The RMS Titanic struck an iceberg on her maiden voyage from England to New York City. The ship sank on April 15, 1912. History repeated itself nearly 100 years later when the Costa Concordia hit a rock off the Coast of Italy and sunk on January 13, 2012. As of January 30, 2012, 17 are dead, and 15 are still missing. Since the incident, charges and lawsuits have started to roll in: criminal against the captain, and financial against Carnival Corp., the ship owner and the world’s largest cruise operator.

Francesco Schettino, the ship’s captain, has been charged with multiple counts of manslaughter and abandoning ship before the evacuation of more than 4,200 passengers and crew was complete.

There is prospect for an extended legal battle, with lawyers from around the world launching class action and individual suits against Carnival Corp. Codacons, Italy’s best known consumer group, a German lawyer, and two American law firms are filing a class action suit in Miami, Florida with the intention of seeking $165,000 per passenger.

This figure contrasts Costa’s “hush money” offer. Costa is offering all passengers aboard the Concordia €11,000 (roughly $14,000) in compensation in return for an agreement to drop any legal action. The settlement also offered the standard reimbursement for the full cost of the cruise, related travel expenses and additional funds for medical expenses after the accident, lost baggage, and psychological trauma incurred. While some passengers are taking the money, eager to put this trauma behind them, others are offended by the meagre sum, having suffered a traumatic experience and losing priceless items when the ship sunk.

This offer brings up the tension between the advantages of settling and the gamble of taking on litigation. While the sum of damages the suit is anticipated to award is more than ten times that of Costa’s offer, victims would receive the money immediately. The trial may be as far as ten years away, with the possibility of appeal, and then further delays in receiving the damages award. Mr. Ramadori, a lawyer for Codacon warned, “Today’s proposal from Costa simply exploits the lengthy Italian justice system to scare people away from the class action” – though this may just be an attempt to pressure passengers to join the suit.

While the Titanic spurred a major motion picture and several Oscars, this disaster will likely bring many more lawsuits and a spectacle for the world.

A Different Kind of Roadblock: The Indian Act Today

There was great excitement in Aboriginal communities last Tuesday, January 24, when hopes of repealing the highly contentious Indian Act came to the forefront at the Crown-First Nations Gathering in Ottawa. Those feelings were quickly replaced with disappointment when Prime Minister Harper called for creative changes to the Indian Act, rather than taking steps to abolish it. Ironically, this year will mark the 200th anniversary of the War of 1812, when Aboriginals joined forces with the Crown.

The Indian Act was enacted in 1876 alongside the Constitution, granting jurisdiction of related matters to the federal government under section 91(24). The Act largely covers issues of status, the administration of land and various rights, and the fiduciary duty the Crown has toward Aboriginals. Since its adoption, amendments have been made to better reflect the needs and concerns of the community, particularly with Bill C-31 in 1985, which made significant changes to how the Act grants Indian status.

Recent problems like the Attawipiskat housing crisis have reinvigorated discussions on the Act, with many First Nations groups pointing to the need for change in their relationship with the Crown. National Chief of the Assembly of First Nations Shawn Atleo has commented that the Act is a “painful obstacle to re-establishing any meaningful partnership.” For now, that obstacle seems like it’s here to stay.

Cultural Pluralism? Not in Our House

A “heinous crime against humanity” is what the Canadian embassy of Afghanistan called the deaths of four women Monday morning. Mohammad Shafia, his wife Tooba Mohammad Yahya, and their son Hamed were each convicted of four counts of first degree murder at a Kingston, Ontario courthouse. Zainab, Sahar, and Geeti Shafia, as well as Rona Amir Mohammed were found dead last June, drowned in a Nissan in the Kingston Mills locks.

The prosecution successfully argued that the car had been pushed into the lock by one of the family members driving behind. The damage on both vehicles, as well as Google searches by Hamed on “how to kill,” and “bodies of water,” were used as corroborating evidence. Wiretaps revealed the father’s disdain towards the girls, with remarks about how their deaths preserved the family honour, and how he hoped the devil would defecate on each of their graves.

The defence argued that the parents were together in a hotel room. Mohammed admitted to a private investigator that he had, in fact, hit the car and heard a splash, but did not tell anyone at the time, and not for several months after either.

Many have identified the deaths as honour killings, a cultural justification for murder and disownership found in some areas of the Middle East and South and Central Asia. Such crimes are mostly perpetrated against women for bringing shame to the family, tribe, or wider community, by dressing provocatively, or engaging in sanctioned sexual behaviour. At stake in these situations is the preservation of a family’s position and moral standing in the respective society. Bloodshed is, often, what the family believes to be the only thing that will purify the pollution caused.

The family has already appealed the decision, but they haven’t yet gotten around to fixing an error of a mistaken date of birth on one of the gravestones. Who knows if they ever will.

The claimant in this case, Catalyst Paper Corporation, makes paper—as opposed to catalysts, of course—and it does so with the help of industrial mills. The particular mill of interest is situated in the pristine District of North Cowichan on the southeastern shore of Vancouver Island. It is often said that Vancouver Island has it all—and, until recently, Catalyst Paper would have most likely agreed. When Catalyst Paper first set up shop, the island was packed with trees of the paper-producing variety and, being an island, it sat nice and close to the transportation-friendly ocean. The ocean and trees haven’t changed much since then (see your local environmentalist for a different opinion), but plenty else has changed in North Cowichan over the past few decades.

The biggest change was demographic, as a flurry of new residents sought serenity in the District. In turn, residential property values shot skywards—the value of Catalyst Paper’s industrial property, however, remained relatively stable. Instead of increasing residential property taxes to levels that would accurately reflect these new residential property values, the District’s Municipal Council decided to keep residential taxes low and jack up the tax rate on industrial properties. By 2007, residential properties accounted for roughly 90% of the District’s total property value, but contributed only 40% of the total property tax revenue. Until it was repealed in 1984, a provincial regulation had provided that the ratio between residential and industrial property tax rates could not surpass 1:3. This ratio recently hit 1:20 in North Cowichan, placing it among the highest in British Columbia.

Catalyst Paper began lobbying for tax reform back in 2003. The District Council, in response, actually acknowledged the issue and agreed to gradually reduce the tax rates on major industrial properties. Unsatisfied, however, by the Council’s “gradual” commitment, Catalyst Paper turned to the courts. Herein lies the central issue facing the Supreme Court: to what extent do courts have the power to review—and, by extension, set aside—municipal taxation bylaws? On the one hand, Catalyst Paper argues that courts absolutely do have the power to set aside “unreasonable” city bylaws [see Dunsmuir]. On the other hand, the District contends that a court’s power to overturn a municipal tax bylaw is so narrow that it cannot be used to overturn something as simple a disproportionate tax burden.

McLachlin CJ agrees with Catalyst Paper in the sense that “reasonableness,” as opposed to “correctness,” constitutes the appropriate standard of judicial review, but she sides with the District as to the limited scope of such a review. In assessing the reasonableness of a municipal bylaw, McLachlin CJ writes that a court may consider both the “process” and the “content” of that bylaw.

Process: Catalyst Paper believes that the Council’s decision-making process was flawed because the city failed to provide formal reasons for its decision. In rejecting this argument, McLachlin CJ states quite clearly that Canada’s municipal councils are in no way required to provide formal reasons for its bylaws. “In any event,” she notes, “the trial judge found [that] the reasons for the bylaw at issue here were clear to everyone.” Indeed, the trial judge found that the Council did, in fact, consider and weigh a number of relevant factors in making its decision.

Content: Without question, the economic consequences of this bylaw are pointed and harsh. Though McLachlin CJ admits the severity of these consequences, she believes that the Council was entitled to consider a wide range of factors in making its decision. In particular, the Council took into account the impact that high property taxes would have on its fixed-income residents. Rather than ignoring Catalyst Paper’s complaints entirely, the Council actually set out a plan to move gradually towards a more equitable distribution of the tax burden. Ultimately, McLachlin believes that the bylaw favours residential property owners, but not unreasonably so.

A final thought for those disgruntled, socially conscious Torontonians out there rubbing their winter-cycling gloves together in anticipation of one day challenging a Ford Nation bylaw in court: this might be a good decision to read.

Background

Jacqueline Plaisier has been employed by Nor-Man Regional Health Authority Inc. (“Nor-Man”) since July 12, 1988. She and her union, the Manitoba Health Care Professionals (the “Union”) contend that Plaisier, upon 20 years of employment, is entitled to a “bonus” week of vacation pursuant to the collective agreement between Nor-Man and the Union. Nor-Man denies this request.

The disputed clause of the collective agreement states that: “an additional week of paid vacation shall be granted to an employee in the year of her twentieth (20th) anniversary of employment…This provision shall apply to all employees employed on August 31, 1989.  It ceases to apply to employees hired after August 31, 1989.”

Therefore, a literal reading of the collective agreement favours Plaisier’s grievance. However, Nor-Man argues that Plaisier was employed as a casual in 1988 and she only began to accrue seniority in 1999; thus, she is not eligible for a bonus week of vacation. In reality, over the last twenty years, Nor-Man has been excluding the period of casual employment when calculating vacation entitlements for other employees, but the Union has never challenged such practice until now.

Judicial History

Under the Manitoba Labour Relations Act (the “LRA”), Plaisier’s grievance went to arbitration. The arbitrator interpreted the term “employment” as being the time at which Plaisier started working at Nor-Man since 1988. However, the arbitrator refused to rely on the technicality of the agreement. Instead, he imposed an estoppel on the Union’s claim on the basis of a “long standing, consistent and open” practice of calculating vacation entitlements between the parties. Because all employees had constructive knowledge of this practice through seniority reports or vacation sheets, the Union’s silence amounted to acquiescence in the employer’s practice. The arbitrator found that it would be unfair and inequitable to allow the Union to enforce the agreement when it had never opposed the practice in the past 20 years. Therefore, the arbitrator estopped the Union from asserting its legal rights. The Union’s application for judicial review was dismissed in the Manitoba Court of Queen’s Bench, where Bryk J. followed Dunsmuir v. New Brunswick (2008 SCC 9, [2008] 1 S.C.R. 190) and held that the standard of review was reasonableness.

While the arbitrator never mentioned “promissory estoppel”, the Court of Appeal thought that the estoppel imposed by the arbitrator resembled promissory estoppel (the SCC later agreed with this). The Court of Appeal held that the appropriate standard of review was “correctness” because the finding of estoppel raised a question that was of “central importance to the legal system as a whole” and was beyond the expertise of the arbitrator. Applying the “correctness” standard, the Court of Appeal stated that the arbitrator had incorrectly applied promissory estoppel and ruled in the Union’s favour.

SCC Analysis

Fish J., writing for a unanimous Supreme Court, disagrees with the Court of Appeal and restores the arbitrator’s decision. Fish J. notes that the arbitrator’s decision on collective agreements is subject to review on a standard of reasonableness. Following the analytical framework set out in Dunsmuir, the standard of reasonableness ‘normally prevails where the tribunals’ decision raises issues of fact, discretion or policy; involves inextricably intertwined legal and factual issues; or relates to the interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity”.’

However, does an imposition of estoppel bring the arbitral award within an exception to this general rule? In answering this question, Fish J. states the following:

“An administrative tribunal’s decision will be reviewable for correctness if it raises a constitutional issue, a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’”, or a “true question of jurisdiction or vires”. It will be reviewable for correctness as well if it involves the drawing of jurisdictional lines between two or more competing specialized tribunals.”

Fish J. rules that an imposition of estoppel does not transform it into a question of general law “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” within the meaning of Dunsmuir. Further, when performing the second step of the standard of review inquiry mandated by Dunsmuir, Fish J. states that the contextual analysis should include the following factors: (1) the presence or absence of a privative clause; (2) the purposes of the tribunal; (3) the nature of the question at issue; and (4) the expertise of the tribunal.

Importantly, Fish J. declares that labour arbitrators are “not bound by a strict legal interpretation of the matter in dispute” (s. 121 of LRA). They are authorized to develop doctrines and fashion remedies appropriate in their field, “drawing inspiration from general legal principles, the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievances of which they are seized”. Since “rigidity in the dispute resolution process risks not only the disintegration of the relationship, but also industrial discord”, arbitrators should be given this flexibility to craft appropriate remedial doctrines when needed.

Furthermore, Fish J. explains why the doctrine of estoppel must be applied differently in arbitration than in a court of law by citing Paul C. Weiler:

“… The union and the employer deal with each other for years and years through successive agreements and renewals… By and large, it is the employer which takes the initiative in making operational decisions within the framework of the collective agreement. If the union leadership does not like certain management actions, then it will object to them and will carry a grievance forward about the matter. The other side of that coin is that if management does take action, and the union officials are fully aware of it, and no objection is forthcoming, then the only reasonable inference the employer can draw is that its position is acceptable. Suppose the employer commits itself on that assumption. But the union later on takes a second look and feels that it might have a good argument under the collective agreement, and the union now asks the arbitrator to enforce its strict legal rights for events that have already occurred. It is apparent on its face that it would be inequitable and unfair to permit such a sudden reversal to the detriment of the other side.”

Fish J. affirms that arbitrators are qualified to tailor general legal principles to respond to the distinctive nature of labour relations. Since the arbitrator’s decision is transparent, intelligible and coherent, deference should be given to the arbitration tribunal here.

Conclusion

This decision sends a strong signal to lower courts to refrain from interfering with the decisions of labour arbitrators. While judicial review can prevent an undue extension of arbitral power, arbitrators have a distinctive role in fostering peace in industrial relations. The SCC reinforces that arbitrators can deviate from a strict interpretation of legal principles and craft doctrines that are tailored to the labour dispute before them as long as the decision is within the realm of reasonableness. Given the expansive deference the SCC decision continues to give to arbitrators, the number of applications for judicial review of arbitral decisions will probably decline.

Background

The Mushuau Innu First Nation is located in Labrador near Davis Inlet. In 1983 the Band Council chose to incorporate. Subsequently, in 2000, the Corporation’s Board of Directors adopted By-Law No.1 – the Band’s Constitution. Amongst other provisions, the Constitution sets out governmental requirements and electoral procedures. Specifically, Articles 5.2-5.8 set provisions requiring that elections be called between the 25^th and 35^th month of an electoral term, that a voters list be posted at least two weeks prior to any election by the Returning Officer appointed by the Council, and that the four persons receiving the highest numbers of votes case (2 female, 2 male) be Councillors. The terms of the Constitution were historically supplemented by customary practices, namely the marking of ballots in secret, the writing of candidate’s names in English and Innu-eimun, and the use of telephone and off-reserve voting.

Law

Citing Laboucan v Little Red River Cree Nation No 447 (2008 FC 193), Justice Rennie held that the appropriate legal test for determining the validity of an election involved a two-step analysis. First, in light of the reality that no election is ever perfect, the party challenging the election must demonstrate a “substantial problem” with the electoral process. If this threshold is met, the burden shifts to the respondent to show that the results are still reliable in spite of the problems.

Application

Justice Rennie opted to set aside the election on the basis of four shortcomings:

Notice – Article 5.3 of the Band Constitution requires that elections be held one month after the date of the election call. Band practice had typically seen the Band Manager [Ms Katie Rich] appoint a Returning Officer to run the election in its entirety from start to finish. Though the Band Council decided that there would be an election on January 10, 2010, no steps were taken in furtherance of this until February 20, 2010, when notice was posted for an election to be held thirteen days later on March 5. The Chief, Prote Poker, ended up posting the requisite notice on February 20 when he realized that the Returning Officer, Ms. Veronica Rich Voisey, was not engaged in the process. Despite the responsibilities associated with her position, Ms. Voisey would not become involved in the process until four days before the actual election!

Control of the Ballot Box – Justice Rennie captured the problems regarding control of the ballot box succinctly:

“The polling ended at 5:00pm. Ms Veronica Rich Voisey, the Returning Officer, had control of the ballot boxes up until this point. Thereafter, custody of the ballot boxes becomes unclear. It was conceded by counsel for the applicant that the right of the returning officer to maintain control of the ballot boxes became an issue between Ms. Katie Rich and some members of the Band with the result that the RCMP were called. The RCMP declined to take custody of the boxes, and in the end, Simeon Tshakapesh took control of the boxes. Counting began at 6:00pm and Simeon Tshakapesh was elected Chief.”

Spoiled Ballots – 13% of all votes cast in the election were spoiled. This abnormally high number stemmed from two major problems with the ballots themselves. First, the check boxes beside each candidate’s name were not properly aligned. Second, ballots were only printed in English, and not in Innu-eimun. When the Returning Officer, Ms. Voisey, attempted to bring this issue to the Band Council’s attention, she wad told “not to worry” about it.

Failure To Account for the Number of Ballots Printed – Ms. Voisey was not supplied with an updated voters list when she was appointed Returning Officer. Instead, she was told she “did not need one.” Likewise, the number of total ballots printed was never disclosed. As a result, deceased members of the Band were on the voters list. Likewise, the number of phone-in ballots was not known. Off-reserve voting took place without scrutineers and scrutineers were also not allowed to be present during ballot counting. In combination with the lack of process to identify and verify phone-in voters and the unexplained one hour gap between the close of polls and ballot count, Justice Rennie found ample reason to be suspicious of the final results. This suspicion was amplified by the reality that, mathematically, the number of spoiled ballots could have resulted in up to four different female candidates winning a spot as Councillor.

Holding

As a result of the short notice on which the election was held, the loss of control over the number and form of ballots that resulted in an “unacceptably high” number of spoiled ballots, and the loss of control of the ballot box itself, Justice Rennie found that the “substantial problem” threshold had been met. Unsurprisingly, in light of the aforementioned problems, the respondents were unable to rebut the presumption by demonstrating that the election was nonetheless reliable. As such, the election results were overturned and a new election was ordered, pursuant to s.18.1 of the Federal Courts Act [FCA]. Justice Rennie also issued a writ of quo warranto, but to ensure that the Band maintained a functioning governmental structure during the election, stayed its effect until the fulfillment of the new election. Of interest, recognizing the “extraordinary and discretionary” nature of the remedy, Justice Rennie characterized the remedies available pursuant to s.18.1 of the FCA as anchored in the “historic prerogative relief of the courts of equity.” If this is in fact the case, it suggests the available remedies under the FCA are virtually limitless.

Analysis

In reality, the Innu decision is somewhat academic. The action was initiated after the Band’s 2010 election. Thus, irrespective of the outcome of the case, there would have been an election in 2012 for a new Band Council pursuant to the Band Constitution. Nonetheless, the decision marks a rare instance in which an election was judicially overturned, and helps solidify the appropriate standard for assessing the validity of an election. Although Elections Canada’s past performance reassures us that such a scenario is unlikely to come about during a federal election, Innu could have major implications in future elections of greater significance should such circumstances arise at a national level!

Fair dealing for the purpose of research or private study does not infringe copyright,

and if so, whether the use of these previews is fair.

Background

In 1995, the Society of Composers, Authors and Music Publishers (“SOCAN”) applied to the Copyright Board of Canada (“the Board”) for a new royalty tariff (“Tariff 22”) for copyrighted music transmitted over the Internet (for example, music streamed on a webpage or an internet radio station, or any online music downloads including from retailers). Initially, SOCAN argued that all parties involved in these transmissions, including Internet service providers were responsible for paying the tariffs. This issue was dealt with in SOCAN v. Canadian Assn. of Internet Providers, 2004 SCC 45 where the court held that ISPs, as mere intermediaries, acted only as conduits for communication by other persons and were not liable for paying royalties.  

A second issue with Tariff 22 concerns a ruling by the Board that the transmission of a single download to a member of the public constitutes communication to the public by telecommunication under s. 3(1)(f) of the Act and thus was liable for Tariff 22 fees. The Federal Court of Appeal upheld the Board’s decision. This case was recently heard by the Supreme Court to establish whether a transmission of a copyrighted work over the Internet amounts to communication of that work to the public by telecommunication.

The third issue with Tariff 22 is in regards to the brief previews online music retailers (such as iTunes) offer prospective consumers.

Judicial History

In 2007, the Board decided that SOCAN was not entitled to royalties on these short clips as they were covered under the fair dealing exception. The Board concluded that previews “offer an excerpt of the work that is long enough for the user to do his research, but short enough and of a sufficiently degraded quality that it cannot replace the complete work” [Re Public Performance of Musical Works (2007), 61 CPR (4th) 353]. The Federal Court of Appeal upheld the Board’s decision, finding that the previews were within the meaning of the word “research” set out in s. 29 of the Act. In particular, the court stated that:

The legislator chose not to add restrictive qualifiers to the word “research” in section 29. It could have specified that the research be “scientific”, “economic”, “cultural”, etc. Instead it opted not to qualify it so that the term could be applied to the context in which it was used, and to maintain a proper balance between the rights of a copyright owner and users’ interests.

… it would not be unreasonable to give the word “research” its primary and ordinary meaning. The consumer is searching for an object of copyright that he or she desires and is attempting to locate and wishes to ensure its authenticity and quality before obtaining it. I agree with the Board that “[l]istening to previews assists in this investigation”.

Justice Létourneau also acknowledged SOCAN’s contention that the primary purpose of the previews is of a commercial nature, that is, to increase sales and accordingly, profits. However, he maintained that “[w]e must consider previews from the point of the view of the person for whom they are intended: the customer of the subject-matter of the copyright. Their purpose is to assist the consumer in seeking and finding the desired musical work” [SOCAN v Bell Canada, 2010 FCA 123].

The Issues

The issue we are awaiting the Supreme Court to decide on is whether commercial previews are within the meaning of the word “research”. More broadly, we can ask what constitutes “research”? Broader still, the decision will aid in a discussion, that began prominently in CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13 of how fair dealing provisions ought to be interpreted. In the appeal decision, Justice Linden wrote:

There is no basis in law or in policy for such an approach. An overly restrictive interpretation of the exemptions contained in the Act would be inconsistent with the mandate of copyright law to harmonized owners’ rights with legitimate public interests. Instead, courts should employ the usual modern rules of purposive construction in the context.

Chief Justice McLachlin supported this position in the Supreme Court decision, stating that the scope of enumerated allowable purposes must be given a “large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.” She reiterated Justice Linden’s contention that fair dealing is a user’s right and that it is more properly understood as an integral part of the Act rather than simply a defence or loophole and thus ought not to be interpreted restrictively.

If the Court abides by similar reasoning and policy objectives in SOCAN v Bell, the Court of Appeal and the Board’s decisions will likely be affirmed. We have been waiting for a solid approach from the Supreme Court on how to construe fair dealing since Michelin v C.A.W. Canada, [1997] 2 FC 306 and more recently, Canwest v Horizon, 2008 BCSC 1609, two cases that employed a restrictive construction contrary to the CCH decisions.

This decision will be especially relevant in light of the impending Copyright Modernization Act, which seeks to add three more purposes to s. 29 (education, satire, and parody).

About the author: Nancy Situ is a second year student at Osgoode Hall Law School. 

United States v. Jones is hailed as one of the most important Fourth Amendment decisions of the decade. Yet, it is certainly not the final word on the nexus formed among among privacy, technology and search and seizure. Without a warrant, police in Maryland had attached a GPS tracking device on the accused’s car for 28 days, which emitted information about the accused’s location every few seconds. This tracking device led police to a warehouse filled with cocaine and cash. The accused, Antoine Jones, was arrested.

As I had observed in late November, it was not clear by the end of the oral hearings which way the judges were going to side. At the end, a unanimous court decided that the use of the GPS tracking device to be unconstitutional. Namely, they agreed that the accused’s constitutional right – his Fourth Amendment right to be guarded from “unreasonable searches and seizures”  – was infringed upon. That was the end of their agreement. In usual fashion, the Court splintered, with Justice Scalia leading one contingency and Justice Alito leading another. Justice Sotomayer cast the deciding vote, opting for the ‘minimalist approach’ advocated by Justice Scalia. Even though she preferred the narrow interpretation, she also had sympathy for the “incisive” conclusion drawn by Justice Alito. Rather humorously, one critic counts 4.5 votes for Justice Scalia and 4 votes for Justice Alito.

Three Positions:

Given the far-reaching implications of this case for police officers and government officials, it was disappointing that the Court failed to display any decisiveness. While Justice Scalia seems to be most investigated in the question of whether this tracking device constitutes a “search” under the Fourth Amendment, one could argue that his attention is misdirected, or at least unnecessarily narrow. That is, the fulcrum of the case is the increasing tension between new technology and our expectation of privacy: what is a “reasonable” expectation of privacy in a world in which cell phones have a GPS locator and public spaces are often camera-equipped? Courageously, Justice Alito tried to tackle this thornier issue.

Justice Scalia, and the three judges that sided with him, asserts at the end that: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.” He concludes that the accused’s Fourth Amendment right was infringed by the installation of the GPS tracking device by the police.

While agreeing with the ultimate decision, Justice Alito faults Justice Scalia for applying eighteenth century legal concepts to the twenty-first century. In particular, the minority takes issue with Justice Scalia’s “trespass” analogy. One cannot help but find the Scalia-Alito sparring match comedic. Justice Scalia considers the use of GPS tracking devices by the police analogous to a constable who might conceal himself “in the target’s coach in order to track its movements.” Justice Alito retorts: “this would have required either a gigantic coach, a very tiny constable, or both — not to mention a constable with incredible fortitude and patience.” (The last part is a reference to the fact that this case involved 24-hour surveillance for 28 days.)

Justice Alito is less interested in whether the GPS device constitutes a search. One of the strengths, and simultaneously one of the weaknesses, of his decision is that it puts much weight on time. There is little doubt that Justice Alito would take issue with any kind of permanent surveillance scheme, even if it is not physically intrusive. “In some locales,” he wrote, “closed-circuit television video monitoring is becoming ubiquitous… Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen.” Turning to the case at hand, Jusice Alito concludes that, “We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the four-week mark.”

Justice Sotomayer would have cast her vote in favour of Justice Alito if he had meaningfully addressed the issue of voluntary disclosure. “It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” she states in a somewhat ominous way. She puts her finger on a key issue, our digital footprint. Today, our Internet browsers document every purchase we make, every URL we visit and every message we send. Despite the fact that we put ourselves out there on the Internet everyday, she wonders out loud whether it would ever be acceptable for the government to track our presence online for a day, a week or a month.

The Final Score

From these decisions, it becomes increasingly clear that the government may not really be the losers in this case. None of the justices sided with the government. Yet, they leave open critical questions. Justice Scalia’s “trespass” theory seems to hinge on physical intrusion. Here, the police affixed a GPS tracking device to the accused’s car. What if the police, through a remote location, taps into the car’s pre-existing GPS device? Would Justice Scalia and the majority deem to not constitute a search, and thereby permissible?

Justice Alito’s opinion may sound more appealing because it is more grounded in the realities of life in the twenty-first century. Despite the fact that our cell phones can track our location, we still have a reasonable expectation of privacy when it comes to round-the-clock police surveillance, according to the minority. What is not clear with Justice Alito’s position is whether he would accept shorter-term police surveillance. The minority does not consider the mere installation of a GPS tracking device on a suspect’s vehicle to be a search. Only after a certain point in time does it tip into Fourth Amendment territory. What if the police did not monitor Antonin Jones for four weeks, but rather one week? What if they monitored him for only four hours each day? In either of those scenarios, Justice Alito and the minority might deem it not to be a search that requires a warrant.

United States v. Jones puts some important questions on the table, especially as they relate to our increasingly digital world. And there is a sense that larger changes are needed (i.e. voluntary information disclosure to third-parties). What may be underestimated, however, is that more complicated, more litigious questions remain.

In October 2011, the Harper government introduced Bill C-18, the Marketing Freedom and Grain Farmers Act, which proposed to repeal the Canadian Wheat Board Act (CWBA), effectively eliminating the Canadian Wheat Board. This move, in addition to being unpopular policy for a lot of farmers, was alleged to have been in contravention of a section 47.1 of the CWBA that required the Minister to consult farmers, and for farmers to consent to any changes the CWB. A group of farmers took their claim to the courts, asking for a declaration that the Minister acted in breach of section 47.1. Ultimately, the federal court sided with the farmers, granting the declaration.

In this post, I will outline the court’s decision in Friends of the Canadian Wheat Board v Canada (Minister of Agriculture), 2011 FC 1432, discuss the issue of Parliamentary Supremacy left aside by the court, and conclude with some remarks on the implications of this ruling for Bill C-18.

The Minister’s Breach of Statutory Obligation

Section 47.1 of the CWBA reads (emphasis mine):

47.1  The Minister shall not cause to be introduced in Parliament a bill that would exclude any kind, type, class or grade of wheat or barley, or wheat or barley produced in any area in Canada, from the provisions of Part IV, either in whole or in part, or generally, or for any period, or that would extend the application of Part III or Part IV or both Parts III and IV to any other grain, unless

(a) the Minister has consulted with the board about the exclusion or extension; and

(b) the producers of the grain have voted in favour of the exclusion or extension, the voting process having been determined by the Minister.

It is undisputed that the Minister did not engage in any consultation, nor was there a vote before the introduction of Bill C-18. The claimants say that the Minister is thus in violation of his obligations under section 47.1.

The Minister says that the language of section 47.1 only imposes a process when there is a subtraction or addition of a particular grain in the marketing regime. It does not limit the future repeal of the CBWA, which it says is a legislative decision for Parliament and not the Court. The principle of Parliamentary Supremacy, it says, requires that section 47.1 not be interpreted so broadly as to give a perpetual veto to grain producers over the continued existence of the CWB and the CWBA. Instead, section 47.1 contemplates moving various grains in and out of the regime, but does not refer to changes in the nature or existence of the CWB itself.

Court’s Decision

Looking to the legislative history of section 47.1, Campbell J finds that the intention of section 47.1 was to prohibit legislation affecting the structure of the CWB without consultation and consent from the farmers. According to Campbell J, this interpretation is consistent with adherence to the rule of law. The rule of law, it is said, requires that the public understand the rules they are bound by, and the court’s interpretation gives effect to the words of section 47.1 in the way that ordinary citizens would understand and interpret them.

Parliamentary Supremacy

The most interesting issue in this case was dealt with in short shrift by the court. The Minister argued that the claimant’s interpretation of section 47.1 challenged Parliamentary Supremacy, which provides that Parliament can make, change or repeal any legislation and is not bound by any law in this regard. If this statutory provision violates Parliamentary Supremacy, then there is a strong argument that the provision is not law at all, or perhaps that it should be read down so as not to infringe on Parliament’s law-making ability.

The claimants respond by relying on an exception to Parliamentary Supremacy, which allows that Parliaments bind themselves to self-imposed rules as to the “manner and form” in which statues are enacted. The court, however, refused to answer this question as there was no notice of a constitutional question, and argument was not properly presented to the court.

In my view, the argument that section 47.1 is a rule that binds only the manner and form of law making is a stretch. On Campbell J’s interpretation, section 47.1(b) contemplates that farmers have a substantive veto on laws that they do not support. This veto is held against Parliament and could limit Parliament’s law-making ability. To the extent that section 47.1(b) prevents Parliament from repealing the CWBA, the provision must be invalid as being a violation of Parliamentary Supremacy. The requirement to consult farmers in section 47.1(a) is a procedural hurdle, and is more readily characterized as limiting the “manner and form” of Parliament’s law-making ability. On this analysis, Campbell J’s pronouncement that the Minister was required to gain the consent of farmers before introducing Bill C-18 was in error given a proper consideration of the implications of Parliamentary Supremacy.

The Legality of Bill C-18

Importantly, the court did not make any statement on the legality of Bill C-18—the decision purported to limit itself to the Minister’s omission to consult the farmers and allow for a vote on the proposed legislation. Bill C-18 was given Royal Assent in December 2011, and is now the law in Canada. If we agree that the Minister violated section 47.1(a) by introducing Bill C-18 without consultation, this begs an important question: is a law that was passed without adhering to the legally required procedures any law at all?

In administrative law, if a decision is made without due process, that decision is usually sent back for redetermination to the administrative actor. It is uncertain whether a court would extend this principle over Parliament, essentially invalidating a law because Parliament did not adhere to some statutorily required process. The courts have historically stayed out of making pronouncements on the legality of Parliament’s law-making processes, but Campbell J’s ruling would seem to open the door to exactly that. Certainly this possibility raises serious questions about the institutional relationship of the Court and Parliament.

Fortunate for us interested in this legal conundrum, this issue will likely be squarely addressed in a forthcoming injunction ruling out of Manitoba.

R v DC and R v Mabior: Revising Cuerrier?

The Supreme Court will be revisiting the highly contentious Cuerrier decision on February 8 when it hears R v DC and R v Mabior together. Given the tremendous progress in the medical field in the treatment of HIV since 1998, the Court must address the meaning of “significant risk of harm” as the legal test in R v Cuerrier, [1998] 2 SCR 371.

In both DC and Mabior, the respondents were convicted by their respective trial judges for failing to disclose their positive HIV statuses to their partners. DC was charged with aggravated sexual assault in Quebec, and Mabior was charged with aggravated sexual assault in Manitoba. Both cases were overturned on appeal because the viral loads during the course of the sexual contact in question had not had the effect of exposing the partner to a significant risk of contracting the virus, or in the words of the Court in Cuerrier, “serious bodily harm.” On August 25, 2011, the Supreme Court granted leave to appeal for DC, holding that it would be heard with Mabior.

The Cuerrier court narrowly sided with Cory J to articulate a test for determining when fraud vitiates consent. In order for fraud to vitiate consent the dishonesty had to have resulted in actual harm or “a significant risk of serious bodily harm.” In this sense, knowingly exposing a sexual partner to HIV amounts to aggravated assault. But might it be time for the Supreme Court to revisit the issue?

AIDSLaw has invited Canadian and international organizations and professionals working on issues related to HIV/AIDS and in the fields of public health and law to endorse a statement establishing that people living with HIV are not criminally liable in cases where the threshold of significant risk is not met. They suggest that the criminal law be based on the best available scientific evidence, not on assumptions, prejudice or fear. In fact, studies suggest that this type of criminalization results in HIV victims being less likely to disclose. This defies the very purpose of the law laid out in Cuerrier, with the objective of making it mandatory to disclose.

While HIV still poses serious health concerns, these two cases invite Canada’s top court to determine what constitutes significant bodily harm in the context of recent medical breakthroughs in HIV/AIDS treatment.

Read more about these cases on TheCourt.ca here and here.

Trying for Home-field Advantage

In Momentous.ca v Canadian American Association of Professional Baseball Ltd, the Supreme Court will have the opportunity to revisit the jurisdiction test it set out in Antares Shipping Corp. v The Ship “Capricorn” et al., [1977] 2 SCR 422 (based on the leading House of Lords decision in Spiliada Maritime Corp v Cansulex Ltd, [1986] 3 WLR 972, 3 All ER 843, [1987] AC 460) and later clarified in Amchem Products Inc. v BC (Worker’s Compensation Board), [1993] 1 SCR 897.

Encouraged partly by a dead-last finish in standings and partly by the financial difficulties that ensued, Rapidz Baseball applied to dissolve the team it operated in Ottawa from its contract with the Can-Am Baseball League (based in North Carolina). In response, the League terminated the team’s membership, denied their application of voluntary withdrawal, and seized the team’s $200,000 surety.
Based on the forum selection clause in the contract and agreement to resolve all disputes in North Carolina, the League brought a motion under Rule 21.01(3)(a) of the Rules of Civil Procedure to have any proceedings stayed or dismissed, claiming that an Ontario court did not have jurisdiction over the matter.

An Ontario court could gain jurisdiction if a defendant consented, was present in Ontario, or could pass the “real and substantial connection” test to explain why the case should be heard in this jurisdiction. Once any of these conditions is fulfilled, the court must then determine whether they should, in fact, take jurisdiction based on established considerations, like where the contract was signed, and what legal system it falls under (Young v Tyco International of Canada Ltd., (2008), 92 OR (3d) 161 (CA)). In this case, because the parties had agreed to resolve disputes in North Carolina, the onus shifted to the plaintiff-appellant to demonstrate why that forum is no longer suitable.

At issue for the Supreme Court now is whether, given the terms of the agreement, the Ontario Court of Appeal erred in upholding the Superior Court decision that Ontario was a forum non conveniens, having already established that the province had jurisdiction.
In Amchem Products, Sopinka J addressed the dangers and injustice related to allowing parties to shop for the forum most judicially advantageous, instead of proceeding with the case in the forum most closely connected with the matter. This is to ensure that the court can contribute to creating fair and equitable results in an increasingly globalized commercial world.

It will be interesting to see whether the Supreme Court uses this case to simply reiterate its position on discouraging forum shopping, or suggest a revised test that accommodates parties with equally meritorious arguments, particularly when not one or the other will result in some kind of injustice (cf. Recherches Internationales Québec v Cambior Inc., [1998] QJ No. 2554 para 82).

Read more about this case on TheCourt.ca here.

Twenty years after arriving in Canada, and seventeen years after his initial deportation order, Leon Mugesera is back in Rwanda to face a slew of charges stemming from comments he made that allegedly sparked the beginning of the Rwandan genocide in 1994.  Mugesera sought refuge in Canada in 1992 after being charged with inciting hatred in Rwanda for a speech he made suggesting that the Hutu majority exterminate the Tutsi minority in the country.

Mugesera’s exhaustive legal battle illustrates the expansive nature of the appellate system in Canada–he managed to avoid deportation for nearly two decades despite a Minister of Citizenship and Immigration ruling that he be deported in 1995. During this time, the initial ruling was overturned by the Federal Court of Appeal and subsequently appealed to the Supreme Court of Canada.

The case reached the Supreme Court of Canada in 2005, which overturned the Federal Court of Appeal decision and reinstated the initial deportation order.  However, legal posturing and appeals to international bodies, including the UN Committee Against Torture, delayed the outcome until just three days ago.

Mugesera was able to remain in Canada due to Canada’s policy to avoid extraditing individuals who may face torture or the death penalty. However, the Rwandan justice system had improved since the time when the deportation order was made and his last ditch effort to have the order stayed fell on deaf ears in the Quebec Superior Court.

The culmination of this long legal battle illustrates the potential pitfalls with Canada’s extensive appeal system. But it also opens the doors for other Rwandan war criminals residing in Canada to be sent back to their home country to face justice.

The Fed’s Response to the the Securities Act Reference

On the heels of the Reference re Securities Act, 2011 SCC 66, the Canadian government has scrapped plans to create a national securities regulator, respecting the court’s decision that securities regulation is not a valid exercise of the federal power to regulate trade and commerce and is thus within the constitutional realm of the provinces.

In the Reference, however, the Court was very careful to leave some room for federal government regulation of financial markets, promoting  “cooperative federalism” and permitting  the federal government to exercise jurisdiction over “genuinely national concerns.” The federal government plans on moving forward with this cooperative approach, as finance minister Jim Flaherty recently vowed to create a national body to provide monitor systemic risks to financial markets.

The Court offered little guidance as to precisely what activities fall within federal versus provincial jurisdiction, so what this body will look like and how it will operate in relation to the provincial securities regulators is unknown at this stage.  However, in a recent interview at the Davos economic summit, Finance Minister Jim Flaherty suggested that a new organization would need to be created to serve this oversight role, and the task will not be delegated to the existing Office of the Superintendent of Financial Institutions.

LA Passes Law Requiring Condom Use on Porn Sets

The pornography industry is in for a shake-up after the City of Los Angeles passed a law mandating that all performers wear condoms on the sets of films that are licensed by the city. The new law, which is believed to be the first of its kind in both the United States and Canada, is controversial because LA’s San Fernando Valley is the centre of the multi-billion dollar industry.

Proponents of the law, cited as the Safer Sex in the Adult Film Industry Act, argue that it is necessary to stop the transmission of sexually transmitted infections (STIs) between actors who often perform without protection. The law also comes in response to the efforts of HIV/AIDS activists, who have been pushing for a change after a porn actor tested positive for HIV in 2010.

Critics maintain that the law will not meet its purported objective, as companies will simply move their productions to other cities. They are also adamant that the law is unnecessary to prevent the transmission of STIs because the majority of production companies already require actors to participate in mandatory testing, including rapid HIV tests, before they are allowed to perform. Their argument against condom use is largely driven by the idea that consumers of pornography will be turned off by the sight of safe-sex practices, and as a result, the industry will suffer financial set-backs.

As in the US, Canadian law makers have been reluctant to pass laws regulating the use of condoms within the porn industry. Some critics have argued that this reluctance is tied to a general resistance to recognize the industry as a legitimate form of work that should be covered by organizations such as OSHA or WorkSafe.

With the exception of child pornography, which is criminalized under s. 163.1 of the Criminal Code, there are no laws regulating the production of pornography in Canada. Canadian case law also emphasizes the consumption or production of child pornography, as well as the definition of “obscenity” (see, most recently R v Katigbak, 2011 SCC 48), rather than the regulation of adult film production.

Without a Canadian equivalent to San Fernando Valley, it is unlikely that advocates in Canada will be able to generate the public support that is necessary to initiate debate about the recognition of the porn industry as a legitimate workplace. However, if other American cities follow LA’s lead and Canadian HIV/AIDS activists decide to get involved, it may not be long before Canadian law makers are forced to take a more proactive approach to ensuring the occupational health and safety of pornographic actors.

SOPA: An Update

In the wake of the reaction generated by the recent online protests to two proposed US anti-copyright bills, SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act), there is mounting concern that internet users in Canada may have similar reasons to protest as Bill C-11, the proposed Copyright Modernization Act, is set to continue its second reading in the House of Commons.

At the centre of Bill C-11’s on-going controversy is a concern that if powerful lobbyists have their way, the bill could end up looking a lot more like SOPA than was initially intended. In his blog, University of Ottawa Law Professor Michael Geist suggested that if adopted, the recording industry’s proposed changes to the bill could have dangerous implications for Canadian Internet users. Most notably, Geist warns that users who are found to be “repeat infringers” could risk losing their Internet privileges entirely. There is also concern that further changes to the bill could lead to a complete shut down of popular sites such as YouTube, which is targeted for allegedly enabling copyright infringement.

However, proponents on the other side argue that such fears are unfounded largely because of section 27(2.4), which sets out six factors that the courts must consider to determine whether a person has infringed copyright or enabled infringement (see Clause 18). Section 27(2.3) defines infringement by means of the Internet as “a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.”

Confirming the legitimacy of critics’ fears will have to wait until Bill C-11 re-enters the House for further debate and amendments. Until then, Canadian Internet activists may want to take some lessons from their American counterparts, who have so far managed to challenge what they see as the more regressive elements of SOPA and PIPA.

In this case, Moore appeals a decision quashing the findings of the Human Rights Tribunal that the Ministry discriminated against him by failing to accommodate his learning disabilities in the provision of educational services, contrary to s. 8 of the B.C. Human Rights Code. The appellant suffered from severe dyslexia, requiring a specialized one-on-one remediation program that had been closed by the Ministry for financial reasons. As a result, Moore’s only remaining alternative was to enrol in a private school specializing in learning disabilities.

Under the Code, the onus is on the complainant to establish a prima facie case of discrimination by showing that, on a balance of probabilities, (1) the service at issue is one that is customarily available to the public, (2) the complainant is a member of a group possessing characteristic(s) protected by the Code, (3) the complainant was denied the service or was discriminated against in the provision of the service, and (4) the protected characteristic was a factor in the denial or discrimination. Once this is established, the onus shifts to the respondent to demonstrate that it had a bona fide and reasonable justification for its discriminatory conduct.

The reasons of the majority of the Court of Appeal were short and to the point. Low J. concluded that Moore did not establish the denial of a service or discrimination in the provision of education services since accommodation programs cannot be measured against a standard of perfection. Moore’s circumstances should have been compared to those of other special needs students without severe learning disabilities rather than to the general student body. By framing the relevant comparator group as students with special needs, the majority also, in effect, narrowed its analysis to focus only on the specialized remedial services provided by the respondent. In examining the facts through this narrowed lens, it was clear that the school board had provided both types of students with specialized educational programs, albeit ones that fell short of the program discontinued by the Ministry for financial reasons. Once framed in this way, therefore, the question of discrimination lent itself to the answer that “the appellant and other severely learning disabled students were given the same opportunity to receive a general education.”

Rowles J.’s dissent—comprising most of the judgment—picked up on the analytical moves the majority had made in framing the question and the relevant comparator group as it did, questioning the policy implications of such a framing. First, she accused the majority of moving away from the prima facie approach under human rights legislation that was set out by the SCC in cases like O’Malley and Meiorin. Second, she questioned two key analytical approaches the majority had used to reach its conclusion: the characterization of “services” and the identification of the relevant comparator group.

The nature of the service provided was key to the case since it framed the rest of the analysis as establishing whether or not Moore was adequately accommodated. A respondent is not required to accommodate up to the standard of perfection (i.e. such as those services and facilities equivalent to those offered at the specialized private school) but to the point of undue hardship. Rowles J. found that the service at issue was the provision of general education. In other words, Moore was seeking accommodation, albeit in the form of specialized education services, to enable him equal access to “mainstream” education that is available to all students. Thus, the facts were analogous to those in Eldridge: the failure to provide funding for sign language interpreters during medical services violated s.15 of the Charter on the basis that deaf persons, without such interpreters, received a lower quality of medical services than the general public.

The majority, on the other hand, characterized the services as specialized education services, thereby conflating the service provided by the province with the means of accommodation. The problem with the majority’s approach is that it effectively conducted a ‘like circumstances’ test (i.e. all students with disabilities were treated alike therefore discrimination was not made out), despite McIntyre J.’s warning in Andrews that such a test must, in essence, be supplemented by an objective element that would help determine the actual adequacy of services provided.

Another key analytical move made by the majority—one inextricably tied to the characterization of “services”—was the identification of the relevant comparator group. Although the s. 15 jurisprudence has moved away from a strict requirement that claimants identify the correct comparator group from the outset or risk having their entire claim fail late in the process, equality inevitably remains a comparative concept. Thus, Rowles J. warns that “danger lies in allowing the comparator group analysis to become overly formulistic and restrictive, thereby undermining substantive, at the expense of formal, equality.”

Rowles J., having defined “services” as general education, reached the conclusion that the corresponding comparator group was the general public. In comparing Moore’s educational services with those of the public, she concluded that he had experienced discriminatory treatment. The majority, having defined “services” as specialized education, reached the conclusion that the corresponding comparator group was special needs students who did not suffer from severe learning disabilities. Vis-à-vis this group and the specialized services provided to them, Moore had not been discriminated against.

Finally, this case is noteworthy in that it provides an opportunity for the SCC to weigh in on the convergence between s. 15 jurisprudence and anti-discrimination statutes. The degree to which the s. 15 framework should inform (or supplement) the statutory O’Malley test was discussed by Rowles J. and has been debated in the academic literature (see, for example, Leslie A. Reaume, “Postcards from O’Malley: Reinvigorating Statutory Human Rights Jurisprudence in the Age of the Charter”, in Fay Faraday, Margaret Denike and M. Kate Stephenson eds., Making Equality Rights Real: Securing Substantive Equality Under the Charter 373-408 (Toronto: Irwin Law, 2006)). The question that the SCC may address is whether or not the similarities and differences between s. 15 and anti-discrimination statutes justify a common approach to equality and, if so, how to craft an test that does not impose a heavier burden on claimants in the private context.

Overall, the strength of the dissent in Moore is not simply in the result reached but in the approach used in reaching it. Rowles J. explicitly justified her analytic choices (how to frame “services” and how to define the relevant comparator group) by focusing on substantive equality, the ultimate goal of anti-discrimination legislation. Her approach also implicitly acknowledged the fact that there is rarely one, predictable way of applying legal tests that is dictated exclusively by the terms of the tests themselves and the facts on the ground. Rather, to frame a problem one way over another is, in reality, to condition an answer to it.