Sibling Rivalry Sorted by the SCC; Gives Go-Ahead for McArthur’s Last Job in Canada (AG) v McArthur

Over the holidays, in a series of concurrently released decisions, the Supreme Court of Canada (“SCC”) considered how a citizen could sue the Crown to financially recover on a wrong committed by an administrative decision maker. The question before the Court was whether one may bring the action directly, or did the lawfulness of the Crown’s actions have to be first determined through a judicial review?

One case in particular, Canada (Attorney General) v McArthur, 2010 SCC 63, has caught the public’s imagination. The facts are fantastical. It involves one of Canada’s most notorious criminals, a hostage-taking, prison-breaking bank robber, who is trying to sue the Crown for damages stemming from the extraordinary time he spent in solitary confinement.

The Suit

In 2006, Michiel McArthur brought a suit against his warden and the appellant James Blackler, who is an Agent of the Crown. McArthur alleged that the warden’s decisions to keep McArthur in solitary confinement for four years and six months from 1994-1999 were unlawful. In his Statement of Claim, McArthur sought damages on the claim that he suffered “severe emotional and psychological injury and harm” as a result of his inability to visit with his wife and daughter, as well as from being denied access to schooling, rehabilitation and recreation programs. He further claimed that his solitary confinement was based on the warden’s “malicious ill-will” towards McArthur, and as such, arbitrary and cruel and unusual punishment, contrary to ss. 9 and 12 of the Charter.

The Crimes

Any ill – will on the part of the warden for this particular inmate may be understandable. McArthur has two apparent proclivities: robbing banks and escaping from prison once he’s caught. In 1983, McArthur robbed a bank in Hepworth, Ontario and shot a citizen who tried to stop his escape. He was apprehended, and put in Milhaven Penitentiary, a maximum-security prison. A short time after, he escaped, and proceeded to rob three more banks over the next 14 months before he was arrested again. While out on automatic early release, he robbed another bank in Port Perry, Ontario, shooting the bank manager in the leg, and brutally wounding three police officers. Read more about it here.

All told, since 1968, McArthur has been convicted of 160 crimes, including four counts of attempted murder. He has staged brazen escapes not only from Milhaven, but also from Collins Bay Penitentiary and Saskatchewan Penitentiary. In 1990, he wrote a book his escapades entitled “I’d Rather be Wanted than Had, the Memoirs of an Unrepentant Bank Robber.” So, you can see how his relations with his jailers might be a bit strained.

Time Served

Eventually, McArthur was apprehended and once again sentenced to prison, where he was placed in solitary for an 18-month stint. In 1996, McArthur elects to be moved to Kingston penitentiary, but just before he is scheduled to arrive, Blackler is appointed the warden there. Together again, Blackler locks McArthur away in solitary in Kingston for a 14 month period. You know the saying: escape from jail once, shame on you. Escape from jail four times, shame on me! I imagine the warden, Blackler, keeps the only key on a string tied around his neck, but that’s just conjecture.

During all these months in solitary confinement, McArthur has had some serious time to think. As you can guess from the title of his book, he has not been mourning his victims or expressing regret for his crimes.  Instead, he has been thinking of a way to get paid, as clearly, his bank robbing days are behind him. Unfortunately, he may have concocted a clever means to make money:  Blackler may have cut some administrative corners in his decisions to keep his least favorite inmate in solitary. Lucky for McArthur, there are rules that govern warden’s decisions, and those rules apply to every single incarcerated person.

The Issue

McArthur is seeking compensation for damages caused by Blackler’s decision to keep him in solitary confinement. A crucial element of McArthur’s argument for damages is proof that Blackler acted contrary to the Corrections and Conditional Release Act, SC 1992, c 20, which regulates the segregation order to place inmates into solitary confinement. This would require a review on the lawfulness of Blackler’s decision in his role as warden. Administrative law tells us the usual way to review decisions of the executive branch of government is through judicial review; in this case because the decision maker is regulated by a federal statute, that judicial review would be through the Federal Court of Canada.

McArthur, however, is not seeking judicial review of Blackler’s decision because he is not interested in an order that the decision was contrary to law, but is only interested in that finding as it is useful to his claim for damages. At issue is whether McArthur can bring his claim for damages directly in the provincial superior court, or whether he must first get an order from the Federal Court that Blackler acted contrary to law before he proceeds with a claim for financial compensation.

Judicial History

In 2006, the Superior Court of Ontario, the motions judge accepted the AG’s arguments based on the Federal Court of Appeal’s decision in Canada v Grenier, 2005 FCA 348 [Grenier], that allowing the action to proceed would be denying the intention stated in the Federal Courts Act, RSC 1985, c F-7 [FCA], to grant the Federal Court exclusive jurisdiction in matters of judicial review. Therefore, it was found that a plaintiff alleging a compensable loss as a result of an administrative decision must first have the lawfulness of the decision determined by the Federal Court.

In 2008, the Ontario Court of Appeal in TeleZone Inc v Attorney General (Canada), 2008 ONCA 892, decided that Grenier had in fact not been correctly decided, and that the Attorney General had not established that the plaintiff’s claim fell within s. 18 (para 94) of the FCA. In their view, s. 18 of the FCA is concerned with the remedies of prerogative writs and other extraordinary remedies, not simply relief by way of damages.

Essentially, the Federal Court has exclusive jurisdiction in matters pertaining to causes of action in administrative law, which are to be put for judicial review, but not contract or tort law, and certainly not constitutional law.

The Law

The SCC decided that the provincial superior court has jurisdiction over both McArthur’s claim for damages and the question of the constitutionality of Blakley’s segregation order.

Regarding McArthur’s claim for damages, while the issue of the lawfulness of Blackler’s segregation orders is in play, it is an element of a private law cause of action over which the provincial superior court has jurisdiction. “There is nothing in the federal legislation that says the provincial courts can only determine some – but not all – elements of his monetary claims against the Crown” (para 13). McArthur, then, does not have to seek judicial review of Blackler’s segregation order to make out his claim for damages.

Regarding the constitutional challenges, the Court held that the FCA “cannot operate to prevent provincial superior court scrutiny of the constitutionality of the conduct of federal officials” (para 14). While the Constitution authorizes the creation of additional of the Federal Court, that does not preclude the provincial superior court’s concurrent jurisdiction over the Constitution.

Looking at this case from the lens of access to justice, it is a good thing that the SCC has told the Federal Court that it’s not allowed to be the only one to decide matters of such national importance as challenges to the Crown. Had the SCC decided against McArthur, claimants seeking compensation for wrongs committed by the Crown would first have to seek an order declaring a decision unlawful before proceeding with a separate action for compensation. Given the costs involved in making a legal claim, this process would have functioned as a barrier to insulate the Crown from liability for its actions.  The mode adopted by the Court more readily holds the Crown liable for its wrongs.

If that’s the case, then Michiel McArthur – bank-robber, hostage-taker and three-time prison-escapee – has actually done the world some good.

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