In regards to the June 23rd statement, Justice Spies concluded that Mr. Sonne had sufficient knowledge of his legal rights and thus his statement was made voluntarily. However, in regards to the June 26th statement, she found that only part of it could be considered voluntary because the detectives had used questionable strategies that compromised Mr. Sonne’s ability to remain silent. What is most interesting about this decision is the evidence put forward by the Crown to demonstrate that Mr. Sonne was well aware of his legal rights prior to the June 23rd statements. To prove this point, the Crown presented copies of documents that were obtained through links on Mr. Sonne’s Twitter account. On June 21, he Tweeted  “read EVERY PDF on this page and know your rights” and posted a link to movementdefence.org, a website with materials created specifically for the G20, including a “Legal Guide for Activists” and a brochure entitled “What to do if the police come knockin’.”

After reviewing these documents, Justice Spies found that the legal guide “is intended to provide the person who reads it with an overview of their rights when dealing with the police. It also deals with what a person should do if arrested by police. This includes asserting the right to silence.” While Mr. Sonne did not testify in regards to his understanding of these documents, Justice Spies concluded that “it is reasonable to infer that Mr. Sonne had read these documents and was generally familiar with their contents.” She further concluded that, combined with the fact that Mr. Sonne had actively challenged the police during his interrogation, it was reasonably to conclude that he had sufficient knowledge of his legal rights during the June 23rd interrogation.

What does this decision mean for the use of social media as evidence?

The decision in this case demonstrates the unexpected and unintended impact of social media on the criminal trial process and the rights of the accused. The use of social media as evidence is an evolving area of the law and one that will likely struggle to keep pace with the rate at which social media evolves. Until the legal system has developed a firm understanding of how social media should be introduced as evidence, activists, and all Internet users for that matter, may want to take heed of the cautionary tale that this decision holds.

While Mr. Sonne’s Tweet was intended to inform other activists of their legal rights, it was ironically used by the Crown to prove that his own rights had not been infringed. In this case the Tweet was not the sole piece of evidence used against Mr. Sonne, as Justice Spies also considered how Mr. Sonne’s interaction with the detectives demonstrated his understanding of legal rights. This consideration shows that while the Tweet was integral to the Crown’s case, it was not sufficient to prove its case. However, had the Tweet been used as the sole piece of evidence against Mr. Sonne, the result may have seemed less fair. For example, it is not difficult to imagine a situation in which an individual with the same level of legal knowledge as Mr. Sonne makes a statement to the police without being informed of his or her legal rights, but that statement is later found to be involuntary because there was no evidence to demonstrate that the individual actually possessed the legal knowledge. In this situation, the distinguishing evidence between a statement that is rendered voluntarily (such as in Mr. Sonne’s case) and a statement rendered involuntarily would be reduced to a single Tweet.

This hypothetical illustrates the difficulties of drawing the line when it comes to statements made by an accused through social media, especially when such statements provide the foundation for the Crown’s case. In such cases, extra caution must be taken to ensure the authenticity of the statements and the knowledge that is actually possessed by an accused. In this case, Mr. Sonne’s Tweet did not go so far as to incriminate him for the offences that he has been charged with, but it is easy to imagine a myriad of situations where a single Tweet or Facebook post could produce that result. The recent case of R v Smickle, 2012 ONSC 602, provides a compelling example of how an individual’s social media activity can be used to construct an entire case against an accused. Mr. Smickle was infamously caught red-handed taking pictures with a loaded firearm on his webcam when the police burst into his apartment to carry out a search warrant against his cousin. While Mr. Smickle was innocently taking the pictures for his Facebook profile, he was charged with and convicted of possession of a loaded firearm. However, Justice Molloy struck down the mandatory three-year sentence for possession of a loaded firearm after she found it to be “grossly disproportionate” for those circumstances.

The Smickle case reads somewhat like a Kafka novel, but in reality, this is exactly the type of case that we could expect to see more of as social media becomes a frequent source of evidence in criminal cases. Mr. Smickle was charged with the offence before he even had the opportunity to post the photos; however, even if the police had not coincidentally burst into his apartment at that moment, a similar charge could have been made if the evidence was posted to Mr. Smickle’s Facebook page. The absurdity of this situation, and the result in the Sonne decision are particularly relevant in light of the ongoing debate surrounding online security and the introduction of Bill C-30 by the Conservative government. In its current form, Bill C-30 would allow police officers to obtain information about Internet users without a search warrant and require Internet Service Providers to store information about their customers. The proposed measures have been presented as necessary tools to combat Internet evils such as child predators and to facilitate criminal investigations. However, the increased policing of the Internet also raises serious questions about Internet privacy and the implications of using Internet records as evidence in criminal trials.

Of the many concerns that the proposed bill raises, the question of authenticity is perhaps the most important and the most relevant to Mr. Sonne’s case. Very little effort is required for any individual to create a fake Facebook or Twitter account. This point was poignantly illustrated through the creation of Vikileaks, the Twitter account created in protest to Bill C-30 to disseminate personal information about Public Safety Minister Vic Toews. That account was obviously created to make a statement about privacy rights and has since been traced to a former Liberal staff member. However, Vikileaks also demonstrates the ease with which an online identity can be fabricated and thus highlights the additional caution that is required when using social media as evidence.

The debate on the merits of Bill C-30 is on hold until its second reading commences in the House of Commons. In the meantime, there are plenty of reasons for Internet activists, lawyers and lawmakers to ponder whether its purported benefits truly outweigh the potentially damaging effects on privacy and justice. When the decision in Mr. Sonne’s case is finally released, his Tweet will only have played a minor role in comparison to the other evidence presented at trial. Whether Mr. Sonne is found guilty or not, there is still reason to pause and reflect on what this decision might mean for activists. If everything you post on the Internet can and will be used against you, then activists might think twice before posting information that may be useful for others but potentially damaging to themselves.

While included in the scope of the existing aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982, aboriginal land rights claims have a unique history and have developed their own line of jurisprudence.  Over the centuries, the source and content of aboriginal title have evolved from an ambiguous right recognized in the Royal Proclamation of 1763 to a right characterized as a sui generis property right distinct from any form of property right ordinarily recognized at common law.

The concept of aboriginal title was first delineated in the 1887 Supreme Court of Canada case of St Catherine’s Milling v Lumber Co v The Queen, (1887) 13 SCR 577, where the Aboriginal land rights were described as “a personal and usufructuary right, dependent upon the good will of the Sovereign” that was derived from the Royal Proclamation itself.  The concept remained undeveloped until the latter half of the twentieth century when it was revived in Calder v British Columbia, [1973] SCR 313.  Calder rejected the Royal Proclamation as the source of Aboriginal title, endorsing a more historical basis based on Aboriginal traditions.  However, the court split on whether or not Aboriginal land claims had been extinguished and thus did little to elucidate the content and method of proving Aboriginal title.  This was the state of the matter until 1997 when Delgamuukw v British Columbia, [1997] 3 SCR 1010, established, in more detail than ever before, what aboriginal title means, how it can be proven, and how it can be extinguished or infringed.  Delgamuukw held that the source of Aboriginal title is the occupation of land prior to Crown assertion of sovereignty over what is now Canada, and thus that exclusive occupation at the time of Crown sovereignty must be proven in order to establish an Aboriginal title claim.  In addition, the content of Aboriginal title was established as a sui generis right that is unique from other property rights in its source, inalienability, communal nature, and most importantly, its inherent limit, the concept that lands held pursuant to aboriginal title cannot be used in a manner that is irreconcilable with the nature of the attachment to the land which forms the basis of claim to aboriginal title.

Despite establishing the test for proving an Aboriginal title claim and clarifying (to some extent) the content of such a title, Delgamuukw did not resolve the Aboriginal title claim at issue in the case.  Although cases that followed (R v Marshall; R v Bernard, [2005] 2 SCR 220) employed the test from Delgamuukw, to this point none has been resolved in favour of the claimant.  As a result, Aboriginal title has never been found in Canada.

This is what makes the Tsilhqot’in Nation case so noteworthy.  The significance of the case for aboriginal rights cannot be overstated, with Professor Kent McNeil stating that “there can be little doubt that Tsilhqot’in Nation v. British Columbia is the most significant Aboriginal title case to be decided in Canada since Delgamuukw v. British Columbia.” The claim in Tsilhqot’in Nation stems from a dispute reaching back to the 1980s regarding forestry activities in the claim area. At that time, the claimants had initially sought injunctions on the activity and gradually expanded their claim to encompass an Aboriginal title claim.  The test for establishing Aboriginal title from Delgamuukw – exclusive occupation at the time of Crown sovereignty – obviously leads to evidentiary difficulties.  In Tsilhqot’in, however, the claimants led extensive evidence regarding historical occupation, drawing from both historical documents and Tsilhqot’in oral histories.  In addition, the claim was framed as an Aboriginal title claim rather than a defence in a criminal proceeding as it was in R v Marshall and R v Bernard.

As held by Justice Vickers, the test from Delgamuukw was satisfied, thus Aboriginal title was proven for a portion of the claim area.  However, since the test could not be satisfied for the entire claim area, the entire claim was rejected, despite the claimants’ efforts to amend their statement of claim.  In his lengthy judgment, Justice Vickers recognized the inappropriateness of the litigation setting for resolving Aboriginal land claims.  It may be on this basis that he chose to find a defect in the claimant’s pleadings rather than awarding them title.  Similarly, he may have anticipated an appeal and felt that a trial level court was not in a position to make a determination of such magnitude for Aboriginal relations and Canadian politics generally.

In any case, the Aboriginal title claim that seemed to be in the best position to succeed since the Delgamuukw test had been established was dismissed at trial.  When the case proceeds to the Court of Appeal, and potentially to the Supreme Court of Canada, it will represent a landmark decision regardless of what is decided.  Whether the appellate courts decide to recognize the first successful Aboriginal title claim in Canadian history, or reject it, this case will be valuable in allowing courts to further delineate the land rights of Aboriginals.  Given Justice Vickers’ comments that the judiciary has been put in the unenviable position of remedying past governments’ failure to abide by their constitutional obligations, the case may be used to create a stronger bargaining position for Aboriginal groups in British Columbia and throughout Canada.

Although the decisions support the ability of plaintiffs to advance defamation claims in any Canadian jurisdiction in which allegedly defamatory material is published, the decisions also leave open the possibility that the law will evolve to reduce the potential for forum shopping.

Background

In Breeden, the plaintiff commenced defamation actions in Ontario against the defendants, who were certain directors, advisors, and a vice president of a corporation headquartered in the United States. The plaintiff alleged that statements issued by the defendants and posted on the internet were defamatory and were published in Ontario when they were downloaded, read, and republished in Ontario by Canadian newspapers. The defendants brought a motion to have the defamation actions stayed on the grounds that the Ontario court should not exercise jurisdiction because there was no real and substantial connection between the actions and Ontario or, alternatively, because an American court was the more appropriate forum.

The facts in Banro are similar. There, the defendants, who were based in Québec, published a book which commented on the international mining activities of certain corporations, including the plaintiff. Copies of the allegedly defamatory book were available to be purchased or read in Ontario. The plaintiff brought an action in Ontario against the defendants alleging that the book was defamatory. The defendants moved to stay the Ontario action on the basis that there was no real and substantial connection between the action and Ontario, and that a Québec court was the more appropriate forum.

Decisions

In both cases, Justice LeBel, writing for the Court, applied a new analytical framework for determining whether a court should exercise its jurisdiction. That analytical framework was established in the companion case of Club Resorts Ltd. v Van Breda, 2012 SCC 17 (“Club Resorts”), reasons of which were issued at the same time as those in Breeden and Banro.

The analytical framework involves a two-stage analysis. In the first stage, which depends on the application of the real and substantial connection test, the plaintiff must demonstrate a “presumptive connecting factor” that links the subject matter of the litigation with the jurisdiction. If the plaintiff demonstrates a presumptive connecting factor, then there will be a presumption of jurisdiction unless the defendant rebuts the presumption. In Club Resorts, the Court identified a non-exhaustive list of presumptive connecting factors. The most important of those presumptive connecting factors, for the purposes of Breeden and Banro, is the commission of a tort in the jurisdiction.

The defendant may rebut a presumption of jurisdiction by establishing “facts which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them.” For example, where the presumptive connecting factor is the commission of a tort in the jurisdiction, rebutting the presumption may be possible “where only a relatively minor element of the tort has occurred in the province.” If no presumptive connecting factor applies in the circumstances of the case, or if the presumption of jurisdiction resulting from such a factor is rebutted, the court cannot assume jurisdiction.

If the plaintiff establishes jurisdiction, the court will proceed to the second stage of the analysis, which involves application of the doctrine of forum non conveniens. At this stage, the burden shifts to the defendant to demonstrate that the court should not exercise jurisdiction because the court of another jurisdiction is the more appropriate forum for the hearing of the action. To succeed, a defendant must show that the other forum is “clearly more appropriate” because it is better suited to “fairly and efficiently” resolve the dispute. The defendant may point to a variety of factors, including the locations of the parties and witnesses, the possibility of conflicting judgments, and the substantive law that should apply to determine the claims.

In Breeden and Banro, the Court concluded that jurisdiction had been properly assumed. There was a real and substantial connection between Ontario and the defamation actions based on the fact that the alleged torts had been committed in Ontario. The Court was not convinced that the defendants in either case had rebutted the presumption of a real and substantial connection.

Significantly, the Court recognized that the analytical framework raises concerns about libel tourism, which is a variety of forum shopping in which a plaintiff brings a defamation action in the jurisdiction most likely to provide a favorable result. The prospect of libel tourism arises because the tort of defamation “crystalizes” upon publication of defamatory material.

Defamatory material is “published” whenever it is viewed or read by a third party, and is presumed to be “published” when it is printed in a book. As a result, where allegedly defamatory material is published in multiple jurisdictions – a feat easily achievable, even inadvertently, due to the ubiquity, universality, and accessibly of the internet – the courts of multiple jurisdictions will generally be able to exercise jurisdiction over the same claim.

Because the law of defamation varies between jurisdictions such that it is easier or more difficult for plaintiffs to establish their claims depending on their choice of jurisdiction, plaintiffs can strategically advance their actions in the jurisdictions in which they have the greatest juridical advantage. For example, American defamation law may require some plaintiffs to demonstrate malice on the part of the defendant as a pre-requisite to establishing liability. Because no such requirement exists in Canada, plaintiffs may enjoy a juridical advantage by pursuing their defamation claims in Canada rather than in the United States.

The Court’s reasons in Banro may provide courts in future cases with a way to restrain libel tourism. After concluding that jurisdiction had been properly assumed, the Court turned to determine whether the court of another jurisdiction was a more appropriate forum for the hearing of the action. In the course of applying the doctrine of forum non conveniens, the Court considered the question of which substantive law should be applied to determine the claim. Courts have traditionally applied the lex loci delicti rule (“the place where the tort occurred”) to decide which law applies to determine tort claims. The rationale for the application of the lex loci delicti rule is that, in the case of most torts, the occurrence of the wrong constituting the tort occurs in the same jurisdiction in which the consequences of the wrong are suffered.

The Court recognized that the lex loci delicti rule may not be appropriate in all defamation cases. In certain cases, the reputational harm caused by the publication of defamatory material may be suffered in a jurisdiction other than the one in which the defamatory material was published. The Court suggested that in those circumstances it may be more appropriate to apply a rule based on the “place of most substantial harm to reputation.” According to that rule, the applicable law would be that of the jurisdiction most closely connected to the harm occasioned by the publication. Such an approach could eliminate the strategic advantage to libel tourism by providing that the same law would apply regardless of where the matter was heard.

The Court concluded that it did not need to decide whether the lex loci delicti rule ought to be abandoned as the choice of law rule in multijurisdictional defamation cases in favour of an approach based on the location of the most substantial harm to reputation. The Court observed that, on the facts of both cases, application of either rule had the same effect. Under a rule based on the location of the most substantial harm to reputation, Ontario law would apply. Alternatively, under the lex loci delicti rule, Ontario law would also apply because the alleged torts were committed in Ontario.

Implications

Breeden and Banro challenged the Court to consider the appropriate balance between the protection of reputation, freedom of expression, and jurisdictional restraint. The decisions clarify that Canadian courts will have presumptive jurisdiction over defamation cases involving foreign defendants if the defamatory statements are published to at least one person in the jurisdiction. For example, if a person in Hong Kong were to create an allegedly defamatory website, an Ontario court would have presumptive jurisdiction over an action brought by the plaintiff against the person in Hong Kong if the plaintiff demonstrated that at least one other person in Ontario viewed the website.

This precedent will likely have significant consequences, particularly given the ubiquity, universality, and accessibility of the internet. As Lebel J. recognized, with a “globalized world comes the sometimes poisonous gift of ubiquity.” Statements published in one location may, with the aid of the internet, be widely disseminated and viewed in a multitude of jurisdictions all over the world. Given the ease by which allegedly defamatory material may be published in Canadian jurisdictions through the use of the internet, plaintiffs in cases involving internet defamation will likely face little difficulty establishing a presumption of jurisdiction.

As a result, litigation involving jurisdictional disputes in defamation cases will likely turn on whether the foreign defendant is able to rebut a presumption of jurisdiction or demonstrate that another jurisdiction is a more appropriate forum. Foreign defendants may succeed in rebutting a presumption of jurisdiction by demonstrating that only a relatively minor element of the tort of defamation, such as publication, occurred in the jurisdiction.

Although the analytical framework applied in Breeden and Banro may create a heightened risk of libel tourism in future cases, the Court’s remarks with respect to the appropriateness of a choice of law rule based on the location of most substantial harm to reputation may provide lower courts with a legal foundation to curb libel tourism.

Finally, it must be recognized that the analytical framework applied in Breeden and Banro is subject to legislation in certain provinces that governs the assumption of jurisdiction and the doctrine of forum non conveniens: see e.g. Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28. However, because those statutes contemplate an approach similar to the analytical framework applied in Breeden and Banro, the reasoning in those cases is likely to influence the manner in which courts in those provinces determine whether to exercise jurisdiction over defamation cases involving foreign defendants.

Matthew Nied, B.Comm. (Alberta), LL.B (Victoria) is a guest contributor to TheCourt.ca. He practices commercial litigation in the Vancouver office of a national firm. Before commencing practice, he clerked for the judges of the Supreme Court of British Columbia. The views expressed are the personal opinions of the author and not those of his employer.

Such was the case in the recently decided Supreme Court case of R v Eastgaard, 2012 SCC 11, in which the SCC upheld the Alberta Court of Appeal’s decision which in turn upheld the trial court decision to convict Mr. Eastgaard for possession of a loaded hand gun under section 95 of the Criminal Code.

Mr. Eastgaard was travelling in a Suburban vehicle which was under police surveillance when he was observed exiting the vehicle by an officer conducting aerial surveillance in a police helicopter.  The appellant then approached some bushes and rocks, where he crouched down for 2 to 3 seconds, and then got back into the Suburban and left.  After the police stopped the Suburban thirty minutes later, officers returned to the exact spot the appellant had crouched down where they discovered a loaded, prohibited firearm: a handgun.

In a brief judgment, the trial judge arrived at three conclusions allowing him to sustain a conviction under section 95.

1. Mr. Eastgaard had placed the firearm under the rock where it was found by the police.
2. Mr. Eastgaard had had physical or actual possession of the gun and clearly had a substantial measure of control over it.
3. Mr. Eastgaard clearly must have known what the gun was.

Mr. Eastgaard appealed on the grounds that:

(a)   the trial judge failed to properly consider that knowledge that the firearm was loaded was an essential element of the offence under s. 95;

(b)   the trial judge failed to provide an explanation for the conviction, capable of permitting appellate review; and

(c)   the circumstantial evidence was insufficient for a properly instructed jury acting reasonably to find that the appellant knew that the gun was loaded, and therefore the conviction was unreasonable.

The Court of Appeal held that the trial judge’s conclusion that “Mr. Eastgaard clearly must have known what the gun was” was an implicit, albeit ambiguous, finding that Mr. Eastgaard knew the gun was loaded, as this was the element in contention at trial, not whether Mr. Eastgaard knew that the firearm was indeed a firearm.  On this basis, they were able to dismiss the first two grounds of appeal.  The true issue on appeal, therefore, was whether the Crown proved that the appellant knew that the firearm which he abandoned was loaded.

When knowledge is an element of mens rea, the Crown must prove beyond a reasonable doubt that the accused knew, or was wilfully blind to, some requisite fact(s).  In the case of section 95 this requires proving that the accused knew that, or was wilfully blind to the fact that, the firearm was loaded.

Proving a positive state of mind such as knowledge in an arena where the accused need not testify creates some obvious difficulties.  As a result, knowledge can be inferred from the circumstances if that is the only reasonable inference to be drawn from the evidence.

The Court of Appeal was split 2-1 on the decision, with the dissenting judge disagreeing that the only reasonable inference which could be drawn from the evidence in this case was that the appellant knew the firearm he hid was loaded.  The dissenting judge proposed a variety of scenarios which could have played out in which the accused had no such knowledge.

The Supreme Court, however, upheld the majority decision with a two-sentence decision:

Despite the very complete and able argument of counsel for the appellant, we agree with the majority of the Court of Appeal that the verdict was not unreasonable. The appeal accordingly is dismissed.

Subjective mens rea is an important element of most criminal offences, and is even a constitutionally entrenched requirement for many offences.  In this case, however, the SCC and the Alberta Court of Appeal may have recognized the difficulty that proof of subjective mens rea can impose on the Crown.  A common sense inference, such as that made by the trial judge in this case, is based on the premise that a sane and sober person can usually be taken to intend the natural and probably consequences of his or her actions.  Proving positive states of mind such as intent and knowledge as an element of mens rea frequently rely on such inferences.  In this case, the majority of the Alberta Court of Appeal held that the circumstances only pointed to one possible conclusion: that Mr. Eastgaard knew the gun was loaded.  This is a strict test which does not readily lead to convictions, which may be a reflection of the hefty mandatory minimum (three years for a first offence) associated with this offense. However, the SCC was convinced it had been met in this case.

In October 2010, Mr. Williams was convicted of 82 charges, including forcible confinement, sexual assault, and first-degree murder, for which he is serving two concurrent life sentences. Mr. Williams has not been diagnosed with medical illness, and is a self-admitted sadosexual serial killer. He has been stripped of his medals, and his uniform was burned for the first time in Canadian military history. The events of his case continue to generate considerable media interest.

Did the trial judge err in her determination that M.E.H. was entitled to a sealing order? The respondent submitted that her psychiatric evaluation demonstrated there would be “a real and substantial risk to [her] well-being if the media was allowed to identify her by name or other details and/or publish the kind of financial and personal information routinely filed in divorce proceedings and available to the media…” She argued that any deleterious effects in upsetting the open court principle were outweighed by concerns about her mental health as she proceeds through what is essentially a private matter. The appellants have argued that the psychiatric evaluation is inadmissible, and even if it were admissible, it would not be sufficient to warrant a sealing order.

The Supreme Court has created ([1994] 3 SCR 835 at p 891) and fine-tuned (2001 SCC 76, [2001] 3 SCR 442 at para 32) what is now known as the Dagenais/Mentuck test to determine whether a publication ban should be ordered:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

The open court principle is grounded in the freedom of expression under s.2(b) of the Canadian Charter of Rights and Freedoms, which covers freedom of the press and media. Limitations or infringements on such rights and freedoms can be justified under s.1 of the Charter, with the onus on the party seeking the limit to produce significant evidence as validation.

Dr. Quan’s letters to the appellants were hyperbolic (e.g. “constant invasions of her privacy,” “the media feeding frenzy,” “the unwanted, undeserved and unproductive efforts of media to meddle…”), and it seems that his choice of rhetoric coloured the value of his medical opinion. Although Doherty J., author of this decision, disagreed with the appellants on the point that the psychiatrist’s evaluations were completely inadmissible, he found that, absent an affidavit by M.E.H. affirming the doctor’s findings, it cannot be given much weight as it is “properly characterized as speculation and assumption” (para 53). Doherty J. characterizes the doctor as “a qualified clinical psychiatrist” (para 52) who is “entitled to advance the [medical] opinion he did,” but goes on to write that the doctor’s unfounded characterization of “the media onslaught” (para 54) led to his medical opinion that M.E.H.’s mental health would suffer in a situation where the divorce proceedings were accessible by the media. Given that the judge found no material evidence that supported the respondent’s claims of “media harassment,” he did not find that the respondent’s argument could pass the first branch of the Dagenais/Mentuck test, overturning the trial judge’s decision.

It is noteworthy that the court pointed out (para 60) that counsel for M.E.H. did not introduce evidence validating Dr. Quan’s assessment of the media. Was there any evidence? Those involved in such a high-profile case are not usually spared the scrutiny of the media. Would submitting an affidavit have been enough to change the decision?

The Court of Appeal has already cited MEH three times in subsequent judgments, two of which, written by D.M. Brown J., use the same phrase in reference to the rule: “Our Court of Appeal has stressed the need for a solid evidentiary basis to support any sealing order or publication ban.” (Latvian House Toronto Limited v. Fraternity “Lidums”, 2012 ONSC 1195 (CanLII) at para 14; Cle Leasing Enterprises Ltd. (Re), 2012 ONSC 1301 (CanLII) at para 24). The third case, A.B. v CD., 2012 BCSC 267 (CanLII), cites MEH at para 34, emphasizing the importance of open court proceedings as a public interest, and that transparency is not something private individuals can bargain about (para 116). At least in Ontario, Dagenais/Mentuck requires “convincing evidence” held to a “rigorous standard.”

Just in case M.E.H. was to ever forget, this precedent looks like it’s here to stay.

The question as to whether the Charter applies to a university was considered in Pridgen v University of Calgary, 2010 ABQB 644, which was heard at the Alberta Court of Appeal in late 2011. The case involves a Charter claim made by two University of Calgary undergraduate students, Keith and Steven Pridgen, who were found to have committed non-academic misconduct after they posted negative comments about a professor on a Facebook page. Stevent Pridgen’s message stated:

Some how I think she just got lazy and gave everybody a 65…that’s what I got.

Does anybody know how to apply to have it remarked?

And Keith Pridgen posted:

Hey fellow LWSO. homees .. So I am quite sure Mitra is NO LONGER

TEACHING ANY COURSES WITH THE U OF C !!!!! Remember when she

told us she was a long-term professor? Well actually she was only sessional and

picked up our class at the last moment because another prof wasn’t able to do it … lucky us. Well anyways I think we should all congratulate ourselves for leaving a Mitra-free legacy for future L.S.W.O. students!

Keith Pridgen was placed on probation for 24 months and required to write a letter of apology to Professor Mitra, while Steven Pridgen was required to write the letter of apology. Both students were denied an appeal to the university’s Board of Governors. They therefore filed an application with the Alberta Court of Queen’s Bench to have the decisions overturned, claiming that their right to free expression under s. 2(b) of the Charter had been infringed.

Does the Charter apply?

Madame Justice Strekaf review’s of the matter first considered whether universities can attract Charter scrutiny. She noted that in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, the Supreme Court of Canada (SCC) held that the Charter can either apply to a government actor or to private entities that are responsible for implementing a specific government policy. After reviewing Alberta’s Post-secondary Learning Act, Justice Strekaf concluded that “the University is not a Charter free zone.”

Were the Pridgens’ Charter rights infringed?

Applying the two-step test set out in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927, Justice Stekaf found that the Pridgens’ s. 2(b) rights had been infringed because the Facebook postings “have expressive content and convey meaning” and the disciplinary action had a direct effect on their freedom of expression. As to whether the infringement could be justified as a reasonable limit under s. 1 of the Charter, she concluded that the policy could not be justified because the university failed to demonstrate that its policy “impairs the right to freedom of expression no more than necessary.” As a result, the disciplinary orders against the Pridgens were set aside.

At the time this incident occurred, I was a student at the University of Calgary in the same faculty as the Pridgens. I remember feeling torn about the matter because although I disagreed with the students’ choice of words, I understood their frustrations with a professor who did not live up to their expectations. However, as a first-year law student, I am forced to revisit this matter with a new lens requiring me to look beyond my own feelings on the matter and consider the broader legal implications of this decision. In this case, I agree with Justice Stekaf’s finding that the University is not a “Charter free zone” because it clearly fits within the scope of Charter application articulated in Eldridge, and more importantly, it goes to the heart of what s. 2(b) of the Charteris meant to protect.

Freedom of expression is integral to academic development

By allowing for the exchange and debate of new ideas, freedom of expression is often revered as the foundation of academic development. Without a forum to debate even the most controversial ideas, a concern arises that the very foundation of liberal democracy is put at risk. The Canadian Civil Liberties Association (CCLA) focused on this argument as an intervener before the Alberta Court of Appeal. In their factum, the CCLA argued that a university’s ability to suspend a student essentially amounts to the power to deny that student of their freedom to participate in academic debate. For this reason, it is even more important that a university’s disciplinary actions be subject to Charter scrutiny.

The students’ comments were arguably in bad taste, but it is important to remember that the first stage of the Iriwn Toy test is only concerned with whether the communication attempts to convey meaning, rather than the content of that communication. Their comments hardly fall within the realm of hate speech, which was held as an unjustifiable form of free expression in R v Keegstra, [1990] 3 SCR 697. In that case, an infringement of the accused’s s. 2(b) rights was upheld under s. 1 of the Charterbecause the legislation prohibiting such forms of speech was rationally connected to the government’s objective of preventing harm to the members of the group that are targeted by hate speech.

The SCC’s analysis in Keegstra also emphasized the guiding values behind freedom of expression, including the need to ensure truth, self-fulfilment of the individual, and democracy. Each of these values finds expression in the Pridgen case. In posting the comments, the students were engaging in their own search for truth about the quality of their academic instruction. Self-fulfilment, as described in Keegstra, relates to the idea that individuals should be able to articulate their thoughts and ideas. The act of engaging in criticism is an important aspect of expressing one’s thoughts and ideas and thus the students’ comments should be protected. Criticism plays an essential role in fostering democratic debate within the political process.

What are the larger implications of this case?

Whether the Alberta Court of Appeal decides to overturn this case or not, it is likely to be further appealed to the Supreme Court of Canada because there is a lot at stake for both parties. In considering the potential implications of this decision, I am reminded of another controversial event related to freedom of expression that occurred while I was a student at the University of Calgary. Each year, the Campus Pro-life group would set up a display known as the “Genocide Awareness Project,” which included images of the Holocaust and Rwandan Genocide alongside images of aborted foetuses. The display’s size and location made it an unavoidable sight for students crossing through campus outdoors and resulted in considerable debate, including some confrontational moments between members on opposing sides of the debate. In 2009, the University notified the group that its members would be charged with trespassing if they did not agree to the repeated requests to turn the images inwards so they would only be visible to those who chose to enter the display. After the group failed to comply with these requests, trespassing notices were issued against several students. While the charges in that case were dropped, several students were found to have committed non-academic misconduct in 2010.

Applying the Charter to the University’s actions in this Campus Pro-life case, a prima facie violation of the students’ s. 2(b) rights could easily be established, because the content of their display is clearly meant to convey meaning. While the group’s display is arguably a truth seeking activity, an infringement of their rights might also be justifiable under s. 1. In disciplining the students, the University’s objective was to “ensure the safety and security” of students and staff. In addition to the physical safety of the campus, I would also argue that psychological safety is another factor because the images had the potential to spark grief for individuals whose own communities have been affected by genocide. There is also no question that many women who have had an abortion were subjected to psychological harm as they were made to feel that their own actions amounted to a form of genocide.

If the University successfully establishes that the potential harm is a pressing and substantial objective, then a s. 1 justification could be made out. The University’s actions would likely survive the minimal impairment test because it did not request the complete removal of the signs, and there a number of other ways for the group to foster debate on abortion, such as distributing pamphlets. However, the nature of the s. 1 analysis is largely contextual and would of course require sufficient evidence of harm from both sides of the argument. Although this hypothetical case is an extreme example, it is one of the types of cases that may be brought forward if the Pridgen decision is upheld.

Specifically, Momentous.ca concerns the relationship between two bases of jurisdiction firmly anchored in private international law, namely attornment and choice of court agreements. The case raised the interesting question of whether a defendant would be precluded from challenging the jurisdiction of the domestic court after submitting a statement of defense on the merits, even if the statement also seeks to enforce the foreign forum clause.

While the court clearly upheld the defendants’ right to move for a dismissal of the proceedings based on a foreign forum clause, the ambiguous and often contradictory language of the decision leaves many questions raised by this case still unanswered.

Facts

The plaintiffs’ claims are based on a series of contracts regarding the operation of a professional baseball team (Rapidz Baseball) in the Can-Am League. The contracts included a forum selection clause in favour of North Carolina courts and an arbitration clause. Following financial hardship, Rapidz Baseball applied for a voluntary withdrawal from the League. The League’s Board of Directors rejected the application and drew a letter of credit, which Rapidz Baseball was obliged to post under the by-laws.

Procedural History

Rapidz Baseball and its related companies sued in Ontario both in contract and in tort. In reliance on the choice of court and arbitration clause, the defendants brought a motion under rule 21.01(3)(a) of the Ontario Rules of Civil Procedure to dismiss the action, alleging that the Ontario court had no jurisdiction over the subject matter of the dispute. The motions judge found that the defendants did not attorn to the jurisdiction of the Ontario court because they had raised the jurisdictional challenge in their statement of defence. The motions judge concluded that

with respect to the issue of attornment being able to usurp the chosen forum of the parties, it cannot amount to a “good reason” not to be bound by clear forum selection clauses to allow the plaintiffs to bring an action in another forum and then argue that the defendants have attorned by defending that action on its merits so that the forum selection clauses are thereby ousted. This is too tactical a procedure and too circular in its reasoning to be able to succeed as a good reason. (emphasis added)

The motion judge’s determination on the inappropriateness of attornment as a “good reason” to depart from the forum selection clause makes reference to the strong cause test articulated in The “Eleftheria”, [1969] 1 Lloyd’s Rep. 237 (Adm. Div.) [Eleftheria], and adopted in Canada by Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27 [Pompey]. According to this greatly contested test, absent a “strong cause” shown by the plaintiff, courts will stay domestic proceedings and refer them to the chosen foreign court.

The Ontario Court of Appeal agreed with the motions judge that the plaintiff was unable to show a “strong cause” in spite of the court’s finding of attornment. The court thereby makes a distinction between the existence of jurisdiction based on the defendant’s attornment and the discretion that allows a court to decide whether or not to exercise such jurisdiction in the presence of a foreign forum clause. Such discretion would be exercised by staying domestic proceedings absent a “strong cause.”

The SCC decision

Those who expected the Supreme Court to use this case as an opportunity to further concretize or even reduce the scope of application of the strong cause test are likely disappointed. The court not only did not address the strong cause test, beyond agreeing with the Court of Appeal that attornment is not a strong cause, but it also did not fully clarify when the strong cause test should be applied within the determination of jurisdiction.

On the one hand, by recognizing rule 21.01(3)(a) as the correct basis of the defendant’s motion for a dismissal based on the fact that the court “has no jurisdiction over the subject matter of the action”, the court seems to imply that a foreign forum clause takes away the jurisdiction of the domestic court. On the other hand, the SCC further explains that when another forum, here the chosen foreign forum, has exclusive jurisdiction, “the Ontario Superior Court of Justice will not take jurisdiction” (emphasis added), which it would presumably otherwise have done based on attornment. This seems to be more in line with the strong cause test in Eleftheria which provides courts with discretion to stay proceedings based on the foreign forum clause, “assuming the claim to be otherwise within the jurisdiction” of the domestic forum. (Eleftheria, at p. 242). Judging by the comments of Madam Chief Justice McLachlin at the hearings, this seems to be the court’s view as well, but the language of the decision remains ambiguous.

Another cause of confusion is the exact interpretation of the circumstances in which the defendant is deemed to have attorned to the jurisdiction of the domestic court. The comments the justices made during the hearings are a strong indication that the court does not consider the defendant’s action in this case to amount to an attornment to the jurisdiction of the Ontario court. Nevertheless, the court does not feel compelled to “comment on that issue” since the question of attornment was not on appeal.

However, the court notes that

within the framework provided by the Ontario Rules of Civil Procedure, a statement of defence that specifically pleads a foreign forum selection clause does not amount to consent that Ontario assume jurisdiction so as to preclude consideration on the merits of whether to enforce the clause.

On the one hand, this statement makes one wonder whether the decision of the court would have been different if the defendants had not pleaded the forum selection clause in their statement of defence. If the court’s statement, on the other hand, indicates that the defendants had not attorned to the jurisdiction of the Ontario court, one must wonder why the strong cause test would even become an issue since the matter clearly could not be heard in the domestic forum and would need to be heard in the chosen forum.

Overall, the vagueness of the decision coupled with the justices’ remarks during the hearings make it unclear whether the ruling was meant to bring the law on jurisdiction in common law provinces in line with art. 3148, para. 5 of the Québec Civil Code, in which “a Québec authority has no jurisdiction where the parties, by agreement, have chosen to submit all existing or future disputes between themselves relating to a specified legal relationship to a foreign authority or to an arbitrator, unless the defendant submits to the jurisdiction [of the Québec authority]” (emphasis added).

Roxana Banu is an Adjunct Professor at Osgoode Hall Law School, York University. She has assisted the Romanian delegation of the Permanent Mission to the EU on European Private International Law and has worked for several law firms in Berlin, Bucharest and New York on matters of Contract Law, International Business Transactions, and Trademark Law. Prof. Banu is currently pursuing an SJD degree at the University of Toronto Law School on the harmonization of Private International Law.

Background

Roger Rowan was an officer of Watt Carmichael Inc. (WCI), an investment dealer registered under the Act. Harry Carmichael was the Ultimate Designated Person of WCI, responsible for overall compliance with regulatory requirements. Michael McKenney was the Chief Compliance Officer of WCI, responsible for day-to-day compliance activities. Biovail Corporation is a reporting issuer in Ontario whose Chairman and Chief Executive Officer, (current Ottawa Senators owner) Eugene Melnyk, established a series of trusts in the Cayman Islands. The trusts had discretionary trading accounts with WCI, enabling Mr. Rowan to make trades without prior client authorization. Mr. Rowan was also a Director of Biovail.

The OSC made a number of findings against Messrs. Rowan, Carmichael and McKenney, levying a number of sanctions against them as punishment. Though the Commission did not find Mr. Rowan guilty of insider trading, it did determine that he had repeatedly breached s.107 of the Act, which requires heightened reporting by insiders. The Commission also found that Mr. Rowan had acted contrary to the public interest by failing to provide complete and accurate information to Biovail concerning the number of Biovail shares over which he exercised control or direction (which, in turn, led Biovail to issue a number of incomplete and misleading circulars). The OSC also determined that Mr. Rowan engaged in a significant number of discretionary trades during Biovail’s “blackout periods” (periods declared by public companies during which insiders are not permitted to trade company shares due to the increased risk of insiders having access to relevant, undisclosed information). The OSC also made findings against Messrs. McKenney, Carmichael and WCI, determining that they had failed to properly monitor Rowan’s trading and ensure that WCI had adequate procedures in place to ensure compliance, respectively. Pursuant to s. 127(9) of the Act, which allows the Commission to order payments of up to $1-million per breach of securities law, the OSC imposed a number of AMPs against Messrs. Rowan, Carmichael, McKenney and WCI, totaling over $1.2 million.

In coming to its decision, the OSC determined that the Charter’s s. 11(d) right to a fair and public hearing by an independent and impartial tribunal (which the OSC conceded it is not), was not engaged because the guarantees in s. 11(d) are only triggered by an individual being “charged with an offence,” as which AMPs cannot be appropriately characterized.

On appeal to the Divisional Court, the OSC’s ruling was upheld. While Constitutional interpretations by an administrative tribunal are subject to review on a correctness standard by a reviewing court, the Divisional Court concurred with the OSC’s interpretation.

The OCA Upholds the OSC Decision

The OCA upheld the Divisional Court’s decision, making detailed reference to the leading s. 11(d) case, R v Wigglesworth [1987] 2 SCR 541. In Wigglesworth, the Supreme Court of Canada rejected the proposition that all persons subject to proceedings leading to the imposition of a penalty should be regarded as “charged with an offence” for the purposes of s. 11. Instead, Justice Wilson held that s.11 was only triggered in the case of “criminal and penal matters” (emphasis added). Such matters, she held, could be further split into two categories: proceedings that are criminal by their very nature, and proceedings that could result in a conviction with  “true penal consequences.” As regards fines, the SCC in Wigglesworth observed that the imposition of monetary penalties is only penal when it appears to be ordered for the purposes of redressing the wrong done to society at large rather than for the maintenance of internal discipline within a limited sphere of activity. Accordingly, where a tribunal has a virtually unlimited ability to impose fines, to avoid triggering s.11, it would be restricted to imposing fines solely to achieve the purpose of the administrative regime.

The appellants alleged that because the OSC could impose an AMP for up to $1 million per breach (i.e. every trade in breach of the Act), that AMPs transcend an administrative sanction and become a penal one. Relying on Wigglesworth, however, the OCA disagreed, noting that so long as the penalties were directed towards the maintenance of internal discipline within the securities regime, s. 11 was not triggered. That the AMPs could amount to $1 million per breach was insignificant given the “enormous sums of money” often involved. Without such a deterrent, Justice Sharpe observed, AMPs risked becoming viewed as simply “the cost of doing business.”

Analysis

The OCA applied Wigglesworth properly. AMPs clearly fit within the OSC’s mandate to regulate capital markets and are a necessary deterrent to encourage compliance. Accordingly, they are not ‘penal,’ and do not, on the jurisprudence, trigger s.11. That said, it is worth asking what the purpose of s. 11(d) is and whether the Wigglesworth line of thinking squares with that purpose. To require court-like protections in each and every case  would undeniably  be damaging to the interests of efficiency that administrative regimes aim to achieve. Conversely, however, s. 11(d) is simply a manifestation of the far broader value that underlies its verbal configuration – the idea that before governmental authority attaches a consequence to an action (in the form of both the actual penalty imposed as well as the stigma), certain procedural requirements should be met.

Rowan epitomizes the tension that exists at the intersection of administrative law and Charter values such as those underlying s. 11(d). The Charter guarantees the rights in s. 11 to those “charged with an offence.” It makes no facial distinction between criminal and administrative “offences.” Such a nuance comes entirely from judicial interpretation.

Realistically, there is no turning back the clock on Wigglesworth. The expansive role of administrative tribunals throughout Canada, and the benefits derived from using highly specialized bodies, is here to stay. Consider this, though – the OSC not only imposed substantial AMPs against Mr. Rowan, but also prohibited him from being a director or officer of a reporting issuer for 7 years or of a registrant for 3 years, significantly limiting his ability to make a living. Likewise, Mr. Carmichael was required to resign from any current positions as an officer or director of a registrant and prohibited from acting in a supervisory role for 45 days, and Mr. McKenney was required to resign from any current position as an officer or director of a registrant and suspended from serving in such a capacity or any other supervisory role for a year. Finally, WCI was required to undergo an independent review, a costly process. Given these potential consequences, surely there is a case to be made that a potential transgressor of the Act should have the protections s. 11 speaks to, and not just the heightened degree of procedural fairness that is (admittedly) already accorded by OSC proceedings.

On that date, SCOTUS Justices heard arguments in Kiobel v Royal Dutch Petroleum, 621 F.3d 11. To highlight the importance of this case, between 17 June 2011 and 17 February 2012, 40 amici curiae briefs were filed by third parties, including the German, British, and Dutch governments (in favour of the defendants), the United Nations Nigh Commissioner for Human Rights (in favour of the plaintiffs), as well as present and former United States government officials such as senators, ambassadors, and counter-terrorism officials. The decision promises to be a key moment for the future human rights litigation in the United States, with significant implications for the international community.

What is it all about?

In Kiobel v Royal Dutch Petroleum Co., SCOTUS is looking at two major issues.

The first issue is whether corporate civil tort liability under the Alien Tort Statute 28 U.S.C. § 1350 (“ATS”), is a question of merits or jurisdiction.

The second, and more important, issue is whether corporations are immune from tort liability for international violations such as torture, extrajudicial executions, genocide, or, on the other hand, corporations may be sued as a private party defendant under the ATS.

SCOTUS’ decision in this case may provide a definite answer on whether a corporation has individual personality, and potentially expand the scope of claims under the ATS. Conversely, the decision may severely limit ATS claims. Based upon the questions asked by the SCOTUS justices, it may appear the latter scenario alone is the likely to play out.

Alien Torts Act: 200 Years Young

As Angela Walker writes, the 200-year-old statute “has only recently been revived as a way of holding corporations liable for human rights violations committed overseas.”

Walker highlights that it was in 1980 that the United States Second Circuit Court in Filártiga v. Peña-Irala, 630 F. 2d 876 – Court of Appeals (Second Cir.) established the ATS as a tool to remedy international law violations committed by government officials.

Then, in 2002, the United States’ Court of Appeals 9th Circuit Court in Doe I v Unocal Corp., held that a corporation could be found liable for violating international law. After failing to have the case dismissed, Unocal ended up agreeing to a settlement with the plaintiffs rather than going to trial on case merits. Since that decision, United States courts have established ‘aiding and abetting’ human rights violations under the ATS. While SCOTUS has established a test for actionable torts under the ATS, it has yet to confirm corporate ‘aiding and abetting’ liability under the ATS. Creating ambiguity, in Sosa v Alvarez-Machain et al., 542 US 692 (Supreme Court 2004), SCOTUS explicitly declined to adopt specific criteria to determine when a court has jurisdiction over an ATS claim.

Instead, SCOTUS adopted a flexible test based on the four principles of universality, obligatory nature, specificity, and prudential considerations. In somewhat restricting claims, SCOTUS set out grounds for rejecting a claim: The federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when §1350 was enacted.

Facts

This brings us to Kiobel v Royal Dutch Petroleum.

In this case, the plaintiffs are Nigerian citizens who claim that Dutch, British, and Nigerian corporations “aided and abetted” the Nigerian government in violating their human rights during the course of oil exploration efforts in the 1990s.

Because of the ATS, the plaintiffs brought their claim in the United States, although neither the plaintiffs nor the defendants are based in the United States and the alleged violations were not committed on United States territory.

The defendants stress that no norms exist to hold corporate actors liable–that is, corporate liability cannot be established under the ATS. Given that the application of customary international law (CIL) requires state practice and opinio juris, and following the restrictive framework laid down by SCOTUS in Sosa, the defendants argue that the plaintiffs cannot succeed in their claim.

New York Southern District Court: 2006

In September 2006, Justice Kimba Wood of the Southern District Court of New York dismissed the plaintiffs’ claims against the defendants for aiding and abetting property destruction, forced exile, extrajudicial killing, and violation of the right to life, liberty, security, and association. Justice Wood ruled that CIL simply does not adequately define these types of violations.

However, Justice Kimba did not accept the defendants motion for dismissing the claims for aiding and abetting arbitrary arrest and detention, crimes against humanity, and torture or cruel, inhuman, and degrading treatment.

Court of Appeals Second Circuit: 2010

The case then headed to the U.S. Court of Appeals, Second Circuit. In September 2010, the Second Circuit Court ruled that corporations cannot be held liable for violations of CIL.

Chief Justice Jacobs and Justice Cabranes made up the majority decision. However, Justice Leval, while concurring with the decision to dismiss the claims, provided different reasoning.

The majority gave three reasons for its decision: (1) previous precedents from SCOTUS and the Second Circuit regarding liability for ATS violations are defined by CIL, (2) a SCOTUS precedent provides that international norms, rather than domestic law, ought to be applied for ATS claims, and (3) corporate liability is “not a discernible” norm of CIL.

The majority also highlighted two key criteria that the plaintiffs had failed to establish. First, in Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir.2009), the Second Circuit found aiding and abetting under the ATS for international human rights violations was established only where the aider and abettor acted with a purpose to abuse human rights.

Second, as established by SCOTUS in Ashcroft v. Iqbal, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), a complaint “is insufficient as a matter of law unless it pleads specific facts supporting a plausible inference that the defendant violated the plaintiff’s legal rights ruling.”

While Justice Leval concurred with the majority opinion dismissing the claims, he disagreed with the majority’s finding that corporate liability could not be established under the ATS. Justice Leval wrote that establishing such a rule against corporate liability consisted of “a blow to the efforts of international law to protect human rights.”

United States Supreme Court: 2012

Because the case has significant implications for corporate liability, the plaintiffs appealed to SCOTUS, and were granted leave on 17 October 2011.

The parties once again argued for and against corporate liability under the ATS. As mentioned previously, over 40 amicus briefs were submitted for this case. The United States legal community was abuzz about this major decision.

The oral hearings transcripts reveal SCOTUS Justices seem to have taken a hostile position towards the plaintiffs’ arguments. Justice Scalia and Justice Kennedy in particular asked the plaintiffs’ attorneys very pointed questions. The New York Times assessment of the SCOTUS justices’ questions seems to show a hesitance in granting universal jurisdiction to U.S. courts under the ATS.

After all the oral hearings had concluded, with international legal enthusiasts watching closely, what did SCOTUS decide? Nothing really. In fact, SCOTUS ordered the case to be “reargued.” On 5 March 2012, SCOTUS directed the parties to return to reargue the question:

Whether and under what circumstances the Alien Tort Statute, 27 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.

The next round of oral arguments will be heard in Fall of 2012.

ATS: Here, There, Everywhere

This case appears to be a pivotal moment in human rights litigation as it relates to corporations. While the ATS has long been revered as an empowering vehicle for human rights activists, it should be noted that since its creation in 1789, few plaintiffs have actually succeeded in vindicating their rights under it.

As Justice Cabranes wrote in the Second Circuit decision, many ATS claims involving corporations have been settled outside of court and the “Court has published only nine significant decisions on the ATS since 1980 (seven of the nine coming in the last decade), and the Supreme Court in its entire history has decided only one ATS case.”

This limited use has been compounded by inconsistent application. One legal commentator suggests it was a private certiorari conference concerning another case, Sarei et al. v. Rio Tinto PLC et al., that persuaded the SCOTUS justices to request that the parties reargue the case so as to address the broader issue of corporate liability and extraterritoriality.

Unlike Kiobel, in Sarei (an arguably similar fact pattern), the United States Court of Appeals for the Ninth Circuit ruled in favour of corporate liability under the ATS.

In the Sarei decision from October 2011, seven of eleven judges ruled in favour of corporate liability under the ATS, affirming charges of genocide and war crimes. Although they differed in their reasons in the 170-page decision, all the judges applied the same extraterritorial principle and Sosa framework as the judges did in Kiobel and came to a divergent decision.

Interestingly, one source argues it was certain amicus curiae briefs that swayed the SCOTUS justices towards a more antagonistic position on extraterritoriality against the plaintiffs. This source highlights the influential amicus brief that came from former President George W. Bush officials (in favour of the defendants) that opposed Obama administration lawyers who were actually in favour of the plaintiffs.

Clarity Need Not Come in Absolute Form

It appears the SCOTUS justices ordered Kiobel to be reargued in order to provide a clearer answer regarding corporate liability under the ATS. If speculations are correct, the decision will be a watershed judgment given the explosion of ATS cases since the 1980s compounded with the inconsistent approach taken by United States courts on the subject.

Unfortunately, given the media coverage and the demeanour of the SCOTUS justices at the oral hearings, it does not look favourable for the plaintiffs. Perhaps, these superficial measures to predict how the justices will rule are incorrect. The most probable scenario is that an absolute rule on corporate liability will not be forthcoming, though any guidance given by SCOTUS will likely make it either easier or harder to establish claims under the ATS.

Both sides of the debate should welcome clarity on corporate liability in a time when many judicial systems are dealing with the same issue, including Canada. Ideally, a broad rule creating absolute impunity for corporate liability under the ATS should be avoided.

To recall Justice Leval at the appeal level, such an absolute rule will be destructive to “efforts of international law to protect human rights.”

After months of deliberation, the Ontario Court of Appeal issued a landmark ruling on Monday regarding prostitution laws in Canada. While prostitution itself was not illegal in Canada, up until Monday, several provisions regarding prostitution were. This decision recognizes the rights of sex workers in allowing them the ability to take precautions in efforts to protect themselves.

The Ontario Court of Appeal agreed with the application judge in that the prohibition against common bawdy-houses for the purpose of prostitution is unconstitutional and must be struck down. It held that the prohibition on living on the avails of prostitution violates s.7 of the Charter to the extent that it criminalizes non-exploitative commercial relationships between sex workers and others. The court read in words of limitation so that the prohibition applies only to those who live on the avails of prostitution in circumstances of exploitation. The majority of the court ultimately did not agree that the ban on communicating in public for the purpose of prostitution is unconstitutional. Two members of the bench dissented in part, stating that the application judge was correct in determining that the communication provision was unconstitutional.

The declaration of invalidity striking down common bawdy-houses has been suspended for twelve months, which will give Parliament an opportunity to redraft a Charter-compliant provision. In the interim, however, police enforcement activities remain the same. This draws on the tension the court faces in providing constitutional remedies. In one respect, the court is unelected and ought not “write laws.” On the other hand, in deferring to the elected body of the legislature, the court both places time pressures on the legislature while at the same time allowing this invalid provision to continue to operate.

Given the unanimity of the court in the bawdy house provision, Allan Young, counsel for the respondents,stated his optimism  about ONCA’s decision: “The Ontario Court of Appeal recognized that simply because they are engaged in a morally controversial activity, does not mean that the Constitution stops at their doorstep.”

The decision will likely be appealed to the Supreme Court.

What’s In a Hoodie?

On February 26, 2012, Trayvon Martin was shot and killed by a George Zimmerman, a neighbourhood watch coordinator in a gated community in Sanford, Florida. Trayvor was unarmed at the time, and was reportedly walking from the convenience store, where he had just purchased a pack of Skittles, back to the home of his father’s girlfriend in the neighbourhood. Zimmerman had reported the 17-year-old African American to police for suspicious behaviour, and was following him as he reportedly attempted to run away. The police record indicates that the dispatcher informed Zimmerman that he did not have to continue following him. When police arrived at the scene, Trayvor was lying dead with a gunshot to the chest. Zimmerman has submitted that the shooting occurred only after a physical altercation he had with Trayvor, and he seeks justification under Florida’s Stand-your-ground law.

Zimmerman has not yet been charged with any crimes, as he has claimed the shooting was in self-defence; one witness has corroborated Zimmerman’s claims that Martin was, at one point, on top of him beating him. In the absence of evidence contrary to Zimmerman’s claims, it does not appear that he will be charged with Trayvor’s death. Trayvor did not have a criminal record, and, notwithstanding Zimmerman’s testimony, any cause for concern about his presence in the community could be attributed to his race and the hoodie he was wearing at the time.

The incident has caused protests in cities across North America, and has reinvigorated issues of systemic discrimination and racial profiling. The New Black Panther party has offered a $10,000 reward for the capture of Zimmerman, and he has received a number of death threats.