (e.g., Advocacy: Civil Litigation; Advocacy: The Criminal Trial, Negotiation: Contracts; Negotiation: Settling Disputes). The negotiation and advocacy skills currently taught will be linked to exercises in legal analysis, writing and research in the subject area chosen by the student.
  • Optional courses in Legal Practice will be offered. These will include courses such as Law and Technology, Entrepreneurship, Leadership, and Diversity and the Legal Profession.
  • Opportunities for students to participate in legal clinics will continue to be expanded.

Engagement

In order to foster student engagement – to encourage investment of time and effort in their legal studies – the Calgary curriculum focuses on 1) increasing student choice; 2) introducing more focused and intensive learning (to allow students to deepen their effort in one area rather than skimming the surface of several); and 3) improving scaffolding in the first year program.

  • First year will begin with a three-week introductory course, Foundations in Law and Justice 1. The course will introduce students to the structure of the legal system; reading cases and statutes; legal reasoning, analysis and communication; the role of the lawyer and critical analysis of law. The course will be taught through performance-based learning, with particular emphasis on students practicing and being evaluated on legal reasoning, analysis and communication.
  • In January of first year students will take a second three-week introductory course, Foundations in Law and Justice 2, which will cover legal research, writing and advocacy. Foundations 2 will build on the substantive law they have learned in their doctrinal courses in the first term, and give them the opportunity to deepen that learning through performance.
  • All courses in first year, and selected courses in the upper year, will be taught with varying degrees of intensity, using three week, ten week and 13 week terms, with students taking from 1-5 courses, depending on the term length.
  • Rather than taking an introductory survey course in legal theory in first year, students will be able to choose a theory course in an area of interest to them in 2L and 3L. In addition, rather than taking a required legal research course in the upper years, students will be evaluated on research through the course they choose to take to satisfy the upper year writing requirement. Finally, the Negotiation and Advocacy courses will be in an area chosen by the student, rather than simply being generic.

The Calgary curriculum will remain a work in progress. We know that some changes will in practice work out better or worse than we envisioned them. We also know that the legal services market will continue to evolve, as will the resources and technology available to us as educators. We must continue to break down artificial separation between the academy and practice, where law as a lived enterprise is viewed as irrelevant to academic inquiry, and the academic study of law is viewed as irrelevant to practical problems. Part of our answer to the question of what makes a law school great must, in the end, include a willingness to continue to strive to achieve greatness, and never to assume that we’ve done so.

This post originally appeared on Slaw.

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Trinity Western University: Policing Gender and Requiring LGBTQI+ People to Pay for It

Wed, 03/18/2015 - 10:00am

By: Saul Templeton

PDF Version: Trinity Western University: Policing Gender and Requiring LGBTQI+ People to Pay for It

This post is a follow-up to my previous post, Trinity Western University: Your Tax Dollars at Work. The first two parts respond to issues raised in the comments to that post. The first part explains my position on the “irreducible conflict” between freedom of religion and freedom from discrimination on the basis of sexual orientation. The second part deals with whether a line can, or should, be drawn between TWU and other religious institutions and charities that discriminate. (Answer: all charities that discriminate on a Charter protected ground should have their charitable status revoked where the discrimination meets the charity law test of actions contrary to public policy). The third and last part explores TWU’s history of exploiting Canada’s charitable tax credit regime.

A note on terminology: my last post referred to TWU’s treatment of gay and lesbian individuals, because the courts have really only analyzed TWU’s Covenant’s impact on those two identities in the queer community. The courts have not truly included bisexual people in their analysis, and the “T” is honoured more in its omission than its inclusion. In this post I will expand the analysis, so I use the acronym LGBTQI+, for lesbian, gay, bisexual, trans, queer/questioning, and intersex. The “+” acknowledges that there are many other identities within the queer community.

My comments here mostly expand on the “T” and the “I”. I use “trans” throughout to stand for transgender and transsexual. “Trans*” is often used to refer to a broader range of trans identities, e.g., agender and non-binary. But in this piece I am using “trans” more specifically. I will refer to non-binary identities when I am writing specifically about them. This is not intended to exclude those other identities from the conversation, but to acknowledge that my analysis is narrow. There is room for further analysis of the Covenant’s impact on other identities.

The Underlying Substantive Issue (or, “Irreducible Conflict”)

I did not raise this issue in my previous post because it is not relevant to the question of whether TWU’s charitable tax status should be revoked. (The question of whether TWU should keep its charitable tax status engages charity law, which doesn’t require a balancing of Charter rights to determine that TWU is acting contrary to public policy). However, I will provide my answer here. The “irreducible conflict” is, in my view, a mis-framing of the issues. The problem of institutional discrimination against gay and lesbian individuals runs deeper than discrimination on the basis of sexual orientation alone: the Community Covenant polices meaningless gender categories. All sexual activity cannot be categorized as either heterosexual or homosexual, because not all human beings are male or female. This is both a logical and a practical problem with the Covenant: the numbers of students and alums of TWU practically guarantee that some of their student body was, is, or will be intersex. Trans people also present a logical conundrum for the Covenant. These problems betray a further layer of discrimination on the basis of intersex difference, gender expression and gender identity. They also reveal a dilemma that makes it impossible for TWU to justify discriminating against gays and lesbians.

TWU and its supporters frame (or, in my view, mis-frame) this debate as a conflict between:

  1. Freedom to agree to abide by a set of religious prescriptions for behaviour in accordance with scripture; and
  2. Freedom to engage in sexual intercourse outside of marriage and to engage in same-sex sexual intercourse, whether in or outside of a legal marriage.

I think the above is a fair phrasing of TWU’s, and its supporters’, general position. To put it another way, TWU lumps all consensual sex acts that do not accord with its interpretation of the bible into a category of chosen behaviour, from which any person could choose to abstain.

I will assume for the sake of argument that everyone could choose not to have consensual sex outside of marriage. The real objection to TWU’s Community Covenant is that gay and lesbian individuals cannot study or work at TWU, and enjoy a healthy, consensual sex life with another adult, even if they are married to the person they are having consensual sex with. This is a violation of gay and lesbian individuals’ right to be free from discrimination on the basis of sexual orientation. To sum up simply: this debate has been framed as one of religious freedom vs. freedom from discrimination on the basis of sexual orientation.

Discrimination against gays and lesbians is, at least in part, a result of societal norms about appropriate behaviour for each gender. Society, and parts of the bible, have defined these roles as male and female. Prohibiting homosexual sex is based on the assumption that “male” and “female” are watertight compartments, and that we can always determine which compartment a person fits into. Thus, the TWU debate is as much about policing the gender binary as it is about discrimination against gays and lesbians.

The categories of male and female are probably taken for granted by most readers. They appear obvious to most people, because we are raised in a culture that divides us into two sets of social and aesthetic roles. But the categories are really only aesthetic. Gender roles vary across cultures, and there is a wide range of ways a person could be intersex that are based in biology. This is the case even if TWU community members truly believe that “male” and “female” exist as watertight compartments and that the bible requires human beings to be cast into binary roles.

Actually there is a good tax analogy here: most people who have a basic understanding of investment think they know the difference between a dividend and a capital gain. A dividend is a distribution of (usually) retained earnings from a corporation, and a capital gain arises on the disposition of capital property for proceeds of disposition in excess of what a person paid for the property. We are at the point in the academic term where, in my Tax Policy course, we demolish the idea that these categories always apply or have much meaning at all in economic terms. The implication for tax policy is that we might not bother with different tax treatment for dividends and capital gains. Some jurisdictions do, in fact, impose a flat rate of tax on all returns to savings regardless of whether they arise in the form of capital gains, dividends or interest. This is known as a dual income tax, since a separate set of rates is applied to returns to labour.

(You can ignore this paragraph if you don’t get as excited about tax analogies as I do. A simple example of the problem is that, absent complex anti-avoidance rules, a parent company might try to strip out capital gains on shares of its subsidiary by having the subsidiary distribute tax-free intercorporate dividends up to the parent company. This reduces the fair market value that a third party would pay for shares of the subsidiary, so that the subsidiary could be sold and no capital gain would arise. We have complex “safe income” rules to prevent this kind of tax avoidance. The rules attempt to carve up what part of the surplus value of the subsidiary should be treated as dividends and what part should be treated as capital gains, but the limits of each category are not obvious. Even tax practitioners cannot predict how the CRA will interpret and apply the safe income rules. This is evidenced by the practice of distributing dividends in tranches to prevent the dividend distribution from being entirely re-characterized as a capital gain.)

All sorts of creative tax planning goes into arbitraging the different tax treatment of these two types of return on investment, by trying to characterize dividends as capital gains or vice versa. But it is all an enormous waste of very talented people’s abilities. Nothing of real value to the economy is produced by all the efforts of these brilliant minds shifting assets around on paper. (Some tax planners will tell you that tax arbitrage can be a deal maker in the M&A context, but query whether it is efficient for tax loopholes to subsidize transactions that would not occur if tax laws were applied as intended. And in any case, a lawyer’s fee is simply a transaction cost. It is the businesses that provide value to the economy.)

Similarly, nothing of value is produced by policing people’s gender identities or gender expression. Not only is a great deal of effort simply wasted on enforcing the gender binary, efforts that are not productive or useful to anyone, these efforts actually harm people who do not fit within the rigid boundaries of the gender binary. (I should note here that I do not think questioning the validity of sex and gender categories would make it impossible to protect women’s rights, or enforce broader protections for gender identity and expression. It is still possible to identify specific instances of discrimination on the basis of sex and gender and address them with constitutional and legislatively mandated remedies.)

The objections here might be: first, that policing the gender binary has value to TWU’s community because it accords with TWU’s interpretation of biblical requirements; and, second, that it is actually possible to determine who is a man and who is a woman because chromosomes give us the answer. These objections are related because the first objection is rendered meaningless by my response to the second. A person’s genotype and phenotype do not actually tell us which gender a person is. Only an individual can define their own gender. Many intersex people do identify strongly with a particular gender, including binary genders. Many others strongly identify as neither sex.

There is incredible variation, occurring naturally, in the configuration of human sex chromosomes and in the development of observable human sex characteristics. Not everyone has sex chromosomes that correspond with the XX or XY categories, or even has the same combination of sex chromosomes in every cell of their body. People whose genotype and/or phenotype do not correspond with social definitions of gender categories may refer to themselves as intersex. There is no agreement on who fits into the category of intersex, just as there is no universal agreement on which people should be categorized as male or female. See the Intersex Society of North America’s website.

Some intersex people might not even be aware of being intersex until later in life. Doctors may have surgically interfered with their genitals at birth (a practice that intersex advocates continue to oppose) and therefore the person may not become aware of their intersex difference until adulthood. Furthermore, some characteristics of being intersex simply do not develop until later in life. Shon Klose was recently in the news telling their story of discovering their intersex difference as a result of a physical exam that was an entry requirement for a nursing program. The harm that was done to Klose as a result of this discovery – harm Klose suffered solely on the basis of their intersex difference – is movingly documented in their news story. The news article also points out intersex individuals may be as common as individuals with red hair, according to some estimates. (I use “their” and “they” here because the English language is evolving to accommodate the use of “their” and “they” to refer to individuals who do not identify as either male or female, or identify as somewhere in between. This is how Shon Klose self-identifies).

I was hesitant, in writing this post, to ask what would happen to an individual who was discovered to be intersex as part of the admissions process at TWU. First, because I cannot predict how TWU would decide its Community Covenant applies to someone like Shon Klose. (though I will consider some hypotheticals). But mainly I hesitate because I find it deeply troubling that someone with a non-binary gender identity might even find it necessary to ask TWU’s administration whom they are allowed to marry and engage in consensual sex with. It should not be up to a university administration to make this decision for students and staff, especially when intersex individuals already experience such extreme forms of discrimination at the hands of medical professionals and by a close-minded society more generally.

If intersex individuals are anywhere near as common as individuals with red hair (approximately 1.7% of the population), it is quite probable that there are intersex individuals enrolled at TWU right now, since its annual enrollment is approximately 4,000 students. Even one of the lowest estimates of intersex differences occurring in 1 in 2,000 people would suggest that, even if there are no intersex individuals enrolled at TWU now, some of their over 18,000 alumni are intersex. And it is likely that TWU will have intersex students in the future. (We could also ask about staff and faculty but the question of how TWU will treat its students is closer to the heart of the debate about whether TWU’s law school should be accredited).

Some of these students may not even know about their own intersex difference, and may be performing a gender role that does not accord with society’s prescriptions for people with their genotype and/or phenotype. (There may not even be a prescription, whether biblical or societal). What if one of these students is in what appears to be a marriage of one man and one woman, but then discovers their biology does not fit neatly into either category? Is sexual intimacy within this marriage no longer permitted? Has the couple already, unknowingly, violated the Covenant because they had consensual sex within marriage, but one spouse is neither “male” nor “female”? Is this marriage invalid according to the Covenant? What if the intersex spouse decides to change their gender expression to accord more closely with their feelings about their newly discovered intersex difference? Is that individual required to divorce and re-marry someone of another (supposedly opposite) sex? Divorce is also strongly discouraged by TWU’s Community Covenant, which requires members, “within marriage [to] take every reasonable step to resolve conflict and avoid divorce”.

Again, I cannot claim I am able to predict what TWU’s interpretation of the bible would require here. That TWU would have any say in an intersex student’s sex life does offend my own sense of what kindness, compassion and mercy (all characteristics that TWU members must commit to cultivate) require in the treatment of individuals who are in a vulnerable social position.

I will ask instead how TWU would treat trans individuals who either identify as trans when they apply to study at TWU, or who begin to transition as students. I will be optimistic and hope that trans students would be treated with the kindness that is a basic requirement in all religions I am aware of. I will be optimistic and assume they would not be denied an education merely for being trans. I do balk at the question of what kinds of consensual sexual relationships TWU would prescribe (or prohibit) for trans individuals who decide to marry. I do not think it is even logically sound to prescribe or prohibit consensual sexual activity according to gender categories that are rendered absurd by the range of intersex difference that occurs naturally in the human population, and by the existence of individuals who cannot survive in the gender they were assigned at birth.

To all of this one might object: the examples of intersex and trans individuals represent outliers. One could argue: freedom of religion still permits TWU to require students who do conform to a socially prescribed gender to reserve sexual intimacy for heterosexual marriage (perhaps as that is described in, e.g., Ephesians 5:22-33). I will concede that most students will probably conform to the gender binary.

However, TWU must still tackle the practical question of how it will deal with trans and intersex students. In law we are concerned with justice and human rights, but in particular we are often concerned with defending the rights of members of marginalized minorities. TWU’s student body is large enough that it almost certainly includes, or will include, trans and intersex students who may not discover or disclose their identities until they are partway through a degree. (Query what would happen if a trans person living in their true gender was “outed” while studying at TWU. Some trans people are religious, and there are Christian communities in which trans people are accepted into membership and ministry).

Individuals who are intersex or trans obviously have no choice about their sex or gender. I could give TWU the benefit of the doubt and assume it would not consider being trans, or transitioning, as a prohibited “choice”. That attitude recently resulted in the death of Leelah Alcorn in the US and is surely the source of a great deal of suffering more generally. TWU does consider homosexual sex to be a choice that gays and lesbians could refrain from making. So perhaps TWU would also consider transition optional even though that position flies in the face of scholarly and medical literature on the subject

Even if TWU rejected transition as contrary to its Covenant, it could not take the position that intersex people have chosen to be intersex. If intersex individuals do not fit into either the role of a “man” or “woman” in a marriage, the result under TWU’s Covenant would be that these individuals could never have consensual sex. (Though, as I have noted above, some intersex individuals do identify strongly with a binary sex. Query whether these intersex individuals’ identities would be subject to approval by TWU.) This prohibition would be based solely on characteristics inherent in intersex people. There is no option for many intersex people to deny their biology (even if they could deny their gender identity) and enter into a marriage that fits the Covenant’s definition. Even if TWU takes the position that the gender binary can be enforced socially, there will always be individuals who, due to inherent characteristics, do not fit in either gender box.

TWU has held steadfast to compulsory heterosexuality, even though its law school could have been accredited in Nova Scotia absent legal proceedings if it had just dropped compulsory heterosexuality from its Covenant. But we can imagine that TWU might decide to make exceptions for intersex individuals on compassionate grounds, especially if an intersex person is already married when they discover their intersex difference. The argument that “TWU is not for everyone” and that people who don’t like the Covenant should simply study somewhere else does not hold for these students. They might discover they are intersex mid-degree, and there is a compelling case to be made that they should not be expelled or forced to divorce as a result. But if sex within an intersex person’s marriage is permitted, it follows that gays and lesbians should not be excluded from marriage either.

Neither intersex people nor gays and lesbians have any choice about being LGBTQI+. So what would justify treating some sexual minorities, some of whom have no choice but to live outside biblically prescribed gender roles, with greater human dignity than others? Suggesting that gays and lesbians could simply go elsewhere, or enter into straight marriages, denies them either education or employment or a part of their humanity – a part of intersex people’s humanity that would be allowed even though it violated the Covenant. If TWU would solve this practical problem by making exceptions for intersex people and not for gays and lesbians, there would be an inconsistency in the application of its moral code. TWU would be forced to concede that the sanctity of marriage does not always arise between one man and one woman.

How will TWU resolve these conflicts? Should TWU require prospective students to undergo a physical examination and genetic test prior to acceptance at TWU? Should prospective students be made to swear an oath that they are not, and never will identify as, trans in order to prevent possible retroactive violation of the sanctity of marriage? Obviously these investigations into students’ gender and sex would constitute unacceptable invasions of privacy. But so does TWU’s interference in prescribing the gender of individuals having sex consensually behind closed doors.

I will not get into the legal details of the balancing exercises the courts have done with the Charter rights at stake in the “irreducible conflict”. However, I will suggest that the courts, including the Supreme Court of Canada, have failed to account for enough of the letters in LGBTQI+ when balancing competing rights. There is even room here for someone to do an analysis of how bisexual, questioning and genderfluid people (among others) would be impacted by the Covenant, and a deeper analysis of how trans people weigh in. But in particular the prevalence of intersex people in the population, even if we assume the lowest estimates to be correct, offers compelling arguments on the LGBTQI+ side of the scale.

No one can argue that intersex people have a choice about their intersex status. (It is rare to hear anyone argue that being gay or lesbian is a choice, but it is reasonable to assume that attitude still exists, maybe even among jurists). And, importantly, no one can argue that intersex people can just decide to study or work elsewhere, because intersex people might discover their intersex status while studying or working at TWU.

It is my hope that the next time the courts engage in the balancing of Charter rights at TWU, they at least consider the serious harm that TWU’s Covenant does to intersex people. Intersex people are already so invisible in our society that to have a university policy that does not contemplate their existence is, I think, a harm in itself. It is time for us to take seriously what gender-based prohibitions on sex do to harm the people behind the rest of the letters in “LGBTQI+”, who are so often ignored.

Drawing a Line Between TWU and Other Religious Institutions and Charities

The second issue is whether a line can be drawn, on a principled basis, between TWU and other religious institutions that espouse values restricting sexual intimacy to heterosexual relations within marriage. The answer is “yes”; there is already a large body of charity jurisprudence that makes this kind of distinction. Disputes that cannot be resolved between a taxpayer and the CRA go to the courts for resolution. As discussed in my earlier post, it is a very old principle in charity law that an organization cannot be said to be charitable if it engages in activities contrary to public policy. There is a difference between holding harmful beliefs and excluding people from higher education, not to mention that TWU is actively pursuing its right to exclude gay and lesbian people from a higher education through the media and the courts.

Revoking TWU’s charitable tax status for pursuing activities contrary to public policy would not set a precedent that would revoke the charitable tax status of all religious institutions supporting heterosexual marriage. The ordinary tests in in the Income Tax Act and in charity law jurisprudence would apply. Religious charities should have their charitable tax status revoked if more than 10% of their expenditures are on political activities (this is a simplification, see my previous post for full detail), or if they are pursuing activities contrary to public policy, as defined by the courts through hundreds of years of jurisprudence imported from the UK. It is important to note that the balancing of rights that happens in Charter litigation is not applicable to the legal test of whether an institution should lose charitable tax status.

But even if more religious institutions that actively promote intolerance were subject to audit, the broad audit would not be troubling when the tax benefits received by charities are understood as paid for by the public, including by LGBTQI+ individuals. It is the CRA’s responsibility to administer and enforce most tax laws in Canada. This responsibility includes ensuring that charities are not misusing public funds for political purposes or for activities contrary to public policy.

I point out again that charitable tax credits are considered tax expenditures. This means the federal government accounts for revenue foregone in the form of reductions to the tax bills of those entitled to the credits. This is equivalent to direct government spending: essentially, the government underwrites the charitable sector by giving tax kickbacks to donors. This increases the donors’ ability and willingness to donate, and therefore directly benefits registered charities like TWU. For a more detailed explanation of the tax expenditure concept, see my previous post. In addition to tax credits for donors, registered charities like TWU receive significant public subsidies in the form of exemptions from income tax. TWU is also exempt from property taxes that would otherwise be levied under multiple provincial statutes per section 14 of BC’s Trinity Western University Foundation Act, SBC 1989, c 82. Other taxpayers and owners of real property in BC must make up this shortfall, and therefore subsidize TWU to the extent of the tax it would otherwise pay.

Religious freedom does not extend a religious right to receive funding from the entire taxpaying public. Denying a religious organization access to public funds, in the form of tax exemptions and charitable tax credits for donors, can hardly be characterized as a curtailment of freedom of religion. Revoking charitable tax status would simply remove the requirement on all other taxpayers to subsidize the religious organization. That is a fair result if the religious organization is actively pursuing an agenda to deny LGBTQI+ people access to legal education. If TWU retains its charitable tax status, LGBTQI+ taxpayers will continue be forced to subsidize the only law school in Canada that explicitly discriminates against sexual minorities. In fact, LGBTQI+ taxpayers are currently underwriting TWU’s legal fees in defending its right to exclude LGBTQI+ people from accessing a legal education at TWU.

A further objection was raised that the reasons I am calling for the revocation of TWU’s charitable status could apply to any charity that discriminates on a Charter-protected ground. That is accurate, but not problematic. Law professors in the US have identified a principle in US law, similar to our own “contrary to public policy” test, that should be used to revoke the tax-exempt status of racist fraternities. But the US faces the same problem we do: the IRS, like the CRA, cannot audit every organization claiming tax benefits.

The example given in the Canadian context was that the Vancouver Rape Relief Society, and other women’s shelters that discriminate against trans women on the basis of gender, could lose their charitable tax status. I think the comment I already made on this point is worth repeating here, since trans women are subjected to some of the most egregious forms of discrimination in our society. This has been demonstrated in Canada most recently by Senator Plett’s amendments to Bill C-279, so that in its current form trans people could be effectively banned from using public washrooms. It should be noted that these amendments are specifically intended to target trans women, not trans men. Others have pointed out, more eloquently than I could, the absurdity of these amendments, and that they are evidence of a particularly vicious form of misogyny – transmisogyny – that it is apparently acceptable to openly promote in our highest levels of government.

Here are my comments on the Vancouver Rape Relief Society:

I do think the Vancouver Rape Relief Society should lose its charitable tax status. To deny a trans woman a volunteer position in her own community, solely on the basis of gender, is a prohibited form of discrimination under the relevant human rights legislation. The BC Court of Appeal said as much in Vancouver Rape Relief Society v Nixon, 2005 BCCA 601. It simply found it could not grant Ms. Nixon relief because BC exempts non-profit organizations from the provisions that would otherwise protect her (para. 9). Maybe there would be some justice for Ms. Nixon, and all trans women, if trans people were no longer forced to subsidize the Vancouver Rape Relief Society, and its donors, with their tax dollars. So if anyone in the CRA is reading this, I hope they will also consider this comment an open letter requesting an audit of the Vancouver Rape Relief Society on the basis that it is engaging in activities contrary to public policy.

Trans women are some of the most vulnerable people in our society, since they exist at the intersection of transphobia and misogyny. In the US, the trans community lost seven trans women to murder in the first seven weeks of 2015 alone. Six of these murdered women were women of colour (see here). The prevalence of violence against trans women, particularly trans women of colour, is heartbreaking. These losses make it particularly sad, and bitterly ironic, that trans women are so often excluded from women’s shelters.

Personally, I will only donate to women’s shelters that have an explicit policy of welcoming trans women. I have this shelter’s page bookmarked in my laptop’s browser for that reason.

I would ask the reader to consider the consequences of denying shelter to a trans woman who is fleeing from violence.

TWU’s History of Exploiting Canada’s Charitable Tax Credit Regime

In the early 2000s, TWU was involved in an aggressive charitable tax credit scheme to give parents of TWU students government-funded kickbacks on tuition. (Some of the payments for which receipts were illegally issued were made by grandparents and family friends of TWU students. For simplicity I will refer to payments made by, and receipts issued to, parents or family). The scheme worked by disguising tuition payments as charitable donations by funneling them through a separate registered charity (though funds were comingled) and back to the students as “bursaries”. Students were instructed to solicit “donations” that would be made out not to TWU, but to the National Foundation for Christian Leadership (NFCL). The NFCL also funded a handful of other Christian colleges and seminaries, though the tax disputes that went through the courts involved only “donors” who contributed on behalf of students of TWU. Students received a fundraising tip sheet that included suggesting to potential payors (typically their parents), “that God does not want to see students graduate with huge burdensome student loans” (Coleman v Canada, 2010 TCC 109 at para 3. Coleman was affirmed in Ballard v Canada, 2011 FCA 82, leave to appeal refused, [2011] SCCA No 196. Note that throughout I have used quotation marks around terms the taxpayers used for the scheme, where those words do not reflect the economic reality of the situation, as this was the convention used in Ballard).

On paper, the NFCL specified that donations raised by a particular student could not be designated to reduce that particular student’s tuition. However, letters sent to students and their parents stipulated how much the students would have to raise in donations to cover 100% of their tuition and other costs – the NFCL’s fundraising material represented that raising 125% of the student’s total costs would entitle him or her to the maximum bursary amount (Coleman at para 3). The NFCL’s materials also represented that “donors” could expect to receive charitable donation tax credits covering up to 45% of payments made to the NFCL (Coleman at para 3).

Participating students received a “bursary” of 80-100% of the lesser of the value of their tuition and other costs or the value of the parents’ payments to NFCL (Coleman at paras 4 and 35). Only 5-10% of students did not receive a benefit in return for the payment they had solicited; however, in each of those cases the student was not granted a benefit because they failed to meet the criteria to qualify for funds (Ballard at para 12). These criteria set a fairly low bar: students had to, for example, pay a fee to NFCL of $25 per semester, enroll in a minimum number of courses, and maintain a cumulative grade average over 63% (Coleman at para 3).

The Tax Court of Canada, affirmed by the Federal Court of Appeal, found that these donations to the NFCL could not be characterized as “gifts” under the common law as it then applied under the relevant provisions of the Income Tax Act dealing with charitable donation tax credits (Income Tax Act s. 118.1, Ballard at para 5).

(Note that donations made after December 20, 2002 are subject to statutory rules that prevent a gift from being vitiated if the donor receives an “advantage” of 80% or less of the value of the donation. Instead, the value of the gift that can be claimed for the purposes of applying the charitable tax credit is reduced by the value of an “advantage” received in return for the donation. See s. 248(30)-(32). All the “donations” in issue in Coleman were either made prior to December 21, 2002, or the “bursary” provided to a student was well in excess of 80% of the “donation”. Therefore the common law definition of “gift” was applied to all “donations”, per s. 248(30)).

To paraphrase, a “gift” at common law occurs when:

  1. Property owned by the donor;
  2. was voluntarily transferred; and
  3. no benefit or consideration flowed back to the donor

(Coleman at para 36, citing Friedberg v Canada, [1991] FCJ No 1255).

Coleman turned on the third branch of the test. A benefit received by a donor vitiates a gift when the benefit has a sufficient link to the donation. A donor who expects a benefit in return for a donation cannot be said to have the requisite donative intent for a “gift” to be made out under common law. In Coleman, the “donors” expected a benefit in the form of a “bursary” for the TWU student who solicited the donation. Justice Campbell Miller of the Tax Court of Canada framed this expectation as follows:

What is disturbing is that the objective evidence points so very clearly to an understanding, indeed a knowledge, at the time of donation, that 80 to 100% of monies they donated would go to cover the education cost of those students who solicited the funds – primarily their offspring (Coleman, para 35).

The Federal Court of Appeal, in Ballard, upheld the decision of the Tax Court. The FCA distinguished its reasoning only on the basis that Justice Campbell Miller’s finding that there was no uncertainty about the receipt of “bursaries” was “not entirely accurate” (Ballard at para 13). However, this inaccuracy did not rise to the level of palpable and overriding error, since on the facts the “donors” before the court knew the students were within the criteria for receipt of their “bursaries”. Therefore these “donors” were certain of receipt (Ballard, paras 13 and 24). The decision of the Tax Court dismissing the appeals of the “donors” was thus upheld, such that the denial of their charitable tax credits was maintained.

Today, the NFCL is still a registered charity. However, it has received no donations in any of its fiscal periods reported on the CRA’s website back to 2010. Its only expenses in each fiscal period were professional fees under $300. This is unsurprising, since the tax credit scheme the NFCL was used for has been defunct since the Tax Court and Federal Court of Appeal’s decisions in Coleman and Ballard.

Determining that TWU’s tax credit scheme was invalid involved a different legal analysis from the one that would determine TWU’s ineligibility for charitable tax status. However, TWU’s willingness to engage in such a blatantly abusive tax credit scheme speaks to the institution’s lack of respect for the taxpaying public. It is particularly egregious that TWU would characterize tuition payments as charitable donations, because nothing about this scheme disentitled students of TWU to tuition tax credits. The scheme allowed parents and students to double-dip, since TWU’s tuition gave rise to both a charitable tax credit and a tuition tax credit.

TWU has unusually high tuition fees because of its supposed lack of public funding. In 2011, tuition fees were between $16,000 and $20,000 per year. (TWU calculates its tuition according to credit hours). There is no limit in s. 118.5 of the Income Tax Act, the section that implements the tuition tax credit, on the quantum of fees eligible for the credit. This means that TWU students are subsidized by tuition tax credits on the entire amount of their tuition. TWU fees are roughly 3 times greater than fees at other public universities in Canada. Part of the tax value of tuition amounts can be transferred to parents in the year the tuition expense is incurred. Remaining credits are carried forward to be used to offset future taxes. The credit is worth 15% of the face value of tuition fees at the federal level alone. BC adds an additional 5.05%. (Provinces calculate provincial personal credits at different rates).

The tuition tax credit effectively provides a government subsidy of roughly 20% of the full amount of TWU’s tuition fees in BC. This subsidy for TWU’s tuition continues today. TWU’s aggressive tax planning, impugned in Coleman and Ballard, just added another layer of charitable tax credits to which “donors” to the NFCL were not entitled to in the first place.

Recall that TWU claims it is a private university in order to maintain its exemption from the Charter protections for gay lesbian individuals. Trinity Western University v British Columbia College of Teachers, 2001 SCC 31 [TWU v BCCT] was released by the Supreme Court in 2001. The Coleman and Ballard decisions deal with “donations” made in 2002 and 2003. The facts in Coleman tell us that TWU was issuing these questionable charitable receipts for what were, in substance, tuition payments at least as early as 2001 (Coleman, para 16). Another source refers to the scheme being in effect since at least 2000, and an estimated total of $12 million in tax receipts issued under the scheme. I should emphasize again that the NFCL’s own promotional materials advertised that the scheme could reduce tuition costs by up to 45% (Coleman para 3). In other words, TWU and parents of TWU students knew the scheme constituted a tax subsidy to the tune of almost half of their students’ tuition, and the scheme was in fact advertised to parents that way. These receipts funded TWU’s students’ tuition directly out of public tax revenue.

Every public university in Canada is characterized as public because the government subsidizes part of students’ tuition. Yet TWU, an institution that claimed to be private when BCCT v TWU went before the Supreme Court, advertised at the same time that up to 45% of its students’ tuition could be paid for by the government for the period throughout which invalid charitable tax receipts were issued. This subsidy existed separate and apart from the subsidies TWU continues to receive from the taxpaying public through its exemptions from income and property tax, from the ability of its students to claim tuition tax credits, and its ability to issue charitable tax receipts for donations unrelated to tuition.

We can only hope that the CRA managed to collect all the inappropriately claimed tax benefits received by “donors” to the NFCL, with interest. Even if the CRA was able to recoup all the tax benefits received as a result of TWU’s exploitative tax scheme, it would have recouped those benefits from the parents of TWU students, not from TWU. Note that Coleman and Ballard, the parties reassessed by the CRA, were individual taxpayers who had made payments to the NFCL. The windfall benefit to TWU, that students were better able to afford TWU’s high tuition rates because of an illegitimate tax subsidy to students’ families, has been retained.

TWU’s willingness to exploit the Canadian tax system through aggressive (and ultimately unsound) tax planning further undermines the claim it made before the Supreme Court of Canada that it is a private institution. Aggressive tax planning made TWU better off at the expense of all Canadian taxpayers. Meanwhile the “donors” to the NFCL bore the risk of reassessment by the CRA.

In my view, the claim that TWU is a private institution is every bit as artificial as was TWU’s scheme to issue charitable tax receipts for tuition payments. Its claim that it is a charitable organization is on shaky ground, at best, as long as it discriminates against LGBTQI+ people, contrary to public policy. (See my previous post for an explanation of charity law as it applies to TWU’s charitable tax status). As discussed above, I strongly suggest the courts consider the impact of the Covenant on trans and intersex, as well as lesbian and gay students the next time they have the opportunity to comment on the balance of LGBTQI+ rights with religious freedom.

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Bringing Environmental Law Students Together: the CAELS Conference in Calgary

Mon, 03/16/2015 - 10:40am

By: Jennifer Cox

PDF Version:  Bringing Environmental Law Students Together: the CAELS Conference in Calgary

Conference Commented On: Igniting a Spark, Canadian Association of Environmental Law Societies 2015 Conference, Calgary

While many students travelled or relaxed during February’s reading week, I was fortunate enough to be a part of a group of second and first year students from the University of Calgary’s Environmental Law Society (ELS) who put together the 3rd Annual Canadian Association of Environmental Law Societies (CAELS) Conference. The two-day conference was attended by over 100 delegates from all across Canada and covered a wide array of topics with a focus on energy law.

CAELS is a Canada-wide and student-run association which gives Canadian law students a forum to discuss issues in environmental law. The conference, first held in 2013, is now a major part of this forum. ELS members attended the first two years of the CAELS conference, then held in Ottawa. We were impressed by the quality of the speakers and the discussions at the conference, and started talking about what a Calgary-led CAELS conference could look like. We wanted to bring students excited about environmental, natural resource, and energy law to Calgary to gain exposure to the city’s wealth of knowledge in that area. Led by CAELS Coordinator and second year University of Calgary law student Scott Allen, we were able to achieve that goal.

We chose the theme of “Igniting a Spark” for several reasons. First, we wanted to focus on energy law, and felt that the idea of “igniting a spark” would help to capture that idea. Second, we wanted to “ignite a spark” in every delegate.

The conference attracted delegates from across the country, including Fredericton, Victoria, Yellowknife, and everywhere in between. Approximately 70% of these attendees were students and articling students, representing eight different law schools and four non-law schools. The other 30% of delegates came from the Calgary bar, government, industry, members of First Nations, public interest groups, and a variety of other professions. Together, these varied perspectives turned the conference into the stimulating discussion we wanted it to be.

We also had incredible speakers from Alberta and across the country. They spoke on topics such as developing Liquefied Natural Gas in British Columbia, improving the pipeline approval process, assessing the effects of the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52, and recognizing the importance of aboriginal consultation. The full program, including information on each speaker, can be found here.

This conference would not have been possible without the help of many. Our sponsors from the Alberta Law Foundation and the Shell Experiential Energy Learning Program provided us with the funds to turn our idea into a successful reality. We also received extensive help from the faculty and staff at the Faculty of Law. Most notably, Assistant Professor Martin Olszynski spent hours helping us brainstorm ideas and organizing logistics, and he participated on two different panels, first as a speaker and then as a moderator. Without his and other faculty members’ help, the conference would not have obtained the breadth and depth that it did.

For more information regarding the conference, or to provide feedback about the conference, please email us at conference@caels.org.

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Where Are We Going on Standard of Review in Alberta?

Fri, 03/13/2015 - 10:00am

By: Shaun Fluker

PDF Version: Where Are We Going on Standard of Review in Alberta?

Case Commented On: Edmonton East (Capilano) Shopping Centres Limited v Edmonton (City), 2015 ABCA 85

In Edmonton East (Capilano) Shopping Centres Limited v Edmonton (City) the Court of Appeal has upheld an earlier chambers decision of Associate Chief Justice Rooke to set aside an Edmonton assessment review board decision. This ought to have been a fairly routine administrative law case, however the Court of Appeal chose to engage in the fundamentals of judicial review and purports to add a new exception to the presumption of deference I wrote about early in January 2015 on ABlawg (see Some Thoughts on the Presumption of Deference under the Dunsmuir Framework on Substantive Judicial Review). The Court of Appeal has perhaps also significantly altered the relationship between the superior courts and administrative tribunals in Alberta. I say this because on an initial glance, it is difficult to reconcile the reasoning of the Court of Appeal in this judgment with recent jurisprudence from the Supreme Court of Canada on standard of review generally and the jurisprudence in Alberta which has developed in relation to the Edmonton assessment review board itself. Administrative law scholars and practitioners will no doubt be interested to watch how this unfolds in Alberta.

In Some Thoughts on the Presumption of Deference I gave a brief overview of the fundamentals at issue in judicial review, and I won’t reiterate those at length here. Simply put, a reviewing court must arrive at its conclusion on whether to set aside a tribunal decision taking into account the rule of law which demands a measure of rigor and accountability by administrative tribunals to legal principles, but the court must also respect the intention of the legislature to empower a statutory tribunal to make legal determinations for the area in question. The standard of review chosen by the court speaks largely to which of these considerations it favours in a given case: correctness suggests more concern with the rule of law and reasonableness suggests a court deferential to legislative intent. This is proving to be a difficult exercise, as evidenced by the number of iterations the Supreme Court has given on the standard of review problem over the last couple of decades.

The administrative law issue in this case concerns the Edmonton assessment review board, a statutory tribunal empowered by Part 11 of the Municipal Government Act, RSA 2000, c M-26 to hear complaints from city taxpayers on their property assessments, typically arguing the assessed value is too high and should be reduced by the Board. Municipalities in Alberta assess property values every calendar year, and the assessed value for a property determines the amount of property tax payable by the owner to the municipality in a calendar year. In this case the Board had decided it had the authority under the Municipal Government Act to not only dismiss a complaint seeking a reduction in assessed value but also to increase the assessed valued of the complainant’s property as requested by the City during the hearing. The complainant obtained leave to appeal the Board’s decision to the Court of Queen’s Bench under section 470 of the Municipal Government Act, which provides for a right of appeal on questions of law or jurisdiction with leave of the Court. The Court of Queen’s Bench had earlier granted leave to Edmonton to appeal, and in hearing the merits of the appeal Justice Rooke concluded the applicable standard to review the Board’s decision was correctness on the basis that the Board’s determination that it could increase assessed property value was a true question of jurisdiction – one of the established exceptions to the presumption of deference owed by a reviewing court to a statutory tribunal interpreting its home legislation (see Edmonton East (Capilano) Shopping Centres Limited v Edmonton (City), 2013 ABQB 526 at paras 18-31). Justice Rooke applied the correctness standard to conclude the Municipal Government Act did not provide the Board with jurisdiction to increase the assessed value of a complainant’s property at the request of the City and thus set aside the Board’s decision (at paras 43-53).

The Court of Appeal dismisses Edmonton’s appeal, and thereby upholds Justice Rooke’s decision to set aside the Board’s decision. The Court of Appeal likewise concludes the applicable standard of review to assess the Board’s decision in this case is correctness. Given that the Court of Appeal agreed with Justice Rooke on the applicable standard of review, it isn’t clear to me why the Court did not also adopt the jurisdictional analysis provided by Justice Rooke on standard of review – which seems to fit comfortably within the articulated scope of the ‘true question of jurisdiction’ exception to the presumption of deference (as provided in the leading case Dunsmuir v New Brunswick, 2008 SCC 9 at para 59).

Instead, the Court of Appeal purports to carve out a surprising new exception to the presumption of deference owed to administrative tribunals. In the context of this case the Court rules that the statutory right of appeal set out in section 470 of the Municipal Government Act demonstrates a legislative intent for an intrusive judicial role into municipal property tax assessment, and reasons more generally as follows (at para 24):

Where the Legislature has specifically provided for a right of appeal to the ordinary courts, the Legislature clearly intended that the administrative decision maker make the initial decision, subject to review by the court. As pointed out in Pushpanathan . . . if a correctness review is not applied, this legislative scheme makes little sense. The presence of a statutory right of appeal may not invariably signal a correctness standard of review, but it is clearly enough to displace any presumption that reasonableness applies.

Some readers will observe that many statutes in Alberta create an administrative regime and include a right of appeal to the superior courts. The role of the superior courts to review statutory decisions does not rely on this right of appeal because of the inherent jurisdiction of superior courts to judicially review the exercise of statutory powers. Nonetheless it is common for modern legislation enacted by Alberta and other jurisdictions to provide for a right of appeal from statutory tribunals. If these provisions are viewed as an invitation for judicial scrutiny – as the Court seems to suggest here – then the presumption of deference has just been lost for many administrative tribunals in Alberta. This includes the Alberta Energy Regulator and the Alberta Utilities Commission, whose decisions on energy or power transmission project approvals are subject to a statutory right of appeal in section 45 of the Responsible Energy Development Act, SA 2012 c R-17.3 and section 29 of the Alberta Utilities Commission Act, SA 2007 c A-37.2 respectively. This ruling that the presence of a statutory right of appeal rebuts the presumption of deference comes as a real surprise to me.

In a similar vein, the Court of Appeal makes short work of the recent Supreme Court of Canada decisions which have that found statutory tribunals have a measure of expertise in providing interpretations of their home legislation and should presumptively be accorded deference in this regard (I reference several of these decisions in Some Thoughts on the Presumption of Deference). The Court of Appeal concludes that the Edmonton Assessment Review Board does not have expertise relative to the superior courts in interpreting the Municipal Government Act (at para 28):

…[T]he relative expertise of the tribunal and the courts is in favour of a correctness standard of review. The statutory scheme allows a taxpayer to complain to the assessment review board. That board’s particular expertise and mandate is to review issues relating to the categorization and value of property. It must necessarily interpret the statutes and regulations which cover taxation, but statutory interpretation is not the core of its expertise. The “expertise” of the tribunal is not fully engaged here. In recognition of that, the statute allows appeals on questions of law, with leave. The statute recognizes the expertise of the assessment review boards, but it also recognizes the expertise of the superior courts in the interpretation of taxing statutes. The Legislature has decided not to choose between one kind of expertise or the other; rather the Legislature has created a regime which gains the benefit of both.

The Court reaches this conclusion making no reference to the Alberta case law that suggests the Board is an expert on interpreting its home legislation (see e.g. Shepherd’s Care Foundation v Edmonton (City), 2014 ABQB 733 at paras 35-43; Edmonton (City) v Edmonton Composite Assessment Review Board, 2012 ABQB 439 at para 15). This in itself is problematic because the ability to rely on existing precedent to determine the applicable standard of review was arguably the most important contribution of Dunsmuir (at para 62) towards simplifying the standard of review analysis in Canadian administrative law. Nor does the Court engage with the jurisprudence on how to decipher the expertise of a statutory tribunal relative to the courts (see e.g. Canada (Director of Research and Investigation) v Southam, [1997] 1 SCR 748, 1997 CanLII 385 at paras 50-53 and Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at paras 28, 29).

In Some Thoughts on the Presumption of Deference I suggested that the blanket use of a presumption of deference risks overlooking the context or subtle wrinkles that arise in the exercise of statutory power. I also observed the concerns set out in concurring opinions at the Supreme Court of Canada which caution against a blanket presumption of deference towards statutory interpretation by administrative tribunals of their home legislation and assert the need for deference to rest on a more principled foundation like demonstrated expertise or familiarity of the tribunal with that legislation. One might suggest the Court of Appeal’s findings on expertise here are grounded in these concurring opinions, but we are unfortunately left to speculate in that regard because no explicit connection is made with these opinions, and the Court likewise makes no attempt to reconcile its reasons with earlier decisions of the Court of Queen’s Bench that have observed the Board as an expert in interpreting the Municipal Government Act.

The Court also notes that there are many assessment review boards operating under the Municipal Government Act – since each municipality must have one – and accordingly correctness is the appropriate standard of review to ensure consistency in the interpretation of provisions in the Act (at para 30). I remark on the tension between the need for consistency in administrative tribunal decision-making and the fact that stare decisis does not apply to administrative tribunals in Some Thoughts on the Presumption of Deference. Addressing this tension seems to be a growing problem in administrative law and, in my view, is worthy of more judicial scrutiny. Here the Court of Appeal cites Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, as authority for the proposition that where there are multiple tribunals applying the same statute, and there is a right of appeal on issues of general importance, the standard of review is correctness. However Rogers Communication involved shared authority between an administrative tribunal and the superior courts, and Justice Rothstein explicitly stated that the decision concerns situations where the statutory scheme provides for the possibility that both a tribunal and a court may decide the same legal question at first instance (at para 19). So it isn’t clear to me how Rogers Communication is good authority for establishing the correctness standard here where the issue is determinations by multiple tribunals, not the courts.

The issues of consistency in how administrative tribunals interpret legislation and whether judicial deference must rest on demonstrated – rather than presumptive – expertise are some of the more difficult issues facing substantive judicial review in administrative law post-Dunsmuir. Thus I would like to have seen more than just a few paragraphs of analysis from the Court on these points and how they support the standard of correctness in this case. I also think the Court of Appeal should have explained how the Capilano decision reconciles with recent jurisprudence from the Supreme Court on standard of review generally and the jurisprudence in Alberta which has developed in relation to the Edmonton assessment review board itself. In the absence of that analysis I think Capilano just adds (or returns us) to the confusion in regards to the standard of review in Alberta administrative law.

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Settlement Agreements Can Pose Challenges for Human Rights Commissions

Thu, 03/12/2015 - 10:00am

By: Linda McKay-Panos

PDF Version: Settlement Agreements Can Pose Challenges for Human Rights Commissions

Cases Commented On: Buterman v Greater St. Albert Regional School Division No. 29, 2014 AHRC 8; Buterman v Greater St. Albert Regional School Division No. 29, 2015 AHRC 2

It is a well-known principle that one cannot contract out of one’s human rights. For example, one cannot contract or agree to be subjected to sexual harassment in the workplace in the future. This does not, however, prevent parties from entering into settlement agreements after a human rights situation has occurred. Respondents and complainants settling claims under the Alberta Human Rights Act, RSA 2000 c A-25.5 (AHRA) agree that no further human rights complaints will be made about the current circumstances, in exchange for receiving money or other remedy. There is a long line of case law in which these settlement agreements have been upheld by the Alberta Human Rights Tribunal or the courts. The leading case that sets out the requirements for upholding a settlement agreement is Chow v Mobil Oil, 1989 ABQB 1026. The Buterman decisions demonstrate some of the access to justice challenges faced by the Alberta Human Rights Commission (AHRC) and the parties when the settlement agreement is at issue.

Jan Buterman is the president of the Trans Equality Society of Alberta (TESA). He wants to encourage all Canadians, including those who are transgender, to understand that transgender Canadians have rights. Buterman is currently working on a campaign to encourage the Senate to withdraw an amendment to a trans*-rights bill that would clarify that “everyone” and “every individual” referenced in the Canadian Charter of Rights and Freedoms include transgender people.

The facts giving rise to the Buterman decisions occurred when Jan Buterman was a substitute teacher with the Greater St. Alberta Catholic Regional Division No. 29 (“School Division”) from March to October 2008. On October 1, 2009, he complained to the AHRC that he was discriminated against in the area of employment on the grounds of gender, mental and physical disability. Buterman claimed that when he advised the School Division that he was diagnosed with gender identity disorder, and that he intended to undergo hormone therapy and sexual reassignment surgery, the School Division terminated him by removing his name from the substitute teacher roster. The School Division denied that it had discriminated against Buterman, arguing that it would be undue hardship to maintain Buterman’s employment because gender reassignment is inconsistent with the teachings of the Catholic Church.

In 2013, the School Division applied to the Court of Queen’s Bench for judicial review of the Chief Commissioner’s decision to refer the matter to a Tribunal. On a preliminary application, Madam Justice Sheila Greckol refused the Director of the Commission’s application to strike out the School Division’s application for judicial review because it was brought too late (see: Greater St. Albert Regional School Division, District No. 734 v Buterman, 2013 ABQB 485). Next, the School Division applied for judicial review of the decision of the Chief Commissioner to refer the matter to a Tribunal hearing and his decision not to refer the matter back to the Director of the Human Rights Commission for settlement purposes (see: Greater St. Albert Regional School Division District No. 734 v Buterman, 2014 ABQB 14). Madam Justice Greckol held that the Director reasonably concluded that he did not have the statutory authority to decide settlement issues at the point in the process he was requested to do so, and that the Chief Commissioner reasonably decided he did not have the authority to order the Director to decide the settlement issues. In dismissing the application for judicial review of these decisions and the decision of the Chief Commissioner to order a Tribunal hearing, Justice Greckol noted that the School Division’s activities had served only to delay a hearing on the merits (at para 183). She went on to state (at para 184):

Human rights process is not only for the lion-hearted and well-heeled conversant with litigation, but also for the timorous and impecunious – for all Albertans. The expeditious resolution of complaints becomes an issue of access to justice; justice delayed is justice denied since true, restorative remedies become increasingly elusive by effluxion of time.

The first sign that the Buterman decisions referred to in this post would be challenging was the appointment of a three-member Tribunal. In most cases, only one member sits on the Tribunal. In the past three years, I could find only one other reported case where the Tribunal consisted of more than one person. The second sign that these cases were challenging is that the three-member panel released majority (William J. Johnson, Q.C., Tribunal Chair and Joanne Archibald, B.A., LL.B., Tribunal Member) and dissenting (Sharon Lindgren-Hewlett, B.Comm., LL.B.) reasons for decision.

Buterman, 2014 Human Rights Tribunal Decision

The 2014 Buterman decision addressed whether the AHRC had lost jurisdiction over the case because of a settlement agreement between the parties. After the complaint was filed in 2009, the parties entered into a period of negotiations. On October 2, 2009, Mr. Feehan, counsel for the School Division, sent an offer of settlement to Mr. Michaud, who was then counsel for Buterman. The settlement proposed that in exchange for payment of $78,000, Buterman would withdraw his complaint and promise not to commence any further human rights complaint or legal processes arising out of the circumstances from which Buterman was removed from the substitute-teaching list, and would sign standard Release and Confidentiality clauses (Buterman, 2014, at para 13).

On November 12, 2009, Michaud replied, indicating that Buterman would not accept the offer. For the next several months, there was communication between the parties in effort to settle the matter. On September 8, 2010, Michaud wrote to Feehan expressing a desire to know whether the original offer of settlement was still open, and that if it was, Buterman was prepared to accept the offer and they would discuss the details of the settlement (at paras 14-16).

The Tribunal provides an excerpt of the letter (at para 16):

… Mr. Buterman has instructed us to notify you that he is willing to accept the proposal put forward by GSACRD on October 2, 2009 according to which GSACRD would make a conciliation payment to Mr. Buterman in the amount of $78,000. In view of GSACRD’s commitment to finding a fair and reasonable resolution, we expect that this offer is still open for acceptance notwithstanding Mr. Buterman’s earlier rejection of the offer. (emphasis added)

Feehan responded that the offer had always been open and concluded the letter with practical details such as the provision of a cheque for $78,000 in trust and the withdrawal of the human rights complaint (at para 18). There were a number of letters exchanged between Feehan and Michaud over the next several months addressing the form and requirement of three documents: withdrawal of complaint; a covenant (usually to maintain confidentiality); and a release. On January 4, 2011, Feehan wrote to Michaud and enclosed a trust cheque for $78,000, together with a request to receive the amended three documents (at para 21). On January 7, 2011, Michaud wrote to Feehan, returning the cheque and indicating there was an issue with respect to the settlement documentation that they wanted to discuss with Feehan. Until that agreement had been reached, Buterman was not prepared to accept the settlement funds (at para 22).

On March 18, 2011, Michaud wrote to Feehan to advise that he no longer represented Buterman. On April 7, 2011, Feehan wrote Buterman, indicating that the complaint had been conclusively settled with the previous counsel in 2010. Feehan explained that his firm held the cheque in trust, and attached the settlement documents to be signed and returned (at para 14). The School Division first became aware that Buterman did not want to proceed with the settlement when the media reported that he wanted to proceed to a hearing on the merits of the case (at para 25).

The three-member Tribunal was asked to determine whether a settlement had been reached between the parties on September 8, 2010. The issue then became one of contract law; whether there was offer and acceptance and what might be the impact of the parties’ failure to conclude and execute the settlement documentation. The letter of October 2, 2009 was considered to be an offer to pay a sum of money in exchange for Buterman’s withdrawal of the complaint, a promise not to pursue legal process related to his removal from the substitute teaching list, and an agreement to keep the matter confidential (at paras 28, 29).

The issue was whether the offer remained open for acceptance, even after Buterman rejected it in October, 2009. Buterman argued that the letter of September 8, 2010 was merely an inquiry about whether the money was still available and that he intended to work on other elements that might be part of an eventual settlement. The School Division argued that the exchange of correspondence between the lawyers on September 8, 2010 indicated that the offer had been accepted.

A majority of the Tribunal concluded that the offer of October 2, 2009, remained open and available for acceptance when Michaud sent the letter of September 8, 2010. The majority also concluded that the language of the letters exchanged between the lawyers indicated that the offer indeed remained available for acceptance (e.g., “willing to accept”; and “we expect that this offer is still open for acceptance notwithstanding Mr. Buterman’s earlier rejection of the offer”) (at paras 43-44). Thus, the letters exchanged satisfied the requirements of offer and acceptance such that the parties had entered into a settlement agreement on September 8, 2010 (at para 44).

While parties may reach a settlement before they complete the settlement documentation, if the terms of the documentation are significantly altered or added to, this may negate the agreement (Gilles Caron v City of Edmonton, 2014 AHRC 2 (Caron)). In Buterman, the majority was convinced that there was no evidence of addition of terms to which the parties had not previously agreed, and thus Caron was distinguished (at paras 50-1).

Based on the evidence that was before the Tribunal, it seemed clear that the parties were at the stage of completing the settlement agreement and they would then mutually pursue acceptable wording to properly record the settlement (at para 57). Further, the majority was not persuaded that the draft documents prepared by the School Division were evidence of repudiation of the agreement. Repudiation occurs when one party of the contract is relieved from the contract’s future performance by the conduct of the other party. The documents had been identified as draft in the text of the letter, and there was no insistence that the documents be returned in the form in which they had been presented (at paras 61-63).

The majority also held that the letter of April 7, 2011 was a continuation or renewal of earlier discussions and not an act of repudiation. The evidence did not support a finding that the School Division’s presentation of a draft covenant and a draft release amounted to frustration, renunciation of the settlement agreement, or a refusal to perform the obligations of the settlement agreement of September 8, 2010 (at para 66).

The majority found that the parties reached a settlement of Buterman’s complaint on September 8, 2010, and it remained for the parties to determine the outcome of their executory (not yet fully completed) settlement agreement (at para 70). Further, the Tribunal determined that it would retain jurisdiction over the matter in order to address any further issues that arose with respect to the execution (completion) of the settlement agreement (at para 71).

The dissenting Tribunal member found that there was no meeting of the minds with respect to the essential terms of the settlement. Since human rights issues are constitutional or quasi-constitutional in nature, they are very important to each party, and the nature of the human rights alleged to have been violated and the nature of any defences affect the essential terms (at paras 73-74). Further, there was insufficient evidence to establish that the three settlement documents contained terms that could be reasonably implied (at para 75). The respondent School Division was bringing the preliminary application for an order that the Tribunal had lost jurisdiction, so it had the onus of establishing that a meeting of the minds had occurred with respect to the essential terms so as to enable to find there was a final settlement agreement. This had not been established, so the application should be dismissed (at para 76).

In the alternative, the dissenting member found that the School Division had tendered potentially excessive documents to complete a settlement that did not match the terms of the final agreement previously reached, and thus had repudiated the agreement or made a counter offer. Thus, there would be no final and binding settlement agreement that would be the basis of a loss of the Commission’s jurisdiction (at para 77).

Buterman, 2015 Human Rights Tribunal Decision

The 2015 decision addressed whether the Tribunal had any remaining jurisdiction over the matter, given the course of dealings between the parties since the October 30, 2014 matter was decided.

The same three Tribunal members made a decision in February 2015 regarding the Tribunal’s jurisdiction. Once again the same Tribunal members were split two to one.

After the majority decision of October 30, 2014, the parties took the following steps with respect to the settlement (Buterman, 2015, at paras 9, 11):

  • November 3, 2014 – Tribunal was advised that the School Division would be providing the agreed sum plus interest, and a draft withdrawal, covenant and release to the complainant.
  • November 5, 2014 – School Division’s counsel provided a trust cheque and the documents to the counsel for Buterman.
  • November 6, 2014 – Buterman’s counsel returned the documents.
  • November 14, 2014 – Buterman’s counsel filed an Originating Notice in the Court of Queen’s Bench with respect to the October 30, 2014 decision. This is scheduled to be heard October 15, 2015.
  • November 17, 2014 – Buterman’s counsel requested that the Tribunal grant an adjournment and a stay of further steps, including a hearing that was scheduled for December 3 to 5, 2014 and March 25-27, 2015, to allow the appeal to be heard. School Division’s counsel consented.
  • November 21, 2014 – The Tribunal wrote to the parties asking them to address a decision regarding the finality of interim rulings: Syncrude Canada Ltd v Alberta (Human Rights and Citizenship Commission), 2008 ABCA 217.

[Syncrude Canada Ltd v Alberta (Human Rights and Citizenship Commission), 2008 ABCA 217 dealt with the principle that an interlocutory motion may or may not result in a final decision that may be appealed. Statutory appeals of interlocutory decisions are not contemplated under the AHRA. In this case, the decision that Syncrude could not be released as a party was not a final decision and the appeal was premature. When the Buterman 2014 decision is addressed on appeal, the School Division will likely argue that the appeal was premature, while Buterman’s counsel will argue that the effect of the decision was final and thus the order was subject to an appeal.]

  • November 24, 2014 – Counsel for the School Division again provided a trust cheque for the settlement amount plus interest to Buterman’s counsel, together with a waiver of all other documents that had originally been requested to be signed (i.e., the withdrawal, covenant and release). In a separate letter, School Division’s counsel indicated that it did not take these actions in order to prejudice the scheduled appeal.
  • November 28, 2014 – The Tribunal wrote to the parties indicating that the recent correspondence raised questions about the execution of the settlement agreement, whether it had been finalized and whether the complaint was settled. The Tribunal needed to consider whether it had any remaining authority to consider the merits of the case, or whether the case had been extinguished through settlement. The Tribunal indicated it would convene on December 3, 2014 in order to consider the arguments of counsel regarding whether the settlement had been finalized and whether the Tribunal had any further authority over the complaint.

The majority concluded that on October 30, 2014, the evidence showed that the parties had exchanged promises that had not been fulfilled. On November 24, 2014, when the settlement funds were sent to Buterman and the School Division waived the requirement of the withdrawal, covenant and release, the agreement was fully executed (i.e. fully completed) (at para 14).

The majority also concluded that it had no further jurisdiction over the matter. The majority noted that its decision was consistent with Chow v Mobil Oil Canada, in which the Alberta Court of Queen’s Bench held that a concluded settlement that is not in dispute is not only binding on the complainant but must also be accepted by the AHRC (at para 20).

The issue of whether Buterman had entered a settlement agreement was decided by the majority in October 30, 2014. Now that the executory settlement agreement had been executed, the tribunal was without jurisdiction to proceed with Buterman’s human rights complaint.

The dissenting Tribunal member disagreed. The School Division had forwarded a revised release, covenant and withdrawal letter and ultimately had retracted some of the terms that it had previously argued were essential terms of the final settlement agreement. Therefore, the School Division should not be allowed to come back again before the Tribunal requesting that the new agreement with different terms should be enforced as a final settlement agreement (at para 23). One party should not be allowed to unilaterally waive or change the essential terms of a final settlement agreement and then return to the Tribunal to seek another determination as to its loss of jurisdiction (at para 25).

Commentary

It appears that the School Division was very anxious to settle this case before the merits were considered. It was so anxious that it waived Buterman’s execution of all of the documents it had required (release, covenant and withdrawal). The majority held that the waiver rendered the settlement agreement, which had been held to be executory, to be executed, and caused the majority to conclude that it had lost jurisdiction. This occurred in the context of Buterman desiring the case to be considered on its merits, and his desire to educate all Canadians about transgender rights.

We should be clear about the impact of the School Division’s waiver on the case. The withdrawal of the complaint would no longer be necessary if the Tribunal held that it had lost jurisdiction, so the School Division was not really giving up anything when it waived the withdrawal requirement.

If we believe the description of the contents of the covenant provided in Buterman, 2014, it would likely have been found to be unenforceable, and thus would not have been of much use to the School Division. Confusingly, the decision seems to conflate the terms of the release with the terms of the covenant, which is likely because they are often part of one document. One term of the draft covenant, according to the superintendent of the School Division, referred to all possible forms of a Catholic school in Alberta and extended to 23 school divisions (Buterman, 2014, at para 36). It is not clear whether this refers to the covenant for confidentiality or the release of liability. Buterman believed that he was being asked to covenant not to bring any human rights complaint related to his gender identity against any school in Alberta from now until forever. This would have been of great concern to Buterman, and could have been considered illegal and unenforceable. He was also concerned about the broad confidentiality provisions in the release (Buterman, 2014, at para 52).

Buterman argued that the terms of the release were so materially altered that the School Division must have repudiated the settlement agreement. For example, additional parties were added and it appeared that it would release the School Division from liability for future violations of the AHRA. The decisions indicate that Buterman wanted to gain teaching experience, and this term implied that he would not be able to make a case against any school that refused to hire him or place him on the substitute roster because of his gender identity.

The majority held that concerns about the release and covenant were alleviated because the documents were presented in “draft” form. But, as pointed out by the dissenting member, in the human rights context, a final settlement must enable both parties to clearly understand their rights and obligations and if it does not create certainty, there can be no final settlement (Buterman, 2014, at para 76). The dissent also noted that the documents were provided to Buterman with the request to sign and return them and no mention of future possible amendments, following several months of unsuccessful negotiations between (at that time) legal counsel, and, at the time he was asked to sign he was unrepresented by counsel. In Buterman’s mind, these terms were essential and significant. It is also clear that Buterman did not think he had reached a final settlement.

Now, Buterman is not really clear on his rights and obligations going forward – for example, can he bring another human rights complaint for discrimination by a school in Alberta or is he barred? All he really knows is that his complaint against the School Division is considered settled and he did not get to have a hearing on the merits. In many human rights cases, the remedy desired is not really about money; it is about educating parties about their rights and responsibilities and having respondents acknowledge they have discriminated against someone and are obligated not to continue doing so. There is nothing in this case that indicates the School Division learned anything except how to waive settlement agreement requirements at the last minute in order to make an uncomfortable case “go away”. Hopefully, the Court of Queen’s Bench will overturn Buterman, 2014 later this year so that Buterman gets a full hearing and a remedy that is fair in light of the merits of the claim.

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Human Rights and Equality under Attack: The Difficult Challenge Ahead

Wed, 03/11/2015 - 10:00am

By: Kathleen Mahoney

PDF Version: Human Rights and Equality under Attack: The Difficult Challenge Ahead

Human rights and equality discourse is under attack in many parts of the world. The assumption that equality is a social ideal has been hijacked, hoodwinked, and misrepresented in even the most advanced human rights jurisdictions. The anti-equality discourse is being led by those with agendas that are not at all commensurate with the promotion and continuance of a human rights culture that has advanced the rights of marginalized people all over the world since the inception of the Universal Declaration of Human Rights. Errors, distortions and outright lies have tainted the discourse about the purpose and importance of human rights commissions and other implementation tools devised for the realization of human rights and equality (see Pearl Eliadis’s new book, Speaking Out on Human Rights).

What is most startling about the critics of human rights and human rights enforcement is that they are so uninterested in what is really happening. Exacerbating the problem is a biased media. Instead of being neutral reporters and commentators, a substantial portion of the media has become advocate, judge and jury against human rights and human rights machinery (see International Council on Human Rights Policy, Journalism, media and the challenge of human rights reporting (2002)). In Canada for example, the very existence of human rights commissions and some of the protections they offer against discrimination has been seriously debated in the press and in some of the highest political circles, for all the wrong reasons (see e.g. National Post, “A Bit Late for Introspection”).

What I do in this post is identify some of the false or misleading claims about human rights and their implementation and present alternative views. I believe if we are to move forward in a positive and beneficial way to protect and advance human rights for all, the attack on human rights must be directly confronted and the fundamental role of human rights in free and democratic societies clarified and understood as well as the mechanisms needed to advance and protect them.

The Need to Reinforce Fundamental Principles

A foundational premise that must inform thinking about human rights is that human rights exist for all. The idea that only some people should enjoy human rights must be firmly and absolutely rejected. The dialogue going forward only makes sense if it is centered on strengthening human rights for all, not weakening them. History has taught us that human rights cannot be downgraded, ridiculed, marginalized or devalued for some. If that happens, societies will revert to the law of the jungle where only the fittest and those with the most power, survive.

History has also taught us the second most fundamental principle, that no human rights are absolute (see e.g. Mark Cooray, Human Rights are not Absolute). The challenge for successful human rights implementation is to constantly find the right balance to maximize protection for all. When this balancing takes place it must be understood that not all humans are born equal, that asymmetrical human rights endowments are given at birth. Some are privileged by history, genetics, race, orientation, health, age, social status, sex, wealth and power. Those not so well endowed need help if the goal of universal human rights is to be realized, with all of the consequent benefits to humanity (for a discussion in the context of religious minorities, see Mitch Avila, Political Liberalism and Asymmetrical Rights for Minority Comprehensive Doctrines).

At the same time, the human rights community must come to grips with the fact that the world has changed considerably since World War II when the present international human rights system was first conceived (Anthony D’Amato, “The Concept of Human Rights in International Law” (1982) 82 Columbia Law Review 1110). Reinforcing human rights requires understanding why human rights leadership has waned (see Los Angeles Times, “Group Says Commitment to Human Rights Waning”), support for human rights around the world has decreased, and necessary resources to educate the public and enforce human rights guarantees have been steadily eroded (see George Andreopoulos and Richard Claude, eds, Human Rights Education for the Twenty-First Century).

Reclaim Respectful and Truthful Discourse about Human Rights

One of the most destructive developments for human rights has been the political co-option of them as an instrument to advance the politics of power whether this be at the state level or the level of individual actors. When human rights are used this way it is very difficult to re-claim the discourse to protect the weak from abuse.

While some aspects of human rights enforcement need improvement and deserve to be criticized, disrespectful and false claims about human rights should be recognized and named as such. For example, the election platform of the official opposition party in the last provincial election in Alberta contained a promise to dismantle the human rights commission (see here). This position was later changed when the party lost the election (see Miles Fish, “Wildrose Shifts Towards Center”, Red Deer Advocate, October 27, 2013). The Wildrose position followed a campaign in the media describing the provincial Human Rights Commission as a place of “fanatical devotion to political correctness,” and “a Kangaroo Court” that ignores rules of evidence and standards of proof, and a body that provides no protection against frivolous and vexatious law suits (see Barry Cooper, “It’s Time to Close Our Kangaroo Courts”, [Montreal] Gazette (23 October 2009)). On the basis of these false and inflammatory accusations the leader of the majority Conservatives, instead of defending the human rights legislation protecting citizens from hate speech, called for amendments to it that would significantly limit its jurisdiction, its effectiveness and its accessibility to the citizenry. The amendments were promised but never passed, and the media once again led the fight to force the government to fulfill its promise.

Other influential critics have attacked all human rights commissions in the country, calling for their destruction. For example, in a prominent Canadian national newspaper, editorialist George Jonas wrote “Kill the human rights commissions before they kill our freedoms.” His astonishing assertion was that human rights commissions exist to deny the very human rights the state constitutionally guarantees to people. He failed to tell his readers that the Supreme Court of Canada has clearly stated that human rights legislation and the Charter reflect the highest Canadian values and are mutually reinforcing (For example, see Canada (Attorney General) v. Johnstone, 2013 FC 113. The result of this kind of misleading grandiloquence confuses voters, plays to their deepest fears and makes them think that denying basic human rights protection is a legitimate political goal.

The anti-human rights lament begs the question, whose freedoms are they talking about? Their rhetoric ignores the fact that human rights commissions exist to protect those who are not powerful mainstream people – those who are disadvantaged minorities because of a history of discrimination, including women who face sexism, minorities subjected to racism and gays and lesbians who are vilified and attacked. To advocate for the destruction of human rights commissions implies these groups no longer need or deserve the protection from discrimination that human rights commissions offer them. Replacing them with the myth that human rights commissions are not required conceals the reality that discrimination is endemic, widespread, harmful and debilitating to those that experience it.

In order for constructive discussions to take place about the path ahead for human rights, the dialogue must be reclaimed to reflect the fundamental working assumption that equality has not been achieved, that discrimination exists and that the goal is to improve our institutions and laws in order to achieve equality. The methods to achieve these goals certainly should be debated but we debate the premise that the protection of human rights is essential to making governments more democratic and the world a better place to live at the peril of reverting back to an intolerant and abusive past.

Another related example of misleading rhetoric – the accusation made by the right wing media that human rights commissions are places for “political correctness fanatics” – cannot withstand scrutiny. The accusation of “political correctness” conveys the view that some people or groups of people are imposing a certain way of thinking on everyone backed up by draconian human rights enforcement mechanisms. In this discourse, the “bad guys” who advocate for human rights and equality, whether that be through multiculturalism, feminism, gay rights, indigenous rights, environmental rights or human rights commissions, are lumped into a single, evil conspiracy.

The “political correctness” canard has been successfully marketed to the general public as a catchall put down permeating our culture like no other sound bite of recent memory. “Political correctness” has essentially become a powerful conspiracy theory to manipulate resentment against all progressive thinkers (see John K. Wilson, The Myth of Political Correctness). Following the “political correctness” ideology to its end leads believers to the conclusion that the true victims of oppression are those accused of human rights violations. This inversion of reality says these “victims,” usually conservative white male Christians, are oppressed by politically correct feminists and minorities who violate their freedom of speech, religion, business choices or other “freedoms” they feel they should enjoy. The difference between the old victims and the new reactionary white male “victims,” is that the new victims are not victims at all. They are still the same privileged people they have always been.

Like most conspiracy theories, distortions like this abound in the discourse. The accusation of “political correctness” feeds on exaggerated and misleading anecdotes, not facts. The litany of scattered anecdotes used to justify the claim of “political correctness” fail to demonstrate the central claim that there is a national pattern of repression by those advocating for human rights. But by force of repetition, the anecdotes are woven into tales and the tales become more important than reality.

A recent example of this in Canada was the media commentary about a human rights complaint filed in Ontario by a woman who was denied service in a barbershop because she was female and because the barbers were not permitted by their faith to cut women’s hair. The “political correctness” tale spun by the right wing media was that radical, militant, anti-religious, lesbian feminists had used the Ontario Human Rights Commission for spiteful, “politically correct” motives against Muslim men (Ezra Levant, Gay Activists Have Met Their Match With Muslim Barbers). The real issue, fundamental to human rights, was whether those offering services to the public could discriminate on the basis of gender for religious reasons and if so, what balance could be struck between the competing rights and whether was a way to accommodate both interests. This important balancing principle was ignored in the inflammatory “political correctness” commentary that ended with a call to disband human rights commissions.

This type of media response is commonplace in anti-human rights discourse. Anecdotal tales are never examined to find out what they are really about so deeper questions about equality and human rights can be discussed. When they are closely examined, the “political correctness” tales unravel under the strain of exaggeration, deceptive omission of key facts, and occasional outright invention. What seems to matter most to the critics is not the truth, but the story – the myth of “political correctness” and the need to perpetuate it. The media, in herd-like fashion, accept the myth and race to condemn the “politically correct” mob, the central players of which are human rights advocates and human rights commissions trying to resolve problems.

There is also a curious double standard in the application of the “political correctness” label. Stories of right-wing intolerance are never mentioned in the many articles and books criticizing “politically correct” totalitarianism. The label is reserved only for those on the left. So not only is “political correctness” a fiction, it is applied in an unfair manner.

What unfortunately gets lost in this type of discourse, is the real success story of human rights legislation and human rights commissions. Even with their shortcomings, human rights commissions across Canada and elsewhere have set new workplace standards on sexual and racial harassment (Janzen v Platy, [1989] 1 SCR 1252; Robichaud v Canada (Treasury Board), [1987] 2 SCR 84); have protected thousands of women from pregnancy discrimination (Brooks v Safeway, [1989] 1 SCR 1219); have been responsible for fundamental changes to allow persons with disabilities access (Hydro-Québec v Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43; Moore v. British Columbia (Education), 2012 SCC 61); have paved the way for same sex marriage by deepening equality rights for gays and lesbians (Reference re Same-Sex Marriage, 2004 SCC 79); and have heightened awareness and corrected cases of race, religious and ethnic discrimination (Ont. Human Rights Comm. v Simpsons-Sears, [1985] 2 SCR 536).

At the international level, while human rights still enjoy support from various groups across the world seeking equality and justice, they are also the objects of suspicion in many countries due to concerns about Western power, especially in societies that were ruled by colonial powers in the West. It used to be that “acting in compliance with universal human rights” was understood as a universal standard by which states could be measured and challenged through legitimate intervention. However, when illegitimate appeals to human rights are employed for selfish reasons to justify political change and interference in the domestic affairs of other states, the door opens for the argument to be made that human rights themselves are “an essentially contested concept” (W. B. Gallie, “Essentially Contested Concepts” (1956) 56 Proceedings of the Aristotelian Society 167; see also Anne Jahren, Use and Abuse of Human Rights Discourse (2013)). When this happens, even words such as ‘equality’, ‘liberty’, ‘freedom’ and ‘democracy’ can become contested, causing further confusion. The resulting negative impacts on the intrinsic value of human rights threaten alienation from the entire human rights project.

Advancing the Human Rights Agenda

It has to be acknowledged that claims for equality now have a much wider scope than the drafters of the Universal Declaration originally imagined. With these new claims have come new controversies with respect to tensions between traditional values and human rights. Human rights advocates must be sensitive to concerns and work to explain why these newly defined rights must be protected and how they can be balanced against existing rights such as religious rights.

New understandings about the scope of human rights protection should also be balanced against enforcement mechanisms and remedies. Human rights commissions and procedures need to be re-thought. Inefficient procedures bog down and create unacceptable delays with the result that claimants are denied the access to justice that human rights commissions were created to rectify (see Thomas Buergenthal, “The Normative and Institutional Evolution of Human Rights” (1997) 19 Human Rights Quarterly 703). Exacerbating the problem are human rights enforcement mechanisms that lack independence, causing equality seekers to lose confidence in them, especially those with complaints against the government or those who do not share the government’s political views. A more contextualized and nuanced procedural approach would go some distance to bringing needed reforms to the promotion and implementation of human rights around the world.

Independence and local relevance would be enhanced if regions and communities were empowered to play a role in ensuring strong, accessible and responsive human rights systems. This could include the provision of services for claimants, advocacy, the development of strategic partnerships with community organizations and establishments of test case funds to achieve systemic change.

Reforms should be tested on the basis of whether they will measurably advance equality and reduce discrimination at the broad, systemic level, not just at the individual level. Discrimination as understood 50 years ago was an individual problem. This view has turned out to be wrong, or at least, not effective as an underlying assumption (Buergenthal, supra). All of the studies done in the area of equality, certainly since the 1985 Royal Commission Report on Equality in Employment by Judge Rosalie Abella, point to the fact that the major problem is the widespread, deep-rooted patterns of systemic discrimination inflicted on identifiable groups of people. Any reform must therefore be looked at from this perspective (see e.g. Chaim Fershtman and Uri Gneezy, “Discrimination in a Segmented Society”; Constance Backhouse, Colour-coded: A Legal History of Racism in Canada; Fischer, Reuber and Dyke, “A Theoretical Overview and Extension of Research on Sex, Gender and Entrepreneurship”.

Governments at all levels would advance and protect human rights and increase their legitimacy if they were more proactive in building compliance cultures as public policy, including putting equality targets into human rights institutions to relieve claimants from being forced to file claims. When required, effective claims processes should ensure that the decision makers are independent and expert in human rights as opposed to being political appointees.

Conclusion

Language is a source of power, and perhaps especially so within the sphere of human rights. Despite advances in human rights, the language of human rights and its meaning has become confused and contested. Going forward, clarity, compromise and understanding should be the goal.

A thoughtful and respectful discourse is essential if citizens are to benefit from human rights protection and realize their own potential in the best ways possible. In other words, if we want to move forward in the advancement and protection of human rights, the level of debate must improve. Progressive human rights advocates must speak up, debunk the lies and distortions and clarify pressing issues that have been obscured by the angry and exaggerated pronouncements of anti-human rights advocates – issues to do with poverty, inequities in education and health care, water quality, social services and just about every public service, as well as issues to do with the promotion of hatred against minorities, especially gays and lesbians, and inequalities disadvantaged groups continue to experience throughout the world. New perspectives on the environment, marriage, equality, religion, multiculturalism, freedom of expression and other economic, social and cultural topics must be aggressively defined, defended and respected. At the same time, human rights advocates must call out and condemn countries that abuse their power by invoking human rights as an excuse to violate sovereignty of other countries for selfish gain. It must be constantly stressed that institutional, legal, constitutional and intellectual change requires democratic societies to move forward, not back, and that reversing the gains made by the human rights movement can only be counterproductive and dangerous.

It must also be acknowledged that reform in the machinery of human rights is long overdue. The processes of human rights commissions, administrative tribunals and courts need to be questioned and reformed to assure greater efficiencies to restore confidence in the human rights project. Effective enforcement will go some way to combatting the distortions and directing attention to legitimate goals and aspirations of the human rights movement and empowering the people and groups of people who seek to achieve their equality rights in whatever human rights legislation applies to them.

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Entitlements Protected by a Property Rule vs Entitlements Protected by a Liability Rule; or FPIC vs Regulated Access

Tue, 03/10/2015 - 10:00am

By: Nigel Bankes

PDF Version: Entitlements Protected by a Property Rule vs Entitlements Protected by a Liability Rule; or FPIC vs Regulated Access

Case Commented On: Sproule v Altalink Management Ltd, 2015 ABQB 153

AltaLink is building a transmission line to connect new wind generation in southern Alberta to the grid. The routing and construction of the line was approved by the Alberta Utilities Commission. Part of the line crosses private lands including lands owned by Sproule and the other parties to this appeal, and part crosses Piikani First Nation lands. Altalink reached a negotiated agreement with the Piikani First Nation but was unable to reach an agreement with Sproule et al. Accordingly, Altalink proceeded under the terms of the Surface Rights Act, RSA 2000, c. S-24 (SRA) to obtain right of entry orders and subsequently compensation orders for the different parcels.

Sproule et al appealed the compensation order on two main grounds; only the first is the subject of this post. The first ground of appeal was that the Board had wrongly refused to consider other compensation arrangements in setting the appropriate level of compensation for the Sproule et al lands. In particular, the appellants argued that the Board should have taken into account: (1) the levels of compensation that Sproule received under other agreements for wind turbines and a cell phone tower located on his land, and (2) the amounts received by the Piikani First Nation from Altalink for consenting to the transmission line crossing the Piikani Reserve. There was evidence before the Board that Altalink had been considering two routes for the transmission line, a preferred route that would cross the reserve and a second best route that avoided the reserve. The route across the reserve resulted in savings to Altalink (and ultimately to all consumers in Alberta) of about $30 million. Sproule’s evidence on appeal suggested that the Piikani received about $444,000 per mile under their agreement with Altalink (for a total of $7.45 million) whereas Sproule et al received about $60,000 per mile under the terms of the Board compensation order.

Justice Langston first held that the Board did not err in concluding that the compensation payable for the wind turbine and cell phone developments were essentially irrelevant and should be given no weight. The Board’s job was to apply the regime established by the SRA. That scheme is a liability regime and not a consent regime (i.e. a property regime): see Calabresi and Melamed, “Property Rules, Liability Rules and Inalienability: One View of the Cathedral” (1972) 85 Harvard Law Review 1089. By contrast, the applicable regime for locating wind turbines and cell phone towers on a person’s land is a consent regime (at para 39): “compensation was determined by what the landowner or their designate was able to successfully negotiate in an unfettered free market.” This seems unremarkable.

Justice Langston reached the same conclusion with respect to Altalink’s arrangements with the Piikani. He reasoned as follows:

[29] The federal government has exclusive jurisdiction over “lands reserved for Indians”: s91(24) of the Constitution Act, 1867. Section 35 of the Indian Act, RSC 1985, c I-5, states that when any provincial legislation authorizes use of land without the consent of the owner, such as the Surface Rights Act does, that power may only be exercised over reserve lands if there is consent from the Governor in Council.

[30] The end result of the Surface Rights Act, the Constitution Act, 1867, and the Indian Act is that when a transmission line is proposed to cross a reserve and to cross lands held by private individuals, First Nations, through the federal government, have the right to say “no”. The private individual does not.

Justice Langston also referred with apparent approval to a passage in the Board’s reasons to the effect that the compensation payable to the Piikani is not governed by the SRA and the compensation factors listed in that Act.

Here is the text of subsections (1) and (2) of s.35 of the Indian Act:

35 (1) Where by an Act of Parliament or a provincial legislature Her Majesty in right of a province, a municipal or local authority or a corporation is empowered to take or to use lands or any interest therein without the consent of the owner, the power may, with the consent of the Governor in Council and subject to any terms that may be prescribed by the Governor in Council, be exercised in relation to lands in a reserve or any interest therein.

(2) Unless the Governor in Council otherwise directs, all matters relating to compulsory taking or using of lands in a reserve under subsection (1) are governed by the statute by which the powers are conferred.

The first thing to note is that both subsections make the relevant provincial legislation (here the SRA) conditionally applicable to reserve lands (i.e. subject to a federal Order in Council). Second, the terms of acquisition of the lands is governed by the relevant provincial statute “unless the Governor in Council otherwise directs”. Thus while, as a matter of law, reserve lands are still vulnerable to the application of provincial legislation, as matter of practice or politics, it has long been clear that the Governor in Council will not readily consent to the compulsory acquisition of reserve land absent authorization from the First Nation. This is a de facto consent regime (free, prior informed consent (FPIC)) if not a de jure one; and it applies not only to provincial legislation but also under the terms of s.35 of the Indian Act to federal legislation such as the National Energy Board Act, RSC 1985, c. N-7. This is more remarkable since it shows how a compensation or liability regime may evolve into a consent regime over time.

It is particularly interesting to compare this outcome with the application of these ideas in the context of confirmed aboriginal title lands under the Supreme Court’s decision in Tsilhqot’in, 2014 SCC 44. From that case it is apparent that while title lands are prima facie subject to a consent regime, such a regime may be abrogated in appropriate circumstances by both federal and provincial legislation through the Court’s doctrine of justifiable infringement (see post here). This leads to the rather strange result that the politics of obtaining a federal Order in Council offers stronger protection to reserve lands (and consequential implications for the bargaining position of First Nations) than does the combination of s.35 of the Constitution Act, 1982 and the doctrine of justifiable infringement for confirmed aboriginal title lands.

All of this is food for thought in the context of the major linear infrastructure developments that the energy industry is currently rolling out across the country (and see here also my previous post on a Federal Court case dealing with Indian reserve easements for Kinder Morgan’s expansion project).

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Trinity Western University: Your Tax Dollars at Work

Mon, 03/09/2015 - 10:00am

By: Saul Templeton

PDF Version: Trinity Western University: Your Tax Dollars at Work

Case Commented On: Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25

Trinity Western University (“TWU”) claims it is a private religious institution. This is the explanation offered by the courts for denying students, staff and faculty at TWU protection under the Canadian Charter of Rights and Freedoms. This protection is denied even though it is generally accepted, even by supporters of TWU, that TWU’s Community Covenant, “indeed treat[s] LGBT people in a way that would have profoundly negative effects of [sic] their lives.” See Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25 [NS Barristers’ Society] at para 251).

What does it mean for a university to be publicly funded? I am a tax scholar, so I offer a definition supported by tax policy. TWU is publicly funded because it receives significant tax benefits as a result of its registered charity status. TWU is tax exempt, and therefore underwritten by public funding. The tax exemption is equivalent to a direct subsidy to TWU, since it represents tax revenue forgone, and governments must make up the shortfall elsewhere. TWU also issues charitable tax receipts that allow (and encourage) donors to give more money to TWU than they otherwise could, since the state gives donors a kickback on their taxes for doing so.

For reference, the objectionable terms of the Community Covenant that TWU students and employees are required to sign are as follows:

In keeping with biblical and TWU ideals, community members voluntarily abstain from the following actions:

  • sexual intimacy that violates the sacredness of marriage between a man and a woman

and,

Further, according to the Bible, sexual intimacy is reserved for marriage between one man and one woman, and within that marriage bond it is God’s intention that it be enjoyed as a means for marital intimacy and procreation.

The Community Covenant binds employees and students: “Sincerely embracing every part of this covenant is a requirement for employment. … Students sign this covenant with the commitment to abide by the expectations contained within the Community Covenant”.

How TWU’s Tax Subsidies Work

[Those who are already familiar with the mechanics of charitable tax credits and the concept of tax expenditures can safely scroll down to the next heading, “TWU’s Registered Charity Status Should Be Revoked]

In the late 1960s, Stanley Surrey, at various times a Harvard Law School professor and Assistant Secretary of the US Treasury for Tax Policy, revolutionized the world’s understanding of tax policy by identifying tax expenditures as items of government spending. It is because of Stanley Surrey’s contributions to tax policy that the Canadian Department of Finance publishes an annual Tax Expenditures and Evaluations budget, estimating the amount of revenue foregone by the Canadian government in offering various tax preferences, or expenditures.

Government revenue foregone is equivalent to spending; e.g., the Child Fitness Tax Credit is projected to cost an estimated $115,000,000 in 2013 alone. The Child Fitness Tax Credit, by reducing tax payable by taxpayers who qualify, is equivalent to writing cheques to qualifying taxpayers to the tune of a projected $115,000,000 in 2013. That is the amount the federal government would have collected from families whose children are involved in qualifying activities – but chose not to collect in order to encourage parents to enroll their children in fitness activities. Tax spending measures like the Child Fitness Tax Credit are often sold to the public as tax cuts, when they are in fact a form of government spending that reduces government revenue and therefore reduces annual surpluses, or increases annual deficits.

The federal government’s annual expenditure budget comes with some caveats. Finance’s calculations, meant to estimate the increase in revenue if the tax spending measures were removed, assume no change in the underlying tax base as a result of removing each expenditure measure addressed. Removal of one of these expenditure measures could change the behavior of taxpayers, might require other changes in government policy, and could impact the economy generally. Nevertheless, the estimates of expenditures on charitable donations are large enough to be significant even if they are not exact. Charitable donations are the very first item in the 2013 federal tax expenditure budget, and figures on expenditure estimates and projections, below, are sourced from that document unless otherwise noted.

The government has made a policy decision to underwrite private donations to charity. TWU is a registered charity. Donations to TWU qualify for the Charitable Donations Tax Credit, a tax subsidy provided to taxpayers who donate to registered charities and receive charitable donation receipts. Federally, the charitable tax donation credit is calculated as 15% of the first $200 of donations (the lowest federal rate), and 29% (the highest federal rate) of amounts donated over $200. (The highest tax rate is used to compute the tax credit for donations over $200, even if the taxpayer is not earning enough income to be taxed at the highest rate, federally). Thus, if an individual donates $1,000 to a registered charity, the federal portion of their credit will be calculated as follows:

$200 x .15

= $30

$800 x .29

= $232

Total federal credit:

$30 + $232

= $262

The value of the federal portion of the credit alone is $262: this is the amount the individual can subtract from their federal tax payable. The credit is economically equivalent to a system where there is no subtraction from tax payable, and the federal government instead writes a cheque to the taxpayer for $262. (The credit is non-refundable, so a taxpayer who would not otherwise owe taxes federally does not receive this benefit; also note the credit is available for up to 75% of an individual’s net income donated in a year, until the year of death when it can be claimed against 100% of net income).

The amount spent on reductions of tax for charitable donors by the federal government in 2013 alone is a projected $2,225,000,000, or $2.225 billion. That figure does not include the double tax benefit of donating publicly listed securities to registered charities: those donations qualify for a charitable donation tax credit and the donors are exempt from capital gains tax on any accrued gains on the shares. Charitable tax credits for the donation of publicly listed securities (it is mostly high net worth individuals who can afford to make these types of donations) are projected to cost the federal government $125,000,000 in 2013 alone, and the non-taxation of capital gains on those shares is projected to cost the federal government, and by extension all Canadian taxpayers, $32,000,000. TWU’s Schedule 5: Gifts In Kind tells us that TWU received publicly traded securities that qualified for this additional tax benefit in its 2014 fiscal period. However, the redacted version of TWU’s Registered Charity Information Return does not tell us the value of receipts issued for those securities or the total benefit to donors from the non-taxation of their capital gains.

The new federal First-Time Donor’s Super Credit, intended to incentivize first-time charitable donors, allows a total credit of 40% of the first $200 donated and 54% of donations over $200, up to $1,000. So a donation of $1,000 would yield a federal credit of $512 ($80 on the first $200 and $432 on the next $800). This figure does not include provincial credits, so that the total credit would end up refunding the charitable donor well over 50% of his or her donation. The First-Time Donor’s Super Credit is projected to cost $20,000,000 in 2013. Query who will take advantage of this credit? Low income individuals who donate for the first time (typically young people) might give $10 or $20 to a friend who is doing a bike ride for the Heart and Stroke foundation. If even such a small donation has been made since 2007, it disqualifies the taxpayer from taking advantage of the First-Time Donor’s Super Credit. I leave it to the reader to speculate on what socio-economic segment of the Canadian population can afford to give a full $1,000 as a first time donation, and claim the credit against tax otherwise payable.

Alberta has an especially generous provincial tax credit for charitable donations. We have a flat income tax rate of 10%, and we use that rate to calculate the credit for donations up to $200. We use a much higher rate of 21% for donations over $200. That high rate is intended to provide a total credit of 50% (when the 21% is combined with the federal 29% rate) of donations over $200. In combination with the First-Time Donors’ Super Credit, our provincial credit is far more generous than even a 50% credit. The provincial portion of the charitable tax donation credit in Alberta, for someone who does not qualify for the First-Time Donor’s Super Credit, on $1,000 would be calculated as follows:

$200 x .10

=$20

$800 x .21

= $168

Total Alberta Credit: $168 + $20

= $188

So for an individual resident in Alberta who does not qualify for the First-Time Donor’s Super Credit, the total tax credit available to the donor is:

$262 [federal credit] + $188 [Alberta credit]

= $450

An individual resident in Alberta who does qualify for the First-Time Donor’s Super Credit would receive the following:

$512 [federal credit plus super credit] + $188 [Alberta credit]

= $700

An individual in Alberta who qualifies for the federal First-Time Donor’s Super Credit therefore receives a tax benefit of 70% of their total donation of $1,000. The CRA has a charitable tax credit calculator for any donation amount, depending on your province of residence and whether or not you are a first time donor.

At first glance, it appears that this tax credit benefits the donor alone. However, in tax policy it is recognized that taxes and tax subsidies can be passed on to parties not legally targeted by a tax measure. For example, property taxes can be shifted from land owners to tenants with an increase in rent, and tax subsidies might not benefit the parties who are legally entitled to claim them. In my Tax Policy class, I use the example of Manitoba’s Odour-Control Tax Credit: it provides farmers with a credit for purchasing equipment that reduces odour, a negative externality that results from farming activity. But vendors of odour-control equipment might respond to this tax credit by increasing their prices, since they know farmers will be refunded part of the equipment cost by the government of Manitoba. We have no way of knowing, without further research, whether farmers or vendors of odour-control equipment benefit from the credit, even though farmers are legally entitled to claim the credit on their tax returns.

Similarly, it is generally assumed that the charitable donation tax credit benefits charities: the tax credit increases the ability of donors to give. Donors know they will receive some proportion of their donation back in the form of a reduced tax liability, and therefore can afford to give more. The federal and provincial governments, through charitable donation tax credits, are underwriting the charitable sector. Through tax dollars foregone by the government, all Canadian taxpayers are increasing the donation power of high-income individuals to charities.

One argument to justify this spending might be that it gives some control over social spending back to individual taxpayers. (The private sector is thought to distribute resources in the economy more efficiently than the government does). It is also an incentive to donate. However, in the US it has been noted that high-income individuals have a tendency to donate their wealth to causes that benefit other privileged individuals: for example, arts and education. High-income individuals also donate less, as a percentage of total income. Query whether, in a system where an incidental purpose of the income tax is to redistribute income, the government should use public funds to underwrite charitable donations that wealthy individuals make to benefit other relatively privileged individuals. Query whether TWU, as a registered charity, should also be exempt from income tax while its donors receive generous tax credits. While the Canadian Department of Finance does not estimate the value of the income tax exemption for registered charities, the revenue forgone in the non-taxation of other non-profit organizations is estimated. I would side with the literature in the US (e.g., Austin Caster, ““Charitable” Discrimination: Why Taxpayers Should Not Have to Fund 501(C)(3) Organizations that Discriminate Against LGBT Employees” (2011) 24 Regent University L Rev 403), that considers the non-taxation of charitable organizations to be an expenditure no different from the non-taxation of other non-profit entities.

TWU’s Registered Charity Status Should Be Revoked

All of this is troubling when considering the debate over whether TWU is entitled to a law school accredited by bar associations across Canada because TWU is a registered charity. It can issue charitable donation receipts that entitle donors to the credits described above. All registered charities have to file Registered Charity Information Returns that are available to view in redacted form on the CRA’s website. In its 2014 fiscal period alone, TWU received $10,0585,806, or 13% of its total revenue, in donations for which a charitable receipt was issued. Donors would likely have received somewhere between 20% and 70% of their donations as a tax subsidy from the public purse. TWU also received $1,054,623 in direct government funding in 2014 alone. These figures are alarming in light of the constant refrain that TWU is a private institution, and therefore exempt from the application of the Charter (See Trinity Western University v British Columbia College of Teachers, 2001 SCC 31 [TWU v BCCT]). Canadian taxpayers do underwrite a portion of TWU’s budget.

The Canadian public should not be compelled to assist an institution that espouses values that are harmful to gay and lesbian individuals, and that excludes gay and lesbian individuals from employment and education. Note that I refer throughout to gay and lesbian rather than LGBT individuals, unless quoting another source. This is deliberate: to my knowledge no one has yet analyzed the impact of TWU’s Community Covenant on bisexual and trans individuals. The NS Barristers’ Society case uses “LGB” and “LGBT” interchangeably, sometimes within the same paragraph.

There has been a great deal of news coverage lately on the CRA’s audits of other registered charities. Allegations have been made that the CRA is targeting environmental and left-leaning charities, although without a full list of charities under audit (which the CRA cannot make public), it is impossible at this point to prove with 100% certainty that the CRA’s audit choices are a result of political interference. However, the Broadbent Institute has already come forward with a report entitled, “Stephen Harper’s CRA: Selective Audits, “Political” Activity, and Right-Leaning Charities.” No right-leaning charity has come forward to say that it is also under audit, and that alone is considered suspect. Also suspect is that some right-leaning think tanks, namely the C.D. Howe Institute and the Macdonald-Laurier Institute, claim that 0% of their spending is on political activity. These two charities have stated they are not under audit.

In order to obtain registered charity status, a charity must define its purpose as entirely within charitable purpose categories that have been defined over hundreds of years of jurisprudence. The four categories are relief of poverty, advancement of education, advancement of religion, and other purposes beneficial to the community. Canada takes its precedent on the “four heads” of charity from the UK case, Commissioners for Special Purposes of Income Tax v Pemsel, [1891] AC 531. TWU’s mandate, as written, is within the education and religion categories. However, there are further obligations to maintain registered charity status. A charity has very limited scope to engage in non-partisan political activity that is ancillary and incidental to its charitable purposes. Substantially all of a charity’s activities must be charitable (“substantially all” is interpreted by the CRA to mean 90% or more), and its activities must be legal and cannot be contrary to public policy. (See, e.g., Everywoman’s Health Centre Society (1988) v Canada, [1991] FCJ 1162 (FCA) [Everywoman’s Health Centre Society]).

Reforms to Canada’s Income Tax Act in 1986 have been understood as incorporating the CRA’s interpretation of “substantially all” activities as 90% of activities into the legislation. The reforms followed, and appeared to codify, a restrictive approach to whether political activity was “incidental”, taken by the Federal Court of Appeal in upholding the revocation of Scarborough Legal Services’ registered charity status (Samuel Singer, Reforming the Advocacy Rules in Canadian Charity Law: Legislative Amendments, Judicial Action or Administrative Discretion? (LLM Thesis, McGill University Faculty of Law, 2011) [Singer] and Re Scarborough Community Legal Services and the Queen, [1985] 2 FC 555). Courts have been known to reject a strict application of the 90% rule in other areas where “substantially all” appears in the Income Tax Act; however, in this instance the incorporation of that test by Parliament appears deliberate. Therefore, it might be difficult to argue that TWU’s legal fees and other expenditures to uphold the legality of a discriminatory policy cause it to fail the “substantially all” test if they represent less than 10% of TWU’s expenditures.

The Income Tax Act deems an expenditure on political activities to be non-charitable (ss. 149.1(1.1)). A charitable foundation will be considered to be constituted for charitable purposes to the extent of resources devoted to political activities where the charity devotes substantially all of its resources to charitable purposes and the political activities are ancillary and incidental to its charitable purposes (ss. 149.1(6.1); the provision for a “charitable organization” is similar, ss. 149.1(6.2). These are the provisions introduced in the 1986 reforms). There is much debate in the charity law literature over whether the “ancillary and incidental” test has superseded the “substantially all”/90% test in charity law jurisprudence. (For a summary and discussion see Singer, supra). Can it be said that TWU’s activities to defend its right to exclude gay and lesbian students are “ancillary and incidental” to its charitable purposes, when these activities are what TWU is currently best-known for in the media, in Canada and even in the US?

TWU’s Political Activities

TWU is now devoting resources to appealing several law societies’ refusals to accredit TWU’s proposed law school. Arguably, such resources are being spent to defend and not promote TWU’s discriminatory Community Covenant. The funds are being spent to ensure, from TWU’s perspective, that the legal precedent set by the Supreme Court of Canada in TWU v BCCT is applied consistently to allow its request for accreditation of its law school. The CRA’s interpretation of the jurisprudence on political activity is that it includes work to “retain” an existing law, policy, or government decision. The Nova Scotia Supreme Court decision on TWU’s law school accreditation, NS Barristers’ Society, appears to go beyond retaining existing law: it expands freedom of religion to include religious freedom to discriminate. The lopsided nature of the NS Barristers’ Society decision has also been pointed out elsewhere. Meanwhile, TWU claims it spends 0% of its budget on political activities, and therefore does not complete Schedule 7: Political Activities, when filing its Registered Charity Information Return. TWU advocates for the religious right to exclude gay and lesbian individuals, but in answer to the Information Return’s question, “Did the charity carry on any political activities during the fiscal period”? TWU has answered: “No”.

TWU’s Registered Charity Information Return does tell us that TWU carried on fundraising activities in its 2014 fiscal period, including, among other activities, “Advertisements / print / radio / TV commercials”, “Internet”, “Mail campaigns”, “Targeted contacts”, “Telephone / TV solicitations”, and, most alarming of all these, “Cause-related marketing”. What causes, exactly, was TWU marketing to solicit donations? What was the content of the solicitations TWU disseminated through such varied means? Were all these solicitations in furtherance of “Cause-related marketing”? Were those causes related to TWU’s agenda to create the first explicitly, outspokenly straights-only law school in Canada? If so, those solicitations should be categorized as political activities for the purposes of charity and tax law, since TWU is pursuing its agenda through the courts while receiving funding from Canada’s public coffers.

Something urgent and compelling must have solicited extraordinary donations to TWU in its 2014 fiscal period (the most recent period for which information is available). Of the four fiscal periods on the CRA website that list receipted charitable donations as a percentage of TWU’s total revenue, the 2014 fiscal period has significantly higher receipted donations both in absolute terms, and as a percentage of TWU’s total revenue. In absolute terms, the receipted donations in the 2014 fiscal period ($10,585,806) are almost twice the total receipted donations in the 2013 fiscal period ($5,498,766).

Why is taxpayer money funding charitable donation tax credits to TWU’s donors, who almost doubled their donations to TWU in the 2014 fiscal period? Should the $1,983,418 that TWU reports it spent on “Fundraising” in the 2014 period be properly characterized as expenses related to political activities? The only way for these questions to be answered for the taxpaying public is for the Canada Revenue Agency to audit TWU, and for TWU to agree to make public the results of that audit.

Revocation of TWU’s Registered Charity Status on Public Policy Grounds

Even if we accept that TWU’s charitable status cannot be revoked for engaging in political activities, it can still be found to be engaging in activities contrary to public policy. The prohibition on registered charities pursuing activities contrary to public policy has long been established in UK case law, and incorporated into Canadian law. (See e.g. National Anti-Vivisection Society v Inland Revenue Commissioners, [1948] AC 31 (HL) and Everywoman’s Health Centre Society, supra).

In Everywoman’s Health Centre Society, the charity appealing to keep its registered charity status was a free-standing abortion clinic. The Minister of National Revenue argued that charitable status should be revoked for lack of a public policy in favour of abortion, and lack of public consensus on whether providing abortions was a benefit to the public. The Minister argued,

in the absence of clear statements of public policy on the issue of abortion, the Society’s activities cannot be said to accord with public policy: the failure of Parliament to replace the provisions of the Criminal Code that were struck down in the Morgentaler decision, leads the respondent to submit that “it cannot be concluded that first trimester abortion by choice of the patient, while clearly legal, reflects public policy on abortion” (at para 14).

The court found that Parliament’s failure to replace the provisions on abortion struck down in R. v. Morgentaler, [1988] 1 SCR 30, could not constitute a policy. If anything, failure to repeal or replace those provisions constituted an absence of policy. Where there is no public policy for a charity to contravene, its charitable status cannot be revoked on public policy grounds:

It is one thing to act in a way which offends public policy; it is a totally different thing to act in a way which is not reflected in any, adverse or favourable, public policy. An activity simply cannot be held to be contrary to public policy where, admittedly, no such policy exists. (Everywoman’s Health Centre Society at para 15).

TWU’s activities, by contrast, contravene public policy both as embodied in the Charter and in provincial human rights legislation that protects gay and lesbian individuals from discrimination. It is true that in TWU v BCCT, the Supreme Court noted that the Charter could not apply to TWU, and that TWU was exempt from parts of BC human rights legislation (TWU v BCCT, at para 25). However, the existence of the Charter is not a mere failure to express a government policy, as was the case for the Criminal Code provisions referenced in Everywoman’s Health Centre Society. Rather, the Charter enshrines some of our most important public values in the Constitution itself. There is an explicit public policy prohibiting discrimination, both in the Charter and in human rights legislation. That policy exists despite the fact the Charter and some parts of BC human rights were found not to apply to TWU in TWU v BCCT.

An Open Letter to the Canada Revenue Agency: Audit TWU

In Canada we are waiting to find out whether TWU has the right to accreditation for its law school despite policies that discriminate against both students and employees who are gay or lesbian. In NS Barristers’ Society, TWU won an appeal of the Nova Scotia Barristers’ Society’s rejection of TWU’s accreditation application (or, more accurately, the Nova Scotia Barristers’ Society’s agreement to accreditation only if TWU’s Community Covenant was amended).

In the meantime, consider this post an open letter to the CRA. The public deserves an inquiry into how TWU is spending taxpayer money to advocate in the media, before law societies, and now in the courts, the position that it is acceptable – in fact, essential to freedom of religion – to discriminate against gay and lesbian students and staff. These activities are contrary to public policy; therefore, TWU’s charitable status should be revoked. Then the taxpaying public will no longer be compelled to fund an institution that is hostile to gay and lesbian equality.

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A Remarkable, Plain Language Judgment from the Ontario Court of Justice

Fri, 03/06/2015 - 9:00am

By: John-Paul Boyd

PDF Version: A Remarkable, Plain Language Judgment from the Ontario Court of Justice

Case Commented On: R v Armitage, 2015 ONCJ 64 (CanLII)

A few weeks ago, Mr. Justice Nakatsuru of the Ontario Court of Justice released a remarkable judgment in the case of R. v Jesse ArmitageA flood of decisions in criminal matters are released every day, and in that sense Justice Nakatsuru’s sentencing decision in Armitage was not exceptional. What sets the judgment apart are the judge’s decisions to direct his opinion to the offender and to write that opinion entirely in plain language.

Here are the first five paragraphs of Justice Nakatsuru’s judgment, in which he explains how and why he has chosen to write his judgment:

[1] This case was heard in the Gladue court at Old City Hall in Toronto. Jesse Armitage is a troubled man of Aboriginal heritage who was sentenced by me a number of months ago. At the time I gave my decision, I said that I would draft and release a written decision. This is that decision.

[2] Before I get to this, I would like to make two short comments. First of all, I want to say something about the style of this decision. For those who have read some of my past judgments, the reader may notice a change. For Jesse Armitage, I have tried to say what I wanted to say in very plain language. I believe that this is very important for judges to do in every decision. However, judges often do not do a good job of this. I would describe myself as one of the worst sinners. As lawyers first and then judges, we get used to using words that are long and complicated. This only muddies the message we are trying to say. That message is very important when it comes to passing a sentence on an offender. That the message is clear is even more important in the Gladue courtroom.

[3] I say this because in the Gladue court at Old City Hall, accused persons who share a proud history of the first people who lived in this nation, not only have a right to be heard, but they also have a right to fully understand. Their voices are heard by the judges. And they must also know that we have heard them. I believe that the accused persons who have been in this court have had good experiences in this. This is something that they have come to appreciate. This is something they have a right to expect.

[4] I know that all accused, whether they have any Aboriginal blood or not, should have this right. Judges struggle to make sure they do. However, when judges write their decisions, they are writing for different readers, different audiences. Judges write not only for the parties before them. Judges write to other readers of the law. Lawyers. Other judges. The community.

[5] In this case, I am writing for Jesse Armitage.

What follows over the next 67 paragraphs is an eloquent discussion of the offender’s past, the circumstances of the offence and the offender’s hopes for the future, and an elegant explanation of the judge’s rationale for the sentence imposed.

The marvellous compassion of the court aside, the relevance Justice Nakatsuru’s decision has for those interested in access to justice lies in this statement:

For Jesse Armitage, I have tried to say what I wanted to say in very plain language. I believe that this is very important for judges to do in every decision.

I have written about the importance of communicating in plain language in an earlier post on writing and sharing information on the law and in a post on writing for people who are not lawyers, and elsewhere on the difficulties presented by legislation that is not written in plain language.

In that last post, in fact, I frame the unintelligibility of legislation as a serious barrier to justice. Of course, statute law is only one source of the law; the other main source is case law. In our civil system of justice, case law not only articulates uncodified legal concepts, such as the doctrine of paramountcy, the principle of comity or the concept of unjust enrichment, quite frequently it serves to interpret statute law. As a result, the law applicable to a particular legal issue is more often than not an amalgam of the two sources of the law, and incomprehensible judicial decisions are just as much of a barrier to justice as incomprehensible legislation.

Regrettably, plain language writing requires effort and time, and our trial judges are often bereft of the latter. It can be challenging to express complicated legal concepts without slipping into legalese, and such explanations usually require far more words than you’d expect to achieve accuracy. (Lawyers understand, for example, the meaning of aper stirpes estate distribution merely by uttering the phrase. How many words are necessary to explain the concept in plain language?) As a result, writing in plain language is unquestionably burdensome, particularly when the burden of accuracy is encumbered by a wish to avoid being overturned on appeal.

Plain language writing, however, is also a skill which can be honed and refined merely by dint of repetition like any other skill, and I exhort all judges and lawyers to the effort. It is a foundational principle of the rule of law in civil democratic societies that the law be clear, comprehensible and certain, and we cannot continue to talk about the law in our secret language if we are to meaningfully improve access to justice.

For those interested, I have a number of resources on plain language I can provide upon request, and I recommend to judges the National Judicial Institute‘s excellent bench book, Self-Represented Litigants and Self-Represented Accused, which provides “suggested language” to express many common, complicated legal concepts to persons without counsel.

Here, by way of conclusion, are the articulate and touching final six paragraphs of Justice Nakatsuru’s judgment:

[67] There is a post-script to my decision. Mr. Armitage did not make it to his first attendance with me after his sentence. Within days he was again arrested for doing very much the same thing he has always done.

[68] In writing this part of my decision, I first thought I would say that I was disappointed or that it was with sadness that I had to report this. However, I decided against writing this.

[69] First of all, it was not unexpected to me. How could it be? I was only surprised how quickly this happened. I asked Mr. Armitage about that. He had no money. He had little to do. I don’t think he really knows why. Even before I had passed sentence I sensed that Mr. Armitage’s path along this journey would not be straightforward.

[70] More importantly though is what happened when he came back before me on his conditional sentence breach. Mr. Armitage asked that 9 months of the remainder of his conditional sentence order be served in jail. He did this so that he could be sent to St. Lawrence Valley Treatment Center. He asked for this because he wanted to be sure he had enough time in custody to fully make use of the help available. This was not something that came from me or the Crown. It came from Jesse Armitage. I add that Ms. Kelly was very thoughtful and careful in her representation of him. This will be by far the longest jail term he will have done to date. To be frank, I would have considered something less.

[71] Mr. Armitage asked for this because I believe he knew that there was no other way for him to get healthy. I believe that he had come to a point in his life where he was ready. Ready for a chance to change.

[72] When an offender has come to this point, no matter how long, tortuous, or difficult the path taken to get there, there cannot be sadness or disappointment. There can only be hope.

This post originally appeared on Access to Justice in Canada.

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A Vexatious Litigant After Only Two Applications

Thu, 03/05/2015 - 9:00am

By: Jonnette Watson Hamilton

PDF Version: A Vexatious Litigant After Only Two Applications in One Proceeding

Case Commented On: Re FJR (Dependent Adult), 2015 ABQB 112 (CanLII)

Although the Alberta law giving the courts more power to deal with “vexatious litigants” in a simplified process has only been in effect a little more than five years — since October 30, 2009 — the law is quite well settled. Under section 23.1(1) of the Judicature Act, RSA 2000, c J-2, on application or the court’s own motion, and with notice to the Minister of Justice and Solicitor General, if a Court is satisfied that a person is instituting vexatious proceedings or is conducting a proceeding in a vexatious manner, then the court may order that the person not commence or continue proceedings without the court’s permission. Section 23(2) provides a non-exclusive list of examples of vexatious proceedings and conduct. These provisions have been considered in approximately 70 cases over the past five years. Recently and helpfully, in Chutskoff v Bonora, 2014 ABQB 389 (CanLII) at paras 80-93, Justice Michalyshyn undertook a comprehensive review of this case law. As a result of all of this consideration, most vexatious litigant proceedings now simply involve application of the established principles to the particular facts of each case. Nonetheless, the occasional new legal issue arises, as it does in Re FJR. This post considers a case in which the person found to be a vexatious litigant had only made two applications, and both of them were made in only one court proceeding.

Facts

In November 2013, IR filed an application to have herself and her two sisters appointed as joint guardians of their father, FJR, under the Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2. FJR requested a hearing, which was held before Justice Gross in June 2014, at which time the application was granted with the requirement that it be reviewed within 60 days. In August of 2014, Justice Yungwirth conducted the review and continued the appointment of the three daughters as guardians. In October 2014, FJR applied to have further neurological and capacity assessment reports ordered and the guardianship order repealed, but Justice Manderscheid in November 2014 dismissed this application. In December 2014, FJR filed a further application seeking substantially the same remedies, as well as invalidation of a 1996 Enduring Power of Attorney that allowed IR to handle his financial matters. This application was heard by Justice Shelley in December of 2014. She adjourned the matter in order to read the extensive materials and then rendered her decision — the case commented upon in this post — denying FJR’s application in February 2015.

Four different Court of Queen’s Bench judges had thus, over the space of four applications and nine months, determined that FJR required a guardian. Under section 26(6) of the Adult Guardianship and Trusteeship Act, a court may make an order appointing a guardian for an adult — who then becomes a “represented adult” — if the court is satisfied that the adult does not have the capacity to make decisions about personal matters; that less intrusive and less restrictive alternative measures than the appointment of a guardian have been considered and would not likely be effective; and that it is in the adult’s best interests to make the order. “Personal matters” is a defined term in the Act and includes non-financial matters such as health care, where the represented adult is to live, their education, their employment, their social activities, etc.

The guardianship order was granted based upon nine medical reports, including three obtained by FJR, which indicated he suffered from dementia and paranoia, and that he lacked capacity. FJR disputed the numerous reports based on his belief that the symptoms noted in those reports were attributable to the lingering effects of a concussion he suffered in a fall. However, the medical reports indicated that symptoms of his dementia were present prior to any fall.

Vexatious litigant order

Justice Shelley also issued an order under section 23.1(1) of the Judicature Act, prohibiting FJR from commencing or continuing any action in the Alberta courts without permission from the court, setting out the procedures for any application for permission, and staying her order for 30 days to allow the Minister of Justice and Solicitor General to make submissions. Justice Shelley issued this order on her own motion, as is provided for in section 23.1(1).

Justice Shelley granted the vexatious litigant order after IR expressed concern that her father would continue to bring applications to repeal the guardianship order. IR advised the court that FJR had consulted at least 17 lawyers since December 2012 in an attempt to retain one who would challenge the guardianship order and the Enduring Power of Attorney. He had also consulted at least 11 different medical practitioners in an effort to obtain a favourable capacity report. (FJR had also filed a complaint with the Law Society of Alberta against IR’s lawyer, but this was not mentioned as a part of the reasons for granting the vexatious litigant order.)

Justice Shelley indicated that the underlying rationale for the vexatious litigant provisions in the Judicature Act is “an acknowledgement of the unreasonable burden placed upon courts by groundless litigation, which prevents expeditious resolution of proper litigation” (at para 22). However, she explicitly stated that in this case she did not see FJR’s conduct as a deliberate attempt to bring groundless litigation, acknowledging that he sincerely believed he did not lack capacity (at para 23).

Justice Shelley did not refer to any of the examples of vexatious proceedings or of conducting proceedings in a vexatious manner in section 23(2) of the Judicature Act. She did not cite a single precedent applying that provision. Instead, she held that it was not in FJR’s best interests to continue to try to have the guardianship order lifted and the Enduring Power of Attorney repealed, or to continue to try to find doctors and lawyers who would support his position (at para 21). She also found that his medical condition prevented him “from appreciating that his daughters’ actions, and those of the court, are aimed at protecting him” (at para 23). The only attention that Justice Shelley paid to the requirement for persistent vexatious proceedings or conduct was her statement that “[i]t is clear that FJR will likely continue his efforts to have the guardianship order set aside,” noting his attempts to do so before Justice Yungwirth (even though that hearing was the review hearing required by the initial order of Justice Gross) and Justice Mandersheid (at para 24). Thus, she concluded that “the issuance of a vexatious litigant order . . . is appropriate order in these circumstances and may assist in preventing further similar applications being brought by FJR in his attempt to revisit matters already well settled by this Court” (at para 24). Justice Shelley also justified her order as preventing FJR from incurring further substantial costs (at para 25), a reason that appears to go to FJR’s perceived best interests.

Comments

The granting of the vexatious litigant order in this case is unusual — and inappropriate — for three reasons. First, there were very few applications, both of them in only one proceeding, rather than the usual large number of applications in multiple proceedings. Second, Justice Shelley specifically found that FJR’s conduct was not a deliberate attempt to bring groundless litigation. Third, the main reason advanced for granting the vexatious litigant order was that it was in the vexatious litigant’s best interests. I will address each of these points in turn and then suggest what might be a better way to handle this type of situation, albeit a way requiring a statutory amendment to the Adult Guardianship and Trusteeship Act.

On the first point, FJR brought only two applications, albeit in very short order, after the mandated review of the initial guardianship order: one before Justice Manderscheid in October 2014 and this one before Justice Shelley in December 2014. Two applications in only one proceeding that had only been commenced 15 months before the vexatious litigant order — these are very paltry numbers in the vexatious litigation context. Usually a far greater number of proceedings, applications, and appeals have tried the patience of the courts and the resources of a large number of defendants before a vexatious litigation order is applied for. Allen v Gray, 2012 ABQB 66, involved twelve different lawsuits in the province of Alberta. There were at least eight different actions and numerous applications within each recounted in Wong v Giannacopoulos, 2011 ABCA 206 (CanLII), leave refused 2011 ABCA 277 (CanLII). In Onischuk v Alberta, 2013 ABQB 89 there were only three separate actions but numerous appeals, all about one cause. Persistent behaviour — i.e., a prolonged or insistently continuous quality to behaviour — is key under section 23(2) and the case law interpreting it. Every subsection in section 23(2) setting out the examples of vexatious conduct starts with the word “persistently”. The persistent conduct is supposed to have occurred in the past, and it serves as an indication that it will persist into the future if not restrained. In this case, however, it was only the likelihood that the litigious conduct would persist into the future that was given as a reason for granting the vexatious litigant order.

Second, Justice Shelley specifically found that FJR’s conduct was not a deliberate attempt to bring groundless litigation. However, in Onischuk v Alberta, Justice Rooke relied upon Del Bianco v 935074 Alberta Ltd., 2007 ABQB 150, Jamieson v Denman, 2004 ABQB 593, Prefontaine v Pairs, 2007 ABQB 77, and O’Neill v Deacons, 2007 ABQB 754  to synthesize a definition of a “vexatious litigant” as “one who repeatedly brings pleadings containing extreme, unsubstantiated, unfounded, and speculative allegations against a large number of individuals to exploit or abuse the court process for an improper purpose, or to gain an improper advantage” (at para 9, emphasis added). This definition acknowledges the provision’s roots in the court’s inherent jurisdiction to control abuses of the courts’ processes. It also points out that motive is important. Justice Jack Watson, in Jamieson v Denman at paras 126-127, in a passage quoted with approval by then Associate Chief Justice Neil Wittmann in O’Neill v Deacons at para 22, and by Justice Hawco in Allen v Gray, discussed the notion that “vexatious” is a normative as well as a legal concept:

My view of the word “vexatious” is that it connotes not simply that the party was acting without the highest motives, or was acting in a manner which was hostile towards the other side. “Vexatious”, as a word, means to me that the litigant’s mental state goes beyond simple animus against the other side, and rises to a situation where the litigant actually is attempting to abuse or misuse the legal process. (Emphasis added)

In this case, Justice Shelley specifically found that the applications were not an attempt to abuse the court process. The problem was that FJR lacked capacity, and not that he was exploiting the court process for an improper purpose or to gain any improper advantage. The vexatious litigant provisions of the Judicature Act seem inappropriate in his circumstances.

Third, while Justice Shelly did refer to the prevention of unsupported and duplicative proceedings, the main reason for granting the vexatious litigant order was FJR’s best interests. The best interests of a represented adult are certainly a primary concern under the Adult Guardianship and Trusteeship Act, but irrelevant under the vexatious litigant provisions of the Judicature Act. Hopeless proceedings are one of the recognised indicia of vexatious proceedings; see point #2 in para 92 in the review of the vexatious litigant jurisprudence in Chutskoff v Bonora, 2014 ABQB 389 (CanLII). And Justice Shelley does refer to FJR’s proceedings as “unsupported” (at para 23), as well as noting that further neurological reports are unnecessary (at para 18) and the ample evidence in the record that his mental condition would deteriorate over time (at para 18). But it is the best interests of FJR that she relies upon and this is simply not something that can be taken into account under section 23 or section 23.1 of the Judicature Act.

Finally, a person might wonder how FJR, a person found to be a “represented adult”, could bring applications in court without his guardian deciding to do so on his behalf. After all, a guardian has exclusive authority with respect to “personal matters” and section 1(bb)(vii) of the Adult Guardianship and Trusteeship Act provides that “personal matters” can include “the carrying on of any legal proceeding that does not relate primarily to the financial matters of the adult.” In this case, FJR’s applications did not relate primarily to his financial affairs. It is true that section 34(1) of the Act provides that a guardian may act only with respect to those personal matters of the represented adult that the guardian has been granted authority over in the guardianship order, and Justice Shelley does not indicate whether or not the guardianship order granted to IR included “the carrying on of any legal proceedings.” If it did, why could FJR bring the application that he did? The answer is found in section 40(1) of the Adult Guardianship and Trusteeship Act which provides that a represented person may apply to the Court for a review of a guardianship order. There appears to be no limit on how often or how many times a represented person may apply to the court for such a review. Perhaps there should be. Dealing with the course of conduct undertaken by FJR under the Adult Guardianship and Trusteeship Act, rather than under the vexatious litigants’ provisions of the Judicature Act, might be more appropriate. The former act focuses on the represented person’s best interests, and the latter does not. A limitation under the former does not carry the stigma that a vexatious litigant order does.

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A Case for Adopting the Lewko Approach to Refusal Law

Wed, 03/04/2015 - 9:00am

By: Dylan Finlay

PDF Version: A Case for Adopting the Lewko Approach to Refusal Law

Case Commented On: R v Soucy, 2014 ONCJ 497

Obtaining breath samples from those suspected of driving while impaired is a necessary practicality in enforcing impaired driving law. A police officer must have a legal authority to demand that an individual supply a sample of his or her breath, and there must be legal ramifications should that individual decline. Consequently, s. 254(5) of the Criminal Code, RSC 1985, c C-46 makes it an offence to fail or refuse to comply with a breath demand, without a reasonable excuse. As a criminal offence, s. 254(5)’s necessary elements include both an actus reus and a mens rea. Two deeply divided lines of authority arise from interpreting s. 254(5)’s requisite mens rea, or culpable state of mind.

The first line of case law has become known as the ‘Lewko approach,’ or ‘Lewko position,’ after the Saskatchewan Court of Appeal case of R v Lewko, 2002 SKCA 121. To convict, the Crown must prove the accused intended to fail or refuse to comply with the breath demand. The case’s articulation of the offence’s elements is reproduced below (at para 9):

The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove the existence of a demand having the requirements of one of the three types mentioned in ss. (2) and (3). Second, the Crown must prove a failure or refusal by the defendant to produce the required sample of breath or the required sample of blood (the actus reus). Third, the Crown must prove that the defendant intended to produce that failure (the mens rea).

The second line of case law is the ‘Porter approach,’ named after the Ontario Superior Court of Justice case of R v Porter, 2012 ONSC 3504. To convict under this approach the Crown must prove the accused had knowledge or awareness of the offence. In Porter, the Court intentionally departed from the Lewko approach (at para 34):

It seems to me that the flaw in [cases following the Lewko approach] is that they treat the mental element enacted by s. 254(5) as a specific intent rather than a general intent, that is, they read in the term “wilfully”. It must be remembered that s. 254(5) is silent as to the mens rea and so the legislative intent on this point, as to the level of mens rea, is a matter of judicial interpretation. There is a strong line of binding authority to the effect that where a criminal offence is silent as to the mens rea, and where the actus reus is the doing of some immediate act without any ulterior consequence, then knowledge or recklessness as to the doing of the prohibited act is a sufficient mens rea.

Multiple cases follow both decisions, and neither Lewko nor Porter was the first authority on their respective interpretations. This post will side with the Ontario Court of Justice’s reasoning in R v Soucy, 2014 ONCJ 497, in which Justice David M. Paciocco adopts the Lewko approach. For the sake of brevity, this post will not comment on the related but separate analysis arising from the wording “without reasonable excuse”.

As the above passage from Porter displays, the justification for its approach is derived from the fact that Parliament omitted the word “wilfully” from s. 254(5). And indeed, there is jurisprudence suggesting that such an omission leads to the presumption that the mens rea must then be knowledge or recklessness. One of the earliest precedents for this presumption – and a case cited by Porter (at para 34) – is R v Beaver, [1957] SCR 531. The case involved two co-accused – Max and Louis Beaver – who were in joint possession of a package that contained heroin. Both were caught when Max Beaver attempted to sell the package to an undercover police officer. The issue of mens rea arose because Louis Beaver was unaware that the substance contained in the package was heroin, believing it to be sugar or milk. The offence was outlined in the Opium and Narcotic Drug Act, RSC 1952, c. 201, a precursor to today’s Controlled Drugs and Substances Act, SC 1996, c 19. Section 4(1) of the Act prohibited an individual from “[having] in his possession any drug . . .”. The Act was silent on whether one must know the substance he or she possesses is a prohibited one. The Court in Beaver applied a rule of statutory interpretation, citing (among others) the 1819 case of Margate Pier v Hannam et al., 106 ER 661, which holds that:

Acts of Parliament are to be so construed as no man that is innocent, or free from injury or wrong, be by a literal construction punished or endamaged.

Although now subject to the Canadian Charter of Rights and Freedoms, the Supreme Court in Beaver also cites a number of cases holding that Parliament can create an offence which does not require a culpable state of mind, but only if the wording of the statute explicitly provides for this. The Court holds that:

It would, of course, be within the power of Parliament to enact that a person who, without any guilty knowledge, had in his physical possession a package which he honestly believed to contain a harmless substance such as baking-soda but which in fact contained heroin,… but I would refuse to impute such an intention to Parliament unless the words of the statute were clear and admitted of no other interpretation.

Although the reasoning in Beaver is sound, its application to s. 254(5) is flawed. If one refuses to provide a breath sample, knowledge that a sample was demanded would rationally suffice for the Crown to prove a culpable state of mind. The act of refusing necessarily implies the individual who refused intended to do so. The difficulty arises in cases where one attempts to provide a sample, but fails. To apply Beaver in this situation, as the Porter approach does, has the consequence of deeming an individual who does not intend to break the law a criminal.

The nature of possession offences makes ‘knowledge’ the most relevant mens rea. One must know he or she possesses a prohibited substance. However, the Court in Soucy asserts (at para 45) that even with possession offences “‘knowledge’ is not a self-standing mens rea.” The Court cites R v Chaulk, [2007] OJ No 4627 in holding that “[t]o be guilty of possession an accused person must intend to exercise control over the thing they know they possess” (at para 45). By making this assertion, Paciocco J. attacks the very foundation of the Porter approach.

R v Buzzanga, [1979] OJ No 4345 is another case cited by Porter (at para 34) as standing for the position that silence on mental state leads to the presumption that the mens rea must then be knowledge or recklessness. However, Soucy points out that the case has been misquoted. Martin J.A. in R v Buzzanga states that (at para 32):

The general mens rea which is required and which suffices for most crimes where no mental element is mentioned in the definition of the crime, is either the intentional or reckless bringing about of the result which the law, in creating the offence, seeks to prevent . . .

As such, Soucy regards the presumed mens rea for offences that are silent on mental state as “‘intention or recklessness’ not ‘knowledge or awareness of the prohibited act’” (at para 43).

Recall that the Porter approach asserts that the Lewko approach treats s. 254(5) as a crime of specific rather than general intent by reading in the term “willfully.” Paciocco J. responds to this, arguing that the Porter approach is based upon a confusion between crimes of general and specific intent. R v George, [1960] SCR 871 is cited to provide a definition of the two (Soucy at para 35):

In considering the question of mens rea, a distinction is to be drawn between “intention” as applied to acts done to achieve an immediate end on the one hand and acts done with the specific and ulterior motive and intention of furthering or achieving an illegal object on the other hand.

Therefore general intent offences require intent to bring about an immediate end, such as pushing a button with the intent of causing the button to be pushed, while specific intent offences require intent to cause an ulterior purpose, such as pushing a button with the intent of firing a rocket. Soucy holds that “[o]n this standard, the act of refusing or failing in order to bring about the immediate end of avoiding the provision of a suitable sample would be an example of general intention” (at para 35). In this way, Soucy takes issue with Porter’s assertion that the Lewko approach “interpret[s] the element of intention as meaning a desire or purpose of bringing about an unsuitable test result” (Porter at para 33). On this, Paciocco J. states that “requiring proof that someone produced a result ‘on purpose’ is different from proving ‘desire’” (Soucy at para 38). Thus under the Lewko approach the Crown can convict an individual under s. 254(5) without proving that the individual had an ulterior purpose or motive, but he or she must prove that the individual intended to fail or refuse to provide a breath sample. Applying this interpretation of the law would avoid convicting an individual who chose to provide a suitable sample, but could not do so due to his or her inability (Soucy at para 36).

It is telling that Beaver read ‘knowledge’ into s. 4(1) of the Opium and Narcotic Drug Act to avoid convicting an individual who had no guilty state of mind. Likewise, intent must be read into s. 254(5) of the Criminal Code. The Lewko approach is consistent with the basic principles of criminal law, the foremost being that an individual cannot be found guilty without a guilty state of mind. However, despite the persuasive reasoning of Paciocco J. in Soucy, the Porter approach continues to be applied in Alberta’s courts. In R v Le, 2014 ABPC 177, Fraser Prov. Ct. J. held the mens rea of s. 254(5) to be “‘knowledge and awareness of the prohibited act’” (at para 21, explicitly following Porter) despite finding that the accused “intended to provide samples that resulted in failures” (at para 22). A more nuanced approach was taken by Fradsham Prov. Ct. J. in R v Ennis, 2015 ABPC 9, yet he explicitly disagreed with Soucy in finding that the requisite mens rea “is the intention to commit the acts which then resulted in the non-compliance with the breath demand. The Crown does not need to prove that the accused person intended the result of non-compliance” (at para 64). In any event, he found that “on either of the Porter or Soucy/Lewko tests, Ms. Ennis had the requisite mens rea to commit the offence” (at para 67).

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The Supreme Court’s New Constitutional Decisions and the Rights of Farm Workers in Alberta

Tue, 03/03/2015 - 9:00am

By: Jennifer Koshan

PDF Version: The Supreme Court’s New Constitutional Decisions and the Rights of Farm Workers in Alberta

Cases Commented On: Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 (CanLII); Meredith v Canada (Attorney General), 2015 SCC 2 (CanLII); Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 (CanLII); Carter v Canada (Attorney General), 2015 SCC 5 (CanLII)

As I was saying to my constitutional law students the other day, the first few weeks of 2015 have been remarkable for the sheer number of Charter decisions released by the Supreme Court of Canada, including several that have overturned previous decisions in important ways. Of the eight SCC decisions released to date in 2015, five are major Charter rulings. Several of these decisions have implications for a project on the rights of farm workers that I worked on with a group of constitutional clinical students in the winter of 2014. The students’ posts on the constitutionality of excluding farm workers from labour and employment legislation are available here, here, here and here. In this post, I will outline the impact these recent Charter decisions have on the students’ arguments. In a nutshell, they make the claims of farm workers for legislative protection even stronger, refuting the argument of Premier Jim Prentice that we need “more research and debate” before taking action on these unconstitutional exclusions.

The Decisions

In the first decision relevant to farm workers, Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1, the Court built on its earlier ruling in Health Services and Support — Facilities Subsector Bargaining Assn. v British Columbia, 2007 SCC 27, [2007] 2 SCR 391, where the majority had found that section 2(d) of the Charter protects collective bargaining. In Mounted Police, the majority reasons by McLachlin CJ and LeBel J found that the exclusion of RCMP members from federal collective bargaining legislation violated section 2(d) of the Charter, overruling the Court’s earlier decision in Delisle v Canada (Deputy Attorney General), [1999] 2 SCR 989.

The majority defined freedom of association to contain constitutive, derivative and purposive elements. The constitutive formulation of section 2(d) is the narrowest, and protects the freedom to belong to or form an association (at para 52); the derivative element protects associational activities that relate to other constitutional freedoms (at para 53); and the purposive approach adds the protection of collective activities that enable “those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict” (at para 54, citing the dissenting judgment of Dickson CJ in Reference re Public Service Employee Relations Act (Alta.), [1987] 1 SCR 313 at 366). The purposive approach dictates the protection of a meaningful process of collective bargaining, which includes elements of choice (i.e. input into the selection of collective goals) and independence (i.e. autonomy from managerial power) (at paras 81-83). The majority also affirmed that the test for a violation of section 2(d) is one of substantial interference with associational activities, not the “impossibility” of achieving workplace goals (at paras 74-75, clarifying its decision in Ontario (Attorney General) v Fraser, 2011 SCC 20, [2011] 2 SCR 3 (which had used the language of “impossibility”)).

Applying these principles, the majority held that the regime imposed on RCMP members interfered with a meaningful process of collective bargaining, in violation of section 2(d) of the Charter. This was not a case involving “a complete denial of the constitutional right to associate” (at para 105), since RCMP members did have some ability to put forward workplace concerns via a Staff Relations Representative Program (SRPP). However, the SRPP was an organization that RCMP members “did not choose and [did] not control”, and it “lack[ed] independence from management”, leaving members “in a disadvantaged, vulnerable position”, thus amounting to substantial interference with their collective bargaining rights (at para 106). This violation could not be justified under section 1 of the Charter, as the government’s objectives – “to maintain and enhance public confidence in the neutrality, stability and reliability of the RCMP by providing a police force that is independent and objective” – was not rationally connected to a separate labour relations regime (at paras 142, 143-153). The Court struck down the impugned provisions of the relevant legislation, noting however that it was not mandating a specific labour relations regime for the RCMP, such as inclusion with other public sector workers in the Public Service Labour Relations Act, SC 2003, c 22 – “Parliament remains free to enact any labour relations model it considers appropriate to the RCMP workforce, within the constitutional limits imposed by the guarantee enshrined in s. 2(d) and s. 1 of the Charter” (at para 156).

In the second relevant decision, Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, a majority of the Court found that the right to strike was guaranteed under section 2(d) of the Charter. This decision was long-awaited by the labour rights movement, though it was foreshadowed in Mounted Police, where the majority noted the importance of “recourse to collective action by employees” (at para 72). The majority in Saskatchewan Federation of Labour affirmed the goals underlying freedom of association: “[h]uman dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy” (at para 53, quoting Health Services at para 81), and found that the right to strike was “essential to realizing these values and objectives” (at para 54). This finding was said to be supported by international law, including guarantees of the right to strike in article 8(1) of the International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3; article 45(1) of the Charter of the Organization of American States, Can TS 1990 No 23; and ILO Convention No. 87 concerning freedom of association and protection of the right to organize, as interpreted by the Committee of Experts on the Application of Conventions and Recommendations, Freedom of Association and Collective Bargaining (1994) (at paras 65-67). The majority also recognized “an emerging international consensus that, if it is to be meaningful, collective bargaining requires a right to strike” (at para 71), citing case law from the European Court of Human Rights, and case law and constitutional protections in Germany, Israel, France, Italy, Portugal Spain, and South Africa (at paras 72-74).

On the basis of these principles, the majority found that Saskatchewan’s Public Service Essential Services Act, SS 2008, c P-42.2 [PSESA], substantially interfered with section 2(d) of the Charter because it denied workers designated as “essential” the ability to participate in any work stoppages (at para 78). Importantly, the Court recognized that the availability of alternative dispute resolution mechanisms as an alternative for addressing the breakdown of collective bargaining were relevant to the justification analysis under section 1 of the Charter rather than to whether there was a violation of section 2(d). In this case, the government could not meet its burden under section 1 because the PSESA failed the minimal impairment test by unilaterally authorizing public employers to designate workers as “essential” with no adequate review mechanism and no meaningful dispute resolution mechanism (at para 81). The PSESA was declared unconstitutional, with the declaration suspended for one year (para 103).

The third decision relevant to farm workers is Carter v Canada (Attorney General), 2015 SCC 5, which I blogged on here. The key points to reiterate from Carter are that the right to life under section 7 of the Charter protects individuals from government actions that increase the risk of death directly or indirectly (at para 62), and the right to security of the person protects against state actions that cause physical or serious psychological suffering (at para 64).

Significance of the Decisions for Farm Workers

These decisions are important in several ways to the claims of Alberta farm workers that their exclusion from labour and employment legislation violates the Charter.

First, the argument that the exclusion of farm workers from the Labour Relations Code, RSA 2000, c L-1, violates section 2(d) of the Charter is strengthened. Mounted Police affirmed an expansive definition of freedom of association, with constitutive, derivative and purposive elements. Moreover, while Fraser had suggested that the test for a violation of section 2(d) may have changed from “substantial interference” to the “impossibility” of achieving workplace goals, the Court clarified in Mounted Police that the test remains one of substantial interference. In the case of farm workers, their exclusion from the Labour Relations Code fails to accord them even the narrowest level of protection under section 2(d), the constitutive freedom to belong to or form an association. The exclusion thus substantially interferes with their freedom of association. This conclusion is supported by international law and comparative law, and the Court’s decision in Saskatchewan Federation of Labour supports the reliance on a broad range of sources in this regard. Mounted Police and Saskatchewan Federation of Labour also support the conclusion that the complete exclusion of farm workers from Alberta’s labour relations regime could not be justified under section 1 of the Charter. However, farm workers must be aware that both cases allow for the possibility of specialized labour relations regimes for certain types of workers, consistent with the Court’s decision in Fraser (upholding a specialized labour regime for farm workers in Ontario).

Second, the argument that the exclusion of farm workers from the Employment Standards Code, RSA 2000, c E-9, Occupational Health and Safety Act, RSA 2000, c O-2, and Workers’ Compensation Act, RSA 2000 c W-15 violates section 7 of the Charter is affirmed by Carter. The exclusion of farm workers from these protective benefit regimes makes their working conditions more dangerous or their post-accident health more precarious, thus increasing the risk of death or serious bodily harm, and the exclusions therefore violate the rights to life and security of the person. The section 7 claims remain novel, as there are few Supreme Court decisions involving the rights to life and security of the person in the context of labour and employment legislation, and the Court has shown reluctance to protect economic rights under section 7 and to apply it outside the adjudicative context. For example, in Gosselin v Québec (Attorney General), [2002] 4 SCR 429, 2002 SCC 84 at paras 80-83, a majority of the Court found that section 7 does not protect the right to a particular level of social assistance adequate to meet basic needs. On the other hand, in Chaoulli v Quebec (Attorney General), [2005] 1 SCR 791, 2005 SCC 35, three out of seven justices applied section 7 outside the adjudicative context, finding that Quebec’s legislative prohibition on private health insurance violated the rights to life and security of the person. Based on Carter, and provided that a sufficient causal connection can be shown between the exclusions and the increased risks to farm worker health and safety, violations of the rights to life and security of the person could be established. And, as noted in the students’ earlier posts, there are strong arguments that these violations are also contrary to the principles of fundamental justice under section 7 for being arbitrary, overbroad, and grossly disproportionate.

A third point of note is that none of the decisions blogged on here included findings that the impugned legislation or government actions violated section 15, the Charter’s equality guarantee. That claim was made but not ruled on in Carter (see here), but discrimination claims were not advanced in the labour rights decisions, even though the laws in those cases targeted particular groups of workers. This is likely because the Court has not been receptive to section 15 arguments in the workers’ rights context in the past. The Court rejected a section 15 claim brought by RCMP members in Delisle, avoided ruling on a similar claim brought by farm workers in Dunmore v Ontario (Attorney General), 2001 SCC 94, [2001] 3 SCR 1016 (relying on a violation of section 2(d) of the Charter instead), and, by a majority, rejected such a claim by farm workers in Fraser. It is interesting to note that the decisions in Mounted Police and Saskatchewan Federation of Labour are steeped in language about the vulnerability, disempowerment and inequality of workers in the context of freedom of association, even in the case of workers who are relatively privileged compared to farm workers. However, the Court has still shown a reluctance to protect occupational status as an analogous ground under section 15, even in the case of more limited forms of occupational status such as being a farm worker. Perhaps the decisions in Mounted Police and Saskatchewan Federation of Labour will facilitate equality claims in future cases, but at present, the potential success of section 15 claims by farm workers remains uncertain.

Concluding Thoughts on a Fourth Case

On the same day that it released Mounted Police, the Court handed down Meredith v Canada (Attorney General), 2015 SCC 2, which stands as a contrast to the other decisions discussed in this post. In Meredith, the majority applied its test from Mounted Police to a different scenario facing RCMP members – the unilateral rollback of wage increases by the Treasury Board and via the Expenditure Restraint Act, SC 2009, c 2 (ERA) following the global financial crisis in 2008. Writing for the majority once again, McLachlin CJ and LeBel J noted that while section 2(d) of the Charter protects the right to meaningful collective bargaining, it does not guarantee a specific outcome (at para 25). In this case, the RCMP’s collective bargaining regime had been found unconstitutional in Mounted Police, but the majority indicated that the process for wage negotiations – a Pay Council – still “attract[ed] scrutiny” under section 2(d). I find this part of the judgment rather confusing, so I will set out the Court’s reasoning in full (at para 25):

[T]he record here establishes that, in the absence of a true collective bargaining process, RCMP members used the Pay Council to advance their compensation-related goals.  In our view, the Charter protects that associational activity, even though the process does not provide all that the Charter requires.  The legal alternatives available are not full collective bargaining or a total absence of constitutional protection. Interference with a constitutionally inadequate process may attract scrutiny under s. 2(d).  Accordingly, we must examine whether the ERA substantially interfered with the existing Pay Council process, so as to infringe the appellants’ freedom of association.

It is difficult to understand how government action that interferes with a “constitutionally inadequate process” would not only “attract scrutiny” under the Charter, but would itself be tainted by the same constitutional inadequacy. Here we have not only a constitutionally inadequate wage negotiation process, but also an interference with that process in the form of unilateral rollbacks. One would have thought that the federal government’s unilateral actions – which clearly attract scrutiny under section 32 of the Charter, as the Charter applies to actions of the executive and legislative branches – would have compounded the violation of freedom of association, but that the government could nevertheless attempt to justify its actions under section 1 of the Charter based on the specific context at hand. In Meredith, however, the majority found that the federal government’s interference with the constitutionally inadequate bargaining process did not violate section 2(d). It noted that the wage roll-backs over 2008, 2009 and 2010 were “consistent with the going rate reached in agreements concluded with other bargaining agents inside and outside of the core public administration” and “did not preclude consultation on other compensation-related issues, either in the past or the future” (at para 28).

With respect, these are considerations that are relevant to justification under section 1 of the Charter, not whether there was a Charter violation. As noted by Justice Abella in dissent (at para 62):

The unilateral rollback of three years of agreed-upon wage increases without any prior consultation is self-evidently a substantial interference with the bargaining process… The fact that the rollbacks were limited to a three-year period does not attenuate the key fact that they were unilateral. Nor does the fact that consultation was possible on other more minor compensation issues minimize the severity of the breach.

She was of the view that this violation of section 2(d) could not be saved by section 1, as the government’s fiscal restraint objectives “[did] not give the government an unrestricted licence in how it deals with the economic interests of its employees” (at para 65). This was particularly so since the government consulted with “almost every other bargaining agent in the core public service” (at para 71).

Interestingly, neither the majority or dissenting opinions (nor the concurring opinion by Rothstein J) cite the Court’s earlier decision in Newfoundland (Treasury Board) v NAPE, [2004] 3 SCR 381, 2004 SCC 66, where the Court unanimously upheld the cancellation of pay equity payments under section 1 of the Charter based on a “fiscal crisis” in spite of the discriminatory impact of that action on female workers. NAPE has been widely criticized (see e.g. the alternative judgment of the Women’s Court of Canada here), but the majority in Meredith went even further by failing to find a breach of section 2(d) in the case of unilateral wage rollbacks implemented without any consultation.

Meredith sounds a cautionary note in the midst of the Court’s other, more expansive rulings on section 2(d) of the Charter. In my opinion, the majority in Meredith should have taken heed of a compelling line from Justice Abella’s reasons in Saskatchewan Federation of Labour (at para 76): “If the touchstone of Charter compliance is deference, what is the point of judicial scrutiny?” As it stands, the Court’s affirmation of the constitutionality of unilateral wage rollbacks in a time of fiscal constraint may be a little too close to home for some of us in this province.

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Open Letter to Parliament on Bill C-51

Sat, 02/28/2015 - 8:46am

Editor’s Note: Several Faculty members signed this letter, the full version of which is available here

An open letter to members of Parliament on Bill C-51

Dear Members of Parliament,

Please accept this collective open letter as an expression of the signatories’ deep concern that Bill C-51 (which the government is calling the Anti-terrorism Act, 2015) is a dangerous piece of legislation in terms of its potential impacts on the rule of law, on constitutionally and internationally protected rights, and on the health of Canada’s democracy.

Beyond that, we note with concern that knowledgeable analysts have made cogent arguments not only that Bill C-51 may turn out to be ineffective in countering terrorism by virtue of what is omitted from the bill, but also that Bill C-51 could actually be counter-productive in that it could easily get in the way of effective policing, intelligence-gathering and prosecutorial activity. In this respect, we wish it to be clear that we are neither “extremists” (as the Prime Minister has recently labelled the Official Opposition for its resistance to Bill C-51) nor dismissive of the real threats to Canadians’ security that government and Parliament have a duty to protect. Rather, we believe that terrorism must be countered in ways that are fully consistent with core values (that include liberty, non-discrimination, and the rule of law), that are evidence-based, and that are likely to be effective.

The scope and implications of Bill C-51 are so extensive that it cannot be, and is not, the purpose of this letter to itemize every problem with the bill. Rather, the discussion below is an effort to reflect a basic consensus over some (and only some) of the leading concerns, all the while noting that any given signatory’s degree of concern may vary item by item. Also, the absence of a given matter from this letter is not meant to suggest it is not also a concern.

We are grateful for the service to informed public debate and public education provided, since Bill C-51 was tabled, by two highly respected law professors — Craig Forcese of the University of Ottawa and Kent Roach of the University of Toronto — who, combined, have great expertise in national security law at the intersection of constitutional law, criminal law, international law and other sub-disciplines. What follows — and we limit ourselves to five points — owes much to the background papers they have penned, as well as to insights from editorials in the media and speeches in the House of Commons.

Accordingly, we urge all MPs to vote against Bill C-51 for the following reasons:

  1. Bill C-51 enacts a new security-intelligence information-sharing statute of vast scope with no enhanced protections for privacy and from abuse. The law defines “activities that undermine the security of Canada” in such an exceptionally broad way that “terrorism” is simply one example of nine examples, and only “lawful advocacy, protest, dissent and artistic expression” is excluded. Apart from all the civil-disobedience activities and illegal protests or strikes that will be covered (e.g. in relation to “interference with critical infrastructure”), this deep and broad intrusion into privacy is made worse by the fact there are no corresponding oversight or review mechanisms adequate to this expansion of the state’s new levels of information awareness. Concerns have already been expressed by the Privacy Commissioner, an Officer of Parliament, who has insufficient powers and resources to even begin to oversee, let alone correct abuses within, this expanded information-sharing system. And there is virtually nothing in the bill that recognizes any lessons learned from what can happen when information-sharing ends up in the wrong hands, as when the RCMP supplied poor information to US authorities that in turn led to the rendition of Maher Arar to Syria and his subsequent torture based on that – and further – information coming from Canada
  2. Bill C-51 enacts a new “terrorism” offence that makes it criminal to advocate or encourage “terrorism offences in general” where one does this being reckless as to whether the communication “may” contribute to someone else deciding to commit another terrorism offence. It is overbroad, unnecessary in view of current criminal law, and potentially counter-productive. Keep in mind how numerous and broad are the existing terrorism offences in the Criminal Code, some of which go beyond what the ordinary citizen imagines when they think of terrorism and all of which already include the general criminal-law prohibitions on counselling, aiding and abetting, conspiring, and so on: advocacy or encouragement of any of these “in general” could attract prosecution under the new C-51 offence. Note as well that gestures and physical symbols appear to be caught, and not just verbal or written exhortations. In media commentary and reports, there have been many examples of what could be caught, including in some contexts advocacy of armed revolution and rebellion in other countries (e.g. if C-51 had been the law when thousands of Canadians advocated support for Nelson Mandela’s African National Congress in its efforts to overthrow apartheid by force of arms, when that was still part of the ANC’s strategy). So, the chill for freedom of speech is real. In addition, in a context in which direct incitement to terrorist acts (versus of “terrorism offences in general”) is already a crime in Canada, this vague and sweeping extension of the criminal law seems unjustified in terms of necessity – and indeed, the Prime Minister during Question Period has been unable or unwilling to give examples of what conduct he would want to see criminalized now that is not already prohibited by the Criminal Code. But, perhaps most worrying is how counter-productive this new crime could be. De-radicalization outreach programs could be negatively affected. Much anti-radicalization work depends on frank engagement of authorities like the RCMP, alongside communities and parents, with youth who hold extreme views, including some views that, if expressed (including in private), would contravene this new prohibition. Such outreach may require “extreme dialogue” in order to work through the misconceptions, anger, hatred and other emotions that lead to radicalization. If C-51 is enacted, these efforts could find themselves stymied as local communities and parents receive advice that, if youth participating in these efforts say what they think, they could be charged with a crime. As a result, the RCMP may cease to be invited in at all, or, if they are, engagement will be fettered by restraint that defeats the underlying methods of the programme. And the counter-productive impact could go further. The Prime Minister himself confirmed he would want the new law used against young people sitting in front of computers in their family basements, youth who can express extreme views on social-media platforms. Why is criminalization counter-productive here? As a National Post editorial pointed out, the result of Bill C-51 could easily be that one of the best sources of intelligence for possible future threats — public social-media platforms — could dry up; that is, extreme views will go silent because of fears of being charged. This undercuts the usefulness of these platforms for monitoring and intelligence that lead to knowing not only who warrants further investigative attention but also whether early intervention in the form of de-radicalization outreach efforts are called for.
  3. Bill C-51 would allow CSIS to move from its central current function — information-gathering and associated surveillance with respect to a broad area of “national security” matters — to being a totally different kind of agency that now may actively intervene to disrupt activities by a potentially infinite range of unspecified measures, as long as a given measure falls shy of causing bodily harm, infringements on sexual integrity or obstructions of justice. CSIS agents can do this activity both inside and outside Canada, and they can call on any entity or person to assist them. There are a number of reasons to be apprehensive about this change of role. One only has to recall that the CSIS Act defines “threats to the security of Canada” so broadly that CSIS already considers various environmental and Aboriginal movements to be subject to their scrutiny; that is to say, this new disruption power goes well beyond anything that has any connection at all to “terrorism” precisely because CSIS’s mandate in the CSIS Act goes far beyond a concern only with terrorism. However, those general concerns expressed, we will now limit ourselves to the following serious problem: how Bill C-51 seems to display a complete misunderstanding of the role of judges in our legal system and constitutional order. Under C-51, judges may now be asked to give warrants to allow for disruption measures that contravene Canadian law or the Charter, a role that goes well beyond the current contexts in which judges now give warrants (e.g. surveillance warrants and search and seizure warrants) where a judge’s role is to ensure that these investigative measures are “reasonable” so as not to infringe section 8 of the Canadian Charter of Rights. What C-51 now does is turn judges into agents of the executive branch (here, CSIS) to pre-authorize violations of Canadian law and, even, to pre-authorize infringements of almost any Charter right as long as the limits in C-51 – bodily harm, sexual integrity and obstruction of justice – are respected. This completely subverts the normal role of judges, which is to assess whether measures prescribed by law or taken in accordance with discretion granted by statute infringed rights — and, if they did, whether the Charter has been violated because the infringement cannot be justified under the Charter’s section 1 limitation clause. Now, a judge can be asked (indeed, required) to say yes in advance to measures that could range from wiping a target’s computer clear of all information to fabricating materials (or playing agent-provocateur roles) that discredit a target in ways that cause others no longer to trust him, her or it: and these examples are possibly at the mild end of what CSIS may well judge as useful “disruption” measures to employ. It is also crucial to note that CSIS is authorized to engage in any measures it chooses if it concludes that the measure would not be “contrary” to any Canadian law or would not “contravene” the Charter. Thus, it is CSIS that decides whether to even go to a judge. There is reason to be worried about how unregulated (even by courts) this new CSIS disruption power would be, given the evidence that CSIS has in the past hidden information from its review body, SIRC, and given that a civil-servant whistleblower has revealed that, in a parallel context, Ministers of Justice in the Harper government have directed Department of Justice lawyers to conclude that the Minister can certify under the Department of Justice Act that a law is in compliance with the Charter if there is a mere 5% chance a court would uphold the law if it was challenged in court. Finally, it is crucial to add that these warrant proceedings will take place in secret, with only the government side represented, and no prospect of appeal. Warrants will not be disclosed to the target and, unlike police investigations, CSIS activities do not culminate in court proceedings where state conduct is then reviewed.
  4. We now draw attention to effectiveness by noting a key omission from C-51. As the Official Opposition noted in its “reasoned amendment” when it moved that C-51 not be given Second Reading, Bill C-51 does not include “the type of concrete, effective measures that have been proven to work, such as working with communities ?on measures to counter radicalization of youth – may even undermine outreach.” This speaks for itself, and we will not elaborate beyond saying that, within a common commitment to countering terrorism, effective measures of the sort referenced in the reasoned amendment not only are necessary but also must be vigorously pursued and well-funded. The government made no parallel announcements alongside Bill C-51 that would suggest that these sort of measures are anywhere near the priority they need to be.
  5. Finally, the defects noted in points 1, 2 and 3 (information-sharing, criminalizing expression, and disruption) are magnified by the overarching lack of anything approaching adequate oversight and review functions, at the same time as existing accountability mechanisms have been weakened and in some cases eliminated in recent years. Quite simply, Bill C-51 continues the government’s resolute refusal to respond to 10 years of calls for adequate and integrated review of intelligence and related security-state activities, which was first (and perhaps best) articulated by Justice O’Connor in a dedicated volume in his report on what had happened to Maher Arar. Only last week, former prime ministers and premiers wrote an open letter saying that a bill like C-51 cannot be enacted absent the kind of accountability processes and mechanisms that will catch and hopefully prevent abuses of the wide new powers CSIS and a large number of partner agencies will now have (note that CSIS can enlist other agencies and any person in its disruption activities and the information-sharing law concerns over a dozen other government agencies besides CSIS). Even if one judged all the new CSIS powers in C-51 to be justified, they must not be enacted without proper accountability. Here, we must note that the government’s record has gone in the opposite direction from enhanced accountability. Taking CSIS alone, the present government weakened CSIS’s accountability by getting rid of an oversight actor, the Inspector General, whose job was to keep the Minister of Public Security on top of CSIS activity in real time. It transferred this function to CSIS’s review body, the Security Intelligence Review Committee (SIRC), which does not have anything close to the personnel or resources to carry this function out – given it does not have sufficient staff and resources to carry out its existing mandate to ensure CSIS acts within the law. Beyond staff, we note that SIRC is a body that has for some time not been at a full complement of members, even as the government continues to make no apology for having once appointed as SIRC’s Chair someone with no qualifications (and it turns out, no character) to be on SIRC let alone to be its chair (Arthur Porter). And, as revealed in a recent CBC investigation, the government has simply not been straight with Canadians when it constantly says SIRC is a robust and well-resourced body: its budget is a mere $3 million, which has flat-lined since 2005 when the budget was $2.9 million, even as its staff has been cut from 20 in 2005 to 17 now. Without an integrated security-intelligence review mechanism, which should also include some form of Parliamentary oversight and/or review, and with especially SIRC (with jurisdiction only over CSIS) not a fully effective body, we are of the view that no MP should in good conscience be voting for Bill C-51.

Above, we have limited ourselves to five central concerns, but it is important to reiterate that some or all of the signatories have serious concerns about a good number of other aspects of C-51 – and/or about detailed aspects of some of the concerns that were generally expressed in the above five points. The following are some (but only some) of those concerns, in point form. They are included by way of saying that signatories believe these all need to be looked at closely and rigorously during House of Commons committee study of C-51, now that it has passed Second Reading:

  • C-51 radically lowers the threshold for preventive detention and imposition of recognizance with conditions on individuals. Only three years ago, Parliament enacted a law saying this detention/conditions regime can operate if there is a reasonable basis for believing a person “will” commit a terrorist offence. Now, that threshold has been lowered to “may.” There has been a failure of the government to explain why exactly the existing power has not been adequate. In light of the huge potential for abuse of such a low threshold, including through wide-scale use (recalling the mass arrests at the time of the War Measures Act in Quebec), Canadians and parliamentarians need to know why extraordinary new powers are needed, especially when the current ones were enacted in the context of ongoing threats by Al-Qaeda to carry out attacks in Canada that seem no less serious than the ones currently being threatened by entities like ISIS and Al-Shabab.
  • C-51 expands the no-fly list regime. It seems to have simply replicated the US no-fly list rules, the operation of which has been widely criticized in terms of its breadth and impacts on innocent people. Is this the right regime for Canada?
  • C-51’s new disruption warrants now allows CSIS to impinge on the RCMP’s law enforcement role, bringing back turf wars that were eliminated when intelligence and law enforcement were separated in the wake of the RCMP’s abusive disruption activities of the late 1960s and early 1970s. But, even more important than turf wars is the potential for CSIS behaviour in the form of disruptive measures to undermine both the investigation and the prosecution of criminal cases by interfering with evidentiary trail, contaminating evidence, and so on.
  • C-51, in tandem with C-44, permits CSIS to engage not just in surveillance and information-gathering abroad, but also in disruption. There are many questions about how this will work. The danger of lawlessness seems to be significantly greater for CSIS activities abroad, in that CSIS only needs to seek approval for disruption under C-51 where Canadian, not foreign, law could be breached or where the Charter could be contravened (with Canadian law on the application of the Charter outside Canada being quite unclear at the moment). And there is no duty for CSIS to coordinate with or seek approval from the Department of Foreign Affairs, such that the chances of interference with the conduct of Canada’s foreign affairs cannot be discounted. Nor can we ignore the likely tendency for disruption measures abroad to be more threatening to individuals’ rights than in Canada: for example, Parliament needs to know whether CSIS agents abroad can engage in detention and rendition to agencies of other countries under the new C-51 regime.

We end by observing that this letter is dated Feb. 23, 2015, which is also the day when the government has chosen to cut off Second Reading debate on Bill C-51 after having allocated a mere three days (in reality, only portions of each of those days) to debate. In light of the sweeping scope and great importance of this bill, we believe that circumventing the ability of MPs to dissect the bill, and their responsibility to convey their concerns to Canadians at large before a Second Reading vote, is a troubling undermining of our Parliamentary democracy’s capacity to hold majority governments accountable. It is sadly ironic that democratic debate is being curtailed on a bill that vastly expands the scope of covert state activity when that activity will be subject to poor or even non-existent democratic oversight or review.

In conclusion, we urge all Parliamentarians to ensure that C-51 not be enacted in anything resembling its present form.

Yours sincerely,

[Signatories]

Honour Killings and City Buses – The Limits on Advertising Controversial Messages on Public Transit and the Soon-To-Be-Decided Case of AFDI v The City of Edmonton

Thu, 02/26/2015 - 9:00am

By: Ola Malik and Sarah Burton

PDF Version: Honour Killings and City Buses – The Limits on Advertising Controversial Messages on Public Transit and the Soon-To-Be-Decided Case of AFDI v The City of Edmonton

Introduction

Consider these two ads which deal with the subject of honour killings. You are told that the maker of these advertisements, the American Freedom Defence Initiative (“AFDI”) published the ads in order to raise awareness of the subject and to provide support to young girls whose lives are in danger. These ads are similar with the exception of the revisions made to the second ad in italics.

Girls’ Honor Killed by their Families. Is Your Family Threatening you? Is Your Life in Danger? We Can Help: Go to FightforFreedom.us

Muslim Girls’ Honor Killed By Their Families. Is Your Family Threatening You? Is there a Fatwa On your Head? We Can Help: Go to FightforFreedom.us

The second ad has the initials “SIOA”, or “Stop the Islamization of America” added at the bottom.

Advertising for the second ad has been purchased from the Edmonton Transit Service (“ETS”). It will appear in the form of a large panel covering the rear of an Edmonton city bus. AFDI has purchased 5 such ads which will run for 4 weeks.

Do you believe either of these ads constitutes lawful expressive activity such that they are protected by freedom of expression as provided by section 2(b) of the Charter?

What do you make of the second sign? It doesn’t expressly advocate violence or hate, nor is it expressly hateful of the Muslim community. It is a matter of fact that thousands of Muslim girls around the world have been killed in this way.

But is it misleading to suggest that honour killings only happen in the Muslim community and might this expose the Muslim community to vilification and harmful stereotyping by those who don’t know better? Is the logo “Stop the Islamization of America” a laudable aim worthy of protection, or is it simply hateful?

The right to freedom of expression is one of the most jealously guarded Charter rights we enjoy, but it is not limitless. We would argue that the protection afforded by section 2(b) is not merely concerned with a person’s right to express their views but with fostering a society which promotes a vibrant and respectful market place of ideas in which everyone, not merely those with the loudest or most raucous voice, can be heard. In that respect, it is important to keep the comments of Justice McLachlin (as she then was) in Irwin Toy Ltd. v Quebec (Attorney General), [1989] 1 SCR 927 (“Irwin Toy”) in mind where she recognized the values which the right to freedom of expression seek to further (at para 243):

We have already discussed the nature of the principles and values underlying the vigilant protection of free expression in a society such as ours. They…can be summarized as follows: (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfilment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.

Short of expressing messages which consist of hate speech, do we have a responsibility to treat each other with respect? To communicate in a way that recognizes our differences and which promotes a truly free exchange of ideas in which everyone is entitled to participate as equal? To make people feel valued members of our civic culture rather than making them feel marginalized, vulnerable and devalued?

The questions which we’ve raised above aren’t the basis of a law school exam. They lie at the heart of the fascinating case of American Freedom Defence Initiative v The City of Edmonton, which will be heard by a Queen’s Bench Justice in Edmonton in early 2016 (see documents related to the case here). After the second ad was approved and placed on ETS buses, The City of Edmonton received numerous public complaints. Following an internal review, ETS removed the ads due to their offensive nature. AFDI is seeking a declaration that ETS violated its section 2(b) right to freedom of expression, and that, in the result, ETS must run the ad as it originally contracted to do.

In writing this post, we are not intending to prejudge the decision that the Court of Queen’s Bench will have to make in this case, which is already complicated enough (cross-examinations have yet to be conducted on the affidavits filed by the parties and written briefs have not yet been submitted). Rather, our purpose is to discuss the issues which arise in a more general manner because the advertising of political, religious, or public policy messages on municipally-owned buses or property by activist groups is likely to grow. We should add that this post is a companion piece to an article to be published this spring in the Digest of Municipal & Planning Law (DMPL) where we discuss the constitutionality of various existing advertising policies being used by municipalities across Canada, including those used by ETS in the AFDI case (look for that in the May issue of the DMPL).

Who is AFDI?

Together, AFDI and its sister entity, Stop Islamization of America (SIOA), form the American branch of the controversial international organization, Stop Islamization of Nations. Readers may recall AFDI’s highly publicized campaign to stop a mosque from being constructed in New York city near ground zero. The self-described human rights advocacy group “go[es] on the offensive” when it perceives government capitulation to Islamic supremacism (article here). Its 18-point platform includes, among other things:

  • Profiling Muslims at airports and in hiring for positions that involve national security or public safety;
  • Conducting surveillance and “regular inspections” of mosques;
  • Altering school curricula in its discussion of Islamic doctrine;
  • Halting immigration of Muslim persons to countries that do not have a Muslim majority;
  • “Careful investigation” of Muslims who are residents/citizens in non-Muslim countries; and
  • Criminalizing the foreign funding of university Islamic Studies departments and positions.

(the full is platform available here)

AFDI primarily spreads its message through bus and billboard campaigns, grassroots protests, and political lobbying. Its bus campaigns have already garnered significant attention (and litigation) south of the border. In 2012, AFDI successfully argued that the New York transit authority’s ban on demeaning advertisements violated the First Amendment in American Freedom Defence Initiative v Metropolitan Transportation Authority, 1:11-cv-06774 PAE (S.D.N.Y., 2012). In so doing, it won the right to place ads on New York City buses which read:

In any war between the civilized man and the savage, support the civilized man. Support Israel Defeat Jihad.

In that decision, the judge classified the ad as protected political speech occurring within a designated public forum.

Encouraged by this and other victories in the U.S., AFDI has continued to expand its bus campaigns to other major American cities. Like New York, these municipalities have struggled to balance free expression guarantees with the rights of an Islamic community that, perhaps unsurprisingly, is feeling picked on (see further examples of AFDI’s advertising campaigns and public pushback here and here).

This case is, as far as we know, the first court challenge that AFDI has commenced in Canada, but it will likely not be its last. We can only assume that AFDI is seeking to expand its brand of messaging to other cities throughout Canada and that this case is the first of many.

The Right to Advertise on Canadian City Buses

Interestingly, the facts in the AFDI case are similar to those in the Supreme Court of Canada’s decision in the case of Greater Vancouver Transportation Authority v Canadian Federation of Students, [2009] 2 SCR 295 (“GVTA”). In GVTA, the Canadian Federation of Student sought to place advertising on the sides of buses operated by the Greater Vancouver Transportation Authority and by British Columbia Transit. The purpose of the ads was to encourage young people to vote in the upcoming provincial election. The transit authorities refused to place the ads on the basis that they did not comply with their policies regarding advertising on buses. The Canadian Federation of Students argued that the policies, which only allowed commercial but no political advertising, violated its freedom of expression.

The specific policies which were the subject of the challenge:

  • Only allowed commercial advertisements, or those having to do with public service announcements and public events;
  • Did not allow any advertisements likely, “in the light of prevailing community standards, to cause offence to any person or group of persons or create controversy”; and
  • Did not allow any advertisement which “advocates or opposes any ideology or political philosophy, point of view, policy or action, or which conveys information about a political meeting, gather or event, a political party or the candidacy of any person for a political position or public office”.

Writing for the majority, Justice Deschamps applied the three-part test established in the earlier decision, Montreal (Ville) v 2952-1366 Quebec Inc., [2005] 3 SCR 673) (“City of Montreal”) (at para 57) to determine whether the policies infringed upon the CFS’ section 2(b) right (at paras 37-47). First, Justice Deschamps confirmed that the CFS ads consisted of expressive content which triggered the application of section 2(b) (at para 38). Second, she concluded that the buses were government owned property on which expressive activity was protected, and she likened the advertising space made available on buses to other public spaces, such as sidewalks and parks, which have historically supported such a use (at para 42):

…While it is true that buses have not been used as spaces for this type of expressive activity for as long as city streets, utility poles and town squares, here is some history of their being so used, and they are in fact being used for it at present. As a result, not only is there some history of use of this property as a space for public expression, but there is actual use – both of which indicate that the expressive activity in question neither impedes the primary function of the bus as a vehicle for public transportation nor, more importantly, undermines the values underlying freedom of expression.

Justice Deschamps further held that advertising space made available on buses would not undermine the values underlying constitutional protection (at paras 43-47):

…The very fact that the general public has access to advertising space on buses is an indication that members of the public would expect constitutional protection of their expression in that government-owned space. Moreover, an important aspect of a bus is that it is by nature a public, not a private space… The bus is operated on city streets and forms an integral part of the public transportation system. The general public using the streets, including people who could become bus passengers, are therefore exposed to a message placed on the side of a bus in the same way as to a message on a utility pole or in any public space in the city…

Justice Deschamps concluded that advertising space on buses was a type of public space which attracted the protection of section 2(b) of the Charter and that the policies infringed upon CFS’s right to freedom of expression. The question turned to a justification of that infringement under section 1 of the Charter.

Justice Deschamps agreed that there was a substantial pressing purpose for the policies, namely to provide for “a safe, welcoming public transit system” (at para 76) but she did not understand how mere political speech would, in itself, jeopardize public safety and she therefore held that the policies were not rationally connected with their purpose (at para 76):

…I have some difficulty seeing how an advertisement on the side of a bus that constitutes political free speech might create a safety risk or an unwelcoming environment for transit users. It is not the political nature of an advertisement that creates a dangerous or hostile environment. Rather, it is only if the advertisement is offensive in that, for example, its content is discriminatory or it advocates violence or terrorism – regardless of whether it is commercial or political in nature – that the objective of providing a safe and welcoming transit system will be undermined.

Justice Deschamps further held that the means chosen to carry out the purpose of creating safe and welcoming transit system were not reasonable or proportionate and she objected to the policies because they effectively prohibited all forms of political messages (while allowing commercial advertising) and because excluding advertisements which “create controversy” was overbroad (at para 77).

Justice Deschamps concluded that the restrictions the policies imposed on CFS’ right to advertise its political views constituted an unjustifiable infringement that was not saved by section 1 (at para 80), and she consequently declared them to be of no force and effect pursuant to section 52 of the Constitution Act (at para 90).

The Court’s decision in GVTA really should not come as any surprise. It is consistent with two previous Supreme Court of Canada decisions, namely Committee for the Commonwealth of Canada v Canada ([1991] 1 SCR 139) and the City of Montreal case, above, which discuss the limits of public protest and expression in government owned public space.

In our view, the GVTA decision makes it difficult for municipalities to prohibit or limit a group’s right to advertise its political views or social advocacy messages on existing advertising space located on municipally owned lands or infrastructure. This is because advertising space made available for public use serves the same function as venues such as public streets, parks, or other public spaces where freedom of expression is already protected.

This doesn’t mean, however, that municipalities are entirely without recourse and we can think of at least three options which might be available:

  • We wonder whether advertisements placed inside of transit vehicles, where it is more difficult to avoid exposure to an unwanted message, may attract the captive audience doctrine. This doctrine has found acceptance in the U.S. and establishes that a person may be considered a captive audience to another’s unwanted speech where the following two factors are present:
  1. First, the method of communicating the unwanted speech must thrust the message upon the audience in such a manner that the listener cannot reasonably avoid it. Consequently, a listener who can take reasonable steps to avoid the offending speech cannot be said to be harmed and therefore does not require legal protection; and
  2. Second, the unwanted speech must be received in a location where the listener has an expectation of privacy. Forcing the unwanted recipient to be exposed to the speech where he or she has a right to quiet enjoyment and privacy intrudes upon the listener’s privacy interest in an “essentially intolerable manner” (for a previous ABlawg post on the subject, see here).
  • As discussed later in this post, Justice Deschamps created some room for municipalities to argue for a “community standard” where the message causes offence to a particular audience.
  • And, as discussed next, municipalities can nevertheless justify limits on speech that advocates hate and violence or is otherwise discriminatory or hateful under section 1 of the Charter.

The Limits of Offensive Expression

GVTA imposes a heavy burden on a municipality seeking to regulate its advertising space, but it doesn’t render government authorities powerless. Indeed, Justice Deschamps expressly acknowledged that discriminatory speech may be justifiably restricted if it undermines the existence of a safe and welcoming transit system (GVTA at para 76). While her comment on offensive speech was left largely unexplored in GVTA, it will be central to AFDI’s success: How far can a municipality go in restricting ads that are not merely political, but are hateful or offensive? The answer to this question will likely be drawn from Canada’s jurisprudence on hateful or offensive speech.

Saskatchewan (Human Rights Commission) v Whatcott, [2013] 1 SCR 467 (“Whatcott”) is the leading decision on hate speech in Canada. Here, the Supreme Court of Canada upheld Saskatchewan’s human rights ban on hateful expression, but read down the law to only catch expression that exposed vulnerable persons to hatred – which it equated with vilification or detestation (Whatcott at para 109).

Whatcott dealt with the publication and distribution of various homophobic fliers in mailboxes across Regina and Saskatoon. The fliers sought to keep homosexuality out of public schools, and to this end, equated homosexuality with pedophilia. Several complaints were lodged with the Saskatchewan Human Rights Commission. The Commission held that the fliers exposed LGBTQ persons to hatred and ridicule in contravention of the Human Rights Code (the “Code”), and prohibited their future distribution. Whatcott appealed the decision, and challenged the constitutionality of the Code’s limit on his expression.

The Supreme Court of Canada upheld the Code’s prohibition on hate speech, but significantly narrowed the scope of the provision. In reaching this conclusion, the unanimous Court agreed with Whatcott that section 2(b) of the Charter applied to his case, and that the Code infringed his freedom of expression. This conclusion was not surprising. In Canada, all attempts to convey meaning attract section 2(b) protection unless they constitute violence or a threat of violence. The fliers were a non-violent attempt to convey meaning, and the Code expressly restricted that expression. Therefore, the section 2(b) violation was not seriously contested.

The government was nevertheless able to justify its restriction on Whatcott’s freedom of expression through the section 1 analysis. This win did not, however, come without sacrifice. In order for the government to pass the section 1 reasonable justification test, the Code’s prohibition on offensive speech was significantly narrowed. While the original prohibition applied to speech that exposed persons to hatred, ridicule, belittlement or otherwise affronted dignity, post-Whatcott, only the prohibition on hateful speech remained (Whatcott at paras 92, 108).

The Court’s reasoning was driven by the serious interests at stake and the degree of state intrusion into what a person can or cannot say. Given the importance of free expression, and the fact that the Code prohibited speech under the threat of state proceedings, only the most extreme forms of expression (exposing groups to “detestation” or “vilification”) could fall within its bounds.

The Court’s section 1 analysis was thorough and instructive. The objective of prohibiting hate speech under a human rights regime is more than individual – it seeks to reduce the societal costs caused by discrimination at large (at paras 71 – 74). This social objective was sufficiently “pressing and substantial” as the marginalization of vulnerable groups harms our entire society (at para 74). Since the goal was focused on group rather than individual harms, expression that targeted individuals, hurt individual feelings, or impugned an individual’s dignity failed to meet the rational connection stage of the test. Hateful or offensive expression rises beyond the level of individual harm where it seeks to “…marginalize the group by affecting its social status and acceptance in the eyes of the majority”, and is therefore prohibited (at paras 80, 82). For similar reasons, only the most extreme language of hatred that targeted marginalized groups would be minimally impairing. Prohibiting language that was merely offensive or hurt feelings was impermissibly overbroad.

Lastly, in assessing the overall proportionality of the prohibition, the Court called upon the values underlying section 2(b) of the Charter – truth seeking, political discourse, and personal fulfillment (Irwin Toy at para 243). Since hateful speech strays from these core values, the Court was more willing to defer to the government’s chosen course of action. This approach renders hate speech an easier target for government restrictions, because it often obscures the truth and shuts down democratic discourse (Whatcott at paras 44, 45, 75, 148; Lemire v Canada (Human Rights Commission), 2014 FCA 18 at para 60).

The narrowed ban on hateful expression caught only two of Whatcott’s four fliers. The remaining fliers, while extremely offensive, failed to demonstrate the degree of hatred required by the prohibition.

With this context in mind, what (if anything) can Whatcott tell us about offensive advertisements on city buses? The policies that ETS employs entitles it to pull ads that fall far short of the “hateful” speech outlined in Whatcott (for more on this, see our companion piece to be published in the DMPL). Nonetheless, Whatcott will be useful in predicting where the line will be drawn for acceptable expression on city transport. As we see it, three themes emerge from Whatcott that will help municipalities and Courts distinguish between acceptable and unacceptable expression on city transit: (1) Not all speech is created equal; (2) State restrictions on speech must be proportional and balanced; (3) The reasonable apprehension of harm governs.

Each of these themes is examined in more detail below.

  1. Not all speech is created equal

Free expression protections are tied to the core values underpinning section 2(b): self-fulfillment, political discourse and truth-seeking (Irwin Toy, supra). Starting with Keegstra, the Supreme Court used these three goals to build a value assessment into its examination of impugned speech. As a result, even though all restrictions on non-violent speech are subjected to section 1 justification, not all speech is equally worthy of protection (Whatcott at para 29, R v Keegstra, [1990] 3 SCR 697).

City transport operations may be able to draw on this reasoning to demonstrate that offensive ads are “less worthy” of protection. Although a group such as AFDI may argue that its ability to advertise on city buses promotes self-fulfillment, there are some factors that indicate the ad in question may not promote the values of truth seeking and open political discourse.

In the present context, truth seeking could present an obstacle to AFDI’s case. The website listed in the advertisement, which purports to be a resource for vulnerable individuals, is a conspiratorial anti-Muslim blog with a few (mainly broken) links to other anti-Muslim resources. The ad is more likely an attempt to further AFDI’s mission than it is a source of help for girls in crisis.

The ad may also discourage political discourse, rather than enhance it. The ad does not attack Muslims or advocate AFDI’s platform outright. Rather, it attempts to paint the Muslim community as perpetrators of a heinous crime reviled in our society. This “hallmark of hate” raises concerns similar to those in Whatcott – if Muslim persons would like to enter into a democratic debate on their rights, they must first disprove the allegation that they tolerate (or accept?) honour killings within their community (Whatcott at paras 44, 45, 76). If minority groups are required to overcome an unfair and unreasonable threshold question in order to participate in debate, their contribution to society’s political discourse will be stifled.

  1. State restrictions on speech must be proportional and balanced

Despite being less worthy of protection, a limit on offensive speech still must be justified as a reasonable limit under section 1 of the Charter. Restrictions on speech will only be viewed as reasonable if the degree of state intrusion is proportional to the harm the state seeks to avoid. In order to preserve constitutionality in Whatcott, the Supreme Court was forced to narrow the hate speech provisions so that only the most severe and vitriolic expression would fall within their scope. In other words, if the government is entitled to prosecute a person based on their expression, that targeted expression must be extraordinarily narrow.

Municipal transport policies often entitle the authorities to pull ads at a much lower threshold than that described in Whatcott. However, it is possible that this broader scope could be justified, because there is a comparatively lower degree of state intrusion. In other words, a transport authority may be able to limit a broader range of expression on buses because it is merely restricting advertising space. When the government intrusion at issue involves criminal prosecution or human rights proceedings, the scope of expression that may be limited will be much narrower.

  1. The reasonable apprehension of harm governs

Whatcott demonstrates that the government can restrict offensive speech if it causes a reasonable apprehension of harm to society. This harm does not have to be empirically measured – the Court is entitled to look at the entire context and reach conclusions based on its own common sense. However, evidence of societal harm must be broader than an individual’s hurt feelings.

In order to demonstrate that the ads were pulled to restrict a reasoned apprehension of societal harm, ETA may draw on the numerous public complaints it received, but it must do so carefully. As we’ve discussed above, Whatcott is clear that one or more individual complaints are inadequate to justify curtailing someone’s free speech. However, Justice Deschamps’ reference to a “community standard of tolerance” in GVTA may provide a workable answer for municipalities.

The community standard test has thus far only been applied in cases dealing with obscenity bans (see, for example, R v Butler, [1992] 1 SCR 452). GVTA suggests that the concept may be extended to demarcate the reasonable limits on offensive advertisements. This is what Justice Deshamps suggested in the GVTA case (at para 77):

While a community standard of tolerance may constitute a reasonable limit on offensive advertisements, excluding advertisements which “create controversy” is unnecessarily broad. Citizens, including bus riders, are expected to put up with some controversy in a free and democratic society. [emphasis added]

Allowing municipalities to identify and prohibit those messages which are offensive to their communities’ standard of tolerance would certainly provide an effective way to combat the proliferation of problematic messaging. Indeed, municipalities are well-versed in Charter litigation and with arguing that their legislation was enacted to address some pressing and substantial problem found in their communities. Ultimately, the municipality defending the prohibition of certain problematic messages would have to demonstrate that the harm caused by the message is significant enough to warrant the limitation and that the limitation constitutes a minimal impairment of the affected party’s section 2(b) rights.

But allowing for community standards of tolerance also creates the spectre of patchwork consistency where minority interests are over-represented through political correctness or under-represented because they lack a political voice rather than the uniform application of Charter principles. While there are sure to be small, rural or isolated communities in Canada which require special considerations, are cities like Calgary, Edmonton, Vancouver, Toronto, Montreal, Saskatoon, Halifax really that different? Aren’t all these cities representative of our worlds’ cultures, religions, and all the challenges these bring with them?

Next Steps

What are municipalities to do? They are caught in very difficult position.

It is clear from Canadian case law that restrictions on expressive activity in government-owned space which can be likened to public parks, sidewalks, or other spaces which support the values underlying freedom of speech, will likely constitute an infringement which must be justified under section 1 of the Charter. But is the threshold for excluding certain hateful or hate speech practically too onerous? There are messages which fall short of hate speech but which, through inadvertence or design, will nevertheless be deeply offensive to certain groups within our communities. Don’t those types of messages also run contrary to the purposes articulated in Irwin Toy for promoting freedom of expression?

One could argue that AFDI’s second ad, or indeed any ad with the logo “Stop the Islamization of America” is not ultimately concerned with seeking and attaining truth, encouraging Muslims to participate in social and political decision-making, or fostering an environment for tolerant and respectful speech. One could argue that these types of ads serve no real purpose in promoting the values underlying free speech and only serve to make the Muslim community feel picked-on, marginalized and shamed.

Even if you disagree, do messages like AFDI’s ads raise special considerations for a municipality which is required by law to place these messages on the side of its buses or other municipally-owned advertising space? Should the balancing exercise in section 1 of the Charter attract special considerations here? We believe that these types of messages pose special challenges for municipalities and warrant special consideration for some of the following reasons:

  • Messages placed in public spaces such as existing advertising signs or billboards located on municipal infrastructure, buildings, buses, will be viewed by a larger number of people given their location and exposure;
  • People reading these messages may believe that these advertisements are condoned by their municipality or city council, or reflect their municipality’s views;
  • These messages, if targeted towards a particular group which finds them deeply offensive, may promote mistrust and tension between this group and others, civil unrest, larger protests, and, at worst, violence; and
  • These messages and their resulting impact may undermine efforts by officials who are seeking to promote community harmony and dialogue.

Defining the limits of appropriate speech isn’t just an exercise in legal abstractions, nor does it just involve lawyers. Rather, it goes to the heart of how we can live together in peaceful community with our neighbours and what we, as a community aspire to be. What role should our municipalities have in deciding whether to allow advertising in its space which might be hurtful or offensive? Should municipalities have input in deciding what expression might not be appropriate for its communities? Or, should the courts be the sole arbiters of what constitutes acceptable expression?

Whatever its outcome, the AFDI decision raises fascinating public policy implications and we will be there to blog about it.

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Lawyers’ Representation, Lawyers’ Regulation and Section 7 of the Charter

Mon, 02/23/2015 - 9:00am

By: Alice Woolley

PDF Version: Lawyers’ Representation, Lawyers’ Regulation and Section 7 of the Charter

Case Commented On: Attorney General (Canada) v Federation of Law Societies, 2015 SCC 7

In Attorney General (Canada) v. Federation of Law Societies, 2015 SCC 7 the Supreme Court of Canada precluded the application to lawyers of certain provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17, and the Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations, SOR/2002?184. The Court held that, as applied to lawyers, those provisions violated s. 7 and s. 8 of the Charter. The violation of s. 8 arose from the provisions’ failure to protect adequately solicitor-client privilege in the context of searches permitted under the legislation. The violation of s. 7 arose because the provisions put lawyers’ liberty at risk and were inconsistent with fundamental justice. Specifically, because of the “conclusion that the search aspects of the scheme inadequately protect solicitor-client privilege” (at para 105) and, for a majority of the Court, because the provisions interfered with a newly articulated principle of fundamental justice: that the state may not impose duties on lawyers that undermine a lawyer’s commitment to her client’s cause. The Court declined to hold that independence of the bar was a principle of fundamental justice.

The conclusion by the majority that fundamental justice prevents improper interference with lawyers’ commitment to their clients is welcome. The rule of law requires legal counsel committed to protecting the ability of clients to enjoy the respect for their dignity and autonomy that the law provides (see my articles setting out this position here and here). The Court’s view of the legislation as unconstitutional also appears warranted; certainly the legislation’s search provisions seem plausibly to permit improper intrusions into privileged documents and information.

There are, however, some analytical deficiencies in the majority judgment. First, the Court never analyzes the question of whether the recording and retention provisions of the legislation – i.e., the provisions at issue other than the search provisions – intrude on solicitor-client privilege. The BC Court of Appeal held that they did not (Federation of Law Societies v. Canada (Attorney General), 2013 BCCA 147 at paras 88 and 118); the Chambers’ judge held that they did (SCC decision at para 25). In its judgment the Supreme Court simply states that it does “not approach this case on the basis that all the materials that lawyers are required to obtain and retain by the Act are privileged” (at para 42). This suggests that the Court believes that some materials may be privileged, but also that it is unwilling to determinatively conclude that they are, or why. This makes its broader analysis of why the recording and retention provisions violate s. 7 uncertain.

Second, assuming that the Court agrees with the BC Court of Appeal (and the quote seems to suggest that it generally does, or at least that it is not disagreeing with that court), that creates some interesting complexities in its s. 8 analysis. Specifically, assuming that the recording and retention provisions do not themselves violate solicitor-client privilege, then it is at least possible to imagine that a carefully tailored search to ensure compliance with those provisions would not do so either. The Court does not consider this possibility. This suggests the Court views the legislation as creating one of two problems (or, conceivably, both): (1) that there is no way to see whether the recording and retention provisions have been complied with without more broadly intruding into the solicitor-client communications, including privileged communications; or (2) that an authority with the sort of broad powers contained in the legislation will inevitably search more widely, and potentially intrude into solicitor-client privilege, even if doing so is not necessary to ensure compliance with the reporting and retention requirements.

Unfortunately, we do not know the precise nature of the Court’s concerns with the search provisions; they do not tell us whether the recording and retention provisions properly respect privilege and they do not tell us, if they do respect privilege, how the search provisions designed to enforce them nonetheless violate privilege.

Third, assuming that the Court does not agree with the BC Court of Appeal, and thinks that the recording and retention provisions could violate solicitor-client privilege it would have been helpful for them to have explained why – why some of the materials obtained are privileged even if not “all” of them are (at para 42). The scope of solicitor-client privilege is a matter of argument – how do we define the boundaries of communications for the purpose of giving/receiving legal advice? – and understanding how the reporting and retention provisions breach those boundaries would have been helpful.

Fourth, and most significantly, the Court’s explanation of why the provisions of the legislation improperly interfere with the lawyer’s commitment to his client’s cause is thin and, frankly, unpersuasive. The Court’s position is that since the profession has reached a consensus that more minimal disclosure was appropriate than did Parliament, Parliament’s view must constitute an improper interference. But at no point did the Court explain how the sort of disclosure Parliament proposed would, in fact, interfere with the lawyer’s commitment to her client other than because of the over-breadth of the search provisions. The position ‘if it is different than what the profession thinks then it is prima facie excessive’ seems to grant status to self-regulation of the legal profession that the Court purported to reject.

The rest of this post will summarize the Court’s decision before briefly returning to these points.

The Decision

The Act and Regulations considered by the Court have two central attributes. First, they require that financial intermediaries, including lawyers “collect information in order to verify the identity of those on whose behalf they pay or receive money, keep records of the transactions, and establish internal programs to ensure compliance” (at para 2). Second, the legislation permits searches of the material that financial intermediaries “are required to collect, record and retain” (at para 2). The legislation in its disclosure requirements does not require “legal counsel to disclose any communication subject to solicitor-client privilege” (at para 19) and in its search provisions provides some protection of solicitor-client privilege, although only where a lawyer has asserted a privilege claim on the client’s behalf (at para 19).

In his reasons for the majority Cromwell J. noted that none of the legislative provisions against lawyers have been enforced pending the Court’s decision. Instead, lawyers have been subject to a separate regulatory regime developed by the Federation of Law Societies and adopted across the country (at para 23 – I summarized and compared those in my post on the BCCA decision in this matter, here).

For his s. 8 analysis Cromwell J. began by reviewing the provisions of the legislation. He noted that the provisions do not simply require production of information, but rather permit authorities to embark on a general examination of “records” and an inquiry “into the business and affairs of any person or entity” to ensure compliance with the legislation (at para 32). He noted that law office searches are unreasonable absent “a high level of protection for material subject to solicitor-client privilege” (at para 36). Cromwell J. rejected the Attorney General’s position that a different standard applied here because this was an administrative or regulatory matter rather than a criminal one. The expectation of privacy in relation to privilege “is invariably high, regardless of the context” (at para 38) and, as well, there was no reason to distinguish this case from a “search by other law enforcement authorities” (at para 39).

Cromwell J. emphasized the broad scope of the provisions in the legislation, noting that they “give the authorized person licence to troll through vast amounts of information in the possession of lawyers” and that this creates “a very high risk that solicitor-client privilege will be lost” (at para 40). Even though he did not assume that “all” the materials obtained and retained by lawyers under the Act are privileged, the prior jurisprudence on law office searches “aims to prevent the significant risk that some privileged material will be among the records in a lawyer’s office examined and seized” (at para 42). Here “there is a significant risk that at least some privileged material will be found among the documents that are the subject of the search powers” (at para 42).

The protection given to privilege by s. 64 of the legislation is insufficient to save it. It only allows privilege claims to be made by legal counsel, it does not provide for notice to the client and it does not provide for “independent legal intervention” when notification of the client is not feasible (at para 50). It also does not allow a judge “to assess the claim of privilege on his or her own motion” (at para 52). Some searches under the legislation “do not require prior judicial authorization” (at para 54) and it only stops review of documents after the lawyer asserts a privilege claim (at para 55). Finally, it requires the lawyer to name the client when asserting privilege and, in some instances, the name of a client may itself be privileged (at para 55).

Cromwell J. found that these deficiencies amounted to a violation of s. 8 that could not be saved under s. 1 because they failed the minimal impairment test (at para 61).

In terms of s. 7 Cromwell J. found that the provisions “engage the liberty interests of lawyers” given that they are “liable to prosecution and impairment” if they fail to comply with them (at para 71). The Court did not consider whether the liberty interests of clients were also engaged, finding that this would not make any analytical difference (at para 72).

Cromwell J. further found that the risk to lawyers’ liberty interests was not consistent with fundamental justice given the violations of s. 8 and the fact that solicitor-client privilege is a principle of fundamental justice (at para 73). He also, held, however, that the provisions violate fundamental justice because they are inconsistent with a new principle of fundamental justice, namely, that the state may not improperly interfere with a lawyer’s commitment to the client’s cause (at para 77).

Cromwell J. declined to consider whether lawyers’ freedom “from incursions from any source, including public authorities” – i.e., self-regulation – was a principle of fundamental justice. In a framing similar to that set out in my earlier blog post on this case, he noted that independence of the bar as described in the earlier ruling by the BC Court of Appeal could be understood in that broader sense and also in a more focused way, as reflecting “concern about state interference with the lawyer’s commitment to the client’s cause” (at para 77). Cromwell J. held that the relevant principle here was the narrower one, and the broader framing did not need to be assessed (at para 80).

That narrower principle, Cromwell J. held, should be given constitutional status, “as a principle of fundamental justice that the state cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes” (at para 84). The duty of commitment to a client’s cause has been recognized by the courts (at para 91) and demonstrated to be “sufficiently precise to enable the courts to apply it in widely divergent fact situations” (at para 92). It is not unlimited, and does not allow the lawyer to “assert claims that he or she knows are unfounded or to present evidence that he or she knows to be false or to help the client to commit a crime” (at para 93). It is also broadly recognized in case law and in international documents, and is “essential to maintain public confidence in the administration of justice” (at para 97).

The legislation is inconsistent with this principle of fundamental justice because it imposes standards on lawyers beyond those that the profession itself has recognized as “necessary for effective and ethical representation of clients” (at para 107). While the profession’s standards “cannot dictate to Parliament what the public interest requires or set the constitutional parameters for legislation” they “provide evidence of a strong consensus in the profession as to what ethical practice in relation to these issues requires” (at para 108). And the “legislation requires lawyers to gather and retain considerably more information than the profession thinks is needed for ethical and effective client representation” (at para 108). Further, the lawyer gathers that information knowing that the search and seizure provisions do not adequately protect solicitor-client privilege (at para 108), which further undermines the ability of that lawyer to provide committed representation; a “reasonable and informed person” would view this the same way (at para 109).

This does not mean, Cromwell J. stated, that lawyers are “above the law”; constitutional problems only arise where the state has imposed duties that undermine the lawyer’s “ability to comply with his or her duty of commitment to the client’s cause” (at para 111).

In concurring reasons Chief Justice McLachlin and Moldaver J. agreed with the result based on s. 8 and s. 7’s protection of solicitor-client privilege. They were of the view, however, that commitment to a client’s cause is insufficiently certain “to constitute a principle of fundamental justice” (at para 119).

Analysis

My main issues with the judgment are largely set out above. In essence, the unwillingness of either the majority or concurring reasons to explain whether the retention and recording provisions violate solicitor-client privilege and, if so, how and why, renders the judgment unclear. It is not clear whether there is an independent s. 7 violation from the reporting and retention provisions and on what basis that violation is made out. It is also not clear whether the issue in s. 8 is a risk of over-zealous searching or inevitable violations of privilege because of the information relevant to whether a lawyer has complied with the recording and retention provisions. We do know that the legislation does not adequately respond if solicitor-client privilege is at risk, but we do not know whether that privilege is at risk because an authority is searching in a lawyer’s office, or because of the nature of the documents that the authority would inevitably be looking for to determine compliance with the recording and retention aspects of the legislative scheme. That is not to say that no s. 8 violation occurs here – indeed, on either of these grounds it seems safe to say that it does – but the judgment’s scope and meaning is unclear absent some more thorough explanation.

I also want to reiterate how thin and unpersuasive is the Court’s analysis of the legislation’s breach of the new principle of fundamental justice. The Court tells us (a) the legislation requires more of lawyers than does the Federation of Law Societies’ requirements; (b) the Federation’s position reflects a professional consensus on what ethical and effective representation requires; (c) that professional consensus is not determinative; but (d) the legislation is unconstitutional because it is inconsistent with that consensus. There is no analysis of why the greater information required by Parliament would interfere with a lawyer’s representation, no detailed explanation of what that information is, or how the gathering of it could be problematic. The clearest point made by the Court is with respect to the search and seizure provisions but those provisions can be struck without striking the whole. Yet the Court never explains why that is not – or should not be – an option in order to protect a lawyer’s commitment to her client’s cause.

As noted earlier, I do welcome the majority’s recognition of the centrality of lawyers being committed to their clients’ causes; it is a recognition I have argued for. It is unfortunate that in this case it was not coupled with a more rigorous explanation of the meaning of that principle for the articulation of rules governing lawyers’ conduct when representing their clients. The Court is right not to have recognized self-regulation as a constitutional principle, and to have focused instead on protection of client representation. But that approach required the Court to itself consider what protection of lawyers’ representation of clients’ required, not to defer to the judgment of the profession without any independent analysis of why the profession got it right.

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Supreme Court of Canada Strikes Down Ban on Physician Assisted Death

Wed, 02/18/2015 - 9:00am

By: Jennifer Koshan

PDF Version: Supreme Court of Canada Strikes Down Ban on Physician Assisted Death

Case Commented On: Carter v Canada (Attorney General), 2015 SCC 5

In a landmark decision, on February 6, 2015 the Supreme Court of Canada unanimously struck down the criminal prohibition against physician assisted death (PAD) in Carter v Canada, 2015 SCC 5. By declining to follow its 1993 decision in Rodriguez v British Columbia, 1993 CanLII 75 (SCC), [1993] 3 SCR 519, which had upheld the prohibition, Carter marks the third time in the first few weeks of 2015 that the Court has overruled previous Charter decisions (see also Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 and Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, which will be the subject of a future ABlawg post). In Carter, the Court held that the ban on PAD violates the rights to life, liberty and security of the person contrary to the principles of fundamental justice under section 7 of the Charter, and could not be justified as a reasonable limit under section 1. As predicted, however, the Court declined to deal with the claim that the ban on PAD also violates equality rights contrary to section 15(1) of the Charter.

The Decision

Carter focuses on persons who have a grievous and irremediable medical condition causing suffering that is intolerable to them, and who clearly consent to the termination of life. The Court indicated that for such persons, denial of PAD presents a “cruel choice” – they can take their own lives prematurely, or suffer until they die from natural causes (at para 1). This choice engaged the right to life under section 7 of the Charter, which protects individuals from government actions that increase the risk of death directly or indirectly (at para 62). While the Court took no position on whether the right to life also includes a more qualitative right to die with dignity, it did affirm that section 7 does not create a “duty to live” (at para 63). The prohibition against PAD also violated the right to liberty, which protects individual autonomy and life choices, and the right to security of the person, which protects physical and psychological integrity free from state interference. As noted by the Court, “an individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy” (at para 66).

Section 7 of the Charter requires proof that the violation of life, liberty or security of the person is contrary to the principles of fundamental justice. In Carter, the Court considered several arguments concerning these principles. First, it held that the prohibition against PAD was not arbitrary, as the objective of the prohibition – to protect the vulnerable from ending their lives in times of weakness – was furthered by a total ban on PAD (at para 84). However, the ban was seen to be overbroad, as its objective went further than necessary given that not all persons seeking PAD are vulnerable to such inducements (at paras 86-88). In light of this conclusion, the Court found it unnecessary to deal with the argument that the ban violated the principle of fundamental justice concerning gross disproportionality (at para 90). It also declined to consider the argument that a new principle of fundamental justice, parity between criminal sanctions and moral blameworthiness, should be recognized (at paras 91-92).

The overbreadth of the law also led to the finding that it could not be justified as a reasonable limit under section 1 of the Charter. While protecting the vulnerable – including persons with disabilities and the elderly – was seen as a pressing and substantial objective, the Court rejected the government’s argument that an absolute ban on PAD was reasonably necessary to achieve this objective. The justification argument thus failed the minimal impairment stage of the Oakes test (R v Oakes, [1986] 1 SCR 103). The evidence showed that a regime permitting PAD with safeguards to allow physicians to ensure patient competence, voluntariness, and the absence of coercion, undue influence and ambivalence was feasible and would minimize the risks associated with PAD (at para 106). Evidence of risks of a “slippery slope” from other jurisdictions permitting PAD – such as Belgium and the Netherlands – was not considered persuasive in the Canadian context. The Court clarified that some of the controversial cases arising in these jurisdictions, including euthanasia for minors and for persons with psychiatric conditions, would not fall within the scope of its decision (at para 111). It also clarified that its decision was not intended to compel physicians to provide PAD, noting that their freedom of conscience and religion – protected under section 2(a) of the Charter – would need to be reconciled with the rights of patients (at para 132).

The relevant sections of the Criminal Code, RSC 1985, c C-46, were declared void as applied to persons with grievous and irremediable medical conditions causing suffering intolerable to them who consent to the termination of life (at para 127). The Court suspended this remedy for 12 months to allow Canadian lawmakers to respond with legislation meeting the requirements of its decision in Carter. In keeping with the Court’s reasons for rejecting the argument of inter-jurisdictional immunity put forward by the claimants and the government of Quebec (at para 53), new laws governing PAD could be passed by the federal and/or provincial governments in light of their shared jurisdiction over the regulation of health. The Court declined to grant exemptions during the period of suspended validity given that none of the claimants were in need of immediate relief (at para 129).

Commentary

Carter is consistent with other recent decisions of the Supreme Court giving broad scope to section 7 of the Charter (see e.g. Canada (Attorney General) v PHS Community Services Society, [2011] 3 SCR 134, 2011 SCC 44 and posts on that case here, here and here; Canada (Attorney General) v Bedford, [2013] 3 SCR 1101, 2013 SCC 72 and a post on that case here). In that context, Carter was not an unexpected decision. While its ultimate conclusion on the constitutionality of the ban on PAD is hugely significant, the Court’s reasons do not add much to the existing jurisprudence defining the scope of section 7.

It is therefore unfortunate that the Court did not find it necessary to consider the claim under section 15 of the Charter that the ban on PAD had an adverse impact on persons with physical disabilities who were unable to take their lives without physician assistance (see para 93). As Jonnette Watson Hamilton and I have argued, consideration of the equality dimension of the case would have allowed the Supreme Court to clarify the law of adverse effects discrimination in Canada. It may also have allowed the Court to engage more deeply with the competing arguments of disability rights groups who intervened in Carter. Those arguments and the literature supporting them did not get very much attention from the Court – in fact it does not reference any of the arguments of these groups, and only cites one academic article from 1995 (Thomas J. Singleton , “The Principles of Fundamental Justice, Societal Interests and Section 1 of the Charter” (1995), 74 Can Bar Rev 446). Given that new legislation for PAD is now in the hands of government, it can be expected that the debates about PAD and its implications for the rights of persons with disabilities will continue in that realm.

An earlier version of this post was published on the Oxford Human Rights Hub blog.

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The AER and the Values of Efficiency, Flexibility, Transparency and Participation: Best in Class?

Thu, 02/12/2015 - 9:00am

By: Nigel Bankes

PDF Version: The AER and the Values of Efficiency, Flexibility, Transparency and Participation: Best in Class?

Matter Commented On: AER Bulletin, 2015-05 and an amendment to the Oil and Gas Conservation Rules creating the concept of a “Subsurface Order”

On February 10, 2015 the Alberta Energy Regulator (AER) issued Bulletin 2015-05 announcing a change to the Oil and Gas Conservation Rules. This change authorizes the AER to issue something called a Subsurface Order:

11.104 Notwithstanding sections 3.050, 3.051, 3.060, 4.021, 4.030, 4.040, 7.025, 10.060, 11.010, 11.102 and 11.145, if the Regulator is satisfied that it is appropriate to do so, the Regulator may, on its own motion, issue a subsurface order that

(a) designates a zone in a specific geographic area, and

(b) prescribes requirements pertaining to spacing, target areas, multi-zone wells, allowables, production rates and other subsurface matters within that zone,

in which case if there is a conflict or inconsistency between the subsurface order and any of the sections referred to above, the subsurface order prevails to the extent of the conflict or inconsistency.

The Bulletin provides additional guidance as to how the AER will use this significant new power – which evidently allows it to suspend and vary the default rules relating to important issues such as spacing, target areas, allowables and production rates over broad geographic areas. The amendment likely has something to do with the AER’s experimentation with the play-based approach (see post welcoming that development here). The Bulletin does not specifically mention that initiative although it does indicate that the change is particularly directed at tight oil and gas resources.

So what about the above values? I confess these are not the same values identified by the AER’s Best in Class project of protective, effective, efficient and credible (PEEC), although there is some common ground – efficiency is common to both, and how can a regulator be credible absent opportunities to participate in its rule development exercises? The Rule scores well on efficiency and obviously on flexibility: no surprises there. It also scores reasonably well on transparency (at least on ex post basis) since the Bulletin stipulates that “When complete, a subsurface order will be implemented with a bulletin announcing the order, and AER information systems, including the well spacing map, will be updated accordingly.”

But it gets a poor grade on participation. The Rule itself is silent (except to state that the AER will proceed “of its own motion”); it does not, for example, say that the AER will seek input from affected parties prior to issuing an Order. It does not provide that a draft of the Order will be published on the AER’s website for comment before being finalized. The Bulletin provides the following guidance:

AER staff, as part of ongoing regulatory system performance evaluation, will assess trends in down-spacing and other resource applications to identify potential opportunities for subsurface orders. Assessments will consider input from AER stakeholders, including industry and other government entities.

There are a number of concerns here, the first being the AER’s (traditional) conception of its stakeholders (industry and government – no mention of ENGOs, landowners or First Nations), and the second being its failure to articulate how this input will be solicited.

The Bulletin makes some effort to assure other interests (such as those listed in the last paragraph) that they need not be concerned since Subsurface Orders will not address surface activities and surface interests will continue to be protected by the Alberta Land Stewardship Act, SA 2009, A-26.8 and regional plans. But that is hardly completely convincing. We know that subsurface rules will have an impact on surface activities; and we only have two regional plans in place (the South Saskatchewan Plan and the Lower Athabasca (LARP)). Even these plans lack some of the necessary implementing frameworks (e.g. LARP’s biodiversity management framework and the landscape management plan)). Furthermore, there is at least some evidence that LARP doesn’t operate at the necessary level of granularity to have an impact on AER decision-making: see AER Decision, 2014 AER 13 re Prosper Petroleum). Finally, it seems more than a little odd for the integrated single-window regulator to be emphasizing the distinction between subsurface and surface approvals. It should be possible for this body to do a better job of integrating the two and was that not supposed to be one of the goals of play-based regulation?

So how can the AER do a better job on the participation value? First, it needs to recognize in all that it does that its stakeholders are not limited to industry and government departments. Second, on the process side, it could take a leaf from the book of its fellow Alberta energy regulators (and quasi-regulators) like the Alberta Utilities Commission (AUC, Rule Development), the Market Surveillance Administrator and the Alberta Electric System Operator (AESO) – all of whom seem to have better and more developed ideas as to how to engage in rule making than does the AER.

Best in Class? I don’t think so; not yet anyway.

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