The Ontario Court of Appeal recently considered the application of the new "Van Breda" test concerning the circumstances under which an Ontario court will assume jurisdiction in an action where multiple jurisdictions are involved in a transaction or occurrence.
In Van Breda v. Village Resorts Limited (2010) 98 O.R. (3d) 721 the Ontario Court of Appeal held that if a case falls within one of the factors enumerated in Rule 17.02 of the Rules of Civil Procedure, the court should presume that there is a real and substantial connection between Ontario and a foreign defendant. The defendant may then prove that despite the existence of the one of the factors, in the particular circumstances of the case, there is no real and substantial connection with Ontario.
The Court of Appeal held that other considerations in the "jurisdiction simpliciter" analysis are no longer to be treated as independent factors, but rather as principles that bear upon the analysis, including (a) the fairness to each party of assuming or refusing to assume jurisdiction; (b) the involvement of other parties in the action; (c) the willingness to recognize and enforce an extra-provincial judgment with similar jurisdictional connections to the forum; (d) comity; and (e) the standards of enforcement in the other jurisdiction.
In Dilkas v. Red Seal Tours Inc the Court of Appeal considered the application of the Van Breda test to Ontario residents who purchased vacation packages from Sunwing in Ontario for vacations in Mexico. The plaintiffs were injured in an accident caused by a Mexican transportation company under agreement with Sunwing to transport the plaintiffs from the airport to their hotel.
The Ontario Court of Appeal upheld the decision of the trial judge and found on the Van Breda test that Ontario should assume jurisdiction. The court distinguished this case from other similar travel cases where the court held that Ontario should not assume jurisdiction because here:
(1) the vacation packages which were purchased in Ontario explicitly included ground transportation services;
(2) the ground transportation agreement between Sunwing and the transportation company was explicitly governed by Ontario law; and
(3) the transportation company entered into an indemnity agreement with Sunwing in respect of any lawsuit brought in Ontario by the injured tourists and agreed that the Ontario courts would have exclusive jurisdiction.
The court also concluded that Mexico was not the more convenient forum.
Regards,
Blair
Friday, November 5, 2010
Thursday, November 4, 2010
The Supreme Court of Canada just released 3 more appeal judgments this morning (in a single set of reasons):
FREEDOM OF THE PRESS: JOURNALIST-SOURCE PRIVLEGE; PUBLICATION BANS
Globe and Mail v. Canada (Attorney General) (December 15, 2008) (32975), (January 30, 2009) (33097), (August 26, 2008) (33114)
"These three appeals have as their origin the litigation flowing from what is known as the Sponsorship Scandal. In March 2005, the Attorney General of Canada filed a motion in the Quebec Superior Court seeking to recover the money paid by the federal government under the Sponsorship Program. The proceedings were instituted against several of the companies and individuals retained by the Program and implicated in the Scandal, including Groupe Polygone. In response, Groupe Polygone advanced a defence of prescription under the Civil Code of Quebec. As the litigation proceeded, and in support of its prescription defence, Groupe Polygone obtained orders requiring that certain persons, including several federal government employees, answer questions aimed at identifying the source of a journalist's information. Based primarily on information received from a confidential unauthorized government source, L, a Globe and Mail journalist, had written a series of articles about the Sponsorship Program, alleging the misuse and misdirection of public funds. The Globe and Mail brought a revocation motion in respect of the orders issued by the Superior Court judge, arguing that their effect would be to breach journalist?source privilege. L testified on the motion and was cross-examined by counsel for Groupe Polygone. Counsel for the Globe and Mail objected to a number of questions posed to L, on the basis that they were either irrelevant, or that his answering them would lead to a breach of journalist-source privilege. The judge refused to recognize the existence of a journalist-source privilege and the objections were dismissed. Leave to appeal was denied by the Court of Appeal ("journalist-source privilege appeal"). Rather than have its journalist answer the questions, the Globe and Mail sought to discontinue the revocation proceedings. The judge refused to allow the discontinuance, and the Quebec Court of Appeal dismissed the appeal ("discontinuance appeal"). Meanwhile, during the hearing of the discontinuance proceedings, Groupe Polygone complained about leaks dealing with the content of confidential settlement negotiations in which it was engaged with the Attorney General, the details of which were reported by L and published by the Globe and Mail. In response, and on his own motion, the Superior Court judge made an order prohibiting L from further reporting and publishing on the state of the negotiations. While the Globe and Mail objected to what it insisted was a publication ban, and one issued without the benefit of hearing from either party, the judge maintained that the order was not a publication ban, providing no further written or oral reasons for his decision. The Quebec Court of Appeal again rejected the Globe and Mail's application for leave to appeal ("publication ban appeal").
In the journalist-source privilege appeal in this Court, the Globe and Mail argued that a class-based journalist-source privilege is rooted in the Canadian Charter and the Quebec Charter. In the alternative, it contended that the common law Wigmore doctrine to establish privilege on a case-by-case basis, but modified to account for the civil law tradition, is applicable. The Globe and Mail also challenged the order prohibiting the publication of information related to the settlement negotiations, as well as the order denying the discontinuance."
The SCC (unanimously) held: the journalist-source privilege appeal is allowed and the matter remitted to the Superior Court of Quebec for consideration in accordance with the reasons for judgment; the publication ban appeal is allowed and the order prohibiting the publication of information relating to the settlement negotiations quashed; the discontinuance appeal is dismissed as moot.
Justice LeBel wrote as follows (at paragraphs 48-50, 53-55, 61-66, 96-100):
"Journalist-Source Privilege
...Nevertheless, constitutional rights under the Canadian Charter and quasi-constitutional rights under the Quebec Charter are engaged by a claim of journalist-source privilege. Some form of legal protection for the confidential relationship between journalists and their anonymous sources is required. Conflicting rights and interests arise under the Quebec Charter and must be addressed and reconciled. This case also raises important questions related to the development of human rights in Quebec. The creation of a framework to address these issues represents a legitimate and necessary exercise of the power of the court to interpret and develop the law.
In my view, a helpful analogy can be drawn between the journalist-source privilege at issue in this case, and police-informer privilege, which is also a judicially created "rule of public policy" (Bisaillon, at p. 90, citing Marks v. Beyfus (1890), 25 Q.B.D. 494 (C.A.), at p. 498). Indeed, I find that, admittedly in a very broad sense, police-informer privilege is more analogous to journalist-source privilege than is the professional secrecy contemplated by s. 9 of the Quebec Charter, although it arose in the context of criminal procedure within the common law.
Police-informer privilege, like professional secrecy and solicitor-client privilege, is a class-based privilege. In this sense, it is unlike journalist-source privilege, which is clearly a case-by-case privilege. However, it has its roots as a common law rule of public policy, aimed at facilitating the investigation of crime.
...There is therefore a basis in the laws of Quebec for a journalist-source privilege or an exemption from the general obligation to give evidence in civil cases. Despite its common law origins, the use of a Wigmore-like framework to recognize the existence of the privilege in the criminal law context, as established in National Post, is equally relevant for litigation subject to the laws of Quebec. This approach conforms both with s. 2(b) of the Canadian Charter and ss. 3 and 44 of the Quebec Charter. Indeed, I reject the submission of the intervener Canadian Civil Liberties Association that the Wigmore framework cannot differentiate between relationships that have a constitutional dimension and those that do not. It is clear that it does so already (R. v. Gruenke, [1991] 3 S.C.R. 263; National Post). This approach also accords with the law of evidence in Quebec. The C.C.Q. grants judges the authority to exclude evidence or testimony in the event of a breach of the Quebec Charter. It is not inconsistent, either in principle or in fact, to give judges the authority to exempt a journalist from testifying, when his s. 2(b) Canadian Charter and s. 3 Quebec Charter rights are found to be paramount. Indeed, I would add that art. 46 of the C.C.P., which provides for the general powers of the Superior Court, appears to provide its judges with the necessary authority to do so on a case-by-case basis:
The courts and judges have all the powers necessary for the exercise of their jurisdiction.
They may, at any time and in all matters, whether in first instance or in appeal, issue orders to safeguard the rights of the parties, for such time and on such conditions as they may determine. As well, they may, in the matters brought before them, even on their own initiative, issue injunctions or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to deal with cases for which no specific remedy is provided by law.
It is also a framework that is sufficiently flexible to take into account the variety of interests that may arise in any particular case, and those that are certain to arise in civil proceedings taking place in the common law provinces. The overarching issues raised by this appeal are of course not unique to the province of Quebec. The news media's reach is borderless. This is further support for an approach that would result in consistency across the country, while preserving the distinctive legal context under the Civil Code.
...Another consideration, related to the centrality of the question to the dispute, is whether the journalist is a party to the litigation, or simply an ordinary witness. For example, whether it is in the public interest to require a journalist to testify as to the identity of a confidential source will no doubt differ if the journalist is a defendant in a defamation action, for example, as opposed to a third party witness, compelled by subpoena to testify in a matter in which he or she has no personal stake in the outcome. In the former context, the identity of the source is more likely to be near the centre of the dispute between the parties. When a journalist is called as a third party witness, there is likely to be more of a question whether the source's identity is central to the dispute.
A crucial consideration in any court's determination of whether the privilege has been made out will be whether the facts, information or testimony are available by any other means. As the Court recognized in National Post, "[t]he 'alternate sources' principle has been part of Canadian law since Re Pacific Press Ltd. and The Queen (1977), 37 C.C.C. (2d) 487 (B.C.S.C.), as it has been in the U.K." (para. 66). Indeed, courts in the United Kingdom have endorsed this necessity requirement, and held that mere administrative convenience is insufficient (Secretary of State for Defence v. Guardian Newspapers Ltd., [1985] 1 A.C. 339; In re An Inquiry under the Company Securities (Insider Dealing) Act, 1985, [1988] 1 A.C. 660; Cross and Tapper on Evidence (11th ed. 2007), at p. 501).
This, of course, makes perfect sense. If relevant information is available by other means and, therefore, could be obtained without requiring a journalist to break the undertaking of confidentiality, then those avenues ought to be exhausted. The necessity requirement, like the earlier threshold requirement of relevancy, acts as a further buffer against fishing expeditions and any unnecessary interference with the work of the media. Requiring a journalist to breach a confidentiality undertaking with a source should be done only as a last resort.
Other considerations that may be relevant in a particular case include the degree of public importance of the journalist's story, and whether the story has been published and is therefore already in the public domain. This list is, of course, not comprehensive. In the end, context is critical.
In summary, to require a journalist to answer questions in a judicial proceeding that may disclose the identity of a confidential source, the requesting party must demonstrate that the questions are relevant. If the questions are irrelevant, that will end the inquiry and there will be no need to consider the issue of journalist-source privilege. However, if the questions are relevant, then the court must go on to consider the four Wigmore factors and determine whether the journalist-source privilege should be recognized in the particular case. At the crucial fourth factor, the court must balance (1) the importance of disclosure to the administration of justice against (2) the public interest in maintaining journalist-source confidentiality. This balancing must be conducted in a context-specific manner, having regard to the particular demand for disclosure at issue. It is for the party seeking to establish the privilege to demonstrate that the interest in maintaining journalist-source confidentiality outweighs the public interest in the disclosure that the law would normally require.
The relevant considerations at this stage of the analysis, when a claim to privilege is made in the context of civil proceedings, include: how central the issue is to the dispute; the stage of the proceedings; whether the journalist is a party to the proceedings; and, perhaps most importantly, whether the information is available through any other means. As discussed earlier, this list is not comprehensive.
The Publication Ban
...Even if I were convinced that the publication ban was necessary to prevent a serious risk to the administration of justice, I would not be convinced that its salutary effects outweigh its deleterious effects. The salutary effects of the ban are, primarily, a cessation of the breach of Groupe Polygone's s. 5 privacy rights and, indirectly, a breach of its right to negotiate a settlement confidentially. I say indirectly, of course, because the media are not the party responsible for the breach of confidentiality. However, I am not convinced that such a breach, in the circumstances of this case, led to a failure in the negotiations and can therefore justify a publication ban.
On the other hand, the deleterious effects of the ban are serious. The Globe and Mail received information about settlement negotiations involving, as a party, the Government of Canada, which is seeking to recover a considerable amount of taxpayer money, on the basis of an alleged fraud against a government program. There is clearly an overarching public interest in the outcome of this dispute, and barring the Globe and Mail from publishing the information that it obtained in this regard would prevent the story from coming to light. In other words, upholding de Grandpré J.'s order would be to stifle the media's exercise of their constitutionally mandated role.
While not in any way wanting to diminish the importance that this Court places on the confidentiality of settlement negotiations, I again emphasize that the confidentiality undertakings are a binding only on the parties to negotiation. The obligation does not, and cannot, extend to the media. Neither Mr. Leblanc nor the Globe and Mail did anything - illegal or otherwise - to obtain the information published in the article. Mr. Leblanc did not even have to make any requests in this regard. As discussed earlier in these reasons, I am reluctant to endorse a situation where the media or individual journalists are automatically prevented from publishing information supplied to them by a source who is in breach of his or her confidentiality obligations. This would place too onerous an obligation on the journalist to verify the legality of the source's information. It would also invite considerable interference by the courts in the workings of the media. Furthermore, such an approach ignores the fact that the breach of a legal duty on the part of a source is often the only way that important stories, in the public interest, are brought to light. Imposing a publication ban in this case would be contrary to all these interests.
As we have seen, on the factual record before us, the ban was not necessary to prevent a serious risk to the proper administration of justice. Moreover, the salutary effects of the publication ban imposed in the court below do not outweigh its deleterious effects. I would thus allow the appeal and quash the publication ban imposed by de Grandpré J.
For all these reasons, the Globe and Mail's appeal is allowed, with costs throughout, and the order prohibiting the publication of anything relating to the settlement negotiations between the parties is quashed, with costs throughout."
Click here for the full text of the judgment
Eugene Meehan, Q.C.
Chair, Supreme Court Practice Group
Lang Michener
300 - 50 O'Connor Street
Ottawa ON K1P 6L2
Phone: (613) 232-7171
Fax: (613) 231-3191
Ontario, Alberta, Yukon, NWT & Nunavut
Licenced to Practise Law in the State of Arizona, U.S.A.
emeehan@langmichener.ca
http://www.supremecourtlaw.ca
Forward to a Friend
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Homepage
Published by Lang Michener LLP
Copyright 2008 Lang Michener. All rights reserved.
FREEDOM OF THE PRESS: JOURNALIST-SOURCE PRIVLEGE; PUBLICATION BANS
Globe and Mail v. Canada (Attorney General) (December 15, 2008) (32975), (January 30, 2009) (33097), (August 26, 2008) (33114)
"These three appeals have as their origin the litigation flowing from what is known as the Sponsorship Scandal. In March 2005, the Attorney General of Canada filed a motion in the Quebec Superior Court seeking to recover the money paid by the federal government under the Sponsorship Program. The proceedings were instituted against several of the companies and individuals retained by the Program and implicated in the Scandal, including Groupe Polygone. In response, Groupe Polygone advanced a defence of prescription under the Civil Code of Quebec. As the litigation proceeded, and in support of its prescription defence, Groupe Polygone obtained orders requiring that certain persons, including several federal government employees, answer questions aimed at identifying the source of a journalist's information. Based primarily on information received from a confidential unauthorized government source, L, a Globe and Mail journalist, had written a series of articles about the Sponsorship Program, alleging the misuse and misdirection of public funds. The Globe and Mail brought a revocation motion in respect of the orders issued by the Superior Court judge, arguing that their effect would be to breach journalist?source privilege. L testified on the motion and was cross-examined by counsel for Groupe Polygone. Counsel for the Globe and Mail objected to a number of questions posed to L, on the basis that they were either irrelevant, or that his answering them would lead to a breach of journalist-source privilege. The judge refused to recognize the existence of a journalist-source privilege and the objections were dismissed. Leave to appeal was denied by the Court of Appeal ("journalist-source privilege appeal"). Rather than have its journalist answer the questions, the Globe and Mail sought to discontinue the revocation proceedings. The judge refused to allow the discontinuance, and the Quebec Court of Appeal dismissed the appeal ("discontinuance appeal"). Meanwhile, during the hearing of the discontinuance proceedings, Groupe Polygone complained about leaks dealing with the content of confidential settlement negotiations in which it was engaged with the Attorney General, the details of which were reported by L and published by the Globe and Mail. In response, and on his own motion, the Superior Court judge made an order prohibiting L from further reporting and publishing on the state of the negotiations. While the Globe and Mail objected to what it insisted was a publication ban, and one issued without the benefit of hearing from either party, the judge maintained that the order was not a publication ban, providing no further written or oral reasons for his decision. The Quebec Court of Appeal again rejected the Globe and Mail's application for leave to appeal ("publication ban appeal").
In the journalist-source privilege appeal in this Court, the Globe and Mail argued that a class-based journalist-source privilege is rooted in the Canadian Charter and the Quebec Charter. In the alternative, it contended that the common law Wigmore doctrine to establish privilege on a case-by-case basis, but modified to account for the civil law tradition, is applicable. The Globe and Mail also challenged the order prohibiting the publication of information related to the settlement negotiations, as well as the order denying the discontinuance."
The SCC (unanimously) held: the journalist-source privilege appeal is allowed and the matter remitted to the Superior Court of Quebec for consideration in accordance with the reasons for judgment; the publication ban appeal is allowed and the order prohibiting the publication of information relating to the settlement negotiations quashed; the discontinuance appeal is dismissed as moot.
Justice LeBel wrote as follows (at paragraphs 48-50, 53-55, 61-66, 96-100):
"Journalist-Source Privilege
...Nevertheless, constitutional rights under the Canadian Charter and quasi-constitutional rights under the Quebec Charter are engaged by a claim of journalist-source privilege. Some form of legal protection for the confidential relationship between journalists and their anonymous sources is required. Conflicting rights and interests arise under the Quebec Charter and must be addressed and reconciled. This case also raises important questions related to the development of human rights in Quebec. The creation of a framework to address these issues represents a legitimate and necessary exercise of the power of the court to interpret and develop the law.
In my view, a helpful analogy can be drawn between the journalist-source privilege at issue in this case, and police-informer privilege, which is also a judicially created "rule of public policy" (Bisaillon, at p. 90, citing Marks v. Beyfus (1890), 25 Q.B.D. 494 (C.A.), at p. 498). Indeed, I find that, admittedly in a very broad sense, police-informer privilege is more analogous to journalist-source privilege than is the professional secrecy contemplated by s. 9 of the Quebec Charter, although it arose in the context of criminal procedure within the common law.
Police-informer privilege, like professional secrecy and solicitor-client privilege, is a class-based privilege. In this sense, it is unlike journalist-source privilege, which is clearly a case-by-case privilege. However, it has its roots as a common law rule of public policy, aimed at facilitating the investigation of crime.
...There is therefore a basis in the laws of Quebec for a journalist-source privilege or an exemption from the general obligation to give evidence in civil cases. Despite its common law origins, the use of a Wigmore-like framework to recognize the existence of the privilege in the criminal law context, as established in National Post, is equally relevant for litigation subject to the laws of Quebec. This approach conforms both with s. 2(b) of the Canadian Charter and ss. 3 and 44 of the Quebec Charter. Indeed, I reject the submission of the intervener Canadian Civil Liberties Association that the Wigmore framework cannot differentiate between relationships that have a constitutional dimension and those that do not. It is clear that it does so already (R. v. Gruenke, [1991] 3 S.C.R. 263; National Post). This approach also accords with the law of evidence in Quebec. The C.C.Q. grants judges the authority to exclude evidence or testimony in the event of a breach of the Quebec Charter. It is not inconsistent, either in principle or in fact, to give judges the authority to exempt a journalist from testifying, when his s. 2(b) Canadian Charter and s. 3 Quebec Charter rights are found to be paramount. Indeed, I would add that art. 46 of the C.C.P., which provides for the general powers of the Superior Court, appears to provide its judges with the necessary authority to do so on a case-by-case basis:
The courts and judges have all the powers necessary for the exercise of their jurisdiction.
They may, at any time and in all matters, whether in first instance or in appeal, issue orders to safeguard the rights of the parties, for such time and on such conditions as they may determine. As well, they may, in the matters brought before them, even on their own initiative, issue injunctions or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to deal with cases for which no specific remedy is provided by law.
It is also a framework that is sufficiently flexible to take into account the variety of interests that may arise in any particular case, and those that are certain to arise in civil proceedings taking place in the common law provinces. The overarching issues raised by this appeal are of course not unique to the province of Quebec. The news media's reach is borderless. This is further support for an approach that would result in consistency across the country, while preserving the distinctive legal context under the Civil Code.
...Another consideration, related to the centrality of the question to the dispute, is whether the journalist is a party to the litigation, or simply an ordinary witness. For example, whether it is in the public interest to require a journalist to testify as to the identity of a confidential source will no doubt differ if the journalist is a defendant in a defamation action, for example, as opposed to a third party witness, compelled by subpoena to testify in a matter in which he or she has no personal stake in the outcome. In the former context, the identity of the source is more likely to be near the centre of the dispute between the parties. When a journalist is called as a third party witness, there is likely to be more of a question whether the source's identity is central to the dispute.
A crucial consideration in any court's determination of whether the privilege has been made out will be whether the facts, information or testimony are available by any other means. As the Court recognized in National Post, "[t]he 'alternate sources' principle has been part of Canadian law since Re Pacific Press Ltd. and The Queen (1977), 37 C.C.C. (2d) 487 (B.C.S.C.), as it has been in the U.K." (para. 66). Indeed, courts in the United Kingdom have endorsed this necessity requirement, and held that mere administrative convenience is insufficient (Secretary of State for Defence v. Guardian Newspapers Ltd., [1985] 1 A.C. 339; In re An Inquiry under the Company Securities (Insider Dealing) Act, 1985, [1988] 1 A.C. 660; Cross and Tapper on Evidence (11th ed. 2007), at p. 501).
This, of course, makes perfect sense. If relevant information is available by other means and, therefore, could be obtained without requiring a journalist to break the undertaking of confidentiality, then those avenues ought to be exhausted. The necessity requirement, like the earlier threshold requirement of relevancy, acts as a further buffer against fishing expeditions and any unnecessary interference with the work of the media. Requiring a journalist to breach a confidentiality undertaking with a source should be done only as a last resort.
Other considerations that may be relevant in a particular case include the degree of public importance of the journalist's story, and whether the story has been published and is therefore already in the public domain. This list is, of course, not comprehensive. In the end, context is critical.
In summary, to require a journalist to answer questions in a judicial proceeding that may disclose the identity of a confidential source, the requesting party must demonstrate that the questions are relevant. If the questions are irrelevant, that will end the inquiry and there will be no need to consider the issue of journalist-source privilege. However, if the questions are relevant, then the court must go on to consider the four Wigmore factors and determine whether the journalist-source privilege should be recognized in the particular case. At the crucial fourth factor, the court must balance (1) the importance of disclosure to the administration of justice against (2) the public interest in maintaining journalist-source confidentiality. This balancing must be conducted in a context-specific manner, having regard to the particular demand for disclosure at issue. It is for the party seeking to establish the privilege to demonstrate that the interest in maintaining journalist-source confidentiality outweighs the public interest in the disclosure that the law would normally require.
The relevant considerations at this stage of the analysis, when a claim to privilege is made in the context of civil proceedings, include: how central the issue is to the dispute; the stage of the proceedings; whether the journalist is a party to the proceedings; and, perhaps most importantly, whether the information is available through any other means. As discussed earlier, this list is not comprehensive.
The Publication Ban
...Even if I were convinced that the publication ban was necessary to prevent a serious risk to the administration of justice, I would not be convinced that its salutary effects outweigh its deleterious effects. The salutary effects of the ban are, primarily, a cessation of the breach of Groupe Polygone's s. 5 privacy rights and, indirectly, a breach of its right to negotiate a settlement confidentially. I say indirectly, of course, because the media are not the party responsible for the breach of confidentiality. However, I am not convinced that such a breach, in the circumstances of this case, led to a failure in the negotiations and can therefore justify a publication ban.
On the other hand, the deleterious effects of the ban are serious. The Globe and Mail received information about settlement negotiations involving, as a party, the Government of Canada, which is seeking to recover a considerable amount of taxpayer money, on the basis of an alleged fraud against a government program. There is clearly an overarching public interest in the outcome of this dispute, and barring the Globe and Mail from publishing the information that it obtained in this regard would prevent the story from coming to light. In other words, upholding de Grandpré J.'s order would be to stifle the media's exercise of their constitutionally mandated role.
While not in any way wanting to diminish the importance that this Court places on the confidentiality of settlement negotiations, I again emphasize that the confidentiality undertakings are a binding only on the parties to negotiation. The obligation does not, and cannot, extend to the media. Neither Mr. Leblanc nor the Globe and Mail did anything - illegal or otherwise - to obtain the information published in the article. Mr. Leblanc did not even have to make any requests in this regard. As discussed earlier in these reasons, I am reluctant to endorse a situation where the media or individual journalists are automatically prevented from publishing information supplied to them by a source who is in breach of his or her confidentiality obligations. This would place too onerous an obligation on the journalist to verify the legality of the source's information. It would also invite considerable interference by the courts in the workings of the media. Furthermore, such an approach ignores the fact that the breach of a legal duty on the part of a source is often the only way that important stories, in the public interest, are brought to light. Imposing a publication ban in this case would be contrary to all these interests.
As we have seen, on the factual record before us, the ban was not necessary to prevent a serious risk to the proper administration of justice. Moreover, the salutary effects of the publication ban imposed in the court below do not outweigh its deleterious effects. I would thus allow the appeal and quash the publication ban imposed by de Grandpré J.
For all these reasons, the Globe and Mail's appeal is allowed, with costs throughout, and the order prohibiting the publication of anything relating to the settlement negotiations between the parties is quashed, with costs throughout."
Click here for the full text of the judgment
Eugene Meehan, Q.C.
Chair, Supreme Court Practice Group
Lang Michener
300 - 50 O'Connor Street
Ottawa ON K1P 6L2
Phone: (613) 232-7171
Fax: (613) 231-3191
Ontario, Alberta, Yukon, NWT & Nunavut
Licenced to Practise Law in the State of Arizona, U.S.A.
emeehan@langmichener.ca
http://www.supremecourtlaw.ca
Forward to a Friend
Contact Us
Homepage
Published by Lang Michener LLP
Copyright 2008 Lang Michener. All rights reserved.
Thursday, September 16, 2010
Fraternal Relationship Trumps Artistic Talent
From Eugene Meehan-
FAMILY LAW: CHOICE OF SCHOOLS There is a publication ban on the names of the parties in this case. The dispute between the parties concerned the elementary school in which their child is to be registered in September 2010. The father, who is the Applicant, would prefer that the child begin school at a school the parties had previously agreed on orally. According to him, the school in question is one where the child would be able to develop his artistic abilities and musical talent and would be with several friends from daycare who live in the same neighbourhood as he does or who take swimming lessons with him. The mother, who is the Respondent, would prefer to send the child to the same school as his older half-brother. In her opinion, that would permit the child to grow up in the same school environment as his half-brother, thus bringing him a measure of stability. The father filed a motion for, inter alia, an order that the child be registered at the first school.
The Superior Court held that fostering the fraternal relationship between the children should be preferred to placing the child in an academic program suited to his aptitudes in which he would be with a few friends, and it accordingly authorized the mother to register the child in the school she favoured. The C.A. granted the mother's motion to dismiss the appeal on the basis that the appeal had no reasonable chance of success.F.H. v. A.-C.L. (Quebec C.A., March 22, 2010) (33715) "The application for leave to appeal...is dismissed without costs."
Regards,
Blair
FAMILY LAW: CHOICE OF SCHOOLS There is a publication ban on the names of the parties in this case. The dispute between the parties concerned the elementary school in which their child is to be registered in September 2010. The father, who is the Applicant, would prefer that the child begin school at a school the parties had previously agreed on orally. According to him, the school in question is one where the child would be able to develop his artistic abilities and musical talent and would be with several friends from daycare who live in the same neighbourhood as he does or who take swimming lessons with him. The mother, who is the Respondent, would prefer to send the child to the same school as his older half-brother. In her opinion, that would permit the child to grow up in the same school environment as his half-brother, thus bringing him a measure of stability. The father filed a motion for, inter alia, an order that the child be registered at the first school.
The Superior Court held that fostering the fraternal relationship between the children should be preferred to placing the child in an academic program suited to his aptitudes in which he would be with a few friends, and it accordingly authorized the mother to register the child in the school she favoured. The C.A. granted the mother's motion to dismiss the appeal on the basis that the appeal had no reasonable chance of success.F.H. v. A.-C.L. (Quebec C.A., March 22, 2010) (33715) "The application for leave to appeal...is dismissed without costs."
Regards,
Blair
Supreme Court Denies Federal Inmate Leave to Appeal
From Eugene Meehan: The Applicant was a federal penitentiary inmate and injured while carrying out supervised work in the woodworking shop. He brought a successful claim in negligence against the Respondent but was denied damages for adverse psychological or psychiatric sequela, or the declaratory relief he sought concerning conditions at the prison. The Applicant appealed and filed a memorandum of fact and law with the Federal C.A. which far exceeded the maximum length prescribed by Rule 70(4) of the Federal Courts Rules. When the Applicant did not comply with directions to file a memorandum in conformity with Rule 70(4), the Federal C.A. dismissed his appeal for failure to file a memorandum of fact and law. Muri Chilton v. Her Majesty the Queen in Right of Canada (Federal C.A., July 8, 2010) (33705) "The application for leave to appeal...is dismissed without costs."
Regards,
Blair
Regards,
Blair
Friday, July 30, 2010
Supreme Court uphold's Robert Pickton's murder conviction
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
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
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
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