Morton's Musings

From the Notebook of James C. Morton

July 23, 2008

Issuance of Process Under Provincial Offences Act

Today's Court of Appeal decision in R. v. Alrifai, 2008 ONCA 564 deals with the issuance of process by a Justice of the Peace under the Provincial Offences Act. The issuance of process follows the same basic approach as the laying of a private information under the Criminal Code.

Broadly put the decision says that s. 23 of the POA imposes on a Justice a duty to receive an information from a person with the requisite state of belief that an offence has occurred. The duty to receive and information is not discretionary; of course receiving an information does not mean process will issue.

This general rule may be set aside by specific provisions requiring, for example, a consent before a prosecution is initiated.

The Court held:

THE STATUTORY PROVISIONS

[8] Section 23(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33 (POA) describes the authority to lay an information and the correlative duty of a justice of the peace to receive the information laid by an informant:

23. (1) Any person who, on reasonable and probable grounds, believes that one or more persons have committed an offence, may lay an information in the prescribed form and under oath before a justice alleging the offence and the justice shall receive the information.

[9] Section 24(1) of the POA sets out the obligations of the justice who receives an information laid under s. 23. The obligations are these:

24. (1) A justice who receives an information laid under section 23 shall consider the information and, where he or she considers it desirable to do so, hear and consider in the absence of the defendant the allegations of the informant and the evidence of witnesses and,

(a) where he or she considers that a case for doing so is made out,

(i) confirm the summons served under section 22, if any,

(ii) issue a summons in the prescribed form, or

(iii) where the arrest is authorized by statute and where the allegations of the informant or the evidence satisfy the justice on reasonable and probable grounds that it is necessary in the public interest to do so, issue a warrant for the arrest of the defendant; or

(b) where he or she considers that a case for issuing process is not made out,

(i) so endorse the information, and

(ii) where a summons was served under section 22, cancel it and cause the defendant to be so notified.

...

[17] Section 23(1) of the POA entitles anyone who has the required state of belief to lay an information in the prescribed form and under oath before a justice. The section imposes a correlative duty on the justice to receive the information compliant with the section. In other words, s. 23(1) creates a right (for the informant) and a duty (for the justice).

[18] Section 23(1) is a provision of general application, predictably silent about the right of an informant to lay an information and the duty of a justice to receive it where the statute allegedly contravened requires consent to the institution of a prosecution. Further, neither s. 23(1) nor any other provision of the POA to which we have been referred defines or otherwise elucidates the meaning to be assigned to the introductory words “no prosecution shall be instituted”, as the limitation appears in s. 39.1(9) of the HTA and elsewhere in the catalogue of provincial statutes.

[19] In R. v. Linamar Holdings Inc., [2007] O.J. No. 4859, this court considered the meaning to be assigned to the provisions of s. 69 of the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1, which provides that no “prosecution … shall be instituted” more than one year after the last act upon which the prosecution is based occurred. Linamar argued, as the appellant does here, that a prosecution is not instituted until an information is laid and a summons or warrant issued.

July 21, 2008

Living on the Avails

Last week’s British Columbia Court of Appeal decision in R. v. Nicolaou, 2008 BCCA 300 deals with a narrow but important point – does someone who takes money for value from a prostitute live “on the avails” of prostitution.

The answer is no, because if that were true a prostitute, who engages, it must be recalled, in a legal occupation would be unable to acquire anything.

The Court writes:

[61] I do not agree with the judge’s conclusion in para. 90 that the appellant was guilty of living on the avails of prostitution because he was “running a business [selling drugs] funded in part by the proceeds of the complainant’s prostitution”. If this were the law, any supplier of goods to a prostitute would be living on the avails of prostitution.

July 19, 2008

Mandatory Retirement Proper In Some Circumstances

New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45, released today, continues the Supreme Court's surprising re-evaluation of employment law.

Melrose Scott, a former miner with the Potash Corporation of Saskatchewan, wanted to stay with the company beyond its mandatory retirement age so he could top up his pension. The company said no, and on Friday, the Supreme Court agreed with that decision. Mandatory retirement laws were struck from New Brunswick's books in 1973, but some exceptions continue to apply, including those related to pension plan contracts or collective agreements. The SCC determined the Potash Corporation made the pension agreement in good faith and not from a position of age discrimination. As a result the mandatory retirement was proper.

Under the provincial Human Rights Code, the age discrimination provisions are expressly declared not to be applicable under s. 3(6)(a) if the employee is terminated pursuant to a “bona fide pension plan”. A Board of Inquiry was asked what constitutes a bona fide pension plan within the meaning of s. 3(6)(a) of the Code. The Board concluded that, once a prima facie case of age discrimination has been made out, the employer had to satisfy the three-part “bona fide occupational requirement” test from British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3.

On judicial review, the Court of Queen’s Bench set aside the Board’s decision and applied a different test, indicating that the pension plan must be both bona fide and reasonable. The Court of Appeal dismissed the employee’s appeal and allowed the employer’s cross-appeal. It concluded that, under s. 3(6)(a), the applicable test was whether the plan was subjectively and objectively bona fide. The Supreme Court agreed.

The three-part Meiorin test is applicable to s. 3(5) of the New Brunswick Human Rights Code, which deals with bona fide occupational qualifications, but does not apply to s. 3(6)(a) of the Code, which addresses “bona fide” retirement or pension plans.

The words “bona fide” in s. 3(6)(a) are used to qualify a different provision in a different context. When used with “occupational qualification” or similar expressions, “bona fide” is a well-understood and accepted term of art in human rights law, but pensions have been treated differently in most human rights codes because they arose from different protective concerns. In enacting s. 3(6)(a), the legislature was seeking to confirm the financial protection available to employees under a genuine pension plan while ensuring that they were not arbitrarily deprived of their employment rights pursuant to a sham. If both ss. 3(5) and 3(6)(a) anticipated the same analysis, s. 3(6)(a) would be redundant.

To meet the bona fide requirement in s. 3(6)(a), a pension plan must be subjectively and objectively bona fide: it must be a legitimate plan, adopted in good faith and not for the purpose of defeating protected rights. The inquiry is into the overall bona fides of the plan, not the actuarial details or mechanics of the terms and conditions of the plan.

Registration under the New Brunswick Pension Benefits Act is at least one helpful indication of the bona fides of a pension plan. Accordingly, unless there is evidence that the pension plan as a whole is not legitimate, it will be protected by s. 3(6)(a) from the conclusion that a particular provision compelling retirement at a certain age constitutes age discrimination.

The Court held:

[41] In my view, for a pension plan to be found to be “bona fide” within the meaning of s. 3(6)(a), it must be a legitimate plan, adopted in good faith and not for the purpose of defeating protected rights.

July 18, 2008

Solicitor-Client Privilege -- Dicta from the Supreme Court of Canada

Yesterday’s Supreme Court of Canada decision in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 contains a useful restatement of the importance of Solicitor-Client privilege:

[9] Solicitor-client privilege is fundamental to the proper functioning of our legal system. The complex of rules and procedures is such that, realistically speaking, it cannot be navigated without a lawyer’s expert advice. It is said that anyone who represents himself or herself has a fool for a client, yet a lawyer’s advice is only as good as the factual information the client provides. Experience shows that people who have a legal problem will often not make a clean breast of the facts to a lawyer without an assurance of confidentiality “as close to absolute as possible”:

[S]olicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis.

(R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14, at para. 35, quoted with approval in Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61, at para. 36)

It is in the public interest that this free flow of legal advice be encouraged. Without it, access to justice and the quality of justice in this country would be severely compromised. The privilege belongs to the client not the lawyer. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 173, McIntyre J. affirmed yet again that the Court will not permit a solicitor to disclose a client’s confidence.

[10] At the time the employer in this case consulted its lawyer, litigation may or may not have been in contemplation. It does not matter. While the solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer rather than as a business counsellor or in some other non-legal capacity: Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 837; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, at pp. 885-87; R. v. Gruenke, [1991] 3 S.C.R. 263; Smith v. Jones, [1999] 1 S.C.R. 455; Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., [2004] 1 S.C.R. 456, 2004 SCC 18, at paras. 40-47; McClure, at paras. 23-27; Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, 2006 SCC 39, at para. 26; Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32, 2006 SCC 31, at paras. 5 and 31; Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189, 2006 SCC 36; Juman v. Doucette, [2008] 1 S.C.R. 157, 2008 SCC 8. A rare exception, which has no application here, is that no privilege attaches to communications criminal in themselves or intended to further criminal purposes: Descôteaux, at p. 881; R. v. Campbell, [1999] 1 S.C.R. 565. The extremely limited nature of the exception emphasizes, rather than dilutes, the paramountcy of the general rule whereby solicitor-client privilege is created and maintained “[a]s close to absolute as possible to ensure public confidence and retain relevance” (McClure, at para. 35).

[11] To give effect to this fundamental policy of the law, our Court has held that legislative language that may (if broadly construed) allow incursions on solicitor-client privilege must be interpreted restrictively. The privilege cannot be abrogated by inference. Open-textured language governing production of documents will be read not to include solicitor-client documents: Lavallee, at para. 18; Pritchard, at para. 33. This case falls squarely within that principle.

July 18, 2008

Duty to Accomodate and the Supreme Court of Canada; Today's Decision in Hydro-Québec

There can be little doubt but that the Supreme Court of Canada is making major changes to employment law in Canada.

The Keays decision a few weeks ago clarified Wallace damages -- whether cutting them back or making them effectively unlimited is not clear -- and today's decision in v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 addressed the duty to accommodate an ill employee and the interaction between an employer’s duty to accommodate sick employee and an employee’s duty to do work.

In large part the decision turned on the peculiar facts presented; the employee missed 960 days of work between January 3, 1994 and July 19, 2001. That said the Court clearly limited the duty to accommodate and has made it easier to terminate employment for frustration.

While arising in a Quebec union context the Supreme Court's holding would seem directly applicable to other provinces and employment law generally. (Whether the reasoning is broad enough to apply to a Human Rights context is not immediately obvious -- this author thinks likely not as employment is a very different context that the quasi-constitutional Human Rights context but the issue is open.)

Turning to the details of the case the employee had a number of physical and mental problems, and her record of absences indicated that she had missed 960 days of work between January 3, 1994 and July 19, 2001. Over the years, the employer had adjusted her working conditions in light of her limitations.

At the time of her dismissal on July 19, 2001, the complainant had been absent from work since February 8. Her attending physician had recommended that she stop working for an indefinite period, and the employer’s psychiatric assessment mentioned that the complainant would no longer be able to [translation] “work on a regular and continuous basis without continuing to have an absenteeism problem as in the past”.

The employee filed a grievance, alleging that her dismissal was not justified. The arbitrator dismissed the grievance on the basis that the employer had proven that, at the time it dismissed the employee, she was unable, for the reasonably foreseeable future, to work steadily and regularly as provided for in the contract. Furthermore, the conditions for her return to work suggested by the union’s expert would constitute undue hardship.

The Quebec Superior Court dismissed the motion for judicial review of the arbitrator’s decision. The Quebec Court of Appeal set aside the Superior Court’s judgment, holding that the employer had not proven that it was impossible to accommodate the employee’s difficulties. It added that the arbitrator should not have taken only the absences into account, since the duty to accommodate must be assessed as of the time the decision to terminate the employment was made.

The Supreme Court of Canada disagreed holding the test for undue hardship stated by the Court of Appeal was erroneous. The test is not whether it was impossible for the employer to accommodate the employee’s difficulties. Although the employer does not have a duty to change working conditions in a fundamental way, it does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work. The test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test.

The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.

The Supreme Court also held that Court of Appeal erred in holding that the duty to accommodate was to be assessed as of the time the decision to dismiss the complainant was made. It is instead necessary to assess the duty to accommodate globally in a way that takes into account the entire time the employee was absent.

July 17, 2008

Cross Examination on Affidavit

Last week's Superior Court decision in Silver v. Imax Corporation, 2008 CanLII 34361 (ON S.C.) sets out the test for when a question is proper on cross-examination on an affidavit.

The Court holds:

[12] Typically, the test for whether a question should be answered in an examination for discovery is whether the information to be elicited has a semblance of relevance to the issues in the action. The same test is applicable to cross-examinations of deponents in motions. In such cross-examinations, a deponent may be asked questions not only about the facts deposed in his or her affidavit, but also questions within his or her knowledge which are relevant to any issue on the motion. Master Macleod in Caputo v. Imperial Tobacco Limited., (2002) 25 C.P.C. (5th) 78 (affd. On appeal at 33 C.P.C. (5th) 214 put the rules succinctly as follows:

* If you put it in, you admit its relevance and can be cross-examined on it at least within the four corners of the affidavit;

* You can't avoid cross-examination on a relevant issue by leaving it out;

* You can't get the right to cross-examine on an irrelevant issue by putting it in your affidavit; and

* You can be cross-examined on the truth of facts deposed or answers given but not on irrelevant issues directed solely at credibility.

July 17, 2008

Landlord's Consent to Assign Commercial Lease

It is common for commercial leases to permit assignment with consent of the landlord provided the consent is not unreasonably withheld.

Today's Superior Court decision in Cvokic v. Belisario, 2008 CanLII 35269 (ON S.C.) discusses when withholding consent will be unreasonable.

In summary, the withholding will be unreasonable where it is motivated by a purpose collateral to ensuring the existing lease is fulfilled -- for instance to obtain a settlement of a lawsuit or to improve the terms of the existing lease.

The Court writes:

[25] The burden is on the tenant to satisfy the court that the refusal to consent was unreasonable. The question is whether a reasonable person would have withheld the consent.

[26] The landlord is not entitled to require amendments to the terms of the lease that will provide it with more advantageous terms. I find the landlord tried to do that in the facts before me. The refusal will be unreasonable if it was designed to achieve a collateral purpose or benefit to the landlord that was wholly unconnected with the bargain between the landlord and tenant reflected in the terms of the lease.

[27] I find as a fact that the landlord tried to achieve a collateral purpose by insisting on this lawsuit being dismissed before the consent would be given. This, I find, is unreasonable withholding of consent.

[28] I find that the landlord acted unreasonably because it is not conceivable to me that they would not consent to getting rid the tenant whom they thought was a thorn in their side. I find that the landlords did not want the space in question to be a perpetual pizzeria. See Exhibit #2, Tab 93, page two of two.

[29] I find that they were being unreasonable when they wanted to be able to evict on any default any option to be theirs and theirs alone. I find that John wanted to change the terms of the existing lease and wanted to limit it to a year.

July 16, 2008

Summary Judgment Explained - New Brunswick

Rule 22 of the New Brunswick Rules of Court is similar to Rule 20 in Ontario. It allows for summary judgment where:

22.04 Disposition of Motion

Where No Defence or Merit to Action

(1) Where, on a motion for judgment, the applicant satisfies the court that

(a) there is no defence or merit to a claim or part thereof, and

(b) the applicant is entitled to judgment, the court may grant judgment.

The recent Court of Appeal decision in Kennedy v. HSBC Bank Canada, 2008 NBCA 48 reviews the law on summary judgment and gives a useful overview especially where the main issue is whether the moving party has met their burden of going forward.

The Court holds:

[11] This Court’s decision in Cannon v. Lange et al. (1998), 203 N.B.R. (2d) 121, [1998] N.B.J. No. 313 (QL), not only articulates the purpose of Rule 22, to “secure the just, least expensive and most expeditious determination of [the] proceeding on its merits” (para. 8), but also the ways by which the application of the Rule accomplishes that purpose. While admonishing “motion judges not to be unduly timid where the circumstances demonstrate a clear absence of merit” (para. 9), Drapeau, J.A., now C.J.N.B., recognized that notwithstanding the rule “confers a wide [judicial] discretionary power”, the exercise of such discretion requires the application of a “stringent test before the drastic remedy of summary judgment can be granted” (para. 16). He emphasized such test in para. 17: The wording of Rule 22.04 sets the standard at a high level. It provides that the court may grant judgment only where there is no merit to the defence or no merit to the claim, or part thereof. The wording leaves no room for anything but a very stringent test. Practical experience with the civil process inspired the trial lawyers and judges who drafted Rule 22.04 to choose its wording. The wording reflects their conviction that, except in clear cases, the best truth-finding device is a trial.

[12] Relating the Cannon v. Lange stringent test to the circumstances of this case, the motion judge was required, before granting summary judgment, to find there was no merit to Mr. Kennedy’s defence, that is, no question about what a trial judgment would be, and that HSBC’s case had to be unanswerable.

[13] In that context, the motion judge had an obligation “to consider not only the pleadings, but also any admissible evidence”: see paras. 21 and 22 in Cannon v. Lange. Ultimately, “the Court’s ability to [determine the motion] will necessarily depend on the nature and quality of the evidentiary record which the parties can place before it”.

[14] Concerning either party’s preparation when seeking or opposing an application for summary judgment, Cannon v. Lange bluntly alerts each to the threshold that must be hurdled for success. Paragraphs 23 and 24 prescribe:

Common sense should move the parties to put their best foot forward on a motion under Rule 22. Such a course of conduct is particularly wise for a respondent, since he or she has the most to lose. As stated by the Ontario Court of Appeal in 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 at 557 in a vernacular expression, the respondent "must lead trump or risk losing." It will rarely be sufficient for the respondent to promise that evidence, which is admissible pursuant to Rule 39.01(4), will be produced at trial: absent a compelling explanation, the respondent is required to produce admissible evidence which will prevent a conclusion that the action or defence is bereft of merit. I have no doubt that, where the ends of justice require, the court will allow all appropriate accommodations including leave to file further affidavit evidence.

It is up to the moving party to satisfy the court that an apparent factual controversy or credibility conflict is a sham. If material facts remain genuinely in dispute after the court has taken a hard look at the evidence and the pleadings, it is not appropriate to grant summary judgment (see RCL Operators Ltd.). Likewise, where there is an unresolved genuine credibility conflict relating to a material question, it is not appropriate to grant summary judgment.

July 15, 2006

Charter to Inform Statutory Interpretation Only in Cases of Ambiguity

There is a principle of interpretation that legislation and regulation ought to be interpreted to reflect Charter values – in effect, interpretation ought to be informed by the core values of society.

The recent Nova Scotia Court of Appeal decision in O’Hara v. Nova Scotia (Education), 2008 NSCA 62 upholds the principle but notes the application is limited to situations of ambiguity. (Quaere, if legislation is clear and contrary to the Charter, should the legislation stand?). The Court holds:

[61] In the alternative, the appellants maintain that the Code of Ethics should be interpreted so as to maximize their Charter right to free speech. In other words, limiting the application of the Code to behaviour during actual Board meetings reflects this Charter value. They explain it this way in their factum:

¶ 102 There is a second aspect to the determination whether the comments made here are a breach of the Code of Ethics. The appellants argue that the particular comments here - a criticism of the Board as a rubber stamp for staff, and of individuals as racists - must in any event be protected speech. Although on their face, the comments might appear to violate the Board’s Code of Ethics, that Code must be read in a way which is consistent with Charter values and in that light the comments are protected. Because the comments are not a breach of the Code of Ethics read in that light, the basis for the removal of the Board’s authority does not exist.

[62] The problem with the appellants' submission is this. The presumption of interpreting legislation so as to protect Charter values is limited to circumstances where the subject provision (the Code of Ethics) is otherwise ambiguous. For example, Iacobucci, J., for the Supreme Court of Canada in Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, states:

¶ 28 Other principles of interpretation – such as the strict construction of penal statutes and the "Charter values" presumption - only receive application where there is ambiguity as to the meaning of a provision. ...

¶ 29 What, then, in law is an ambiguity? To answer, an ambiguity must be "real" (Marcotte, supra, at p. 115). The words of the provision must be "reasonably capable of more than one meaning" [cite omitted]. By necessity, however, one must consider the "entire context" of a provision before one can determine if it is reasonably capable of multiple interpretations. In this regard, Major J.'s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney Page: 27 General), [1999] 1 S.C.R. 743, at para. 14 is apposite: "It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids" (emphasis added), to which I would add, "including other principles of interpretation".

¶ 30 ... It is necessary, in every case, for the court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafter to determine if "the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning" (Willis, supra, at pp. 4-5).

[63] In this case, there is nothing ambiguous about s. 1.03 of the Code which directs board members to "at all times show respect for others".

July 13, 2008

Self-Defence Applied

Last week’s British Columbia Court of Appeal decision in R. v. Teskey, 2008 BCCA 288 (CanLII) contains a useful summary of when self-defence can apply as a defence. The Court held:

[18] Self-defence is a justification for otherwise criminal conduct. In R. v. Perka (sub nom. Perka v. The Queen), 1984 CanLII 23 (S.C.C.), [1984] 2 S.C.R. 232, a case dealing with the defence of necessity, Dickson J. (as he then was) explained justification in his reasons for the majority (at 246), using self-defence as one example:

Criminal theory recognizes a distinction between “justifications” and “excuses”. A “justification” challenges the wrongfulness of an action which technically constitutes a crime. The police officer who shoots the hostage-taker, the innocent object of an assault who uses force to defend himself against his assailant, the Good Samaritan who commandeers a car and breaks the speed laws to rush an accident victim to the hospital, these are all actors whose actions we consider rightful, not wrongful. For such actions people are often praised, as motivated by some great or noble object. The concept of punishment often seems incompatible with the social approval bestowed on the doer.

[Emphasis in original.]

Thus, the application of force against the victim is not unlawful when the accused’s motive or purpose in applying the force is self-protection so long as the statutory requirements for self-defence are met: see Law Reform Commission of Canada, Working Paper 29, Criminal Law, The General Part: Liability and Defences (Ottawa: Law Reform Commission of Canada, 1982), at 35-36; R. v. Kandola 1993 CanLII 774 (BC C.A.), (1993), 80 C.C.C. (3d) 481 at 488 (B.C.C.A.).

July 12, 2008

Voluntariness of Guilty Plea

What is the proper test for assessing whether a mental disorder affects the voluntariness of a guilty plea?

Yesterday’s Court of Appeal decision in R. v. M.A.W., 2008 ONCA 555 makes it clear that the standard is the same as the standard of fitness to stand trial: the accused must understand the process, communicate with counsel and make an active or conscious choice to plea.

The Court writes:

[23] The judgment of Doherty J.A. in R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), is the principal decision of this court on what an appellant must show to set aside a guilty plea on the ground that it is invalid. A guilty plea is valid if it is voluntary, informed and unequivocal; conversely a plea that is either not voluntary, not informed, or not unequivocal is invalid and may be set aside on appeal. An appellant has the onus of showing invalidity on a balance of probability: see p. 519.

[24] The issue on this appeal is whether the appellant’s depression amounted to a mental disorder that affected the voluntariness of his guilty plea. In T. (R.) Doherty J.A. said that “[a] voluntary plea refers to the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate”: see p. 520. Doherty J.A. also recognized that mental disorder is one factor that may impair the voluntariness of a plea.

[25] Both sides, of course, accept these principles from T. (R.). However, they disagree on what standard should be applied when an appellant relies on mental disorder to invalidate a plea because of involuntariness. The Crown contends that we should apply the same standard we use to determine an accused’s fitness to stand trial: the “limited cognitive capacity” standard. That standard requires only that the court be satisfied an accused understands the process, can communicate with counsel and can make an active or conscious choice. Whether the accused’s choice is wise, rational or in the accused’s best interest forms no part of the limited cognitive capacity standard. See R. v. Taylor (1992), 77 C.C.C. (3d) 551 at 563-67 (Ont. C.A. ).

[26] The appellant, on the other hand, contends that we should adopt a higher standard of mental competency. The limited cognitive capacity standard advocated by the Crown, he argues, may produce miscarriages of justice. He relies on an article by Schneider and Bloom, “R. v. Taylor: A Decision Not in the Best Interests of Some Mentally Ill Accused” (1995) 38 Crim. L.Q. 183, in which the authors suggest that an accused who irrationally seeks self punishment because of severe depression may be mentally unfit. The appellant says that his guilty pleas were involuntary because his conduct was “irrational, hopeless and helpless” and because he “felt there was no other option than to plead guilty”.

[27] In my view, the Crown’s position is correct for two main reasons: first, consistency in the standard for mental competency; second, respect for an accused’s liberty interest. Moreover, the limited cognitive capacity standard is compatible with the voluntariness test in T. (R.).

July 12, 2008

Negligent Failure to Enforce Order May Be Actionable

Yesterday’s Supreme Court of Canada decision in Holland v. Saskatchewan, 2008 SCC 42 says governments can be sued for negligence when they negligently fail to implement a judge's orders. It is important to note that the ruling merely says the claim could succeed – it is a pleadings decision.

The appellant represented a group of game farmers who refused to register in a federal program aimed at preventing chronic wasting disease in domestic cervids, because they objected to the broadly worded indemnification and release clauses in the registration form. As a result, the farmers’ herd status was downgraded to the lowest level, reducing the market price of their product and diminishing their ability to sell it. On judicial review, the farmers established that these clauses had been invalidly included in the registration form and obtained a declaration that the government’s action of reducing the herd certification status was unlawful.

Despite the court’s ruling, the government took no steps to reinstate the farmers’ certification or compensate them for the revenue they lost. They commenced a class action against the Minister, claiming damages on three grounds, including the tort of negligence. The motions judge denied the government’s motion to strike the farmers’ claims in negligence, but the Court of Appeal held that no action lies against public authorities for negligently acting outside their lawful mandates and struck out the cause of action in negligence in its entirety.

The Supreme Court allowed the appeal but only in part.

The statement of claim, read generously as required in an application to strike, focused mainly on two alleged acts of negligence: requiring the game farmers to enter into the broad indemnification agreement and downgrading the status of those who refused to do so. In both cases, the alleged fault was the failure of the public authority to act in accordance with the authorizing acts and regulations. The Court of Appeal correctly held that the appellant’s claim for negligently acting outside the law, or breach of statutory duty, does not constitute negligence and rightly struck the paragraphs of the statement of claim asserting this cause of action. Even if the requirement of proximity were established, policy considerations, including the chilling effect and specter of indeterminate liability, militate against recognizing this new instance of negligence.

However, the Court of Appeal failed to address the appellant’s central claim alleging negligent failure to implement a judicial decree to remedy the wrongful reduction of the appellant’s herd status. The implementation of a judicial decision is an "operational" act that public authorities are expected to carry out. Therefore, in this case, it is not clear that an action in negligence based on the breach of a duty to implement a judicial decree could not succeed in law. Read broadly, the pleading was sufficient to put the government on the notice of the essence of the appellant’s claim and it should not have been struck out.

July 11, 2008

Preliminary Factual Determinations Lead to Final Orders

Is an order that determines a preliminary factual matter relevant to a defendant’s liability final or interlocutory? Today’s Court of Appeal decision in Stoiantsis v. Spirou, 2008 ONCA 553 suggests it is final.
The Court writes:

[19]          The test of whether an order is final or interlocutory is set forth in Hendrickson v. Kallio, [1932] O.R. 675 at 678 ( C.A. ):

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral.

[20]          Hendrickson has been followed by many decisions dealing with the endlessly debated issue of what constitutes a final versus interlocutory order. A decision that is often cited is Ball v. Donais (1993), 13 O.R. (3d) 322 ( C.A. ). In Ball, the defendant moved under rule 21.01(1)(a) for a determination before trial of a question of law raised by the pleadings relating to the application of a limitation period provision. The motions court judge decided the question against the defendant. This court held that the judge’s order was final, reasoning at 324:

The effect of the order of Daudlin J. was to preclude the defendant’s entitlement to raise thereafter, as a defence to this action, the plaintiff’s failure to sue within the limitation period prescribed by the Highway Traffic Act. While that order did not finally dispose of the rights of the parties to the litigation, it did, subject to appeal therefrom, finally dispose of the issue raised by that defence, and thereby deprived the defendant of a substantive right which could be determinative of the entire action. [Emphasis added.]

[21]          Ball extends the reasoning in Hendrickson and establishes that even where an order does not finally dispose of the rights of the parties to the litigation, it will be final for the purposes of appeal if it disposes of an issue raised by way of defence and “thereby deprive[s] the defendant of a substantive right which could be determinative of the entire action.”

[22]          The question then is whether the order in issue deprives the defendants of a substantive right that could be determinative of the action.

July 8, 2008

Appeals of orders not reasons for Orders

There is, from time to time, a question arising about what an appeal court considers -- the order appealed or the reasons therefor?

The general rule is, as set out by the Newfoundland Court of Appeal in the recent case of Newfoundland and Labrador (Office of the Information and Privacy Commissioner) (Re), 2008 NLCA 29, that only the order is appealed and not the reasons.

The reasons go to whether the order is proper but there is no appeal from reasons. There are only appeals from orders. Thus, if a judicial officer makes comments in reasons that a party finds objectionable, but grants the order sought by that party, no appeal lies.

The Court held:

The Court has no jurisdiction to hear the appeal that the Commissioner intends to take. The jurisdiction of the Court is to hear appeals respecting decisions or orders made by a Trial Division judge. (See Section 5 of the Judicature Act, R.S.N.L. 1990, c. J-8). The Court has no jurisdiction to hear an appeal only in respect of comments or reasons expressed by a trial judge in the course of making a decision or order. Having been granted the specific relief he sought from Justice Hall, the Commissioner has no right to appeal that order solely to have reasons associated with it expressed in the manner the Commissioner desires rather than the manner expressed by Justice Hall. (See Newfoundland and Labrador v. Canadian Broadcasting Corporation, 2006 NLCA 21 (CanLII), 2006 NLCA 21, 254 Nfld. & P.E.I.R. 291, 207 C.C.C. (3d) 309).

July 7, 2008

Consultation, negotiation, accommodation - Court of Appeal on First Nations rights and contempt

The Court of Appeal just released its decision in Frontenac Ventures Corporation v. Ardoch Algonquin First Nation, 2008 ONCA 534, an important case dealing with contempt and First Nations protest.

As readers may recall a number of protesters were convicted of contempt in two separate matters for failure to obey court orders and were sentenced to relatively lengthy jail sentences. The Court of Appeal overturned the sentences but with “reasons to come”.

Specifically, in the first case six members of the Kitchenuhmaykoosib Inninuwug First Nation appealed from the sentences imposed on them by Justice George P. Smith of the Superior Court of Justice on March 17, 2008 for their admitted contempt of a court order made by him on October 25, 2007. In the second case, the Ardoch Algonquin First Nation and two of its members appealed from the sentences imposed on them by Associate Chief Justice Cunningham of the Superior Court of Justice on February 15, 2008 for their admitted contempt of two court orders. A panel of the Court of Appeal for Ontario, composed of Justices Rosenberg, Feldman and MacPherson, heard these two appeals on May 28, 2008 and released the protesters.

The decision makes it clear that incarceration for civil contempt is to be used as the very last resort. Moreover, in the context of First Nations rights disputes incarceration is to be avoided.

The most critical passages regarding First Nations follow:

[45] And how are these interests [aboriginal rights, land development and Crown proerty rights] to be effectively balanced? The answer has been clear for almost 20 years in the jurisprudence of the Supreme Court of Canada – consultation, negotiation, accommodation, and ultimately, reconciliation of aboriginal rights and other important, but at times, conflicting interests: see R. v. Sparrow, [1990] 1 S.C.R. 1075; Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550; and Mikisew Cree First Nation v. Canada (Minister of Heritage), [2005] 3 S.C.R. 388. The honour of the Crown requires that it act as a committed participant in the undoubtedly complex process of consultation and reconciliation: Haida Nation, Taku River and Mikisew Cree.

[46] Having regard to the clear line of Supreme Court jurisprudence, from Sparrow to Mikisew, where constitutionally protected aboriginal rights are asserted, injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests. Such is the case even if the affected aboriginal communities choose not to fully participate in the injunction proceedings.

...

[58] First, while the appellants did not contest the injunctions and admitted that they were in breach of the orders, the enforcement of the injunctions by imprisonment could not help but emphasize the estrangement of this community and aboriginal peoples generally from the justice system. The use of incarceration as the first response to breach of the injunction dramatically marginalizes the significance of aboriginal law and aboriginal rights. Second, imposing a lengthy term of imprisonment on a first offender fails to recognize the impact of years of dislocation. The fact that persons of the stature of Mr. Lovelace and Chief Sherman saw no meaningful avenues of redress within the justice system and felt driven to take these drastic measures demonstrates the impact of years of dislocation and the other problems discussed in Gladue at paras. 67-69. Finally, imprisonment, far from being a meaningful sanction for the community, had the effect of pitting the community against the justice system. That the court found it necessary to imprison the leaders of the AAFN simply serves to emphasize the gulf between the dominant culture’s sense of justice and this First Nation’s sense of justice.