This Year's Louis Riel Day Celebrated the Anniversary of the Powley Case

 

November 16^th was Louis Riel Day.  The day commemorates the anniversary of Riel's execution in 1885. Riel was a politician, a founder of the province of Manitoba and a political leader of the Métis people. This year's Louis Reil Day also marked the 20rth anniversary of the Supreme Court of Canada's decision in R. v. Powley (2003) SCC 43 (CanLII), a landmark decision for Canada's Métis people.

 

In the Powley case, Steve Powley and Roddy Powley, who were members of a Métis community near Sault Ste. Marie, were acquitted at trial of unlawfully hunting a moose without a hunting licence in contravention of sections of Ontario's Game and Fish Act (the "Act"). The trial judge found that members of the Métis community in and around Sault Ste. Marie have under section 35(1) of the Constitution Act 1982 (the "Constitution Act") an aboriginal right to hunt for food that the Act infringed, without justification. The Ontario Superior Court of Justice and the Ontario Court of Appeal unanimously upheld the acquittal. The Crown appealed those decisions to the Supreme Court of Canada.

 

The Supreme Court unanimously dismissed the Crown's appeal. The Court held that the term "Métis" in section 35 of the Constitution Act does not encompass all individuals with mixed indigenous and European heritage; rather it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs and recognizable group identity separate from their Indigenous or Inuit and European ancestors. A "Métis community" is a group of Métis with a distinctive collective identity, living in the same geographical area and sharing a common way of life. The purpose of section 35 is to protect practices that were historically important features of these distinctive communities and that persist in the present day. The pre-contact aspect of the "Van der Peet test" must be adjusted to consider post-contact "ethnogenesis and evolution" of the Métis. A pre-control test establishing when Europeans achieved political and legal control in an area and focusing on the period after a particular Métis community arose and before it came under the control of European laws and customs is necessary to accommodate this history.

 

The Court held that aboriginal rights are communal, grounded in the existence of a historical and present community and exercisable by virtue of an individual's ancestrally based membership in the present community. The aboriginal right claimed in this case was the right to hunt for food in the area of Sault Ste. Marie. To support a site-specific aboriginal rights claim, an identifiable Métis community with some degree of continuity and stability must be established through evidence of shared customs, traditions and collective identity as well as demographic evidence. The trial judge's findings of a historic Métis community and of a contemporary Métis community in and around Sault Ste. Marie were supported by the record.

 

The Court further held that the verification of a claimant's membership in the relevant contemporary community is crucial since individuals are only entitled to exercise Métis aboriginal rights by virtue of their ancestral connection and current membership in a Métis community. Self-identification, ancestral connection, and community acceptance are factors which define Métis identity for the purpose of claiming Métis rights under section 35. Absent formal identification, courts will have to ascertain Métis identity on a case-by-case basis. Here, the trial judge correctly found that the respondents were members of the Métis community that arose and still existed in and around Sault Ste. Marie.

 

The historical record fully supported the trial judge's findings at the period just prior to 1850 as the appropriate date for finding effective European control in the Sault Ste. Marie area. The evidence also supported the finding that hunting for food is integral to the Métis way of life in Sault Ste. Marie in the period just prior to 1850. This practice has been continuous to the present.

 

Ontario's lack of recognition of any Métis right to hunt for food in the application of the challenge provisions of the Act infringes the Métis' aboriginal right. Conservation concerns did not justify the infringement. Even if the moose population in that part of Ontario were under threat, the Métis would still be entitled to a priority allocation to satisfy their subsistence needs.

 

Further, the difficulty of identifying members of the Métis community should not be exaggerated to defeat constitutional rights. In the immediate future, the hunting rights of the Métis should track those of the Ojibway in terms of restrictions for conservation purposes and priority allocations. In the longer term, a combination of negation and judicial entitlement will more clearly define the contours of the Métis right to hunt.

 

SCC says Police can't sue Crown for its Prosecution of a Case

Ontario (Attorney General) v. Clark, 2021 SCC 18 

This Supreme Court of Canada decision was released on April 30, 2021. The Court held that Toronto police officers could not maintain an action against Crown prosecutors for “misfeasance in public office” because of the Crown’s handling of the prosecution of a case.

Background

In June 2009, three Toronto police officers arrested two suspects in connection with a complaint of armed robbery and forcible confinement. Both men were charged and were committed to stand trial. Prior to trial, one of the accused brought an application to stay the proceedings against him and to exclude the evidence of a confession he made on the day of the arrest.  The accused claimed  that the police had beaten  him during the arrest and caused him a serious rib injury. The Assistant Crown Attorney and a senior Crown Attorney agreed that the accused’s confession would not be admissible and the charges against him were stayed. The jury trial against the other suspect proceeded and he was convicted. After his conviction, the second man filed a stay application alleging that the police officers had assaulted him as well during his arrest. Both accused testified on the stay application. The Assistant Crown Attorney did not call the officers to give evidence and conceded that the assaults had occurred. The judge accepted the evidence and reduced the second accused’s sentence.

The judge’s reasons described the assaults in detail and called the police’s  conduct “police brutality”. Those findings were reported in the news media. The Special Investigations Unit (SIU) and the Toronto Police Service Professional Standards Unit (PSU) then conducted reviews of the allegations of misconduct against the officers. The SIU discontinued its proceedings when the first accused declined to participate. The PSU concluded that the alleged misconduct could not be substantiated. 

The second accused appealed the judge’s decision not to stay the proceedings against him. The Court of Appeal allowed the appeal and entered a stay of proceedings noting that the Crown did not contest the evidence of the assaults. It strongly criticized the police conduct. Its findings were also reported in the media.  After the appeal, the SIU reopened its investigation and concluded that the first man’s rib injury post-dated the arrest and that the allegations against the police were not substantiated by the evidence. An OPP review concluded that the PSU investigation was thorough and there was no reason to refute its conclusion. 

The police sued the Attorney General for negligence and misfeasance committed by the Assistant Crown, the senior Crown, and the appeal Crown Attorneys. They sought general damages for negligence and misfeasance plus aggravated, exemplary and punitive damages. The police claimed to have suffered irreparable harm to their reputations and their credibility. The Attorney General moved to strike the claim for failing to disclose a cause of action. The motion judge struck the negligence claim but allowed the misfeasance claim to proceed and that decision was withheld on appeal. Only the decision as to the misfeasance claim was appealed to the Supreme Court of Canada.

The SCC Majority Decision

The Court, in an 8 – 1  decision (Justice Cote dissenting) held that the Attorney General’s appeal should be allowed and that the misfeasance claim should be struck. The majority decision was written by Justice Abella. The majority held that prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution. Misfeasance cannot be used to get around this reality. Piercing the immunity of Crown prosecutors to make them accountable to police officers would put Crown prosecutors in perpetual potential conflict with their public duties of objectivity, independence and integrity in pursuit of ensuring a fair trial for the accused and maintaining public confidence in the administration of justice. 

Justice Abella wrote that prosecutorial immunity advances the public interest by enabling prosecutors to make discretionary decisions in fulfillment of their profession obligations without fear of judicial or police interfering. This fulfills their quasi-judicial roles as ministers of justice. The principles underlying immunity are the prosecutor’s constitutional protected independence, the risks to objective decision-making and a concern about diverting prosecutors from their public interest duties. Exposing prosecutors to civil liability may create a chilling effect, encouraging decision-making motivated by a desire to ward off the spectre of liability and obfuscating the prosecutor’s core duties to act objectively and independently in the interests of the integrity of the system and the rights of the accused.

Allowing the police to sue the Crown for misfeasance is fundamentally incompatible with the mutually independent relationship between the police and the prosecutor. The police’s role is to investigate crime. The Crown prosecutor’s role is to assess whether a prosecution is in the public interest and if so, to carry out the production in accordance with the prosecutor’s duties to the administration of justice and the accused.

The police have a legitimate expectation and interest in their reputations not being unfairly impaired, but the solution cannot be to make prosecutors accountable to them in a way that obliterates the independence between police and prosecutors and is inconsistent with the Crown’s core public duties to the administration of justice and to the accused. 

The Lone Dissenter

Justice Cote, the lone dissenting judge, held that prosecutorial immunity should not apply to claims for misfeasance in public office brought by police officers, if the officers suffered harm as a result of deliberate and unlawful conduct by prosecutors.  Justice Cote held that although the protection of prosecutorial independence is constitutionally entrenched in section 7 of the Charter, the scope of prosecutorial immunity is a matter of policy. The policy concerns should not only benefit the accused persons, they should be considered in light of the particular liability threshold applicable to the tort in issue. Justice Cote embarked on a two-step analysis that she said should be used to decide whether prosecutorial immunity should be applied in a particular situation. The first step requires determining whether there are cogent policy reasons for piercing the immunity and the second steps requires determining whether the liability threshold for the tort at issue is high enough to tamp down the twin policy concerns and to safeguard prosecutorial independence. 

Regards,

Blair

Court of Appeal Keeps Barry and Honey Sherman's Estate Files Sealed

Kevin Donovan is the Chief Investigator Reporter at the Toronto Star.  He also is the author of a book about the unsolved murders of Toronto billionaire Barry Sherman and his wife Honey Sherman entitled “The Billionaire Murders: The Mysterious Deaths of Barry and Honey Sherman”.  In the book, as reviewed by Jeff Gray of The Globe and Mail, Donovan sets out to determine what actually happened to the Shermans and who their killer might be.  He explains that on occasion, he even acted as The Toronto Star’s lawyer – even though he has no legal training and is not a lawyer – and has attended at court to question police to unseal such things as search warrant documents.

The Shermans were murdered in their home on December 15, 2017.  No one has yet been arrested and the police are still investigating.

In June 2018 lawyers for the estate trustees of Barry and Honey Sherman's estates filed applications for certificates of appointment of estate trustee.  On the application of the estate trustees, Justice Sean Dunphy of the Ontario Superior Court granted initial ex parte protective orders sealing the applications and other documents relating to the administration of the estates.  Following a contested application to open the court files initiated by Mr. Donovan, Justice Dunphy ordered that the entire court file be sealed and remain sealed for a period of two years, subject to further order of the court.

The court of appeal later set aside that order and ordered that the decision to allow access to the files would take effect 10 days after being released.  However, before the decision took effect, the estate trustees brought a motion for leave to the Supreme Court of Canada.  A stay of the order to release the files was imposed.  Mr. Donovan brought and argued on his own, a motion before Justice van Rensburg of the Court of Appeal to have the estate administration files unsealed pending the decision of the Supreme Court of Canada. 

In upholding the stay, Justice van Rensburg held that the test on a motion for stay of an order of the Court of Appeal pending an application for leave to appeal to the Supreme Court of Canada had been set out by Chief Justice Strathy in Livent v. Deloitte & Touche – i.e. (1) whether there is a serious issue to be tried (2) whether the moving party will suffer irreparable harm if the stay is not granted and (3) whether the balance of convenience favours a stay.  The factors are not to be treated as watertight compartments and the strength of one factor may compensate for weaknesses of another.  The overarching consideration is whether the interests of justice call for a stay.

Justice Dunphy had held that the sealing order was necessary to prevent a serious risk to the privacy and safety of the trustees and beneficiaries of the two estates.  Their privacy had to be weighed against the right to free expression and public interest in open and accessible court proceedings.  In addition, there was an argument that there was a real risk of serious physical harm to the beneficiaries and trustees.  Justice van Rensburg held that the first part of the Livent test had been met.  The threshold was low.  There was a serious question raised about whether public access to the files should be denied in whole or in part for a period of time.  She held that there was arguable merit to the proposed application for leave to appeal to the Supreme Court.  The appropriate analytical framework for restricting public access to court files involving non-litigious or administrative matters was something that the Supreme Court of Canada had not yet determined.  In addition, an issue was whether in the digital age, having regard to the evolving jurisprudence concerning personal privacy, a person's privacy interest can amount to an important public interest at the first stage.  Justice van Rensburg held that the level of threshold in the first part of the test first had been met and that the moving parties' application for leave to the Supreme Court of Canada had some arguable merit.

With respect to the issue of irreparable harm, Justice van Rensburg acceded to the moving parties argument that if the stay was not kept in place, the leave question to the Supreme Court of Canada would be moot.  "By disseminating potentially constitutionally protected confidential information that might at the end of the process continue to be protected would mean that the then horse would be out of the barn."

With respect to the balance of convenience, the only inconvenient part would be delaying access to files of administration.  There was no particular urgency for public access to the files.  Justice van Rensburg held it was best to preserve the status quo until the Supreme Court could rule on the matter.  The files didn't bear themselves on the criminal investigation so that really the only issue was whether the public would be denied anything by continued sealing.  She concluded that there simply no meaningful part of either file that could not be disclosed after making redactions where redactions were necessary and complete.

Regards,

Blair

End of the Road for Ecuadorian Villagers in Their Fight Against Chevron?

This is the case that keeps on giving – both blog posts and reader interes - although the legal saga that has generated all of those words may have come to an end.

Earlier this year, the Supreme Court of Canada refused to hear an appeal from a decision of the Ontario Court of Appeal that had dismissed all claims seeking to enforce an Ecuadorian judgment against an indirect subsidiary of Chevron Corporation in Ontario. The SCC’s dismissal of the Ecuadorian villagers application for leave to appeal meant that the appeal court’s ruling that Chevron Canada is a separate legal entity from Chevron Corp., has ended the litigation here in Canada.  Subsequently, US and Canadian media have reported that the Ecuadorian plaintiffs have now settled their action against Chevron by agreeing to dismiss their Ontario enforcement proceedings and to pay costs to Chevron.  The plaintiffs’ other enforcement actions have been dismissed by courts in Brazil, Argentina and Gibraltar.  Further, an international tribunal in The Hague found that the U.S. $9.5 billion judgment that the Ecuadorian courts had rendered against Chevron had been procured through fraud, bribery and corruption and were based on claims that had already been settled and released by Ecuador years earlier.  As a result, the tribunal concluded that the Ecuadorian judgment violated international public policy and should not be recognized or enforced by the courts of other countries.

U.S. courts had already found that the Ecuadorian judgment against Chevron was a product of fraud and racketeering and had prohibited the judgment from being enforced in the United States.  In addition, U.S. District Judge Lewis Kaplan ordered Chevron’s U.S. lawyer Steven  Donziger to pay Chevron $3.4 million U.S. in attorney’s fees.  Donziger told news services that his total liability in fines add up to about U.S. $10 million.

Chevron had filed a Racketeer Influenced Corrupt Organizations Act (“RICO”) lawsuit against Donziger and his law firm alleging that they had engaged in multiple acts of extortion and money laundering, wire fraud, witness tampering, bribery and obstruction of justice to procure the Ecuadorian judgment.  Justice Kaplan found in Chevron’s favour and held Donziger in contempt for breaching the RICO judgment.  The RICO judgment prevented Donziger from profiting from his fraud by selling interests in the Ecuadorian judgment.  The court found that Donziger had used a large portion of the U.S. $2.3 million that he had raised personally.  U.S. $1.5 million went to directly or indirectly to Donziger or into related accounts.

Donziger told news organizations that the costs sanction against him was based on a bogus case by Chevron.  “Chevron has used 60 law firms and 2,000 lawyers to attack me because I helped win a landmark environmental judgment in Ecuador against the company for dumping billions of gallons of toxic waste in indigenous and ancestral lands.”

A Brief History of the Proceedings

In 1993, a group of Ecuadorian citizens of the Oriente Region of the Amazon river basin filed a class action lawsuit in the U.S. Federal Court against Texaco and in 1994 a group of Peruvian citizens living downstream from the Oriente Region also filed a class action lawsuit against Texaco in U.S. Federal Court.  Both complaints alleged that between 1964 and 1992, Texaco’s oil operations had polluted the rainforests and rivers in Ecuador and Peru resulting in massive environmental damage and damage to the health of those who lived in the region.  In 2002, the U.S. Federal Court dismissed both lawsuits on forum non-conveniens grounds holding that Ecuador was the more appropriate forum for litigating these claims.  Texaco agreed that the courts in Ecuador and/or Peru would have jurisdiction over the plaintiffs’ claims.

In 2003, the villagers brought a class action lawsuit against Texaco (which had been acquired by Chevron in 2001) in Ecuador alleging severe environmental contamination of the land where Texaco had conducted its oil operations.  The plaintiffs alleged that this contamination had led to increased rates of cancer as well as other serious health problems for residents of the region. 

In early 2008 an independent expert recommended to the court that Chevron should pay between $7 and $16 billion U.S. in compensation for the pollution. In November 2008, the expert increased his damage estimate to $27 billion U.S.  In 2008 Chevron reportedly lobbied the U.S. government to end trade preferences with Ecuador over the lawsuit.  Following allegations of judicial  misconduct, the original trial judge recused himself from the case and a new judge was appointed.  In September 2010 the plaintiffs submitted a new damages assessment stating that the costs had risen to between $90 and $103 billion U.S.

In February 2011 the Ecuadorian judge issued a ruling against Chevron in the lawsuit.  Chevron was ordered to pay U.S. $8.6 billion in damages and clean-up costs with damages increasing to $18 billion if Chevron did not issue a public apology.  Chevron reported publicly that it believed that the ruling was illegitimate and unenforceable and filed an appeal.  In January 2012 a panel of three judges from the Ecuadorian Provincial Court of Appeal upheld the ruling.  Chevron subsequently appealed to Ecuador’s National Court of Justice. In October 2012 the Ecuadorian court issued an order permitting the plaintiffs to seize about $200 million of Chevron’s assets located in that country.  However, later the Ecuadorian Supreme Court upheld the August 2012 ruling for environmental damage but reduced the damages to $9.5 billion U.S.  Chevron further appealed to Ecuador’s National Court of Justice in the Constitutional Court and in 2019 the court upheld the U.S. $9.5 billion judgment against the company.

On September 26, 2013, I reported that Chevron had obtained a global anti-enforcement injunction against the plaintiffs in the United States District Court in New York.  However, the US Court of Appeal, Second Circuit reversed the injunction and held that the plaintiffs could seek to enforce the Ecuadorian judgment in any country in the world where Chevron had assets.

On a motion in the Ontario Superior Court of Justice, Justice Brown (as he was then) stayed the enforcement proceedings against the defendants, which included Chevron Canada.  That ruling was later set aside by the Ontario Court of Appeal which held that the plaintiffs did not deserve to have their entire case fail on the basis of an argument that had not even been made on the motion and allowed the enforcement action against Chevron to proceed in Ontario.  That decision was later upheld by the Supreme Court of Canada.  However, going back to court, the Ontario Court of Appeal eventually determined that Chevron Canada could not be held to answer for a judgment against Chevron because to do so would ignore the corporate separateness of Chevron Canada as a multi-level subsidiary of Chevron.

Patricio Salazar, one of the lawyers for the Ecuadorian villagers, said that the Supreme Court of Canada’s ruling left the U.S. parent company Chevron as the sole defendant and the plaintiffs would proceed immediately to trial to force Chevron to comply with the Ecuadorian judgment.

Regards,

Blair

SCC Throws Out Man's Conviction Because of Police Misconduct

In a 3 to 2 decision, the Supreme Court of Canada set aside a man’s gun and drug related convictions ruling that, in light of the police’s unlawful conduct, the admission of incriminating evidence would bring the administration of justice into disrepute.  (See R. v. Le, 2019 SCC. 34)

Tom Le was a 20 year old Asian-Canadian man who was arrested by police at a west-Toronto housing complex in May of 2012.  The complex was in a high crime area and the police were told by the complex’s security guards that the backyard of the house in which the police confronted Le was “a problem address” because of concerns about drug trafficking.

On the night in question, Le was chatting with four young black men in the backyard when the police showed up.  The men were doing nothing wrong.  They were just talking.  The backyard was small and was enclosed by a waist-high fence.  Without a warrant or consent, or without any warning, two police officers entered the backyard and immediately questioned the men about what was going on, who they were and whether any of them lived there.  They also required the men to produce documentary proof of their identities.  Meanwhile, a third officer patrolled the perimeter of the property, stepped over the fence and yelled at one man to keep his hands where the officer could see them.  Another office issued the same order.

One officer questioned Le and demanded that he produce identification.  Le responded that he did not have any with him.  The officer then asked him what was in the satchel he was carrying.  At that point, Le fled, was pursued and arrested and found to be in possession of a firearm, drugs and cash.  At his trial, Le sought to exclude this evidence under s.24(2) of the Canadian Charter of Rights and Freedoms (“Charter”) on the basis that the police had infringed his constitutional rights to be free from unreasonable search and seizure (under s.8 of the Charter) and from arbitrary detention (under s.9 of the Charter).

The trial judge convicted Mr. Le and held that he lacked standing to advance a s.8 claim because there was no objective reasonableness to any expectation of privacy that he might have had as a “mere transient guest” in the backyard.  The trial judge also held that Le’s detention was not arbitrary as the police had reasonable grounds to suspect he was armed.  A majority of the Ontario Court of Appeal agreed with the trial judge and found that if there were any breaches, they were “technical, inadvertent and made in good faith”.

On appeal to the Supreme Court of Canada, the court held that Le’s appeal should be allowed, the evidence excluded and his conviction set aside and acquittals entered.

The majority decision was co-authored by Justices Brown and Martin with Justice Karakatsanis concurring.  Justice Moldaver and Chief Justice Wagner dissented.

The majority of the SCC held that the circumstances of the police entry into the backyard had effected a detention that was both immediate and arbitrary and constituted “serious misconduct”.  It was precisely this sort of police conduct that the Charter was intended to abolish.  On balance the admission of the evidence would bring the administration of justice into disrepute.

Detention can be either physical or psychological.  Psychological detention by the police can arise in two ways: where the accused is legally required to comply with a direction or demand by the police; or where the accused is not under a legal obligation to comply but a reasonable person in the accused’s position would feel obligated and conclude they were not free to go.  This detention fell under the second category.

There were three factors that aid in the analysis.

1. The circumstances given rise to the encounter would reasonably be perceived by an individual as supporting a finding of detention.  The conduct of the police exceeded the norms of community policing.  There was no obvious cause for any police presence in the backyard and the police never expressly communicated to the men why they were there.  They immediately started asking questions and the height of the backyard fence allowed full interaction without entry.

2. The second factor - the nature of the police conduct - supported the conclusion that tension arose as soon as the police entered the backyard and started asking questions.  When the police enter a private residence as trespassers it colours what happens next and supports a finding of detention.  The actions and language of the police showed that they were immediately taking control of the situation.  Coming over the fence to enter a private residence conveyed a show of force.  The reputation of a particular community or the frequency of police contact with its residents does not in any way license police to enter a private residence more readily or intrusively than they would in other, more affluent communities.  Here there was a tactical element to the encounter and the mode of entry could be seen as corrosive and intimidating by a reasonable person.

3. Lastly, the third factor – the particular characteristics or circumstances of the individual involved i.e. Mr. Le – a reasonable person “imbued” with his experiences would conclude that there was tension from the moment the officers entered the backyard and started asking questions.  Courts need to appreciate that individuals in some communities may have different experiences and relationships with police then others and those experiences may impact upon their reasonable perceptions whether they are being detained.  At the detention stage the analysis takes into consideration the larger, historic and social context of race relations between the police and various racialized groups.  Because the focus is how the combination of a racialized context a minority status would affect the perceptions of a reasonable person in the shoes of the accused and not on what motivated the officers to act as they did a finding of that there had been no racial profiling has little bearing.

When a detention is established, the court must consider whether the detention is arbitrary.  The implied license doctrine, which allows the police or any member of the public on legitimate business to proceed from the street to the door of a house so as to permit convenient communication with the occupant does not apply in this case because if communication was the officer’s purpose, it did not require their entry onto private property.  The police had a subsidiary purpose – a speculative criminal investigation.  A suspect’s presence in a so called high crime area is not by itself a basis for detention.

The majority held that where evidence is obtained in a manner that infringes a charter right or freedom, s.24(2) provides that the evidence must be excluded if it is established that, having regard to all of the circumstances, its admission would bring the administration of justice into disrepute.  The focus is on the overall repute of the justice system viewed in the long term by a reasonable person, informed of all relevant circumstances and of the importance of charter rights and not on the impact of stating misconduct upon a particular criminal trial.  The more serious the state-infringing conduct and the greater the impact on the Charter-protected interest the stronger the case and conclusion.

Here good faith could not be ascribed to these officers’ conduct.  Their own evidence made it clear that they fully understood the limitations upon their ability to enter the backyard to investigate individuals.  This was serious police misconduct and weighed heavily in favour of a finding that admission of the resulting evidence would bring the administration of justice into disrepute.

In contrast, the dissenting judges found that the admission of the evidence would not bring the administration of justice into disrepute.  The dissenters focused on the trial judge’s findings of credibility and the finding by the trial judge that the police had a legitimate investigatory purpose for entering the backyard.  Accordingly, they held that such findings were entitled to deference.  The minority held that considering all of the circumstances it was clear that what must be done to maintain the good repute of the administration of justice was to admit the evidence because, in their view, the seriousness of the Charter-infringing conduct fell on the “low end of the spectrum”.

Regards,

Blair

SCC Restores Adjudicator's Award in Residential School Settlement

In a recent decision, the Supreme Court of Canada (SCC) held that courts had the jurisdiction to supervise residential school settlement agreements on an ongoing basis. 

In the case of J.W. v. Canada (Attorney General), 2019 SCC 20, the majority of the SCC in two separate concurring reasons, and with two judges dissenting, allowed the claimant’s appeal and reinstated an adjudicator’s award that granted him compensation. 

When the claimant was a young boy at a residential school, a nun touched his genitals over his clothing.  He was standing in line waiting for a shower.  He was wearing what he described as a “little apron”.

In 2014, J.W. brought a claim for compensation in accordance with the Independent Assessment Process (IAP), the adjudicative component of the Indian Residential Schools Settlement Agreement (2006) (“Agreement”).  The Agreement represents the negotiated settlement of thousands of individual and class actions lawsuits relating to the operation of residential schools.  Nine provincial and territorial superior courts approved the Agreement.  The Agreement includes a procedure for settling individual claims through the IAP.  The IAP describes which harms are compensable.  The Agreement also includes a system of internal reviews but contains no right of appeal to the Courts.  However, supervising judges from each province oversee the administration of the Agreement. 

J.W. claimed compensation in accordance with the IAP alleging that the incident with the nun constituted compensable sexual abuse within the meaning of the IAP.  J.W.’s claim was rejected by the initial adjudicator because, despite the fact that she believed his account of what happened, she was not satisfied that the nun had acted with a sexual purpose, which she concluded was an essential element in order to demonstrate that the incident was compensable.  J.W. was entitled to two levels of internal review under the terms of the Agreement.  Both of those were unsuccessful.  He then brought a Request for Directions (RFD) to a supervising judge pursuant to the Agreement.  The supervising judge found errors in the adjudicator's interpretation of the IAP and remitted J.W.’s claim for re-adjudication.  A reconsideration adjudicator allowed J.W.’s claim this time and awarded him compensation however, before that decision was implemented, Canada appealed the supervising judge’s decision.  The Manitoba Court of Appeal found that there was no basis upon which the supervising judge could intervene and overturned the decision.  However, on appeal to the SCC, the majority of the Court, by a 5 to 2 margin, ruled that J.W.’s appeal should be allowed and that the reconsideration adjudicator’s award of compensation should be reinstated. 

Justice Abella wrote the reasons for 3 of the 5 majority judges.  She held that J.W.’s claim was precisely the type of claim that was contemplated by the parties to the Agreement.  Failure to correct the initial adjudicator’s errors would unacceptably undermine the whole purpose of the Agreement.  Courts may intervene in relation to IAP adjudications when exceptional circumstances are present.  The parties went to significant lengths to make the Agreement a complete code by including levels of internal review and choosing not to include any provisions granting court access.  However, the necessity of ongoing judicial supervision was recognized when the courts approved the Agreement.  As a result, there is a “foundational link” between judicial supervision and the Agreement.  Given the goals of the Agreement, significant and ongoing judicial supervision is necessary.  Without it, the Agreement would not have been recognized.

In J.W.’s case, the initial adjudicator’s decision was an unauthorized modification of the IAP.  She substituted the wording of the IAP with her own and added the requirement that the nun must have had a sexual purpose which was unsupported by the IAP’s language.  These additional requirements were not agreed to by the parties.  That amounted to a failure to implement the terms of the IAP which warranted judicial intervention.

Justice Abella’s reasons were supported and concurred in by Chief Justice Wagner and Justice Karakatsanis.

Separate reasons were written by Justice Cote with Justice Moldaver concurring.  Justice Cote held that while the parties do not have an option of seeking judicial review of IAP decisions, they can file RFDs with the supervising courts to resolve issues relating to the implementation and administration of the Agreement after fully exhausting the internal review mechanisms in the Agreement.  The Agreement contemplates recourse to the supervising courts in certain specific circumstances.  This creates an alternative avenue for dealing with claims that would otherwise be dealt with by IAP adjudicators.  However, it does not permit the courts to intervene in IAP decisions.  

Parties may seek judicial recourse only in cases where the IAP adjudicator failed to apply the terms of the Agreement.   The test for judicial recourse is whether there has been a failure by the IAP adjudicator to apply the terms of the IAP which amounts to a failure to enforce the Agreement. 

Additionally, Justice Cote held that should circumstances arise which were not contemplated by the parties, courts must have the power to intervene to ensure that the parties receive the benefits of the Agreement.  In this case, the supervising judge erred in scrutinizing the initial adjudicator’s interpretation of the IAP and substituting his own.  He was only entitled to determine whether the adjudicator had considered the correct terms.  While the supervising judge erred in his analysis, this was an exceptional case in which reconsideration was appropriate.  J.W.’s claim had given rise to a unique dilemma for which the Agreement provided no internal recourse and which therefore required the court to craft a remedy.

Dissenting reasons were written by Justice Brown with Justice Rowe concurring.  Justice Brown held that the Agreement was a contract and therefore interpreting its terms required a court to discern the parties’ intentions.  The Agreement expressly precluded judicial intervention even where the IAP had been incorrectly interpreted and applied.  It is a complete code that limits access to the courts, preserves the finality of the IAP and respects the expertise of IAP adjudicators.  Given the finality promised by the IAP, the parties would have seen prolonged litigation of IAP claims in the courts to be undesirable.

 Merely because the Agreement does not contain certain terms does not mean that there is a gap waiting to be filled by judges.  

Regards,

Blair

Equity, Diversity, and Inclusion and the Law Society of Ontario's Bencher Election

I will not be voting for any bencher candidates that do not fully and openly support equity, inclusion and diversity initiatives.  Here’s why.

I graduated from Queen’s University law school in 1983.  I was the only black student, and one of only a handful of racialized (non-white) students, in my class of 150.  One day, after I’d asked a question in a lecture, a classmate to whom I’d never spoken looked perplexed.  He asked me whether I was a foreign student.  No, I’m from Kitchener, I replied.  After second year of law school, I applied  for an articling position in Toronto.  During an interview, a partner of the firm said to me – “You’re black, you must come from a poor family.”  No, I’m from a pretty average, middle class family, I replied.  (My mother, although a single parent, was a psychology professor at the University of Guelph).  I didn’t get the articling position.  Several years into practice, a client who I was meeting for the first time looked at me, surprised, and said  “You didn’t sound black on the phone.”  Frankly, since the person was client I didn’t reply.  I just smiled (in a black sort of way).   A couple of years ago, I was attending a reception with judges of the Ontario Court of Justice, as a member of The Advocates’ Society’s board of directors.  I was the only racialized lawyer in a small group.  During introductions, one of the judges turned to me (and only me) and asked, “Are you a sole practitioner?”  No, I’m a partner in a 100 lawyer law firm I replied. 

I could go on, but you get my point.  More than 35 years later, I’m still being asked the same questions that, to some, may seem innocent, but to me are at best annoying and at worst offensive.  Whether or not they intended to so, all of these people put me in a position where I got my back up.  Suddenly, I was on the defensive, trying to justify why I was in the place that I was, doing what I was doing and speaking the way that I speak.  These questions and statements are examples of “unconscious bias”.  They made my “lived experience” so much different from the experience lived by for example, white, middle class law students from Kitchener.  

In the last two weeks of April, Ontario lawyers and paralegals will vote to elect benchers of the Law Society of Ontario (LSO).  These are the people that, over the next few years, will decide how to tackle the important issues that are presently facing the legal profession in our province.  In my view, equity, diversity and inclusion in the profession is one such issue.  The last convocation of benchers decided that the issue was important enough to establish a working group to address challenges faced by racialized licensees.  In 2016, the working group released a report that recommended a number of specific initiatives.  As one of the D&I initiatives, the LSO introduced a Statement of Principles (SOP).  Pursuant to the SOP, all licensees are required to create and abide by an individual SOP that acknowledges their obligation to promote equality, diversity and inclusion generally, and in their behaviour toward colleagues, employees, clients and the public.

Not surprisingly, following the LSO’s introduction of the SOP, there ensued a vigorous debate in the profession, including at my firm, about whether the SOP was somehow offensive because the LSO was purporting to dictate behaviour to intelligent, educated professionals.  Comments made to me went something like this:  How dare the LSO encroach on our independence and freedom of expression with some Orwellian principle?  Isn’t it trite to say that we all believe that that racism and discrimination are bad?  We don’t need the LSO to tell us that!  

Give me a break.  Sure. I agree that the LSO’s approach to the SOP is ham-fisted.  However, sometimes you need to be act with a fist to bring about change.  In my experience, attitudes simply don’t change with the passage of time.  People don’t magically become more enlightened. Real change happens because the people to whom it matters, simply refuse to accept the status quo.  If attitudes change, we’ve learned that the outward manifestation of those attitudes into meaningful action can be painstakingly slow.  It has proven to be the case in a profession that seems incredibly resistant to change.  In terms of diversity and inclusion,  the legal profession has not yet fully embraced the concept.

Racialized and other equity seeking lawyers still face disproportionate barriers in obtaining articling positions, and in the licensing process.  They continue to be underrepresented in proportion to Ontario’s population in legal workplaces and at all levels of seniority.  Lawyers like me are becoming impatient.  A speaker at a recent D&I seminar hosted by my firm told us that sometimes you need to be disruptive to accelerate the pace of change.

Inclusion is an important concept.  To feel included in the profession means a sense of pride and belonging.  It means feeling that your contributions as a member of the profession are respected and valued.  At the very least, it means not being subjected to annoying and inane comments and questions that require you to defend and justify your membership in the profession.  If the LSO doesn’t take up that cause on behalf of its licensees, who else is  going to do it?  We need to drag the profession into the 21^st century, and sometimes being disruptive is the only way to accomplish that goal.

On an intellectual level, I can understand why some have a problem with the SOP.  On a practical level, I can’t fathom why some bencher candidates would invest the amount of time and energy it would take to make stopping the SOP the cornerstone of their platforms.  Whatever the reason, I will not be voting for any of them.

Regards,

Blair