The Supreme Court of Canada (the “SCC”) released their decision in R v Telus Communications Co., 2013 SCC 16 on March 27, 2013. The case was previously discussed here.

In this case, the police wanted the production of text messages stored in the computer databases of Telus for a police investigation under a general warrant. Telus argued that daily production of text messages from a computer database constitutes an “interception of private communications” and therefore requires a wiretap authorization, not a general warrant, under Part VI of the Criminal Code (the “Code”). The Crown argued that the retrieval of messages from a computer database does not constitute an “interception” because the messages are not being transmitted – they are being stored in Telus’ database.

The SCC allowed the appeal in favour of Telus and quashed the general warrant order and the related assistance order.

Writing for the majority, Justice Abella said that the interpretation of “interception of private communications” depends on what the Code aims to protect with “private communications” and should not be dictated by how the technology works:

“The only practical difference between text messaging and the traditional voice communications is the transmission process. This distinction should not take text messages outside the protection of private communications to which they are entitled in Part VI. Technical differences inherent in new technology should not determine the scope of protection afforded to private communications.”

Justice Moldaver and Justice Karakatsanis concurred in part and with the result to quash the general warrant, but based their reasons on the failure of the Crown to establish the necessary prerequisite to obtain a general warrant under the Code. Section 487.01(1)(c) requires that there is “no other provision” that would permit the police to conduct their investigation in the way they seek, except under a general warrant. However, in this case, the police could have sought a wiretap authorization under Part VI or a search warrant or production order and achieve substantially the same results.

The dissent of Justice Cromwell and Chief Justice McLachlin would have upheld the general warrant order because it was not “intercepting” private communications – it was simply Telus “disclosing” copies of communications:

“The general warrant did not require Telus to intercept communications, but to provide copies of communications that it had previously intercepted for its own lawful purposes…In my view, it is inconsistent with the fundamental distinction made by the legislation to conclude that the police were intercepting private communications when Telus provided them with copies of previously intercepted and stored text messages.”

The SCC decision in R v Telus Communications Co. confirms that text messages will be protected by the same privacy concerns as voice conversations.

Macdonald would quickly find that the Métis of Red River would not be willing to give up their sovereignty and land without a fight. When surveyors came to visit the Red River Settlement in 1869, the famous Métis leader Louis Riel led his people in a rebellion that made it quite clear that Canada would need to negotiate with the Métis in order to expand. The Métis drafted a list of demands that Canada would have to satisfy before the Red River settlers would accept their control. Representatives were sent to Ottawa to negotiate with Macdonald, which led to the enactment of the Manitoba Act, 1870, which made Manitoba a province of Canada and included in s. 31 a grant of 1.4 million acres of land to the children of Métis families and in s. 32 a recognition of existing land holdings.

From Historic Statutes to Modern Litigation

Despite this promise on behalf of the Canadian government that the process of allocating land to the Métis children would be “expedient”, the process was marred by years of mistakes and delays. It is this delay that led to the litigation and Supreme Court of Canada (SCC) decision in Manitoba Métis Federation Inc. v Canada (Attorney General) 2013 SCC 14.

In this case, the Manitoba Métis Federation and 17 individual applicants sought a declaration that:

1. In implementing the Manitoba Act, the federal Crown breached fiduciary obligations owed to the Métis;
2. The federal Crown failed to implement the Manitoba Act in a manner consistent with the honour of the Crown; and
3. Certain legislation passed by Manitoba affecting the implementation of the Manitoba Act was ultra vires  (para 7)

This quest for declaratory relief gave rise to five main issues (the sixth issue, whether other statutes dealing with the implementation of the s. 31 land grant were ultra vires, was not dealt with significantly, as the legislation had long since been repealed):

1. Does the Manitoba Métis Federation have standing in the action?
2. Is Canada in breach of a fiduciary duty to the Métis?
3. Did Canada fail to comply with the honour of the Crown in the implementation of ss. 31 and 32 of the Manitoba Act?
4. Is the claim for a declaration barred by limitations?
5. Is a claim for a declaration barred by laches?

The majority decision, written by McLachlin CJ and Karakatsanis J, dispenses with the first and second issues fairly quickly and without much controversy from the dissent, written by Rothstein J on behalf of himself and Moldaver J.

The Issues of Standing and Fiduciary Duty

With regard to standing, which both the trial judge and Manitoba Court of Appeal did not grant to the Manitoba Métis Federation, the majority notes that the lower levels of the court did not have the decision in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society 2012 SCC 45, to work from. As that case rejects a strict approach to the requirement that public interest standing should only be given if there is not another reasonable and effective manner for the case to be heard, noting instead that the requirements for public interest standing be addressed in a flexible and generous manner. As the case at hand represents a collective claim for declaratory relief, the majority notes that the body that represents the collective Métis interest – the MMF – should be given standing.

As for the claim that Canada breached a fiduciary duty to the Métis in failing to expediently allot the land set out in s. 31 of the Manitoba Act, the majority (like the lower level decisions) does not find that a fiduciary relationship existed in the circumstances of this case. As per the principle from Guerin v The Queen [1984] 2 SCC 335, a fiduciary duty can arise in the Aboriginal context when the Crown administers lands or property in which Aboriginal peoples have an interest. There must be (1) a specific or cognizable Aboriginal interest, and (2) a Crown undertaking of discretionary control over that interest.

The majority notes that the Crown definitely undertook discretionary control over the granting of land through ss. 31 and 32 of the Manitoba Act. The issue is whether there the Métis had a specific Aboriginal interest in the land. In order for there to be an interest that founds a fiduciary duty, it must be a communal Aboriginal interest that is integral to the nature of the Métis distinctive community and their relationship to the land. While the Métis argued that s. 31 confirmed that they held a pre-existing Aboriginal interest in the land as the grants were made specifically to extinguish their title, the majority finds that the Métis interest in the land was individual in nature and therefore resulted “from their personal history, not their shared Métis identity” (para 56). Thus, no fiduciary duty existed.

The issues that do the work in this case, and constitute the divergence between the majority and dissenting opinions, are the honour of the Crown and the effect of limitation periods and the doctrine of laches on the claim.

The Honour of the Crown

The majority begins by outlining the basic principles surrounding the concept of the honour of the Crown. As was set out in Haida Nation v British Columbia (Minister of Forests) 2004 SCC 73, the honour of the Crown arises from the assertion of sovereignty over Aboriginal people and the control of land and resources that were formerly under their control. The purpose of the honour of the Crown is to reconcile pre-existing Aboriginal societies with this assertion of Crown sovereignty.

The honour of the Crown is a “heavy obligation”, and not all interactions between the Crown and Aboriginal peoples engage the concept. The Court notes that the honour of the Crown has been found to be engaged in 4 situations:

1. When the Crown assumes discretionary control over a specific Aboriginal interest
2. In s. 35 Charter cases, the duty to consult arises when Crown contemplates an action that will affect a claimed but as of yet unproven Aboriginal interest
3. The honour of the Crown governs treaty-making and implementation, leading to requirements such as honourable negotiation and avoidance of appearance of sharp dealing
4. The honour of the Crown requires Crown to act in way that accomplishes the intended purposes of treaty and statutory grants to Aboriginal peoples

Notably, the majority finds that “when the issue is the implementation of a constitutional obligation to an Aboriginal people, the honour of the Crown requires that the Crown: (1) takes a broad purposive approach to the interpretation of the promise; and (2) acts diligently to fulfill it” (para 75). Thus, the honour of the Crown requires that the Crown must diligently carry out its promises, and also “endeavour to ensure its obligations are fulfilled” (para 79). This arises both in treaty and constitutional contexts.

This case represents the first time this “duty of diligent implementation” has been recognized as compromising part of the honour of the Crown. In Rothstein J’s dissenting opinion, he argues that it is not acceptable for the majority to decide the case on this new cause of action, as neither the courts below or the parties argued it. However, the majority states that this concept does not represent a new cause of action, but is rooted in the honour of the Crown, which both the parties argued as the heart of the case.

As s. 31 represented a constitutional promise to the Métis, the honour of the Crown is engaged. The question then became whether the Crown acted with diligence in pursuing the fulfillment of the purposes of their obligation to distribute the s. 31 lands to Métis children. The majority concludes that the Crown did not, as the distribution of the land was delayed without satisfactory explanation. While the majority notes that one negligent act would not be enough to offend the honour of the Crown, “a persistent pattern of inattention may do so if it frustrates the purpose of the constitutional obligation, particularly if it is not satisfactorily explained” (para 107).

In conclusion, the majority finds that:

“The honour of the Crown required the Crown to interpret s. 31 in a purposive manner and to diligently pursue fulfillment of the purposes of the obligation. This was not done…the implementation was ineffectual and inequitable. This was not a matter of occasional negligence, but of repeated mistakes and inaction that persisted for more than a decade. A government sincerely intent on fulfilling the duty that its honour demanded could and should have done better.” (para 128)

Limitations and Laches

As so much Aboriginal law litigation rests on historical considerations, the Court’s discussion of the application of limitation periods and the doctrine of laches to Aboriginal issues is interesting, though this case seems to represent a lack of clarity as to when exactly limitation periods or laches will be applicable to Aboriginal cases.

The majority notes that the constitutionality of legislation has always been a justiciable question which cannot be barred by limitations statutes. As the dissent rightly points out, the Métis are not asking for the Court to rule on the constitutionality of legislation, but instead are seeking a declaration that s. 31was not implemented in accordance with the honour of the Crown. The majority seems to say that because the Métis are not seeking any personal relief, damages, or title to land, the limitations act cannot bar the claim. It remains to be discussed whether, if an Aboriginal group were seeking these things, a limitations period could bar the claims.

The contentious aspect of the majority’s decision that a statutorily enacted limitation period cannot bar the claim goes to the often-debated question of the role of the courts versus the legislature. The majority clearly believes that the judiciary’s role as the interpreters of the constitution trumps the legislature. In a particularly telling passage, they state that:

“What is at issue is a constitutional grievance going back almost a century and a half. So long as the issue remains outstanding, the goal of reconciliation and constitutional harmony, recognized in s. 35 of the Charter and underlying s. 31 of the Manitoba Act, remains unachieved. The ongoing rift in the national fabric that s. 31 was adopted to cure remains unremedied…The courts are the guardians of the Constitution and…cannot be barred by mere statutes from issuing a declaration on a fundamental constitutional matter.” (emphasis added, para 140)

Stating that the court “cannot be barred by mere statutes” is controversial – it sidesteps the usual rhetoric of deference to the legislature, which the dissent takes real offence to.

The majority also finds that the equitable doctrine of laches, which essentially stands for the proposition that a claimant must bring their claim to the courts without undue delay, does not apply to the case at hand. To use this doctrine as a defence to a claim, it must be shown that the claimant both acquiesced or took action to waive their rights, and that this action made the other party think the claimant had given up their rights. The majority finds that given the historical injustices suffered by the Métis, the imbalance in power that followed Crown sovereignty and the negative consequences following delays in allocating the land grants, acquiescence or waiver cannot be found.

In conclusion, the Métis were partially successful in their appeal. The majority granted the Métis a declaration “[t]hat the federal Crown failed to implement the land grant provision set out in s. 31 of the Manitoba Act, 1870, in accordance with the honour of the Crown” (para 154).

What does this mean for Métis people in Manitoba? As is noted earlier in the decision, in some cases, “declaratory relief may be the only way to give effect to the honour of the Crown”. It is possible that this declaration may be used by the Métis in future negotiations with the government. As a larger contribution to the jurisprudence surrounding Aboriginal rights, this case represents an interesting expansion of the concept of the honour of the Crown that will potentially help future Aboriginal rights claimants bring forward claims.

On March 18, the Ontario Court of Appeal delivered a judgment that Hells Angels members might not be barred from obtaining liquor licenses. The Court ordered the Alcohol and Gaming Commission of Ontario to reconsider its decision to revoke a license originally given to Raymond Barletta, because it applied a more stringent test than necessary. Although the Hells Angels MC organization is considered a criminal organization in Canada “as defined in s. 467.1 of the Criminal Code, [] being a member is not a crime.” Barletta has operated the Famous Flesh Gordon’s strip club in London, Ontario with a liquor license since 2001.

The principal issue was whether Barletta’s membership in the Hells Angels (and president until 2008), sufficient, in itself, to revoke his liquor licence. The Court found that, while a member, Barletta “had apparently acted lawfully, with honesty and integrity, and had operated his licensed establishment properly for almost ten years.” The matter will be reheard by the Licence Appeal Tribunal.

Mining Industry Update

The mining sector is currently in a lull, as junior mining companies scramble to secure financing. Jim Kofman, vice chairman of Cormack Securities Inc., points out that financing is still available, but “it’s incredibly selective.” Typically, smaller companies are acquired by large companies, making for an active M&A market. But when the largest of companies are no longer in purchasing mode, the effects trickle down to all segments of the market, reducing the number of mergers & acquisitions and drying up investment dollars. Last year, there were 76 announced deals, with a value of $4.9 billion, compared to 101 deals in 2011, with a value of $26.8 billion.

On the other hand, this period of slowdown might very well be a cooling down period before the next big rush, as Kevin Thomson of Davies Ward Phillips & Vineberg LLP suggests. He recently told the National Post, “There are a lot of tire kicking discussions. This has been going on in the Canadian marketplace for the last 15, 16 or 17 months.

In the meantime, junior mining company boards will continue to struggle, as they have been facing a torrent of proxy battles (in which competing shareholders struggle to gain control and oust existing directors). A study conducted by Fasken Martineau DuMoulin LLP found that 51% of the 87 proxy battles in Canada between 2008 and 2012 were within junior mining companies.

“Don’t work for money, work for justice—you will make money anyway but the focus is quite different.”

Between 2:00pm and 4:30pm on Monday, March 11, some variation of this quote reverberated throughout Osgoode via Twitter and Facebook. Osgoode’s Distinguished Speaker Series welcomed Justice L’Heureux-Dubé, and her presence was both captivating and refreshing. It was inspiring to hear the passion with which she spoke about the law, as well as the confidence with which she spoke her mind.

Justice L’Heureux-Dubé’s talk gave me pause to reflect on what it means to be a part of the legal profession—specifically, what it means to render justice. The concept of “justice” is as significant as it is elusive; the contours of justice can be filled out by viewing a situation from a variety of different angles and the conclusion that justice was, or was not, done may depend not only on the context but also (and perhaps more so) on the eye of the beholder. When Justice L’Heureux-Dubé says “work for justice,” what does this mean? It would be extremely ambitious to try and tackle this question at all, let alone in one post, but I’d like to highlight the comments Justice L’Heureux-Dubé made which resonated with me and leave the answer to the justice question to your own individual musings.

One theme of Justice L’Heureux-Dubé’s talk which became very clear throughout the interactive session was her confidence in both herself and in others to make a difference. In both her conduct, and in giving us advice, Justice L’Heureux-Dubé sent the message that we should be confident in the value of our own beliefs about the law and about those issues with impassion us. In law school, it is very easy to develop a sense of inferiority and question the beliefs we hold; beliefs which, at one point, may have been very clear. Some of this can be good: having our beliefs challenged may result in a transformative change or it may result in a strengthened connection to those beliefs. A problematic consequence, however, would result if the sense of inferiority lead us to believe that our opinions didn’t matter. Sometimes, speaking our mind on issues that matter can get very tiring when it feels like we are yelling at a brick wall; more tiring still is the experience of those who need more voices yelling on their behalf to knock that brick wall down. Had Justice L’Heureux-Dubé not been confident in the power of her own voice to make a difference, we may not have had a Supreme Court justice that stressed the importance of recognizing the impact of the feminization of poverty in family law or the rights of sexual assault victims. From Justice L’Heureux-Dube’s perspective, judges do not vacate their values when they sit to decide a case. Indeed, one of the reasons Justice L’Heureux-Dubé was respected and revered as a judge was because she had strong opinions about the pursuit of justice and brought those to the Court. Justice L’Heureux-Dubé told us that if we were all judges tomorrow, we’d be the same people we are today. She spoke about this positively because, although she emphasized the necessity of allowing judges to be “a step back” from the people who come before our courts, “you wouldn’t want to be judged by angels would you?”

In this way, she emphasized the importance of social context. Not only are judges embedded in a social context, but they must also seek to understand the lived experience of those who come before our courts. She stated that in many instances, especially in cases involving family law, she could relate to the people before her because she had been “in the trenches”. She told a story about coming before a judge when she was acting for a woman in a divorce case during a time when judges were not awarding significant amounts of money for spousal support. She asked this particular judge whether he knew how much a pint of milk cost and he said he didn’t because his wife did all the shopping. She told him that perhaps, before determining the amount of spousal support, he should go shopping.

Pursuing justice requires that both judges and lawyers seek to understand the lived experience of those who come through the judicial system. This emphasis on social context led to a discussion about the need for diversity on the bench. It is important to recognize that “diversity” can have different meanings. One way of thinking about diversity is in terms of visibility. Many people advocate visible diversity because of the belief that women, for example, will decide cases differently than men as a result of gender differences. More women on the bench, however, does not guarantee more feminists on the bench; simply because a judge is a woman does not mean her way of thinking through legal issues is pre-determined. Diversity shouldn’t just mean the presence of visible differences amongst members of the judiciary; it should also mean diversity of experiences, realities, perspectives, beliefs, and values. Whether diversity is somewhat diminished through the study of law (as in, the study of law trains students to think the same way) is a matter for another post. Suffice it to say that diversity means (or should mean) having a judiciary and a legal profession that visibly reflects both the society in which we live and the multitude of perspectives within society.

If it wasn’t already clear from her judgments, it became clear during the discussion that Justice L’Heureux-Dubé was not afraid of being candid regarding her opinions about the legal profession, justice, and the future of the Supreme Court. When asked whether she worried about being chastised for being so candid she said quite pointedly, “I don’t give a shit.”

I’d like to conclude with the following quote which I believe embodies the theme of Justice L’Heureux-Dubé’s talk:

“Don’t ask yourself what the world needs. Ask yourself what makes you come alive. Because what the world needs is people who have come alive”

It is safe to say that Justice L’Heureux-Dubé came alive through the practice of law and, as such, the legal profession—and society as a whole—is significantly better for it.

Background

Douglas Martin worked for Parks Canada in Banff, Alberta. On December 18^th, 2006, Parks Canada delivered a disclosure letter to Martin requesting him to disclose information relating to data on his work computer. Parks Canada had received a request under the Access to Information Act and required information from Martin so they could comply with the request.

Upon receipt of the letter, Martin claimed that it triggered a “psychological/emotional condition” resulting in a leave of absence from work. He was later diagnosed with post-traumatic stress disorder. Martin ultimately claimed for compensation for work-related chronic stress under the Government Employees Compensation Act, RSC 1985, c G-5 (“GECA”).

The issue is whether eligibility criteria established under the Alberta Worker’s Compensation Act, RSA 200, c W-15 (the “WCA”) can apply to claims under GECA.

Competing Statutory Interpretations

The argument centers around two competing interpretations of GECA and the eligibility requirements for proving a psychological injury arising from the workplace. Martin argues that there are only two eligibility requirements under GECA that he has to satisfy to receive compensation. The Board, on the other hand, interprets GECA as including provincial criteria, which requires Martin to satisfy four eligibility requirements to receive compensation.

Martin is a federal employee and thus the federal legislation – GECA – applies to his application for compensation. Martin argues that section 4(1)(a)(i) of GECA alone determines his eligibility for compensation:

“4. (1)     Subject to this Act, compensation shall be paid to

(a)     an employee who

(i)     is caused personal injury by an accident arising out of and in the course of his employment, or [.....]”

According to Martin, all that a claimant has to prove to qualify for compensation is 1) an accident arising out of and in the course of employment that 2) causes personal injury to the employee. An “accident” is defined under GECA as including “a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”

In Martin’s case, receiving the disclosure letter could arguably be the “accident” arising out of and in the course of his employment that caused him personal injury, entitling him to compensation under GECA.

However, section 4(2) of GECA states that an employee seeking a claim under the statute is “entitled to receive compensation at the same rate and under the same conditions as are provided under the law of the province.”

The Workers Compensation Board argues that this provision requires proving the additional eligibility criteria for assessing psychological or psychiatric injury applicable to all workers in Alberta.

Under the WCA, four eligibility criteria have been outlined for determining whether a claim for psychological or psychiatric injury will be accepted as an “accident” or not. For a claim to be eligible, it has to meet all of the following criteria:

“1. There is a confirmed psychological or psychiatric diagnosis as described in the DSM.

2. The work-related events or stressors are the predominant cause of the injury.

3. The work-related events are excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation.

4. There is objective confirmation of the events.”

The Board adjudicator applied the additional eligibility criteria to Martin’s claim and denied compensation as he failed to meet the third and fourth requirements. Receiving a disclosure letter from Parks Canada was not an “excessive or unusual” event compared to the normal pressures and tensions experience by an average worker in a similar occupation and Martin’s subjective allegations could not be objectively confirmed.

Martin appealed for judicial review after exhausting the appeal mechanisms of the Board – all of which upheld the adjudicator’s decision. Martin appealed on the basis that the Board erred in including the additional criteria in his eligibility assessment.

Chambers Judge Accepts Martin’s Interpretation

Upon judicial review, the decision of the Board was overturned by the chambers judge who concluded that s. 4(1)(a)(i) of GECA alone determined the eligibility of claim and that s. 4(2) did not mean to include the additional provincial eligibility factors in the analysis:

“In [the chamber judge's] view, the language in s. 4(2) of GECA that a federal employee is “entitled to receive compensation at the same rate and under the same conditions as provided in the province” meant only that a federal employee would be governed by the “rates of compensation and determination of compensation, but not the issue of entitlement”

The chambers judge would have allowed the appeal and sent the matter back to the Board for a new determination of eligibility based on s. 4(1)(a)(i) of GECA.

Court of Appeal Reverses; Accepts Board’s Interpretation

The Court of Appeal disagreed with the chambers judge’s decision and referred to the constitutional doctrine in Canada that the courts should “facilitate co-operative federalism” and not search out conflicts. The Court of Appeal said:

“In the end result, we find no signal in s. 2 of GECA and s. 4(1)(a)(i) of GECA that Parliament intended to override the application of eligibility criteria established by provinces under their jurisdiction such as reflected by the WCA…Rather, reading GECA and WCA attentively in their context in a manner which gives meaning and effect to both statutes, as done by the Commission, was an approach which conformed with principles of statutory construction.”

The Court of Appeal overturned the trial judge’s decision and restored the decision of the Board.

Concurring Judgment says Interpretations are Irrelevant

In a concurring judgment at the Court of Appeal, Justice McDonald commented that the matter could have been easily dispensed with – even if Martin’s interpretation was used, his injury would still fail to qualify as an “accident” because it was not caused by a “willful and intentional act” nor can the receipt of a disclosure letter constitute “any conceivable form of accident.”

Based on Justice McDonald’s line of reasoning, determining which interpretation is the correct one is irrelevant based on the facts of this case because Martin’s claim would fail either way.

Clarification by the Supreme Court of Canada

It is unlikely that the Supreme Court will dispose of the matter according to Justice McDonald’s reasoning. Rather, it is expected that the Supreme Court will clarify the rules of statutory construction and whether the provisions of GECA allow for the inclusion of provincial eligibility criteria or if such an inclusion would conflict with the federal legislation.

In May 2012, the Refugee Protection Division (“RPD”) denied his application to be deemed either a Convention Refugee or a Person in Need of Protection under section 96 and 97 of the Immigration and Refugee Protection Act, SC 2001 c 27. The RPD found that Tindungan had not rebutted the presumption of state protection which is afforded to democratic states, nor had he established on a balance of probabilities that he would be at risk of cruel and unusual punishment if he were returned to the US. While the applicant would suffer some negative consequences of returning to the US, these consequences would not rise to the level of “persecution”

The facts are remarkably similar to those in Vassey v Canada (Minister of Citizenship and Immigration), 2011 FC 899 (“Vassey“) Vassey was a member of the same unit as Tindungan and also deserted to Canada and was subsequently denied refugee status by the RPD.

In Tindungan v Canada, 2013 FC 115, the Federal Court overturned the decision of the RPD on the basis that its failure to analyze the evidence concerning the independence and impartiality of the US court-martial system was unreasonable.

Tindungan appealed the decision of the RPD to the Federal Court on the following grounds:

1. Did the RPD err by finding that a judicial system which fails to meet basic internationally recognized fairness and due process requirements can nonetheless provide adequate protections?
2. In regards to state protection, did the RPD err by ignoring evidence that directly contradicted its findings?
3. Did the RPD err in law when interpreting both section 171 of the UNHCR Handbook and foreign law related to raising a defence in the US court-martial system?
4. As regards differential punishment, did the RPD make unreasonable conclusions without regard to, and not supported by, the evidence?

After reviewing the evidence, the Federal Court rejected the decision of the RPD as unreasonable.

The Impartiality and Independence of the US Military Justice System

Considerable evidence from expert witnesses on the US Military Justice system was presented on appeal. All the expert witnesses agreed that the US military justice system does not conform to Canadian standards as set by R v Généreux, [1992] 1 SCR 259 [“Généreux”].  In that case, the Supreme Court of Canada found that the principle of judicial independence applies to military courts. The is similar to the requirements of military courts in the United Kingdom.

Expert witnesses for the applicant argued that, because it failed the Généreux test (notably because of the important role played by the military commander) the US military justice system is thus unfair. Countering them, Professor Hansen argued that while the US military justice system failed to meet the Généreux standard, this did not render it “unfair”.  Professor Hansen did not identify against what standards he was measuring “fairness”. The RPD relied heavily on Professor Hansen’s evidence.

The Federal Court found that by preferring the evidence of Professor Hansen without clearly stating what standards it was using to assess fairness and procedural adequacy, the RPD committed a reviewable error. In reaching this determining the Court stated that it is an error in law to conclude that a system which fails to meet basic fairness standards that are internationally recognized to be fundamental to any tribunal system can, nevertheless, provide adequate state protection. It went on to find that decisions made under the Immigration and Refugee Protection Act must be consistent with the Charter and Canada’s international human rights obligations.

Contradictory Evidence

Throughout its ruling, the Federal Court criticized the RPD for viewing the Applicant’s personal experiences as isolated incidents that were not condoned by the USA and were not systemic, despite the objective documentary evidence submitted confirming that the opposite was true. The RPD’s failure to analyze this contradiction was a reviewable error.

Section 171 of the UNHCR Handbook

On this point the Court considered whether the Tindungan would be able to put forward a defence under section 171 of the UNHCR Handbook to the charge of desertion. Section 171 provides as follows:

“Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.”

 The RPD had found that the unavailability of a defence based on section 171 of the UNHCR Handbook did not affect state protection. The Federal Court found this was unreasonable, and noted thatthe RPD had failed to follow the precedent set by Vassey. Vassey had held that the availability of a defence based on section 171 “goes directly to the availability of state protection”.

Differential punishment

The Court recognized that deserters who speak out publicly against the war in Iraq or Afghanistan are subject to differential punishment in the US. Specifically, while the majority of deserters are administratively discharged, those who speak publicly agains the war are more frequently selected to be court-martialled and prosecuted for desertion.

The court found that the US military justice system has no mechanism to protect someone when prosecutorial discretion is exercised in a biased and inappropriate way because of their political opinions. Accordingly the RPD’s decision on this point was unreasonable.

The case had to do specifically with ss. 31 and 32 of the Manitoba Act, which granted Metis children 1.4 million acres of land and recognized existed landholdings. This land was not granted effectively, prompting the majority (with Rothstein and Moldaver JJ. dissenting) to hold that the “federal Crown failed to implement the land grant provision set out in s. 31 of the Manitoba Act, 1870 in accordance with the honour of the Crown”.

This decision marks an end to a decades long legal struggle and the possible beginning of historic land claims cases for the Metis in Manitoba. Watch for a more in-depth analysis in the coming weeks. The full decision can be found here.

Writing for the majority, Justice Alito held that the respondents do not have standing because their concern over possible future surveillance was based on speculation. This judgment is a victory for the US government, but its preservation of secret wiretapping does present a challenge to the privacy of the many Canadians who communicate with Americans.

Facts

Before the addition of §1881a to FISA in 2008, wiretapping of international communications into or out of the US was permitted when two conditions were met: (1) The US government had probable cause to believe that the target of surveillance is a foreign power or an agent of a foreign power, and (2) The US government could specify the nature and location of the place where the electronic surveillance would occur. These conditions do not limit surveillance under §1881a.

The only requirement for using §1881a is that the targeting procedure must be “reasonably designed” (1) to ensure that an “acquisition … is limited to targeting persons reasonably believed to be outside the United States,” and (2) to prevent the intentional acquisition of communications between senders and recipients that are known to be located in the US. FISA created the Foreign Intelligence Surveillance Court to determine when the US government can use its surveillance provisions, including §1881a.

The respondents argue that they have standing to challenge the constitutionality of §1881a because some of the people that they communicate with are likely targets of the surveillance that this provision enables. In the alternative, the respondents argue that this risk of surveillance is so substantial that they have had to take costly measures to protect the confidentiality of their international communications.

Majority

Justice Alito rejects the respondents’ first argument because it is speculative and rests on a chain of assumptions. In Lujan v  Defenders of Wildlife, (504 US), the USSC held that a claim of standing “can no longer rest on … ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts.’” The USSC articulated a further requirement for standing in Monsanto Co v Geertson Seed Farms (561 US (2001)): establishing standing requires an injury that is “concrete, particularized, and actual or imminent … [and] fairly traceable to the challenged action.”

Justice Alito holds that the respondents have not set forth any specific facts demonstrating that their foreign contacts will be targeted. Even if the respondents could factually demonstrate that their foreign contacts will be targeted, their argument would rely on three assumptions: (1) The government will use the surveillance power in §1881a instead of another power under FISA; (2) The FISA Court will authorize this surveillance, and; (3) The government will successfully acquire the communications of respondents’ foreign contacts. Justice Alito holds that the speculative nature of respondents’ argument is fatal to their claim for standing: “We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent: “[R]espondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to §1881a.”

Justice Alito also rejects the respondents’ argument that their costs are a harm that is fairly traceable to §1881a. The USSC held in Laird v Tatum (408 US 1 (1972)) that fear of future surveillance is not sufficient to establish standing. Since the respondents do not face “a threat of certainly impending interception under §1881a,” Justice Alito holds that the respondents’ costs are due to their fear of surveillance and that Laird accordingly applies. Therefore, Justice Alito rejects both of respondents’ arguments for standing.

Dissent

Writing the dissent, Justice Breyer argues that standing exists here because the harm is not speculative. He puts forward a lower threshold that allows for standing in cases where there is a reasonable probability of future injury coupled with present injury related to mitigating the threatened effects of the future injury.

Conclusion

Standing was the main issue of this case, yet the USSC did not engage in an analysis of the constitutionality of §1881a. This is unfortunate because this law implicates the privacy concerns of many Canadians. One major concern is that Canadians could be targeted. A successful application to use §1881a allows the US government to monitor the target’s communications for one year, so any Canadian that is targeted will be extensively monitored. This law is also particularly concerning to Canadians because we have such frequent contact with the US. Canadians occupy a large part of the universe of communications that could be potentially targeted under this law.

It is encouraging that applications for using this surveillance power are subject to scrutiny from both the FISA court and Congress. If this discretion is exercised intelligently, the impact on the privacy of Canadians should be minimal.

A (Very) Brief History of Ontario’s Jury and Coroner’s Inquest System

As Sara Hanson pointed out in her recent post on R v Davey, juries are a fundamental aspect of our justice system and the right to be tried by a jury is protected under s. 11(f) of the Charter. In order for a jury to function properly, it must be representative and impartial. The 1991 Supreme Court of Canada decision R v Sherratt [1991] 1 SCR 509 recognized the requirement of a representative jury as a constitutional principle. At paragraph 35 of the decision, L’Heureux-Dube J noted that:

[T]he Charter right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and represen­tativeness, a jury would be unable to perform many of the functions that make its existence desirable in the first place.

The way in which juries are comprised in Ontario is governed by the Juries Act. Through this process, randomly selected Canadian citizens who reside in the province are sent jury service notices and are required to fill them out. From these citizens, a jury roll is prepared each year and those on the jury roll maybe called for jury duty.

In most cases, the people on the jury roll are selected from municipal assessment lists. However, the names of First Nations people living on-reserve are not found on municipal assessment lists. In this situation, s. 6(8) of the Juries Act states that:

In the selecting of persons for entry in the jury roll in a county or district in which an Indian reserve is situate, the sheriff shall select names of eligible persons inhabiting the reserve in the same manner as if the reserve were a municipality and for the purpose, the sheriff may obtain the names of inhabitants of the reserve from any record available.

Historically, the Federal Department of Indian and Northern Affairs (INAC) provided the names of First Nations people living on-reserve to the Provincial Jury Centre, which would then send jury questionnaires to all eligible Ontario residents. The federal government stopped this practice in 2000; since then, Ontario’s government has not found a way to accurately add the names of First Nations peoples to the list of citizens who are sent jury questionnaires.

Another instance where juries are used is in coroner’s inquests. Inquests can either be mandatory or discretionary. Mandatory inquests are held in specific situations set out in the Coroners Act, such as when someone dies while in police custody. Discretionary inquests can be called when the coroner feels it is in the public interest to inquire into a death. In these cases, recommendations are made to try and prevent deaths from occurring in similar circumstances. Every coroner’s inquest has a jury of five people assigned to it, and this jury is chosen from a list of jurors taken from the same jury roll as criminal trials.

Coroner’s Inquests and the Need for a Representative Jury: Kashechewan, Pierre v McRae, and Reggie Bushie

During the 2008 inquest into the deaths of Jamie Goodwin and Ricardo Wesley at the Kashechewan First Nation police detachment, it was discovered that the Kenora District jury rolls only contained the names of members from 14 of the 49 First Nations represented by the Nishnawbe Aski Nation (NAN) and no members of the Kashechewan First Nation.

This discovery prompted the families of Reggie Bushie and Jacy Pierre (a First Nations man who died while in police custody) to request that the coroners in charge of the two respective inquests issue a summons to the Director of Court Operations for Ontario’s Northwest Region, Mr. Gordon, so they could ensure that the jury roll in Thunder Bay was representative. In both instances, the coroners refused to do so. The Pierre family and NAN applied for a judicial review of each coroner’s decision and a stay of the inquests pending the hearing of this application. The Divisional Court dismissed the applications for judicial review and the Pierre inquest proceeded without the participation of the Pierre family. The Bushie inquest was stayed.

The judicial review applications were appealed to the Ontario Court of Appeal (ONCA). In Pierre v McRae, 2011 ONCA 187, released on March 10, 2011, Laskin JA overturned the Divisional Court’s decision, ordered a new inquest into the death of Mr. Pierre, and ordered Mr. Gordon to appear at both inquests to give evidence about the establishment of the jury roll in Thunder Bay. Following ONCA’s decision, the coroner in the Bushie inquest determined that Thunder Bay’s jury roll was not representative and therefore the inquest was stayed until a representative jury roll was created. On August 30, 2012, the Reggie Bushie inquest was expanded to include the deaths of Jethro Anderson, Curran Strang, Paul Panacheese, Robyn Harper, Kyle Morriseau, and Jordan Wabasse.

“First Nations Representation on Ontario Juries” or the Lack Thereof: The Problems and the Recommendations

Shortly thereafter, former Supreme Court of Canada Justice Frank Iacobucci was appointed by the Ontario government to carry out an Independent Review to make recommendations regarding First Nations representation on juries. As per Order-In-Council 1388/2011 (August 11, 2011), the Review was set up:

(a)   to ensure and enhance the representation of First Nations persons living on reserve communities on the jury roll; and

(b)  to strengthen the understanding, cooperation and relationship between the Ministry of the Attorney General and First Nations on this issue.

On February 26, 2013, the report from this Review, entitled “First Nations Representation on Ontario Juries”, was released. The overall message of the report is hardly surprising: First Nations peoples face systemic discrimination in their relations with Canada’s justice system and therefore do not have a positive relationship with legal institutions. Tied in with these realities is the fact that First Nations peoples are notably underrepresented on jury rolls, which calls into question the ideal of a representative jury in Canada.

To be clear, the principle of a representative jury does not mean that there must be First Nations representation on all juries. As Mr. Iacobucci notes at paragraph 130 of the Review:

The principle of representativeness requires that jurors be selected at random from a pool whose composition is representative of Canadian society as a whole. In order to be representative, no group of Canadians can be systematically excluded. However…no one has the right to have individuals from a particular group on their jury panel, or to be tried exclusively by members of a group to which they belong.

For years, First Nations people living on-reserve have been excluded from jury rolls as Ontario’s government failed to take steps to obtain accurate contact information in order to have jury questionnaires sent out and completed by people living on-reserve to ensure that the jury rolls could include sufficient numbers of First Nations people to be representative. As is stated in the Review, 30-36% of Kenora’s population lives on reserve, but these residents make up less than 10% of the Kenora jury roll. Similarly, in Thunder Bay, on-reserve residents make up 5% of the population but only 1.3% of the jury roll.

The most poignant aspects of the Review are the sections that explain the reasoning behind First Nations peoples’ reluctance to participate in the jury process. As is noted at paragraph 209, “the most significant systemic barrier to the participation of First Nations peoples in the jury system in Ontario is the negative role the criminal justice system has played in their lives, culture, values, and laws throughout history.” Historically, criminal jury trials were used as “a tool to punish … disloyal behaviour on the part of Aboriginal people, and to persecute the customary practices of First Nations on the grounds that they constituted criminal behaviour” (paragraph 79).

In addition to this factor, Mr. Iacobucci also notes that there exists a core conflict between First Nations cultural values, laws, and ideologies with regards to traditional approaches to conflict resolution and the Canadian justice system. Many First Nations groups reported that the objective of their approach to justice is to “re-attain harmony, balance, and healing with respect to a particular offence, rather than seeking retribution and punishment” (paragraph 210). Interestingly, it is also stated that “[a]nother core traditional First Nations value that often prevents many First Nations people from participating on juries for criminal trials relates to the cultural teaching that a person is not to sit in judgment of the actions of another or to direct a person’s actions” (paragraph 213).

Mr. Iacobucci notes that these tensions go beyond the Review’s mandate to make recommendations as to how to ensure a representative jury roll in Ontario. However, many of the recommendations that are made in the Review speak to the larger problem of the disenfranchisement First Nations people feel with Canada’s justice system. The recommendations range from the practical (the suggestion of using the OHIP database to generate a list of First Nations individuals living on reserve for the purposes of compiling the jury roll) to the systemic (cultural training for government workers and more comprehensive justice education programs for First Nations individuals), but one thing is clear: A larger effort must be made to ensure that a representative jury, one of the bedrocks of our justice system, is realized. Only then can the inquest into the deaths of Jethro Anderson, Curran Strang, Paul Panacheese, Robyn Harper, Reggie Bushie, Kyle Morriseau, and Jordan Wabasse be completed and steps be taken to prevent any similar deaths in the future.

To learn more about First Nations youths attending high school far from home in Thunder Bay, the CBC’s Fifth Estate episode “Stories from the River’s Edge” provides a glimpse into the situation.

Litigating less serious small claims disputes may not require filling out lengthy paperwork or taking time off work to attend a court hearing anymore.

The British Columbia Ministry of Justice recently released part two of their White Paper on Justice Reform. They are recommending a simplified and user-friendly court process called the Civil Resolution Tribunal that reflects the realities of our hyper-connected world:

“Canada’s first ‘online’ tribunal, the Civil Resolution Tribunal, will meet citizen needs by making the majority of dispute resolution services available online or by email, telephone, and video. In-person meetings and hearings will also be possible, but will be used only when necessary. These services represent an attempt to modernize the justice system through a focus on meeting citizen needs, user satisfaction, and continuous improvement through innovation.”

For the Ministry of Justice to embrace technology and the internet as a way to improve dispute resolution services is a promising step. It also indicates an awareness that the justice system needs to be modernized to offer innovative services to the public.

The Ministry of Justice plans to appoint a Civil Resolution Tribunal chair and invests in the technology to launch the new service by March 31, 2014.

Anti-bullying Bill 18 Faces Opposition in Manitoba

The Manitoba legislature’s Bill 18 has been proposed to amend the provincial Public Schools Act to include definitions of bullying and the establishment of policies to encourage respect for diversity in schools and to combat cyberbullying. Even though it has not yet reached first reading in the legislature it is facing opposition from the community.

Religious schools allege that Bill 18 infringes on religious freedoms because it forces schools to accommodate students who want to organize anti-bullying groups that may not align with the beliefs of the institution – such as gay-straight alliances.

Section 41(1.8) of the Bill would require that all schools “must accommodate pupils” who promote the “awareness and understanding of, and respect for, people of all sexual orientations and gender identities.”

This section conflicts with the Catholic teaching that homosexuality is wrong and this could arguably qualify as “bullying” under the Bill.

The Manitoba legislature will debate the merits of the Bill this spring.

Federal Court Chief Justice Recommends a National Pro Bono Duty Counsel Program

A quarter. That is the estimated number of litigants in Federal Court who do not have a lawyer. But Chief Justice Paul Crampton has proposed a solution: implement a national pro bono duty counsel program for lawyers, recent graduates, and law students to provide greater access to justice.

The program would allow students to obtain practical experience in the courtroom, and could also be used to fulfil licensing requirements. Crampton refers to the plan as a “quintuple win-win” that would provide benefits to the court, unrepresented litigants, the Crown, students, and law firms.

While still in the very early stages of planning, the idea has so far received positive responses from the Law Society of Upper Canada and Ontario law schools.