From Eugene Meehan's SCC lawletter:
The accused was charged with several counts of first degree murder after the police found the dismembered remains of the victims on his property. Throughout the trial, the Crown maintained that the accused had actually shot and killed the women. The defence took the position that the Crown had failed to prove that the accused was the sole perpetrator, suggesting the potential involvement of others to the exclusion of the accused. On the fourth and last day of instructions to the jury, the defence requested that the trial judge specifically instruct the jury in accordance with the respective theories of the parties. The Crown consented to the request and the trial judge instructed the jury on those counts in respect of which the evidence was clear that the victim had died of a gunshot wound that, if they found that the accused had shot the victims, they should find that the Crown has proven the identity of the killer. On the other hand, if they had a reasonable doubt about whether or not he had shot the victims, they should return a verdict of not guilty. Following a question from the jury on the sixth day of deliberations, the trial judge re-instructed the jury that they could also find that the accused was the killer if he "was otherwise an active participant" in the killings. At the conclusion of the lengthy trial, the jury returned a verdict of guilty of second degree murder on each of the counts. The accused appealed his convictions, arguing that the trial judge's retraction of the "actual shooter" instruction on the sixth day of deliberations adversely impacted on the fairness of the trial and occasioned a miscarriage of justice. The Court of Appeal, in a majority decision, rejected the accused's argument and upheld the convictions. The dissenting judge would have granted a new trial on the ground that the trial judge's failure to instruct the jury on the law of aiding and abetting and how it might apply to this case amounted to a miscarriage of justice."
The SCC (unanimous) dismissed the appeal.
Justice Charron wrote as follows (at pages 4-6):
"In this Court, Mr. Pickton repeats his argument that there was a miscarriage of justice and relies for support on the dissenting judgment of Donald J.A.
In my view, the majority was correct in finding that no miscarriage of justice was occasioned in this trial. There is no question that the trial judge could have instructed the jury more fully on the different modes of participation that could ground criminal liability, including the law on aiding and abetting. In hindsight and from a legalistic standpoint, it is easy to argue that he probably should have done so. However, the adequacy of the jury instructions must be assessed in the context of the evidence and the trial as a whole. There is nothing wrong, particularly in complex or lengthy trials, with the trial judge and counsel's narrowing the issues for the jury by focussing on what is actually and realistically at issue in the case, provided that, at the end of the day, the jury is given the necessary instructions to arrive at a just and proper verdict.
Realistically, this case was never about whether Mr. Pickton had a minor role in the murder of the victims. It was about whether or not he had actually killed them. Accordingly, the jury was left with instructions that required the Crown to prove that he "actively participated", and thus had a physical role, in the killings of the six women. As stated earlier, from a legalistic standpoint, these instructions did not reflect all potential modes of participation. However, by limiting the grounds of liability in this manner, the instructions were unduly favourable to the defence. Mr. Pickton argues nonetheless that there was a miscarriage of justice. His argument rests on the fact that the trial judge ultimately retracted the actual shooter instruction from the jury's consideration. In my view, this argument must fail. The actual shooter instruction was not only erroneous in law, but also on the facts of this case it was its addition to the charge which courted a miscarriage of justice. The jury was invited to acquit Mr. Pickton based on a factual doubt which at law did not necessarily exculpate him. The trial judge was therefore correct in ultimately rectifying this error by appropriately re-charging the jury.
Further, given the evidence at trial, the absence of an instruction on Mr. Pickton's liability as an aider and abettor could only have enured to his benefit. Although imperfect, the overall charge adequately conveyed to the jury the relevant legal principles as they applied to the facts of the case. I would dismiss the appeal and affirm the convictions."
In his partially concurring reasons, Justice LeBel wrote as follows (at pages 1-3):
"The primary issue in this appeal is the adequacy of jury instructions given at the end of a long and disturbing six-count murder trial which lasted almost a full year. Although we must necessarily conduct a careful review of those trial proceedings with a view to ensuring that justice is done on the particular facts of this case, it is also important that the applicable law be carefully delineated and clarified for future cases. I am reminded of the words of Doherty J.A. in R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 19: "[D]etached and reflective appellate review of the trial process is perhaps most important in notorious, emotion-charged cases involving the least deserving accused."
The notion of "co-principal" liability, properly understood, did not arise on the evidence presented at trial, although other forms of party liability did. Even if the instruction receives a new label of "other suspects" liability, this cosmetic, rhetorical change does not dispel the error or change the reality of what happened during the trial. The re-charge whereby the trial judge instructed the jury that they could convict Mr. Pickton if they found he was the actual shooter or "was otherwise an active participant" in the killings clearly opened up party liability as an alternate route to conviction. That having been done, it was an error for the trial judge not to have left a full aiding and abetting instruction with the jury in order to set out the alternate route properly by which the jury could convict Mr. Pickton for the six murders with which he was charged. The phrases "active participation", "acting in concert", or "joint venture" do not in and of themselves adequately convey the law of party liability to a trier of fact.
With respect, I must therefore disagree with my colleague Charron J. that the trial judge's overall instructions, including the re-charge following the jury's question on the sixth day of their deliberations, can be said to have adequately conveyed the relevant legal principles as they applied to the facts of the case. She concludes that "[t]he instructions could not have led the jury into improper reasoning" (para. 34). It is indeed hazardous to speculate on the process of the jury's deliberation, but, the unusual verdict of second degree murder returned by the jury after they posed their question may well suggest that the instructions in this case were inadequate. However, as there exists on the record overwhelming evidence of Mr. Pickton's guilt, and no miscarriage of justice was occasioned by this error in the instructions, I would apply the curative proviso found in s. 686 of the Criminal Code, R.S.C. 1985, c. C-46, dismiss the appeal, and affirm the convictions."
Regards,
Blair
Friday, July 30, 2010
Thursday, July 29, 2010
Damages for Breach of Charter Rights
During a ceremony in Vancouver, the city police department received information that an unknown individual intended to throw a pie at the Prime Minister who was in attendance. Based on his appearance, police officers mistakenly identified W as the would-be pie-thrower, chased him down and handcuffed him. W, who loudly protested his detention and created a disturbance, was arrested for breach of the peace and taken to the police lockup. Upon his arrival, the corrections officers conducted a strip search.
While W was at the lockup, police officers impounded his car for the purpose of searching it once a search warrant had been obtained. The detectives subsequently determined that they did not have grounds to obtain the required search warrant or evidence to charge W for attempted assault. W was released approximately 4.5 hours after his arrest. He brought an action in tort and for breach of his rights guaranteed by the Canadian Charter of Rights and Freedoms against several parties, including the Province and the City.
With respect to the strip search and the car seizure, the trial judge held that, although the Province and the City did not act in bad faith and were not liable in tort for either incident, the Province's strip search and the City's vehicle seizure violated W's right to be free from unreasonable search and seizure under s. 8 of the Charter. The trial judge assessed damages under s. 24(1) of the Charter at $100 for the seizure of the car and $5,000 for the strip search. The Court of Appeal, in a majority decision, upheld the trial judge's ruling.
The Suprem Court of Canada allowed the appeal in part.
The Chief Justice wrote as follows, "This appeal raises the question of when damages may be awarded under s. 24(1) of the Charter, and what the amount of such damages should be. Although the Charter is 28 years old, authority on this question is sparse, inviting a comprehensive analysis of the object of damages for Charter breaches and the considerations that guide their award.
The general considerations governing what constitutes an appropriate and just remedy under s. 24(1) were set out by Iacobucci and Arbour JJ. in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3. Briefly, an appropriate and just remedy will: (1) meaningfully vindicate the rights and freedoms of the claimants; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made.
Damages for breach of a claimant's Charter rights may meet these conditions. They may meaningfully vindicate the claimant's rights and freedoms. They employ a means well-recognized within our legal framework. They are appropriate to the function and powers of a court. And, depending on the circumstances and the amount awarded, they can be fair not only to the claimant whose rights were breached, but to the state which is required to pay them. I therefore conclude that s. 24(1) is broad enough to include the remedy of damages for Charter breach. That said, granting damages under the Charter is a new endeavour, and an approach to when damages are appropriate and just should develop incrementally. Charter damages are only one remedy amongst others available under s. 24(1), and often other s. 24(1) remedies will be more responsive to the breach.
The term "damages" conveniently describes the remedy sought in this case. However, it should always be borne in mind that these are not private law damages, but the distinct remedy of constitutional damages. An action for public law damages "is not a private law action in the nature of a tort claim for which the state is vicariously liable, but [a distinct] public law action directly against the state for which the state is primarily liable". In accordance with s. 32 of the Charter, this is equally so in the Canadian constitutional context. The nature of the remedy is to require the state (or society writ large) to compensate an individual for breaches of the individual's constitutional rights. An action for public law damages - including constitutional damages - lies against the state and not against individual actors. Actions against individual actors should be pursued in accordance with existing causes of action. However, the underlying policy considerations that are engaged when awarding private law damages against state actors may be relevant when awarding public law damages directly against the state. Such considerations may be appropriately kept in mind.
The watchword of s. 24(1) is that the remedy must be "appropriate and just". This applies to the amount, or quantum, of damages awarded as much as to the initial question of whether damages are a proper remedy. Damages may be awarded to compensate the claimant for his loss, to vindicate the right or to deter future violations of the right. These objects, the presence and force of which vary from case to case, determine not only whether damages are appropriate, but also the amount of damages awarded. Generally, compensation will be the most important object, and vindication and deterrence will play supporting roles. This is all the more so because other Charter remedies may not provide compensation for the claimant's personal injury resulting from the violation of his Charter rights. However, as discussed earlier, cases may arise where vindication or deterrence play a major and even exclusive role.
Where the objective of compensation is engaged, the concern is to restore the claimant to the position she would have been in had the breach not been committed, as discussed above. As in a tort action, any claim for compensatory damages must be supported by evidence of the loss suffered. In some cases, the Charter breach may cause the claimant pecuniary loss. Injuries, physical and psychological, may require medical treatment, with attendant costs. Prolonged detention may result in loss of earnings. Restitutio in integrum requires compensation for such financial losses.
In other cases, like this one, the claimant's losses will be non-pecuniary. Non-pecuniary damages are harder to measure. Yet they are not by that reason to be rejected. Again, tort law provides assistance. Pain and suffering are compensable. Absent exceptional circumstances, compensation is fixed at a fairly modest conventional rate, subject to variation for the degree of suffering in the particular case. In extreme cases of catastrophic injury, a higher but still conventionally determined award is given on the basis that it serves the function purpose of providing substitute comforts and pleasures.
When we move from compensation to the objectives of vindication and deterrence, tort law is less useful. Making the appropriate determinations is an exercise in rationality and proportionality and will ultimately be guided by precedent as this important chapter of Charter jurisprudence is written by Canada's courts. That said, some initial observations may be made.
A principal guide to the determination of quantum is the seriousness of the breach, having regard to the objects of s. 24(1) damages. The seriousness of the breach must be evaluated with regard to the impact of the breach on the claimant and the seriousness of the state misconduct. Generally speaking, the more egregious the conduct and the more serious the repercussions on the claimant, the higher the award for vindication or deterrence will be.
Just as private law damages must be fair to both the plaintiff and the defendant, so s. 24(1) damages must be fair - or "appropriate and just" - to both the claimant and the state. The court must arrive at a quantum that respects this. Large awards and the consequent diversion of public funds may serve little functional purpose in terms of the claimant's needs and may be inappropriate or unjust from the public perspective. In considering what is fair to the claimant and the state, the court may take into account the public interest in good governance, the danger of deterring governments from undertaking beneficial new policies and programs, and the need to avoid diverting large sums of funds from public programs to private interests.
In assessing s. 24(1) damages, the court must focus on the breach of Charter rights as an independent wrong, worthy of compensation in its own right. At the same time, damages under s. 24(1) should not duplicate damages awarded under private law causes of action, such as tort, where compensation of personal loss is at issue. To sum up, the amount of damages must reflect what is required to functionally serve the objects of compensation serve, vindication of the right and deterrence of future breaches, insofar as they are engaged in a particular case, having regard to the impact of the breach on the claimant and the seriousness of the state conduct. The award must be appropriate and just from the perspective of the claimant and the state.
For a tribunal to grant a Charter remedy under s. 24(1), it must have the power to decide questions of law and the remedy must be one that the tribunal is authorized to grant: R. v. Conway, 2010 SCC 22. Generally, the appropriate forum for an award of damages under s. 24(1) is a court which has the power to consider Charter questions and which by statute or inherent jurisdiction has the power to award damages. Provincial criminal courts are not so empowered and thus do not have the power to award damages under s. 24(1).
As was done here, the claimant may join a s. 24(1) claim with a tort claim. It may be useful to consider the tort claim first, since if it meets the objects of Charter damages, recourse to s. 24(1) will be unnecessary. This may add useful context and facilitate the s. 24(1) analysis. This said, it is not essential that the claimant exhaust her remedies in private law before bringing a s. 24(1) claim.
(1) Damages for the Strip Search
The Charter breach significantly impacted on Mr. Ward's person and rights and the police conduct was serious. The impingement on Mr. Ward calls for compensation. Combined with the police conduct, it also engages the objects of vindication of the right and deterrence of future breaches. It follows that compensation is required in this case to functionally fulfill the objects of public law damages. Damages for the strip search of Mr. Ward are required in this case to functionally fulfill the objects of public law damages, and therefore are prima facie "appropriate and just". The state has not negated this. It follows that damages should be awarded for this breach of Mr. Ward's Charter rights. Considering all the factors, including the appropriate degree of deference to be paid to the trial judge's exercise of remedial discretion, I conclude that the trial judge's $5,000 damage award was appropriate.
(2) Damages for the Car Seizure
The trial judge found that the seizure of the car violated Mr. Ward's rights under s. 8 of the Charter. This finding is not contested and thus satisfies the first requirement. I conclude that a declaration under s. 24(1) that the vehicle seizure violated Mr. Ward's right to be free from unreasonable search and seizure under s. 8 of the Charter adequately serves the need for vindication of the right and deterrence of future improper car seizures."
See http://scc.lexum.umontreal.ca/en/2010/2010scc27/2010scc27.html for the full text of the case.
Regards,
Blair
While W was at the lockup, police officers impounded his car for the purpose of searching it once a search warrant had been obtained. The detectives subsequently determined that they did not have grounds to obtain the required search warrant or evidence to charge W for attempted assault. W was released approximately 4.5 hours after his arrest. He brought an action in tort and for breach of his rights guaranteed by the Canadian Charter of Rights and Freedoms against several parties, including the Province and the City.
With respect to the strip search and the car seizure, the trial judge held that, although the Province and the City did not act in bad faith and were not liable in tort for either incident, the Province's strip search and the City's vehicle seizure violated W's right to be free from unreasonable search and seizure under s. 8 of the Charter. The trial judge assessed damages under s. 24(1) of the Charter at $100 for the seizure of the car and $5,000 for the strip search. The Court of Appeal, in a majority decision, upheld the trial judge's ruling.
The Suprem Court of Canada allowed the appeal in part.
The Chief Justice wrote as follows, "This appeal raises the question of when damages may be awarded under s. 24(1) of the Charter, and what the amount of such damages should be. Although the Charter is 28 years old, authority on this question is sparse, inviting a comprehensive analysis of the object of damages for Charter breaches and the considerations that guide their award.
The general considerations governing what constitutes an appropriate and just remedy under s. 24(1) were set out by Iacobucci and Arbour JJ. in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3. Briefly, an appropriate and just remedy will: (1) meaningfully vindicate the rights and freedoms of the claimants; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made.
Damages for breach of a claimant's Charter rights may meet these conditions. They may meaningfully vindicate the claimant's rights and freedoms. They employ a means well-recognized within our legal framework. They are appropriate to the function and powers of a court. And, depending on the circumstances and the amount awarded, they can be fair not only to the claimant whose rights were breached, but to the state which is required to pay them. I therefore conclude that s. 24(1) is broad enough to include the remedy of damages for Charter breach. That said, granting damages under the Charter is a new endeavour, and an approach to when damages are appropriate and just should develop incrementally. Charter damages are only one remedy amongst others available under s. 24(1), and often other s. 24(1) remedies will be more responsive to the breach.
The term "damages" conveniently describes the remedy sought in this case. However, it should always be borne in mind that these are not private law damages, but the distinct remedy of constitutional damages. An action for public law damages "is not a private law action in the nature of a tort claim for which the state is vicariously liable, but [a distinct] public law action directly against the state for which the state is primarily liable". In accordance with s. 32 of the Charter, this is equally so in the Canadian constitutional context. The nature of the remedy is to require the state (or society writ large) to compensate an individual for breaches of the individual's constitutional rights. An action for public law damages - including constitutional damages - lies against the state and not against individual actors. Actions against individual actors should be pursued in accordance with existing causes of action. However, the underlying policy considerations that are engaged when awarding private law damages against state actors may be relevant when awarding public law damages directly against the state. Such considerations may be appropriately kept in mind.
The watchword of s. 24(1) is that the remedy must be "appropriate and just". This applies to the amount, or quantum, of damages awarded as much as to the initial question of whether damages are a proper remedy. Damages may be awarded to compensate the claimant for his loss, to vindicate the right or to deter future violations of the right. These objects, the presence and force of which vary from case to case, determine not only whether damages are appropriate, but also the amount of damages awarded. Generally, compensation will be the most important object, and vindication and deterrence will play supporting roles. This is all the more so because other Charter remedies may not provide compensation for the claimant's personal injury resulting from the violation of his Charter rights. However, as discussed earlier, cases may arise where vindication or deterrence play a major and even exclusive role.
Where the objective of compensation is engaged, the concern is to restore the claimant to the position she would have been in had the breach not been committed, as discussed above. As in a tort action, any claim for compensatory damages must be supported by evidence of the loss suffered. In some cases, the Charter breach may cause the claimant pecuniary loss. Injuries, physical and psychological, may require medical treatment, with attendant costs. Prolonged detention may result in loss of earnings. Restitutio in integrum requires compensation for such financial losses.
In other cases, like this one, the claimant's losses will be non-pecuniary. Non-pecuniary damages are harder to measure. Yet they are not by that reason to be rejected. Again, tort law provides assistance. Pain and suffering are compensable. Absent exceptional circumstances, compensation is fixed at a fairly modest conventional rate, subject to variation for the degree of suffering in the particular case. In extreme cases of catastrophic injury, a higher but still conventionally determined award is given on the basis that it serves the function purpose of providing substitute comforts and pleasures.
When we move from compensation to the objectives of vindication and deterrence, tort law is less useful. Making the appropriate determinations is an exercise in rationality and proportionality and will ultimately be guided by precedent as this important chapter of Charter jurisprudence is written by Canada's courts. That said, some initial observations may be made.
A principal guide to the determination of quantum is the seriousness of the breach, having regard to the objects of s. 24(1) damages. The seriousness of the breach must be evaluated with regard to the impact of the breach on the claimant and the seriousness of the state misconduct. Generally speaking, the more egregious the conduct and the more serious the repercussions on the claimant, the higher the award for vindication or deterrence will be.
Just as private law damages must be fair to both the plaintiff and the defendant, so s. 24(1) damages must be fair - or "appropriate and just" - to both the claimant and the state. The court must arrive at a quantum that respects this. Large awards and the consequent diversion of public funds may serve little functional purpose in terms of the claimant's needs and may be inappropriate or unjust from the public perspective. In considering what is fair to the claimant and the state, the court may take into account the public interest in good governance, the danger of deterring governments from undertaking beneficial new policies and programs, and the need to avoid diverting large sums of funds from public programs to private interests.
In assessing s. 24(1) damages, the court must focus on the breach of Charter rights as an independent wrong, worthy of compensation in its own right. At the same time, damages under s. 24(1) should not duplicate damages awarded under private law causes of action, such as tort, where compensation of personal loss is at issue. To sum up, the amount of damages must reflect what is required to functionally serve the objects of compensation serve, vindication of the right and deterrence of future breaches, insofar as they are engaged in a particular case, having regard to the impact of the breach on the claimant and the seriousness of the state conduct. The award must be appropriate and just from the perspective of the claimant and the state.
For a tribunal to grant a Charter remedy under s. 24(1), it must have the power to decide questions of law and the remedy must be one that the tribunal is authorized to grant: R. v. Conway, 2010 SCC 22. Generally, the appropriate forum for an award of damages under s. 24(1) is a court which has the power to consider Charter questions and which by statute or inherent jurisdiction has the power to award damages. Provincial criminal courts are not so empowered and thus do not have the power to award damages under s. 24(1).
As was done here, the claimant may join a s. 24(1) claim with a tort claim. It may be useful to consider the tort claim first, since if it meets the objects of Charter damages, recourse to s. 24(1) will be unnecessary. This may add useful context and facilitate the s. 24(1) analysis. This said, it is not essential that the claimant exhaust her remedies in private law before bringing a s. 24(1) claim.
(1) Damages for the Strip Search
The Charter breach significantly impacted on Mr. Ward's person and rights and the police conduct was serious. The impingement on Mr. Ward calls for compensation. Combined with the police conduct, it also engages the objects of vindication of the right and deterrence of future breaches. It follows that compensation is required in this case to functionally fulfill the objects of public law damages. Damages for the strip search of Mr. Ward are required in this case to functionally fulfill the objects of public law damages, and therefore are prima facie "appropriate and just". The state has not negated this. It follows that damages should be awarded for this breach of Mr. Ward's Charter rights. Considering all the factors, including the appropriate degree of deference to be paid to the trial judge's exercise of remedial discretion, I conclude that the trial judge's $5,000 damage award was appropriate.
(2) Damages for the Car Seizure
The trial judge found that the seizure of the car violated Mr. Ward's rights under s. 8 of the Charter. This finding is not contested and thus satisfies the first requirement. I conclude that a declaration under s. 24(1) that the vehicle seizure violated Mr. Ward's right to be free from unreasonable search and seizure under s. 8 of the Charter adequately serves the need for vindication of the right and deterrence of future improper car seizures."
See http://scc.lexum.umontreal.ca/en/2010/2010scc27/2010scc27.html for the full text of the case.
Regards,
Blair
Friday, June 18, 2010
Administrative Tribunals and the Canadian Charter of Rights
In R. v. Conway, the Supreme Court of Canada set out the test for determining when administrative tribunals can decide issues relating the Canadian Charter of Rights and Freedoms ("Charter") and grant Charter remedies.
In 1984, Conway was found not guilty by reason of insanity on a charge of sexual assault with a weapon. Subsequently he was detained in mental health facilities and diagnosed with several mental disorders. Prior to his annual review before the Ontario Review Board, Conway alleged that the mental health centre where he was detained had breached his Charter rights and sought an absolute discharge under s. 24(1) of the Charter. The Board unanimously concluded that Conway was a threat to public safety, who would, if released, quickly return to police and hospital custody. This made him an unsuitable candidate for an absolute discharge under s. 672.54(a) of the Criminal Code, which provides that an absolute discharge is unavailable to any patient who is a “significant threat to the safety of the public”. The Board therefore ordered that Conway remain in the mental heath centre. The Board concluded that it had no jurisdiction to consider Conway’s Charter claims. The Court of Appeal agreed that the Board was not a court of competent jurisdiction for the purpose of granting an absolute discharge under s. 24(1) of the Charter.
The SCC dismissed the appeal from the Court of Appeal and confirmed the principle that, with rare exceptions, administrative tribunals with the authority to apply the law, have the jurisdiction to apply the Charter to the issues that arise in the proper exercise of their statutory functions. Expert tribunals should play a primary role in determining Charter issues that fall within their specialized jurisdiction and that in exercising their statutory functions, administrative tribunals must act consistently with the Charter and its values.
The SCC described the following test for determining whether an administrative tribunal can provide a charter remedy. When a Charter remedy is sought from an administrative tribunal, the initial inquiry is whether the tribunal can grant Charter remedies generally. The answer to this question depends on whether the administrative tribunal has the jurisdiction, explicit or implied, to decide questions of law. If it does, and unless the legislature has clearly demonstrated its intent to withdraw the Charter from the tribunal’s authority, the tribunal has jurisdiction to grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate. The tribunal is, in other words, a court of competent jurisdiction under s. 24(1) of the Charter.
Once its determined that the tribunal has Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought given its statutory scheme; whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations include the tribunal’s statutory mandate and function.
In this case although the SCC held that the Board was a court of competent jurisdiction for the purpose of granting remedies under s. 24(1) of the Charter it was not capable of granting the remedy requested by the appellant because of the limits on the Board's statutory authority. Resort to s. 24(1) of the Charter could not add to the Board’s capacity to either address the substance of Conway’s complaint or provide appropriate redress.
Regards,
Blair
In 1984, Conway was found not guilty by reason of insanity on a charge of sexual assault with a weapon. Subsequently he was detained in mental health facilities and diagnosed with several mental disorders. Prior to his annual review before the Ontario Review Board, Conway alleged that the mental health centre where he was detained had breached his Charter rights and sought an absolute discharge under s. 24(1) of the Charter. The Board unanimously concluded that Conway was a threat to public safety, who would, if released, quickly return to police and hospital custody. This made him an unsuitable candidate for an absolute discharge under s. 672.54(a) of the Criminal Code, which provides that an absolute discharge is unavailable to any patient who is a “significant threat to the safety of the public”. The Board therefore ordered that Conway remain in the mental heath centre. The Board concluded that it had no jurisdiction to consider Conway’s Charter claims. The Court of Appeal agreed that the Board was not a court of competent jurisdiction for the purpose of granting an absolute discharge under s. 24(1) of the Charter.
The SCC dismissed the appeal from the Court of Appeal and confirmed the principle that, with rare exceptions, administrative tribunals with the authority to apply the law, have the jurisdiction to apply the Charter to the issues that arise in the proper exercise of their statutory functions. Expert tribunals should play a primary role in determining Charter issues that fall within their specialized jurisdiction and that in exercising their statutory functions, administrative tribunals must act consistently with the Charter and its values.
The SCC described the following test for determining whether an administrative tribunal can provide a charter remedy. When a Charter remedy is sought from an administrative tribunal, the initial inquiry is whether the tribunal can grant Charter remedies generally. The answer to this question depends on whether the administrative tribunal has the jurisdiction, explicit or implied, to decide questions of law. If it does, and unless the legislature has clearly demonstrated its intent to withdraw the Charter from the tribunal’s authority, the tribunal has jurisdiction to grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate. The tribunal is, in other words, a court of competent jurisdiction under s. 24(1) of the Charter.
Once its determined that the tribunal has Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought given its statutory scheme; whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations include the tribunal’s statutory mandate and function.
In this case although the SCC held that the Board was a court of competent jurisdiction for the purpose of granting remedies under s. 24(1) of the Charter it was not capable of granting the remedy requested by the appellant because of the limits on the Board's statutory authority. Resort to s. 24(1) of the Charter could not add to the Board’s capacity to either address the substance of Conway’s complaint or provide appropriate redress.
Regards,
Blair
Thursday, May 27, 2010
Beware Limitation Period for Foreign Arbitral Awards
From Eugene Meehan's Supreme Court of Canada Lawletter:
"Y Corp., a Russian corporation that develops and operates oilfields in Russia, purchased materials for its oilfield operations from R Corp., an Alberta corporation. Following a contractual dispute, Y Corp. commenced arbitration proceedings before the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation. On September 6, 2002, the arbitral tribunal ordered R Corp. to pay $952,614.43 US in damages to Y Corp. Y Corp. applied to the Alberta Court of Queen's Bench for recognition and enforcement of the award on January 27, 2006. The court dismissed the application, ruling that it was time-barred under the two-year limitation period in s. 3 of the Alberta Limitations Act. The Court of Appeal upheld the ruling."
The Supreme Court of Canada held (unanimously) that the appeal is dismissed.
Justice Rothstein wrote as follows (at pages 2, 33):
"Under international arbitration law, the matter of limitation periods is left to local procedural law of the jurisdiction where recognition and enforcement is sought. The applicable limitation period in this case must therefore be found in the limitations law of Alberta. As an arbitral award is not a judgment or a court order for the payment of money, an application for recognition and enforcement in Alberta is not eligible for the 10-year limitation period set out in s. 11 of the Limitations Act, R.S.A. 2000, c. L-12. Rather, the application is subject to the general two-year limitation period applicable to most causes of action, which is found in s. 3 of the Limitations Act.
...In addition to claiming that Yugraneft's application is time-barred, Rexx has also argued that enforcement of the award should be refused on public policy grounds (Convention, art. V(2)(b)), alleging that it was tainted by fraud. In light of my conclusion regarding the applicable limitation period, there is no need to rule on this issue and I refrain from doing so."
Regards,
Blair
"Y Corp., a Russian corporation that develops and operates oilfields in Russia, purchased materials for its oilfield operations from R Corp., an Alberta corporation. Following a contractual dispute, Y Corp. commenced arbitration proceedings before the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation. On September 6, 2002, the arbitral tribunal ordered R Corp. to pay $952,614.43 US in damages to Y Corp. Y Corp. applied to the Alberta Court of Queen's Bench for recognition and enforcement of the award on January 27, 2006. The court dismissed the application, ruling that it was time-barred under the two-year limitation period in s. 3 of the Alberta Limitations Act. The Court of Appeal upheld the ruling."
The Supreme Court of Canada held (unanimously) that the appeal is dismissed.
Justice Rothstein wrote as follows (at pages 2, 33):
"Under international arbitration law, the matter of limitation periods is left to local procedural law of the jurisdiction where recognition and enforcement is sought. The applicable limitation period in this case must therefore be found in the limitations law of Alberta. As an arbitral award is not a judgment or a court order for the payment of money, an application for recognition and enforcement in Alberta is not eligible for the 10-year limitation period set out in s. 11 of the Limitations Act, R.S.A. 2000, c. L-12. Rather, the application is subject to the general two-year limitation period applicable to most causes of action, which is found in s. 3 of the Limitations Act.
...In addition to claiming that Yugraneft's application is time-barred, Rexx has also argued that enforcement of the award should be refused on public policy grounds (Convention, art. V(2)(b)), alleging that it was tainted by fraud. In light of my conclusion regarding the applicable limitation period, there is no need to rule on this issue and I refrain from doing so."
Regards,
Blair
Wednesday, May 19, 2010
No Protection of Confidential Sources for Evidence of Crimes
From Eugene Meehan's Supreme Court of Canada Lawletter:
The National Post employed M as a journalist. M investigated whether C, then Prime Minister of Canada, was improperly involved with a loan from a federally funded bank to a hotel in C's riding which allegedly owed a debt to C's family investment company. X, a secret source, provided M with relevant information in exchange for a blanket, unconditional promise of confidentiality. In 2001, M received a sealed envelope in the mail that contained a document which appeared to be the bank's authorization of its loan to the hotel. If genuine, it could show that C had a conflict of interest in relation to the loan. M faxed copies of the document to the bank, to the Prime Minister's office, and to a lawyer for the Prime Minister. All three said that the document was a forgery. Shortly thereafter, X met M. X described receiving the document anonymously in the mail, discarding the original envelope, and passing the document on to M in the belief that it was genuine. M was satisfied that X was a reliable source who did not believe that the document was a forgery when he or she forwarded it to M. X feared that fingerprint or DNA analysis might reveal his or her identity and asked M to destroy the document and the envelope. M refused but told X that his undertaking of confidentiality would remain binding as long as he believed that X had not deliberately misled him.
The bank complained to the RCMP and an officer asked the appellants to produce the document and the envelope as physical evidence of the alleged crimes i.e. the forgery itself and the "uttering" (or putting into circulation) of the doctored bank records. They refused and M declined to identify his source.
The officer applied for a search warrant and an assistance order compelling M's editor to assist the police in locating the document and the envelope. He intended to submit them for forensic testing to determine if they carried fingerprints or other identifying markings (including DNA) which might assist in identifying the source of the document. Although the Crown informed the judge that the National Post had requested notification of the application, the hearing proceeded ex parte and a search warrant and an assistance order were issued.
The warrant and the order provided the appellants with one month before the RCMP could search the National Post's premises and included other terms intended to accommodate the needs of the National Post as a media entity. The appellants applied to quash the warrant and assistance order. The reviewing judge held that there was sufficient information to conclude the document was a forgery but that there was only a remote and speculative possibility that disclosure of the document and the envelope would advance a criminal investigation. She set aside the search warrant and the assistance order. The Court of Appeal reversed that decision and reinstated the search warrant and the assistance order. In this Court, the appellants and supporting interveners argued that the warrant and the order should be quashed because they infringe s. 2(b) or s. 8 of the Canadian Charter of Rights and Freedoms, or because the secret sources are protected by the common law of privilege."
The Supreme Court of Canada (with one judge writing partially concurring reasons, and another dissenting reasons) that the appeal is dismissed.
Justice Binnie wrote as follows (at pages 2-3):
"The public has the right to every person's evidence. That is the general rule. The question raised by this appeal is whether the appellants can exempt themselves from this obligation on the basis of a journalistic privilege rooted either in s. 2(b) of the Canadian Charter of Rights and Freedoms which guarantees freedom of expression, "including freedom of the press and other media of communication", or in the common law.
Specifically, the National Post, its editor-in-chief and one of its journalists apply to set aside a search warrant obtained from the Ontario Court of Justice authorizing the police to seize what are alleged to be forged bank records and the envelope in which the appellants received the records from secret source(s). The police believe that seizure of the physical documents is essential to proof of the forgery, and that forensic analysis may lead them directly or indirectly to the identity of the perpetrators. The appellants, for their part, seek to protect the identity of their secret source(s), who may or may not be directly implicated in the forgery. If the police are correct, therefore, the documents in the control of the National Post and its co-appellants are not merely links in the chain of criminal investigation but constitute in themselves the essential physical evidence of alleged crimes - the forgery itself and the "uttering" (or putting into circulation) of the doctored bank records in the plain brown envelope.
The courts should strive to uphold the special position of the media and protect the media's secret sources where such protection is in the public interest, but this is not the usual case of journalists seeking to avoid testifying about their secret sources. This is a physical evidence case. It involves what is reasonably believed to be a forged document. Forgery is a serious crime...I agree with the Ontario Court of Appeal (2008 ONCA 139, 89 O.R. (3d) 1) that the media claim to immunity from production of the physical evidence is not justified in the circumstances disclosed in the evidence before the court even if the end result proves to be information that may lead to the identification of the secret source(s)."
Regards,
Blair
The National Post employed M as a journalist. M investigated whether C, then Prime Minister of Canada, was improperly involved with a loan from a federally funded bank to a hotel in C's riding which allegedly owed a debt to C's family investment company. X, a secret source, provided M with relevant information in exchange for a blanket, unconditional promise of confidentiality. In 2001, M received a sealed envelope in the mail that contained a document which appeared to be the bank's authorization of its loan to the hotel. If genuine, it could show that C had a conflict of interest in relation to the loan. M faxed copies of the document to the bank, to the Prime Minister's office, and to a lawyer for the Prime Minister. All three said that the document was a forgery. Shortly thereafter, X met M. X described receiving the document anonymously in the mail, discarding the original envelope, and passing the document on to M in the belief that it was genuine. M was satisfied that X was a reliable source who did not believe that the document was a forgery when he or she forwarded it to M. X feared that fingerprint or DNA analysis might reveal his or her identity and asked M to destroy the document and the envelope. M refused but told X that his undertaking of confidentiality would remain binding as long as he believed that X had not deliberately misled him.
The bank complained to the RCMP and an officer asked the appellants to produce the document and the envelope as physical evidence of the alleged crimes i.e. the forgery itself and the "uttering" (or putting into circulation) of the doctored bank records. They refused and M declined to identify his source.
The officer applied for a search warrant and an assistance order compelling M's editor to assist the police in locating the document and the envelope. He intended to submit them for forensic testing to determine if they carried fingerprints or other identifying markings (including DNA) which might assist in identifying the source of the document. Although the Crown informed the judge that the National Post had requested notification of the application, the hearing proceeded ex parte and a search warrant and an assistance order were issued.
The warrant and the order provided the appellants with one month before the RCMP could search the National Post's premises and included other terms intended to accommodate the needs of the National Post as a media entity. The appellants applied to quash the warrant and assistance order. The reviewing judge held that there was sufficient information to conclude the document was a forgery but that there was only a remote and speculative possibility that disclosure of the document and the envelope would advance a criminal investigation. She set aside the search warrant and the assistance order. The Court of Appeal reversed that decision and reinstated the search warrant and the assistance order. In this Court, the appellants and supporting interveners argued that the warrant and the order should be quashed because they infringe s. 2(b) or s. 8 of the Canadian Charter of Rights and Freedoms, or because the secret sources are protected by the common law of privilege."
The Supreme Court of Canada (with one judge writing partially concurring reasons, and another dissenting reasons) that the appeal is dismissed.
Justice Binnie wrote as follows (at pages 2-3):
"The public has the right to every person's evidence. That is the general rule. The question raised by this appeal is whether the appellants can exempt themselves from this obligation on the basis of a journalistic privilege rooted either in s. 2(b) of the Canadian Charter of Rights and Freedoms which guarantees freedom of expression, "including freedom of the press and other media of communication", or in the common law.
Specifically, the National Post, its editor-in-chief and one of its journalists apply to set aside a search warrant obtained from the Ontario Court of Justice authorizing the police to seize what are alleged to be forged bank records and the envelope in which the appellants received the records from secret source(s). The police believe that seizure of the physical documents is essential to proof of the forgery, and that forensic analysis may lead them directly or indirectly to the identity of the perpetrators. The appellants, for their part, seek to protect the identity of their secret source(s), who may or may not be directly implicated in the forgery. If the police are correct, therefore, the documents in the control of the National Post and its co-appellants are not merely links in the chain of criminal investigation but constitute in themselves the essential physical evidence of alleged crimes - the forgery itself and the "uttering" (or putting into circulation) of the doctored bank records in the plain brown envelope.
The courts should strive to uphold the special position of the media and protect the media's secret sources where such protection is in the public interest, but this is not the usual case of journalists seeking to avoid testifying about their secret sources. This is a physical evidence case. It involves what is reasonably believed to be a forged document. Forgery is a serious crime...I agree with the Ontario Court of Appeal (2008 ONCA 139, 89 O.R. (3d) 1) that the media claim to immunity from production of the physical evidence is not justified in the circumstances disclosed in the evidence before the court even if the end result proves to be information that may lead to the identification of the secret source(s)."
Regards,
Blair
Aboriginal Treaty Rights and the Environment
From the Eugene Meehan Supreme Court of Canada Lawletter:
The Cree and Inuit communities signed the James Bay and Northern Québec Agreement with the governments of Quebec and Canada in 1975. The Agreement established a governance scheme and created a framework that would govern many aspects of life in the territory, including the aboriginal economic and social development and the preservation of the natural environment. Under s. 22, the Agreement set out detailed and comprehensive procedures for environmental impact assessments. Whether a provincial or federal assessment will be conducted under the Agreement depends on the constitutional jurisdiction within which the project itself falls. In particular, s. 22.6.7 provides that 'a project shall not be submitted to more than one (1) impact assessment and review procedure unless such project falls within the jurisdictions of both Québec and Canada'. If the exception applies, two assessments will be required, but these assessments may be combined with the 'mutual agreement' of the parties. Section 2.5 of the Agreement also provides that the Agreement is paramount over all other laws of general application that are inconsistent with it.
A company intends to open and operate a mine in the James Bay area of Quebec in the Agreement 'Category III' lands, an area where the Agreement recognizes Quebec's right to regulate natural resource development subject to the environmental protection provisions of s. 22. In accordance with the Agreement's procedures, the proponent of the project submitted to the administrator responsible for 'matters respecting provincial jurisdiction' information concerning its proposed development. The provincial Administrator transmitted this information to the Evaluating Committee, which made a recommendation about the extent of impact assessment and review and whether or not a preliminary and/or a final impact statement should be done. Subsequently, the provincial Administrator alone decided the scope of the assessment and gave appropriate directions to the proponent. On receipt of the provincial Administrator's instructions, the proponent supplied information about the potential environmental and social impacts, which acknowledged a significant impact on fish habitat. This was transmitted by the provincial Administrator to the provincial Review Committee and was then to be transmitted to the Cree Regional Authority for their representations.
Meanwhile, federal officials who were not involved in the review process under the Agreement, concluded that the project's impact on fisheries - a matter within exclusive federal jurisdiction under s. 91(12) of the Constitution Act, 1867 - engaged s. 35(2) of the Fisheries Act and required a comprehensive study pursuant to the regulations made under the Canadian Environmental Assessment Act ('CEAA'). The federal officials informed the Cree that the study would be conducted by a review panel under the CEAA and not through the federal assessment procedure provided for in s. 22 of the Agreement. While the provincial review process of the project was still pending, the Cree commenced an action for declaratory relief in the Quebec Superior Court, which declared that only the provincial environmental assessment was applicable to the project pursuant to the Agreement. The Court of Appeal set aside that decision. The court concluded that the CEAA, in conjunction with the federal Fisheries Act, validly triggered a federal environmental assessment under the CEAA but that there were practical and operational inconsistencies between the CEAA review procedure and the one set out in the Agreement. Since the Agreement was paramount, the court held that CEAA review procedure was inapplicable, but substituted the federal review procedure in the Agreement for the one in the CEAA. The court also concluded that the project is subject as well to the provincial review procedure under s. 22 of the Agreement.
The Supreme Court of Canada held (6:3) that the appeal is dismissed, but the order of the Court of Appeal varied to provide that if the mine project is approved pursuant to the Agreement, the proponent may not proceed with the work without an authorization under s. 35(2) of the Fisheries Act, and that the issuance of any such authorization is to comply with the CEAA in accordance with its procedures, as well as the Crown's duty to consult with the Cree in relation to matters that may adversely affect their rights under the Agreement.
Justice Binnie wrote as follows (at pages 4, 25, 27-28):
"...it is necessary to approach this case on the basis of the terms the parties actually negotiated and agreed to as set out in the text of their agreement rather than on general observations and ideas which, in my respectful view, are unsupported by the text.
...Common sense as well as legal requirements suggest that the CEAA assessment will be structured to accommodate the special context of a project proposal in the James Bay Treaty territory, including the participation of the Cree. Reference has already been made to the possibility of a joint or substituted panel under ss. 40 to 45 of the CEAA. Nevertheless, the legal question before us is whether, absent such an arrangement, the federal Minister is bound to issue a s. 35(2) fisheries permit following the approval of a mining project by the Administrator (or the Quebec Cabinet) and, in my view, he is not so bound.
...In my view, the vanadium mine cannot lawfully proceed without a fisheries permit. The proponent is unable to obtain, and the federal Minister is unable to issue, a s. 35(2) fisheries permit without compliance with the CEAA. The contention of the Quebec Attorney General that the Treaty requires the federal Minister to issue the s. 35(2) fisheries permit as a result of the province-led review panel regardless of the federal Minister's independent assessment of potential damage to fish habitat should be rejected.
It is only after final approval by the Treaty bodies that it can be said that "the proposed development is approved in accordance with the provisions of this Section", which is the condition precedent to the proponent's obligations under s. 22.7.1 to "obtai[n] where applicable the necessary authorization or permits from responsible Government Departments and Services". There is thus no conflict. The need for a post-Treaty approval fisheries permit is made mandatory by the Treaty itself ("shall" obtain). In the case of fisheries, it is federal law, not the Treaty, that governs when such a permit may be granted as well as its terms and conditions.
I agree with the observation expressed by my colleagues LeBel and Deschamps JJ. that "[i]t would hardly be reasonable to believe that the parties intended that one of them might sign the Agreement one day and withdraw its signature the next day, week or year in respect of a key part of their contract" (para. 58). This sentiment is true so far as it goes, but in my view, with respect, it has no application to the dispute at issue in this appeal. I would dismiss the appeal but vary the order of the Quebec Court of Appeal to provide that if the vanadium mine project is approved pursuant to the Treaty, the proponent may not proceed with the work without authorization under s. 35(2) of the Fisheries Act, and that the issuance of any such authorization is to comply with the Canadian Environmental Assessment Act in accordance with its procedures, as well as the Crown's duty to consult with the First Nations in relation to matters that may adversely affect their Treaty rights."
Regards,
Blair
The Cree and Inuit communities signed the James Bay and Northern Québec Agreement with the governments of Quebec and Canada in 1975. The Agreement established a governance scheme and created a framework that would govern many aspects of life in the territory, including the aboriginal economic and social development and the preservation of the natural environment. Under s. 22, the Agreement set out detailed and comprehensive procedures for environmental impact assessments. Whether a provincial or federal assessment will be conducted under the Agreement depends on the constitutional jurisdiction within which the project itself falls. In particular, s. 22.6.7 provides that 'a project shall not be submitted to more than one (1) impact assessment and review procedure unless such project falls within the jurisdictions of both Québec and Canada'. If the exception applies, two assessments will be required, but these assessments may be combined with the 'mutual agreement' of the parties. Section 2.5 of the Agreement also provides that the Agreement is paramount over all other laws of general application that are inconsistent with it.
A company intends to open and operate a mine in the James Bay area of Quebec in the Agreement 'Category III' lands, an area where the Agreement recognizes Quebec's right to regulate natural resource development subject to the environmental protection provisions of s. 22. In accordance with the Agreement's procedures, the proponent of the project submitted to the administrator responsible for 'matters respecting provincial jurisdiction' information concerning its proposed development. The provincial Administrator transmitted this information to the Evaluating Committee, which made a recommendation about the extent of impact assessment and review and whether or not a preliminary and/or a final impact statement should be done. Subsequently, the provincial Administrator alone decided the scope of the assessment and gave appropriate directions to the proponent. On receipt of the provincial Administrator's instructions, the proponent supplied information about the potential environmental and social impacts, which acknowledged a significant impact on fish habitat. This was transmitted by the provincial Administrator to the provincial Review Committee and was then to be transmitted to the Cree Regional Authority for their representations.
Meanwhile, federal officials who were not involved in the review process under the Agreement, concluded that the project's impact on fisheries - a matter within exclusive federal jurisdiction under s. 91(12) of the Constitution Act, 1867 - engaged s. 35(2) of the Fisheries Act and required a comprehensive study pursuant to the regulations made under the Canadian Environmental Assessment Act ('CEAA'). The federal officials informed the Cree that the study would be conducted by a review panel under the CEAA and not through the federal assessment procedure provided for in s. 22 of the Agreement. While the provincial review process of the project was still pending, the Cree commenced an action for declaratory relief in the Quebec Superior Court, which declared that only the provincial environmental assessment was applicable to the project pursuant to the Agreement. The Court of Appeal set aside that decision. The court concluded that the CEAA, in conjunction with the federal Fisheries Act, validly triggered a federal environmental assessment under the CEAA but that there were practical and operational inconsistencies between the CEAA review procedure and the one set out in the Agreement. Since the Agreement was paramount, the court held that CEAA review procedure was inapplicable, but substituted the federal review procedure in the Agreement for the one in the CEAA. The court also concluded that the project is subject as well to the provincial review procedure under s. 22 of the Agreement.
The Supreme Court of Canada held (6:3) that the appeal is dismissed, but the order of the Court of Appeal varied to provide that if the mine project is approved pursuant to the Agreement, the proponent may not proceed with the work without an authorization under s. 35(2) of the Fisheries Act, and that the issuance of any such authorization is to comply with the CEAA in accordance with its procedures, as well as the Crown's duty to consult with the Cree in relation to matters that may adversely affect their rights under the Agreement.
Justice Binnie wrote as follows (at pages 4, 25, 27-28):
"...it is necessary to approach this case on the basis of the terms the parties actually negotiated and agreed to as set out in the text of their agreement rather than on general observations and ideas which, in my respectful view, are unsupported by the text.
...Common sense as well as legal requirements suggest that the CEAA assessment will be structured to accommodate the special context of a project proposal in the James Bay Treaty territory, including the participation of the Cree. Reference has already been made to the possibility of a joint or substituted panel under ss. 40 to 45 of the CEAA. Nevertheless, the legal question before us is whether, absent such an arrangement, the federal Minister is bound to issue a s. 35(2) fisheries permit following the approval of a mining project by the Administrator (or the Quebec Cabinet) and, in my view, he is not so bound.
...In my view, the vanadium mine cannot lawfully proceed without a fisheries permit. The proponent is unable to obtain, and the federal Minister is unable to issue, a s. 35(2) fisheries permit without compliance with the CEAA. The contention of the Quebec Attorney General that the Treaty requires the federal Minister to issue the s. 35(2) fisheries permit as a result of the province-led review panel regardless of the federal Minister's independent assessment of potential damage to fish habitat should be rejected.
It is only after final approval by the Treaty bodies that it can be said that "the proposed development is approved in accordance with the provisions of this Section", which is the condition precedent to the proponent's obligations under s. 22.7.1 to "obtai[n] where applicable the necessary authorization or permits from responsible Government Departments and Services". There is thus no conflict. The need for a post-Treaty approval fisheries permit is made mandatory by the Treaty itself ("shall" obtain). In the case of fisheries, it is federal law, not the Treaty, that governs when such a permit may be granted as well as its terms and conditions.
I agree with the observation expressed by my colleagues LeBel and Deschamps JJ. that "[i]t would hardly be reasonable to believe that the parties intended that one of them might sign the Agreement one day and withdraw its signature the next day, week or year in respect of a key part of their contract" (para. 58). This sentiment is true so far as it goes, but in my view, with respect, it has no application to the dispute at issue in this appeal. I would dismiss the appeal but vary the order of the Quebec Court of Appeal to provide that if the vanadium mine project is approved pursuant to the Treaty, the proponent may not proceed with the work without authorization under s. 35(2) of the Fisheries Act, and that the issuance of any such authorization is to comply with the Canadian Environmental Assessment Act in accordance with its procedures, as well as the Crown's duty to consult with the First Nations in relation to matters that may adversely affect their Treaty rights."
Regards,
Blair
Monday, March 29, 2010
Supreme Court Orders Lawyer to Work for Free
C, a criminal defence lawyer employed by Yukon Legal Aid, represented an accused charged with sexual offences against a young child. Prior to the preliminary inquiry, Legal Aid informed the accused that failure to update his financial information would result in the suspension of his legal aid funding. The accused failed to respond to the request and Legal Aid informed him that C was no longer authorized to represent him. C brought an application to the Territorial Court of Yukon to withdraw as counsel of record solely because of the suspended funding. However, C indicated that she was willing to represent the accused if funding were reinstated. The Territorial Court refused her application. The Supreme Court of the Yukon Territory dismissed C's application for an order in the nature of certiorari seeking to quash the Territorial Court's order, holding that the Territorial Court did not exceed its jurisdiction. The Court of Appeal allowed C's appeal on the basis that the Territorial Court had no discretion to refuse C's application to withdraw.
The Supreme Court of Canada held (unanimously) allowed the appeal.
Justice Rothstein wrote as follows:
"What is the role of a court when defence counsel, in a criminal matter, wishes to withdraw because of non-payment of legal fees? Does a court have the authority to require counsel to continue to represent the accused? In my opinion, a court does have this authority, though it must be exercised sparingly, and only when necessary to prevent serious harm to the administration of justice.
An accused has an unfettered right to discharge his or her legal counsel at any time and for any reason. A court may not interfere with this decision and cannot force counsel upon an unwilling accused. Counsel, on the other hand, does not have an unfettered right to withdraw. The fiduciary nature of the solicitor-client relationship means that counsel is constrained in his or her ability to withdraw from a case once he or she has chosen to represent an accused...This appeal raises the issue of whether a court's jurisdiction to control its own process imposes a further constraint on counsel's ability to withdraw.
I conclude that a court does have the authority to refuse criminal defence counsel's request to withdraw for non-payment of legal fees. Applications regarding withdrawal or removal of counsel, whether for non-payment of fees, conflict of interest or otherwise, are the types of matters that fall within the necessarily implied authority of a court to control the conduct of legal proceedings before it.
The more contentious issue in this appeal is whether a criminal court may exercise its inherent or necessarily implied jurisdiction to control its own process by overseeing lawyer withdrawal.
The reasons in favour of courts exercising this jurisdiction are numerous. An accused, who becomes unable to pay his lawyer, may be prejudiced if he is abandoned by counsel in the midst of criminal proceedings. Proceedings may need to be adjourned to allow the accused to obtain new counsel. This delay may prejudice the accused, who is stigmatized by the unresolved criminal charges and who may be in custody awaiting trial. It may also prejudice the Crown's case. Additional delay also affects complainants, witnesses and jurors involved in the matter, and society's interest in the expedient administration of justice. Where these types of interests are engaged, they may outweigh counsel's interest in withdrawing from a matter in which he or she is not being paid.
Ordering counsel to work for free is not a decision that should be made lightly. Though criminal defence counsel may be in the best position to assess the financial risk in taking on a client, only in the most serious circumstances should counsel alone be required to bear this financial burden. In general, access to justice should not fall solely on the shoulders of the criminal defence bar and, in particular, legal aid lawyers. Refusing to allow counsel to withdraw should truly be a remedy of last resort and should only be relied upon where it is necessary to prevent serious harm to the administration of justice.
The court's exercise of discretion to decide counsel's application for withdrawal should be guided by the following principles.
If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal. In this situation, there is no need for the court to enquire into counsel's reasons for seeking to withdraw or require counsel to continue to act.
Assuming that timing is an issue, the court is entitled to enquire further. Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g. workload of counsel) if solicitor-client privilege is not engaged. Counsel seeking to withdraw for ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused. Counsel may cite "ethical reasons" as the reason for withdrawal if, for example, the accused is requesting that counsel act in violation of his or her professional obligations...If the real reason for withdrawal is non-payment of legal fees, then counsel cannot represent to the court that he or she seeks to withdraw for "ethical reasons". However, in either the case of ethical reasons or non-payment of fees, the court must accept counsel's answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege.
If withdrawal is sought for an ethical reason, then the court must grant withdrawal. Where an ethical issue has arisen in the relationship, counsel may be required to withdraw in order to comply with his or her professional obligations. It would be inappropriate for a court to require counsel to continue to act when to do so would put him or her in violation of professional responsibilities.
If withdrawal is sought because of non-payment of legal fees, the court may exercise its discretion to refuse counsel's request. The court's order refusing counsel's request to withdraw may be enforced by the court's contempt power. In exercising its discretion on the withdrawal request, the court should consider the following non-exhaustive list of factors:
a) whether it is feasible for the accused to represent himself or herself;
b) other means of obtaining representation;
c) impact on the accused from delay in proceedings, particularly if the accused is in custody;
d) conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;
e) impact on the Crown and any co-accused;
f) impact on complainants, witnesses and jurors;
g) fairness to defence counsel, including consideration of the expected length and complexity of the proceedings; and
h) the history of the proceedings, e.g. if the accused has changed lawyers repeatedly.
As these factors are all independent of the solicitor-client relationship, there is no risk of violating solicitor-client privilege when engaging in this analysis. On the basis of these factors, the court must determine whether allowing withdrawal would cause serious harm to the administration of justice. If the answer is yes, withdrawal may be refused."
Regards,
Blair
The Supreme Court of Canada held (unanimously) allowed the appeal.
Justice Rothstein wrote as follows:
"What is the role of a court when defence counsel, in a criminal matter, wishes to withdraw because of non-payment of legal fees? Does a court have the authority to require counsel to continue to represent the accused? In my opinion, a court does have this authority, though it must be exercised sparingly, and only when necessary to prevent serious harm to the administration of justice.
An accused has an unfettered right to discharge his or her legal counsel at any time and for any reason. A court may not interfere with this decision and cannot force counsel upon an unwilling accused. Counsel, on the other hand, does not have an unfettered right to withdraw. The fiduciary nature of the solicitor-client relationship means that counsel is constrained in his or her ability to withdraw from a case once he or she has chosen to represent an accused...This appeal raises the issue of whether a court's jurisdiction to control its own process imposes a further constraint on counsel's ability to withdraw.
I conclude that a court does have the authority to refuse criminal defence counsel's request to withdraw for non-payment of legal fees. Applications regarding withdrawal or removal of counsel, whether for non-payment of fees, conflict of interest or otherwise, are the types of matters that fall within the necessarily implied authority of a court to control the conduct of legal proceedings before it.
The more contentious issue in this appeal is whether a criminal court may exercise its inherent or necessarily implied jurisdiction to control its own process by overseeing lawyer withdrawal.
The reasons in favour of courts exercising this jurisdiction are numerous. An accused, who becomes unable to pay his lawyer, may be prejudiced if he is abandoned by counsel in the midst of criminal proceedings. Proceedings may need to be adjourned to allow the accused to obtain new counsel. This delay may prejudice the accused, who is stigmatized by the unresolved criminal charges and who may be in custody awaiting trial. It may also prejudice the Crown's case. Additional delay also affects complainants, witnesses and jurors involved in the matter, and society's interest in the expedient administration of justice. Where these types of interests are engaged, they may outweigh counsel's interest in withdrawing from a matter in which he or she is not being paid.
Ordering counsel to work for free is not a decision that should be made lightly. Though criminal defence counsel may be in the best position to assess the financial risk in taking on a client, only in the most serious circumstances should counsel alone be required to bear this financial burden. In general, access to justice should not fall solely on the shoulders of the criminal defence bar and, in particular, legal aid lawyers. Refusing to allow counsel to withdraw should truly be a remedy of last resort and should only be relied upon where it is necessary to prevent serious harm to the administration of justice.
The court's exercise of discretion to decide counsel's application for withdrawal should be guided by the following principles.
If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal. In this situation, there is no need for the court to enquire into counsel's reasons for seeking to withdraw or require counsel to continue to act.
Assuming that timing is an issue, the court is entitled to enquire further. Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g. workload of counsel) if solicitor-client privilege is not engaged. Counsel seeking to withdraw for ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused. Counsel may cite "ethical reasons" as the reason for withdrawal if, for example, the accused is requesting that counsel act in violation of his or her professional obligations...If the real reason for withdrawal is non-payment of legal fees, then counsel cannot represent to the court that he or she seeks to withdraw for "ethical reasons". However, in either the case of ethical reasons or non-payment of fees, the court must accept counsel's answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege.
If withdrawal is sought for an ethical reason, then the court must grant withdrawal. Where an ethical issue has arisen in the relationship, counsel may be required to withdraw in order to comply with his or her professional obligations. It would be inappropriate for a court to require counsel to continue to act when to do so would put him or her in violation of professional responsibilities.
If withdrawal is sought because of non-payment of legal fees, the court may exercise its discretion to refuse counsel's request. The court's order refusing counsel's request to withdraw may be enforced by the court's contempt power. In exercising its discretion on the withdrawal request, the court should consider the following non-exhaustive list of factors:
a) whether it is feasible for the accused to represent himself or herself;
b) other means of obtaining representation;
c) impact on the accused from delay in proceedings, particularly if the accused is in custody;
d) conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;
e) impact on the Crown and any co-accused;
f) impact on complainants, witnesses and jurors;
g) fairness to defence counsel, including consideration of the expected length and complexity of the proceedings; and
h) the history of the proceedings, e.g. if the accused has changed lawyers repeatedly.
As these factors are all independent of the solicitor-client relationship, there is no risk of violating solicitor-client privilege when engaging in this analysis. On the basis of these factors, the court must determine whether allowing withdrawal would cause serious harm to the administration of justice. If the answer is yes, withdrawal may be refused."
Regards,
Blair
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