1704604 Ontario Ltd v Pointes Protection Association, 2020 SCC 22

Judgement released September 10, 2020

Unanimous decision (written by Justice Côté).

Key Takeaway

This case provides clarification on how to interpret the framework set out in s. 137.1 of the CJA, and guidance on how to adjudicate anti-SLAPP pre-trial motions more generally.

Introduction

In 2015, Ontario amended the Courts of Justice Act by introducing ss. 137.1 to 137.5, occasionally referred to as anti-SLAPP legislation. These provisions were aimed at mitigating the harmful effects of strategic lawsuits against public participation (“SLAPPs”), which are lawsuits initiated against individuals or organizations that speak out on an issue of public interests as an indirect tool to deter them, or other potential interested parties, from participating in public affairs.

Pointes Protection and six of its members relied on s. 137.1 of the CJA to bring a pre-trial motion to dismiss a $6 million action for breach of contract initiated against them by 170 Ontario, a land developer. The action was brought in the context of Pointes Protection’s opposition to a proposed subdivision development by the developer. Pointes Protection’s s. 137.1 motion was dismissed by the motion judge, who allowed the developer’s action to proceed. The Court of Appeal allowed the subsequent appeal, and dismissed the developer’s lawsuit. The developer then appealed to the Supreme Court.

Verdict: Appeal Dismissed. Pointes Protection’s motion to dismiss 170 Ontario’s breach of contract action against it was granted.

Factual Background

The appellant, 170 Ontario wanted to develop a 91-lot subdivision in the city of Sault Ste. Marie. Pointes Protection Association and six members of its executive committee make up the respondents. They are a not-for-profit corporation created to provide a coordinated response to 170 Ontario’s development proposal on environmental grounds.

170 Ontario got approval for their development from the Sault Ste Marie Region Conservation Authority (SSMRCA), but Pointes Protection challenged this decision and called for judicial review. The review application was settled out of court, with the settlement agreement imposing several limitations on Pointes Protection’s future conduct. In particular, they agreed to not to comment further on the SSMRCA and not to take another action against 170 Ontario seeking the same relief.

170 Ontario’s development proposal was denied by the Sault Ste Marie City Council. They appealed this decision to the Ontario Municipal Board. The President of Pointes Protection, Mr. Gagnon, subsequently testified at this hearing against 170 Ontario, and the City Council’s decision was upheld, putting an end to the development. 170 Ontario proceeded with a breach of contract action against Pointes Protection, claiming that the President’s testimony violated their settlement agreement in the judicial review matter.

Pointes Protection did not file a statement of defence, but instead brought a motion under section 137.1 of the Courts of Justice Act (the anti-SLAPP motion) to dismiss the breach of contract action. Several appeals later, this brings us to the current matter before the Supreme Court.

What is an Anti-SLAPP Law and What is its Purpose?

Strategic Lawsuits Against Public Participation (or “SLAPPs”) refer to lawsuits initiated against individuals or organizations that speak out on issues of public interests. SLAPPs are used primarily to limit the expression of others. The claim is merely a “facade” for the plaintiff, who is manipulating the judicial system to limit an opposing party’s speech and deter that party, as well as other potentially interested parties, from participating in public discourse.

Examples of of SLAPP suits in the past have included injunctions against climate activists, groups opposed to local residential developments, and critics of politicians.

With SLAPPs on the rise, several provincial legislatures enacted laws to mitigate their harmful effects. These laws are known as “anti-SLAPP legislation.” Ontario’s version came into force in November 2015; the Protection of Public Participation Act, 2015, which amended the Courts of Justice Act by introducing sections 137.1 to 137.5.

The purpose of the Act was written into the legislation itself: to encourage, promote, and protect the participation by the public in debates on matters of public interest. The mechanism by which the Act accomplishes this is to allow judges to dismiss lawsuits that limit expression on matters of public interest in an inexpensive and expedient manner, without the need for a full trial.

How An Anti-SLAPP Motion Works

Section 137.1 of the Courts of Justice Act places a burden on the defendant in a lawsuit (what we will call the moving party on an anti-SLAPP motion) to prove to the motion judge that the case arises from expression relating to a matter of public interest. The definition of what is “public interest” is defined broadly and generously.

Once proven, the burden shifts to the plaintiff (and the responding party on the motion) to prove to the judge that their case has substantial merit and the moving party has no valid defence. They must also show that the public interest in permitting the case to go forward outweighs the public interest in protecting the expression.

If the moving party meets its burden and the responding party fails, then the motion will be granted and the underlying case dismissed. The Court notes (and is informed by the history of the debate around the legislation) that the final balancing exercise and consideration of the public interest is the most important part of the analysis.

The Test (Summarized)

Moving Party (aka the defendant in the underlying case)

The moving party has the burden to show on a balance of probabilities that (i) the underlying proceeding does arise from its expression, regardless of the nature of the proceeding and (ii) such expression relates to a matter of public interest, defined broadly.

Responding Party (aka the plaintiff in the underlying case.

The burden then shifts to the responding party to show (i) that there are grounds to believe its claim is legally sound and supported by evidence such that it has a real prospect of success. Once its established established they have a valid claim, (ii) they prove that none of the moving party’s defenses are valid. Finally, (iii) the responding party must prove on a balance of probabilities that it likely has suffered or will suffer harm, such harm is a result of the expression, and (iv) that the public interest in allowing the underlying case to continue outweighs the negative effects on expression and public participation.

Application to This Case

Applying the framework originally set out in this case, the Court determined that the s. 137.1 motion by Pointes Protection should be granted and the underlying contract action by 170 Ontario should have been dismissed.

The Court found found that 170 Ontario’s action lacked merit, and any harm suffered by the corporation and any public interest in allowing the case to go forward did not outweigh the public interest in protecting Pointes Protection’s expression.

Question 1: Did the Action Arise from the Moving Party’s Expression on a Mater of Public Interest?

Mr. Gagnon, the President of of Pointes Protection, testified verbally in a public forum, therefore meeting the definition of expression. The testimony was also related to a matter of public interest, being focused on the environmental impact of a proposed private development. Therefore, the answer to the first questions is yes.

Question 2: Does the Underlying Action Have Substantial Merit and Does the Moving Party Have No Valid Defense?

The Court stated that 170 Ontario’s breach of contract action lacked substantial merit. Interpreting the plain language of 170 Ontario’s agreement with Pointes Protection, the Court determined that the interpretation advanced by 170 Ontario was invalid. The language of the agreement restricts Pointes Protection’s expression only as it relates to the decision by the SSMRCA, and the judicial review of that decision. There is nothing that prevented Pointes Protection from testifying at the OMB hearing, and 170 Ontario should have known this.

Since the underlying action has no substantial merit, it was not necessary for the Court to consider whether Pointes Protection had any valid defenses.

Question 3: Is the Public Interest in Letting the Action Continue Outweighed by the Public Interest in Stopping it?

The Court considered whether, even if the action by 170 Ontario had substantial merit, the possible harm to the public interest in letting the action continue. They determined that the public interest in protecting Pointes Protection’s expression was greater, and the action should have been halted regardless.

170 Ontario was unable to convincingly show any harm that it might have suffered as a result of Mr. Gagnon’s expression. The public interest in allowing the proceeding to continue is therefore at the very low end of the spectrum.

The public interest in protecting Mr. Gagnon’s expression, on the other hand, is significant. First, the public has a strong interest in the subject matter of the expression, which relates to the ecological impact and environmental degradation associated with large-scale development. Second, the form of expression was testimony before an adjudicative tribunal, which should be granted a substantial level of protection.

Weighing the public interest in each outcome, the Court thus determined that 170 Ontario could not establish on a balance of probabilities that the public interest in allowing the proceeding to continue outweighed the public interest in protecting Pointes Protection’s expression.

CCLA v Attorney General of Ontario, 2020 ONSC 4838

DISCLAIMER: The author was employed at the CCLA as an articling student during some of the events of this case.

Decision released Friday September 4, 2020.

Key Takeaways

  1. Partisan political messaging is not a valid form of compelled speech, and will run afoul of freedom of expression under s. 2(b) of the Charter.
  2. Promoting a partisan political agenda is not a pressing and substantial government objective, and fails to be justifiable under s. 1.

Background

This case was about stickers you may have seen on fuel pumps throughout Ontario. These stickers contained a notice about rising fuel charges caused by the Federal Liberal government’s Greenhouse Gas Pollution Pricing Act, 2018, commonly referred to as the “Federal Carbon Tax.”

The stickers were created by a provincial government regulation, under the authority of the Federal Carbon Tax Transparency Act, 2019 (“FCTTA”). The FCTTA was enacted by the Ontario Legislature in May 2019. The sticker was in English and French and contained the text: “THE FEDERAL CARBON TAX will cost you” [capitals in original], followed by a graphic depicting the price of gas starting at 4.4 cents per litre, rising to 11.1 cents per litre in 2022. The bottom of the sticker then contains a call to action to visit a government website: “Find out more about taxes on gas at ontario.ca/carbontax”.

Displaying the sticker was mandatory, and punishable by a substantial fine to the retailer if the regulation was not complied with. The Ontario government’s position was that the requirement was justified because the sticker furthered the purpose of conveying important information to the public, and the policy had a legitimate goal of promoting informed consumer choice and price transparency.

The Canadian Civil Liberties Association (“CCLA”) viewed the imposed notice requirement to be a form of compelled speech that violates freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. The CCLA submitted that the mandatory content of the Sticker is partisan political messaging, not genuine consumer information. It is therefore a rights violation not justified under section 1 of the Charter.

Verdict: The Stickers represent compelled speech that is not justified by s. 1 of the Charter. The sections of the FCTTA requiring them were declared invalid.

Issues

The court covered 3 key issues in this case:

  1. The CCLA’s standing to bring this case before the court in the public interest.
  2. Whether the mandatory sticker requirement in the FCTTA violates s. 2(b) free expression rights.
  3. If there was a violation, whether it is justified by s. 1 of the Charter.

What is Public Interest Standing?

Even if a party is not directly impacted by the outcome, they can still bring a challenge to government legislation or action in the public interest. The court can allow this or deny the party standing, since the preference is for courts only hear a case when a challenger with a direct personal interest emerges.

The Supreme Court of Canada evaluated such a request in the case of Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 SCR 524. They instructed lower courts to look at three factors when evaluating a request for public interest standing. They are: (a) Is a serious justiciable issue being raised? (b) Does the applicant have a real stake or genuine interest in the issue? and (c) Under the circumstances, is this a reasonable and effective way to bring the issue to court?

In that case, a society that promotes safe conditions for sex workers in the Downtown Eastside of Vancouver brought a challenge to various sections of the in the Criminal Code related to prostitution offences, saying they violated the Charter rights of sex workers. Although the society itself had not been charged under the Code, they were still permitted to challenge the law because it was unlikely that other sex workers would be in a position to challenge the Criminal Code in their own names.

What is “Compelled Speech” Under s. 2(b) of the Charter?

Freedom of expression allows one to express their views while being free of government interference. The corollary to this is, intuitively, that this freedom also includes the right not to express particular views. As the Supreme Court said in Slaight Communications Inc v Davidson, [1989] 1 SCR 1038: “there is no denying that freedom of expression necessarily entails the right to say nothing…Silence is in itself a form of expression which in some circumstances can express something more clearly than words could.”

In McAteer v Attorney General (Canada) (2014), 121 OR (3d) 1, the Court of Appeal of Ontario set out three questions the court must address when analyzing a challenging alleging government-compelled expression:

  1. Whether the activity being compelled by the government is expression.
  2. Whether the purpose of the law is to control expression. If the answer is yes, there is an automatic s. 2(b) violation.
  3. If the purpose is not to control expression, then does the law adversely effect expression, and is this effect related to the underlying purposes of freedom of expression.

In McAteer, the applicants claimed that the requirement in the Citizenship Act, that they swear or affirm allegiance to the queen in order to become a Canadian citizen, was a violation of their rights to freedom of conscience and religion, freedom of expression and equality. The Ontario Court of Appeal found there was no violation, concluding the purpose of the oath is not to compel expression, but rather to inquire into the citizen’s commitment to Canada’s democratic constitutional monarchy. Furthermore, the oath itself is symbolic and citizens are free to disagree with the message of the oath outside of the bounds of ceremony. While it has an effect on the appellant’s freedom of expression, it is not of the nature that requires constitutional disapproval.

Analysis

The Standing Issue

The counsel for Ontario conceded that the issue at hand was a serious and justiciable one. Moreover, the CCLA was not the only public interest group voicing concern about the FCTTA requirements. The fact that public interest organizations representing a number of different sectors of society had expressed objection to the Sticker on similar legal grounds to those of the CCLA is significant in establishing that the challenge raises a “substantial…important…[and] far from frivolous” constitutional issue.

The record also established that CCLA’s interest in the issue was genuine, with a strong track record of engagement with the constitutional issues at hand. The CCLA has been acknowledged by the courts to be an “experienced and qualified public interest litigant” with a lengthy record of involvement in public interest litigation, including a number of landmark freedom of expression cases.

Finally, the court stated that allowing the CCLA public interest standing was a reasonable way to bring the issues to court. While any gas retailer in the province could potentially have been a plaintiff in this action, the CCLA offered evidence that it tried but failed to find a gas retailer to act as a co-plaintiff. The politically prominent nature of the issues at stake had made retailers hesitant to bring a challenge in their own names. When contacted, they expressed a wariness of publicly embracing a political position with which some of their customers may take issue. The court noted that this issue in finding a directly affected co-plaintiff proves CCLA’s very point about the legislation’s partisan nature: it had prevented those who’s rights were directly violated from coming forward, leaving the CCLA to fill the gap.

In conclusion, the court found that yes, it was appropriate to grant public interest litigant status to the CCLA.

The Freedom of Expression Issue

The court considered the McAteer questions, described above, to determine if there was a violation of s. 2(b). The first question was not difficult: the definition of expressive activity in s. 2(b) is extremely broad. The Sticker is designed to convey a specific message to the consumer of gasoline, and would fall within this definition.

The second question was less straightforward. The law compels expression via the Sticker message but does not necessarily control it, since the gasoline retailers are free to disavow or disassociate themselves from the political messaging if they so choose. Hence there is no automatic violation of 2(b).

Nonetheless, the court found their answer in the third McAteer question. There was an incidental effect on expression, forcing persons to speak on an issue when they might otherwise want to stay silent, whether or not they agree or disagree with the legislatively compelled message. In McAteer the penalty for refusing to convey the message in the oath of citizenship was to lose access to Canadian citizenship. Here, the penalty was to incur a steep fine. Where McAteer was distinguished, however, was that in that case the speech at issue was one that fostered the rule of law whereas the speech at issue in this case was counterproductive to the rule of law.

The evidence before the court clearly pointed to the fact that the FCTTA did not create a consumer message but rather a “political missive.” The message is that the party in Ontario had better policy ideas than the party in Ottawa. That is a message that is clearly a partisan one, aimed at an opposing political party. This is not a message that promotes the rule of law and democracy, which would be a constitutionally appropriate form of compelled speech under McAteer. By using the law for partisan ends, the Ontario legislature enacted a measure that runs counter to the purposes underlying freedom of expression. This type of compelled expression warrants strong constitutional disapproval.

The Justification Issue

For a Charter violation to be justified under s. 1, the offending legislation must have a pressing and substantial purpose, and the violation must be proportional to the objective of the law (See R v Oakes, [1986] 1 SCR 103). In this case, the court found that the legislation failed at the first hurdle of this test: it did not have a valid purpose that justified the violation of s. 2(b).

The Court found that the Sticker regulation is deceptive in that it “cloaks subjective advocacy about a federal legislative initiative in the language of objective information sharing.” It labels itself the Federal Carbon Tax Transparency Act but it only makes transparent aspects of the federal policy that fit the government of Ontario’s personal narrative. The legislation’s very voice, according to the Court, is that of “unreliable narrator.”

Accordingly, it fails the first stage of the Oakes analysis. While informing the public about the components that make up the cost of gasoline would be a pressing and substantial government objective, promoting the Ontario governing party over the federal governing party is not. The Supreme Court has made it clear that the use of legislative/executive power for partisan purpose amounts to “an unjustified attempt to [legislate/regulate] to benefit the ruling party.” Accordingly, the FCTTA cannot be justified under s. 1 of the Charter.

Conclusion

The court offers a final summary of the nature of partisanship in the Sticker case, and why in this instance the compelled speech was unconstitutional:

“A government or political party can, in the words of Ontario’s Minister of Energy, ‘stick it to’ another tier of government or political party as a matter of free speech in an election campaign or otherwise. But a government cannot legislate a requirement that private retailers post a Sticker designed to accomplish that task. The mandatory fuel pump Sticker is an unconstitutional attempt to do just that.”

The sections of the FCTTA and the regulation concerning the Stickers violate section 2(b) of the Charter and were declared of no force or effect.

R v McSweeney, 2020 ONCA 2

CONTENT WARNING: This case concerned charges of the possession of child pornography.

Decision released January 07, 2020

Introduction

Mr. McSweeney, the appellant, appealed his conviction for possession and distribution of child pornography. His trial exclusively consisted of a challenge under the Charter of Rights and Freedoms. He alleged that his rights under sections 7 and 10(b) of the Charter were infringed when he gave incriminating statements to the police before and after his arrest. He therefore asked that these statements be excluded under section 24(2).

The trial judge found the statements to be admissible into evidence, at which point the defence rested and invited the court to make a finding of guilt. McSweeny appealed, arguing that the trial judge made an error including the statements.

Verdict: Appeal allowed. The statements were obtained in violation of McSweeney’s s. 10(b) rights, and should have been excluded under s. 24(2).

Background Facts

In May 2016, a Detective of the Internet Child Exploitation Unit of Durham Regional Police, Det. Lockwood, received a report that certain images had been uploaded to a social networking site. The upload was traced to the appellant, who was located in Whitby, Ontario. Police officers prepared a search warrant to seize electronic storage devices and computers from his residence. The appellant’s wife let the officers in.

Det. Lockwood asked the appellant to direct him to a computer he suspected had child pornography on it. The appellant said he needed to get his thoughts together. At around 6:30 a.m. the officer asked the appellant’s wife to come to the front porch to give an audio statement. At some point she asked to get the children ready for school, at which point the officer then questioned the appellant on the porch. Det. Lockwood did not caution him before taking the statement or inform him of his right to counsel. He admitted his failure to do so was a mistake because he considered the appellant was a suspect.

Det. Lockwood explained the background leading up to the warrant. He then told the appellant that he was the prime suspect as someone who had uploaded child pornography from that address. The appellant said that he wanted to speak to a lawyer, which Lockwood repeated back to him. The appellant then made an incriminating statement, saying “we both know…that…it’s…myself” referring to who Det. Lockwood believed was the suspect. Lockwood said he appreciated the appellant’s honesty because he “didn’t want to drag your kids into this.”

A second statement was made at the police station, after the appellant had spoken to a lawyer acting as duty counsel. Another recorded interview took place. The appellant mostly remained silent while being questioned by Det. Lockwood. However, at one point, Det. Lockwood asked the appellant whether there was “any chance that anybody else in the house is involved” to which he replied “absolutely not.”

Issues

There were four issues on appeal:

  1. Whether the appellant was detained during his first statement, triggering his s. 10(b) right to retain and instruct counsel.
  2. Whether the second statement was also obtained in violation of s. 10(b).
  3. If the answer to one or both of the above questions is yes, should the statements be excluded with s. 24(2).
  4. If there is no s. 10(b) violation, should the statements have been excluded for being involuntary [not examined in the reasons].

Sidebar: Section 10(b)

Section 10(b) of the Charter reads: “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” A detained person must be given a reasonable opportunity to do so, and police must not try to obtain incriminating evidence from the obtained person until they have had a reasonable opportunity to consult with counsel.

For more on s. 10(b) in the context of police interrogation, see the post on R v Sinclair.

Sidebar: Detention

Key to the s. 10(b) analysis is whether a detention has actually occurred when the police failed to inform the detainee of their right to retain a lawyer. Detention can be physical or psychological. Psychological detention occurs where a person has a legal obligation to comply with a police direction, or where “the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand.”

In R v Grant, 2009 SCC 32, the Supreme Court provided a helpful summary of when detention by the state is deemed to have occurred.

  1. Detention refers to the suspension of the individual’s liberty by a significant physical or psychological restraint. Psychological detention is established either where the individual has (a) a legal obligation to comply with the restrictive demand, or (b) a reasonable person would think by the state conduct that they had no choice but to comply.
  2. If there is no physical restraint or legal obligation, there might be a question about whether a person has been detained. To determine whether a reasonable person would think they are detained, the court may consider these factors:
    1. the circumstances leading up to the encounter as perceived by the individual; whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
    2. the nature of the police conduct, including language used, the use of physical contact, the place, the presence of others, and duration.
    3. the circumstances of the individual including age, physical stature, minority status, and level of sophistication.

Sidebar: Section 24(2)

Section 24(2) of he Charter provides: “Where…a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

Just because evidence is acquired in a manner that infringes Charter rights doesn’t mean it is automatically excluded from the trial. The Section 24(2) analysis looks at the effect of admitting the evidence on public confidence in the administration of justice in the long term.

The factors the court must consider are:

  1. the seriousness of the Charter-infringing state conduct;
  2. the impact of the breach on on the Charter-protected interests of the accused; and
  3. society’s interest in the adjudication of the case on the merits.

If, after balancing and considering these factors, the answer is that admitting the evidence will damage the public confidence in the administration of justice, the judge will exclude it.

Analysis

Was the appellant detained at the time of the first statement, thus infringing his s. 10(b) right to counsel?

In the trial, the judge failed to apply the proper analysis; whether a reasonable person in the appellant’s circumstances would conclude they had no choice but to comply. It is also relevant to this case that the appellant’s first encounter with the police was through the lawful execution of a search warrant.

For the first Grant factor, the circumstances leading to the encounter, the court considered whether the police were acting solely to ensure the integrity of the search of the house, or whether they were engaged in a focused investigation. In this case, the appellant was separated from his family and clearly singled out for a focused investigation. The questions asked by Det. Lockwood further would lead a reasonable person to conclude that they were a suspect, probably the prime suspect, in a police investigation into child pornography in their home. This suggests that this was a targeted and specific investigation of the appellant.

For the second factor, the nature of the police conduct, there was no evidence of physical contact. However, the language used by Det. Lockwood was targeted and accusatory. Furthermore, the timing of the execution of the warrant, 6:00 a.m., is significant. Nine officers appeared early in the morning just as the appellant was waking up and the children were getting ready for school. The court concluded this would have been particularly intimidating for the appellant.

The final factor is the particular characteristics of the accused. In this case, the appellant was a mature, educated, articulate adult with some appreciation of his rights. The court concluded this was not particularly relevant to the inquiry.

The Court concluded that the appellant was detained at approximately 6:53 a.m. when Det. Lockwood asked him onto the porch to give a statement. A reasonable person, given the circumstances, would conclude they were obliged to comply. At no time before his arrest was the appellant informed of his right to counsel, even though Det. Lockwood knew he was required to do so. There was a s. 10(b) infringement.

Was the appellant’s second statement obtained in violation of 10(b)?

The second statement made at the police station, even after the appellant had been advised of his right to counsel, contentious. The court had to evaluate whether the second statement was obtained as part of the same conduct as the earlier breach.

The Court determined that there was a causal link between the first and the second statements. The statements were relatively close in time to each other, four hours. This time was spent by the appellant in a “head-spinning and stressful process” of arrest, transport to the police station, and then finally consulting with duty counsel. Det. Lockwood’s presence at the taking of both incriminating statements, as well as the language used when talking to the appellant, also served to connect them as one continuous detention.

Det. Lockwood did inform the appellant of his rights and access to duty counsel at the police station, however this did not remove the initial Charter infringement from the events at the home. The presence of the officer who was responsible for that breach, who had taken the first statement, reference to the earlier statement, and the use of the same interview technique created a situation that could be described as the same interrogation process.

For these reasons, the second statement was obtained in a manner that infringed the appellant’s s. 10(b) rights.

Should the Evidence be excluded under s. 24(2)?

The court conducted a s. 24(2) analysis. First, they considered the seriousness of the Charter-infringing conduct. In this case the court found there was a “wilful disregard of the appellant’s Charter rights. This was very serious, and weighs heavily in favour of exclusion of the statements.

The second factor is the impact of the breach. This too was serious. The appellant was detained and “at the mercy of state actors.” He was deprived of his right to consult a lawyer and make an informed choice about whether to cooperate with the investigation. The police deprived him of that right.

The final factor is society’s interests in the adjudication on the merits. This means that its possible the truth-seeking function of a criminal trial is better served by admitting the evidence rather than its exclusion. In this case, the evidence is reliable but not necessarily critical to the case. The prosecution has circumstantial evidence in the seized computers, and this may be enough to proceed with the charges.

In conclusion, the Court finds that the appellant’s statements should be excluded under s. 24(2). The conviction was quashed and a new trial ordered.

Flashback: Eldridge v BC (Attorney General) [1997] 3 SCR 624

Introduction:

In this flashback case, we look at three important topics: to whom does the Canadian Charter of Rights and Freedoms apply, what does “equal benefits” mean for disabled people under section 15(1) of the Charter, and briefly at what we mean by “minimal impairment” under the section 1 justification framework.

This case was released in 1997 and is still an essential part of the law school curriculum today. The judgement was written by Justice La Forest and was endorsed by the entirety of the Supreme Court.

Background:

This case concerns the medical care system in British Columbia. In BC, hospitals are funded under the Hospital Insurance Act by the government and other services delivered by healthcare practitioners outside of hospitals are funded by the province’s Medical Services Plan. Neither program paid for sign language interpretation for the deaf.

Each of the appellants in this case – Robin Eldridge, John Warren, and Linda Warren – was born deaf and their preferred means of communication was sign language. They argued that the absence of sign language interpreters impairs their ability to communicate with their doctors and other healthcare providers which increased the risk of misdiagnosis and ineffective treatment. They sought a declaration that this violated their section 15(1) equality rights but were unsuccessful in the lower courts.

Verdict:  Appeal allowed.

I will divide this summary into three issues considered by the Court:

  1. Does the Charter apply?
  2. Was there a section 15(1) violation?
  3. Is the violation justified by section 1?

Does the Charter apply?

The Charter does not apply to anyone, but specifically to entities identified in s. 32(1). It reads:

Application of the Charter

32(1) This Charter applies:

  1. To the Parliament and the government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and the Northwest Territories; and
  2. To the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

This section sets out the purpose of the Charter as a document to control the power governments have over the individual, and it is not meant to govern relations between private actors.

However, there are some cases, such as this one, where the Charter applies even to private actors such as hospitals. The Court identified two Charter “application” issues in this case. The first is that it wasn’t the provincial legislation that infringed the Charter but rather the actions of particular hospitals and the BC Medical Services Commission that does so. The Charter infringing conduct was using their discretion not to provide sign language services. The second issue is whether the Charter applies to these entities. The Court concluded that it did apply.

Legislation can be found to be unconstitutional in multiple ways. It can be, on its face, unconstitutional and therefore invalid, struck down through the operation of s. 52(1) of the Constitution Act. The second scenario is when the Charter is not infringed by the legislation itself, but rather by the actions of a delegated decision-maker that applies it. In this case, the legislation remains valid but the Court can still order a remedy for the applicant under s. 24(1) of the Charter.

This case concerned the latter scenario. After closely examining the overall legislative scheme of BC’s healthcare system, the Court determined that even though the legislation did not specifically provide for it, sign language interpretation should have been provided as part of the services offered by hospitals and other healthcare providers whenever necessary for effective communication. Their discretion not to do so is what created the Charter violation.

Having found where the violation occurred, the court considered whether the Charter applied by interpreting s. 32. There are many public or quasi-public institutions that may be independent from government, but exercise governmental powers or be otherwise responsible for the implementation of government policy. When there is an allegation that one of these bodies violates the Charter, it must be established that the entity is a part of “government” within the meaning of section 32.

The same is true for private entities that are engaged in activities that can in some way be attributed to government. A private entity may be subject to the Charter in respect of certain inherently governmental actions. The rationale behind this is to not allow governments to escape their constitutional obligations by entering into commercial contracts or other “private” arrangements, thus delegating their policies and programs to private entities.

There are some important nuances to how the Charter may apply to private entities deemed “government” for the purposes of s. 32. First, the fact that an entity performs what may be loosely called a “public function” is not sufficient. In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program.

Second, the precise way in which the Charter applies to a private entity can be on one of two bases. First, it may be that the entity itself is simply “government.” This involves determining whether nature or degree of governmental control exercised over it means it can be properly characterized as “government.” In these cases, all of the activities of the entity will be subject to the Charter, regardless of whether such activities can normally be characterized as “private.” The second possibility is that the entity is only subject to the Charter with respect to a particularly activity that can be ascribed to government. This involves investigating the nature not of the entity but the activity itself. The quality of the act is at issue, rather than the actor. If the act is “governmental,” such as the implementation of a specific statutory scheme or a government program, the entity performing it will be reviewable by the Charter only in respect of that act and not other private activities.

In the present case, the BC government attempted to say that hospitals and other healthcare providers were private actors and not “government,” and therefore not subject to the Charter. The Court rejected this argument, stating that the Hospital Insurance Act provides the delivery of a comprehensive social program. Hospitals, as the vehicles the legislature has chosen to deliver this program, are delivering specific governmental actions. They are therefore “government” in this aspect for the purposes of section 32.

The Court determined that the Charter applies to BC hospitals and the Medical Services Commission as identified by the appellants, and moved on to the potential violation.

Was there a s. 15(1) violation?

Section 15(1) states “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Court stressed that the purpose of s. 15(1) is to express the equal worth and human dignity of all persons. As deaf persons, the appellants in this case belonged to a group specifically identified in s. 15(1), the physically disabled. The Court took note that although many deaf persons contest that deafness is an impairment and identify themselves as members of a distinct community, they nonetheless had suffered from exclusion from opportunities and services designed for and available to the hearing population.

To establish a violation of s. 15(1), a person must first establish that because of a distinction drawn between them and others, the claimant has been denied either “equal protection” or “equal benefit” of the law. Second, the claimant must show that the denial constitutes discrimination on the basis of one of the grounds listed in s. 15(1), or analogous ones.

The only contested question in this case was whether the appellants had been given “equal benefit of the law without discrimination.” The appellants contended that the lack of funding for sign language interpreters renders them unable to benefit from the legislation to the same extent as hearing persons. Their claim is that the lack of funding for these services created an “adverse effect” not intended by the legislation, but is nonetheless very real.

Despite the appearance of equality on the face of the BC health care scheme, the adverse effects nonetheless created inequality by denying equal benefits to deaf persons as compared to hearing persons. To establish a s. 15(1) violation, one does not need to show a discriminatory purpose or intention, it is enough if the effect of the legislation was to deny someone equal protection or benefit of the law.

Communication is central to the delivery of medical services. This is evident when looking at medical negligence law. Physicians have a duty of disclosure to inform patients fully of the risks involved in treatment and to answer their questions regarding such risks. In the absence of sign language in interpretation, there may be cases where it will be impossible for doctors to treat deaf persons without breaching their professional responsibilities.

Hearing persons receive this and other essential communication freely as a part of their medical care. Deaf persons, meanwhile, must pay for this privilege by supplying their own interpreter. It could not be said that they are receiving the same level of care as hearing persons. Once it is accepted that effective communication was indispensable to receiving medical care, it becomes difficult to show that the failure to ensure deaf persons could communicate with their health care providers is not discriminatory.

The Court found, in light of the evidence, that the failure of the Medical Services Commission and hospitals to provide sign language interpretation where necessary was a violation of the s. 15(1) rights of deaf persons. The failure denied them equal benefit of the law and discriminates against them in comparison to hearing persons. The quality of care received by the appellants was inferior to that available to hearing persons.

Is the violation justified by s. 1?

Once a Charter violation has been established by claimants, the Crown has the opportunity to respond by stating that the violation is justified under section 1 of the Charter, thus saving the law. It reads:

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In order to justify a limitation of a Charter right, the government must establish that the limit is “prescribed by law” and is “reasonable” in a “free and democratic society.”

The framework used to determine whether a law constitutes a reasonable limit on a Charter right was set out in R v Oakes, [1986] 1 SCR 103. It can be summarized as follows.

  1. First the objective of the legislation must be “pressing and substantial.”
  2. The means chosen must be reasonable and demonstrably justified in a free and democratic society. This is established by satisfying three criteria:
    1. The rights violation must be rationally connected to the aim of the legislation;
    2. There must be minimal impairment of the Charter guarantee; and
    3. The effect of the measure and its objective must be proportional to each other.

It is the government’s burden to prove to the Court on a balance of probabilities that the violation is justifiable.

In this case (as in most cases) it was not necessary to consider each of the elements of the Oakes framework. The Court assumed that the decision not to fund medical interpretation was a limit “prescribed by law” and that the objective of this decision – controlling healthcare expenditures – was “pressing and substantial.” This decision was also assumed to be rationally connected to the objective (not spending money on interpreters is rationally connected to reducing expenditures).

Where the measure failed, in this case, was at minimal impairment. The government failed to demonstrate that it had a reasonable basis for concluding that a total denial of medical interpretation services constituted a minimum impairment of their rights. The estimated cost of providing sign language interpretation for the whole of BC was only $150,000, or 0.0025 percent of the provincial healthcare budget at the time. This figure was based on extrapolating from the services formally being provided by the Western Institute for the Deaf and Hard of Hearing in the Lower Mainland area. The Court stated: “The refusal to expend such a relatively insignificant sum to continue and extend the service cannot possible constitute a minimum impairment of the appellants constitutional rights.”

The government considered and then rejected other options, such as the partial or interim funding of the program offered by the Western Institute for the Deaf and Hard of Hearing, or the institution of a scheme requiring users to pay partial fees for an interpreter. These half-measures would not necessarily have survived s. 1 scrutiny, however the Court raised them for the purpose of demonstrating that the government did not even attempt to institute a scheme that would provide a lesser limitation on deaf persons’ rights.

Summary

The Court determined that the failure to fund sign language interpretation was not a “minimal impairment” of the s. 15(1) rights of deaf persons to equal benefit of the law on the basis of their physical disability. The evidence clearly demonstrated that, as a class, deaf persons received medical services inferior to those received by the hearing population. The provision of substandard medical services to the deaf diminishes the overall quality of their lives. The government had not demonstrated that this state of affairs must be tolerated in order to achieve the objective of limiting health care expenditures. The government has, in other words, not made a “reasonable accommodation” of the appellants’ disability, or accommodated their needs to the point of “undue hardship.”

Remedy

The Court crafted a unique remedy to address the inequality that had been established by the plaintiffs. They granted a declaration that this failure to provide interpreters to deaf persons is unconstitutional and the government was directed to administer their health care legislation in a manner consistent with the requirements of s. 15(1). The declaration was suspended for six months to grant the government time to explore its options and formulate an appropriate method to provide sign language interpreters where necessary for effective communication in the delivery of medical services.

R v Rose, 2020 ONCA 306

Date of Decision May 21, 2020

Key Takeaways:

  1. “Alternate” and “additional” jurors are different, and a judge confusing the two can invalidate the trial.
  2. Evidence of prior convictions, even when factually relevant to the case, must be treated carefully and given alongside proper jury instructions. A judge’s reasons for conviction into evidence is highly prejudicial, as are sentencing submissions, while carrying little evidentiary value.

Introduction

Conroy and Kharla Rose (“the appellants”) were convicted before a judge and jury of several charges in relation to alleged drug trafficking. On appeal, they raised several issues with the original trial.

  1. The trial judge did not follow the proper procedure for dismissing an additional juror;
  2. The trial judge should not have admitted evidence of Conroy’s prior convictions; and
  3. Kharla argued that she did not receive a trial within a reasonable time as required by s. 11(b) of the Charter.

Held: Appeals allowed on two of the three grounds, new trial ordered. The s. 11(b) application appeal is dismissed.

Background

In July 2010 the police executed search warrants at an apartment and a house in London, Ontario. After this, they arrested the appellants and charged with possession of proceeds of crime in the amount of nearly $500,000 in cash plus two cars. They were also charged with one count of money laundering.

The prosecution brought an application in July 2015 to bring evidence relating to Conroy’s prior charges and convictions. This was allowed, and a significant amount of this prior conviction evidence was allowed in. In August and October 2015, Kharla brought her s. 11(b) application, which was dismissed. The appellants represented themselves at trial, and were convicted by the jury on all counts.

Issue One: Alternate and Additional Jurors

The trial began in March 2017. 12 jurors were selected, with two extra sworn in as “alternate number one” and “alternate number two.” These jurors were present when evidence began. One juror was excused early in the trial, and alternate number one took their place. The second alternate juror was later dismissed and did not deliberate. When the jury was present, the trial judge referred to the second alternate juror as “additional juror number 13.”

“Alternate” and “additional” jurors exist for different purposes and are governed by different procedures of the Criminal Code. Section 631(2.1) provides that a judge may select one or two “alternate” jurors. Section 631(2.2) provides that a judge may have one or two “additional” jurors sworn.

Alternate jurors exist to replace jurors that may be excused, abscond, or otherwise be unavailable in the time between when the jury is selected and the beginning of the evidence. They are not intended to hear evidence. Instead, they are present at the beginning of evidence to replace any absent juror. Alternate jurors are therefore excused before the evidence begins if there is a full jury present without them at that point.

Additional jurors exist to replace jurors lost during the course of the evidence, which may be a concern during long trials. Unlike alternate jurors, additional jurors are intended to remain throughout the evidence. If additional jurors remain when deliberations begin, s. 652.1 provides a procedure for reducing the jury to 12 members. If there are more than 12 jurors remaining after the charge to the jury, then the judge selects the one or two additional jurors that will be dismissed at random by drawing cards from a box. The judge discharges any juror whose number is drawn.

To summarize: alternate jurors remain only to the point that the evidence begins, additional jurors remain until the jury retires to deliberate. They are excused at these points, respectively, if no longer required.

The issue in this case was that the trial judge used the term “alternate” to describe the extra jurors but treated them as “additional” jurors by letting them remain present throughout the evidence. Juror 13, the last additional juror, was also dismissed instead of being chosen, contrary to the procedure set out in s. 652.1.

The Court agreed with the appellants that this was an error. The trial judge failed to discharge a juror randomly and contravened the Code. Even though there’s no actual issue with the impartiality of the jury, the failure to follow the procedure tainted the appearance of jury impartiality. This was serious enough to order a new trial.

Issue Two: The Prior Conviction Evidence

The Crown applied to show evidence of Conroy’s prior drug trafficking-related charges, of which he was convicted in 2011. At the time of the application, both the appellants and the Crown said they would create an agreed statement of facts to admit the evidence of the prior convictions. This did not happen, and instead at trial the Crown called several officers to testify about the convictions. The jury was also allowed to see the reasons for the convictions, as well as reasons for judgement on a related hearing and an order dismissing Conroy’s appeal of the conviction.

The appellants argued that although the facts of the convictions were relevant to the present case, admitting the judge’s reasons for the decision was highly prejudicial and warrants a new trial.

Evidence of prior disreputable conduct is normally inadmissible, unless its usefulness to prove something in the current trial (its “probative value”) outweighs any prejudicial effect on the minds of the judge or jury.

The Court stated that the convictions were admitted in a very problematic manner. The trial judge did not balance to probative value and the prejudicial effect of the evidence. The Court then substituted their own findings, stating “Had the judge conducted the balancing exercise, it is difficult to see how she could have admitted the reasons.”

The Crown wanted to enter the evidence to show the source of the money that was at issue in this case. However, the reasons for conviction of the earlier charges were more prejudicial than probative on this factual issue. Giving the jury the sentencing reasons was also highly prejudicial and had no relevance to the current case. Finally, the judge made an error by giving an inadequate jury instruction, providing no guidance to the jury about how these reasons should be used. The judge also told the jury that the convictions should be treated as “similar fact evidence”, despite the fact that the Crown conceded that it was not, in fact, similar fact evidence. Admitting the reasons without adequate correcting instructions was a fatal error, necessitating a new trial.

Issue Three: The s. 11(b) Application

Section 11(b) of the Charter states “any person charged with an offence has the right to be tried within a reasonable time.” If an accused succeeds on their s. 11(b) application and proves that the delay in getting to their trial was unreasonably long, a Superior Court may remedy this by ordering a “stay of proceedings” meaning that the trial cannot go forward, and the accused is let go.

The original application judge noted that there was a delay of five years, two months and 11 days between Kharla’s arrest on August 3, 2010 and her anticipated trial date on October 14, 2015. The judge initially dismissed the appeal, finding that while the overall length of the delay was concerning, the Crown did everything in their power to move the case along. The complexity of the case, multiple adjournments, and changing of counsel also contributed to the delay.

The Court found that even though the judge misstated a key test when refusing to stay the proceedings, she still correct found that the delay in this case was reasonable.

The framework for evaluating whether to stop proceedings due to delay changed dramatically after R v Jordan was released in 2016. The current case, tried in 2015, was analyzed under the previous framework, known as the Morin framework. Nonetheless, Jordan applies to cases in the system prior to Jordan’s release.

Under Jordan, any case tried in the Superior Courts is 30 months from the date of arrest. Any time below this ceiling is presumed to be reasonable delay. Above that, the Crown has to prove to the court that the delay was not unreasonable because of exceptional circumstances. If the Crown cannot do this, then the proceedings will be stayed. For cases in the system prior to Jordan’s release, there is also a transitional exception that may justify a delay that exceeds the presumptive ceiling if it is justifiable using Morin.

In the Jordan analysis, the delay caused by the conduct of the defence is subtracted from the total delay, leaving the net delay. In this case, there was 12.5 months of defence delay deducted from the total delay of 63 months and one week, leaving a net delay of 50.75 months, which is still higher than the 30-month presumptive ceiling in Jordan.

The burden then fell to the Crown to prove that the case the time has taken is justified by exceptional circumstances. They relied on the transitional exceptional circumstances, which allowed them to use the old Morin framework. The Court applied the following factors to determine whether the net delay is unreasonable.

  1. The length of the delay;
  2. Waiver of time periods;
  3. The reasons for delay, including:
    • The accused’s actions;
    • The Crown’s actions;
    • Limited on institutional resources; and
    • Other reasons for delay; and
  4. Prejudice to the accused.

The Court found that altogether, 16 months and twelve days of the total delay can be categorized as “institutional delay”, or time spent by both parties waiting for an appropriate trial date. Morin guidelines state that 18 months of institutional delay is acceptable. There were two months and 13 days of Crown delay, leaving the rest of the delay as neutral. Since Kharla did not suffer any specific prejudice and this was a transitional case, the Court found that the application judge did not make an erorr in dismissing the s. 11(b) application.

R v July, 2020 ONCA 492

Key Takeaway: Police officers do not need to prove it is necessary for an investigation in order to seize old text messages stored by a cell phone provider. They only need to show “reasonable and probable grounds” that an offence has been committed or will be committed and that there is likely relevant evidence to be found in the messages.

Investigative necessity means that the police can obtain a production order from a judge to seize physical or electronic records, but they must first prove that they cannot acquire this evidence through any other means because:

  • Other investigative procedures have been tried and failed;
  • Other investigative procedures are unlikely to succeed; or
  • The urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

Introduction and Arguments on Appeal

The principle issue in this case was whether the seizure of historical text messages based on a production order granted pursuant to s. 487.012 (now s. 487.014) of the Criminal Code and served on a third party service provider, is constitutional.

Mr. July (“the appellant”) argued that the right to be free from unreasonable search and seizure under s. 8 of the Charter was violated because the police failed to establish “investigative necessity” when they obtained a production order for the search and seizure of J’s historical text messages. He argued that investigative necessity is constitutionally required for future, non-existent communications, commonly referred to as wiretaps or intercepts, and should therefore be equally required for an order to produce historical text messages. In addition, he argued that the law authorizing the production order was arbitrary and unreasonable due to the different requirements for the seizure of historical as opposed to prospective text messages.

The Crown respondent disputed any need to establish investigative necessity. It argued that it is not a constitutional requirement for wiretaps. They argued establishing this requirement would be contrary to settled case law would impose an unjustified and unreasonable restriction on the ability of law enforcement to seek such records through production orders.

Held: Appeal dismissed.

Sidebar: Section 8 of the Charter

Section 8 of the Charter states: “Everyone has the right to be secure against unreasonable search or seizure.” The Majority of the Supreme Court agreed in R v Jones, 2017 SCC 60 that to establish a breach of section 8, a claimant must first show that a state act invaded his or her reasonable expectation of privacy in the subject matter of the search. Second, the claimant must show that the search or seizure was itself unreasonable.

Sidebar: Production Orders Under the Criminal Code

The provision authorizing general production orders of the kind considered in this case can be found in section 487.014 (formerly s. 487.012) of the Criminal Code.

Justice Doherty described the parameters of a production order in R v Vice Media Canada Inc, 2017 ONCA 231. He stated that a production order may be authorized by a justice or judge if satisfied that there are reasonable grounds to believe that: (i) an offence has been or will be committed; (ii) the document or data is in the person’s possession or control; and (iii) it will afford evidence of the commission of the named offence. The justice or judge can authorize the production order if these conditions exist. However, they also have the discretion to choose not to. In deciding whether or not to grant the order, they must consider the impact of that order on the constitutionally protected rights of both the order’s target and the public. The more significant the negative impact, the more important the grounds for seeking the order becomes.

Background Facts

In early 2011, the Toronto police established a task force to investigate four murders that took place over 75 days in fall 2010. Mark Moore was identified as the prime suspect. The police obtained a production order under s. 487.012 of the Code for records relating to the phone number associated with Moore, in order to obtain text messages between Moore and the victim. The order required Telus to produce all text messages related to that number from August 14, 2010 to January 11, 2011.

On examining the records, the police found text messages discussing the potential sale of firearms by the appellant to Moore. Based on these text messages, the police then were authorized to intercept further communications sent to the appellant. They revealed that the appellant was planning to sell a gun on August 18, 2011. On that afternoon, the police arrested the person who bought the gun. They conducted further surveillance on the appellant and arrested him on October 13, 2011. On November 6, 2012, he was indicted on four counts of firearms trafficking offences.

The appellant brought a s. 8 Charter application at trial to exclude the text messages obtained from telus on the basis that they were obtained in an unreasonable search and seizure. The application judge dismissed the applications, and the appellant subsequently pled guilty.

Analysis

On appeal, the appellant stated in an affidavit while he pled guilty after losing his Charter application, he always intended to appeal his conviction. He stated that he was not advised that by pleading guilty, we would be waiving his right to appeal that decision. The Crown consented to the admission of fresh evidence, and it was granted by the court, allowing the appellant to set aside his guilty plea.

Was There a Reasonable Expectation of Privacy?

There was no dispute that the appellant had a reasonable expectation of privacy in historical text messages stored by Telus. The principal question is whether the search and seizure was reasonable under the second branch of the s. 8 test. A search “will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.” See R v Collins at p. 278, R v Jones at para. 57. The appellant accepted that the historical text messages may be the subject of a production order under s. 487.012 of the Code and that the police met all the statutory requirements. The issue is then whether the law itself is reasonable.

Is Section 487.012 of the Criminal Code Unreasonable?

Investigative Necessity

The appellant asserted that s. 487.012 is unreasonable because it did not require the police to establish investigative necessity when they obtained a production order to compel Telus to produce records of historical text messages sent and received by Moore. The appellant argued that the seizure of these messages without the need to establish investigative necessity is unreasonable and a violation of s. 8. The Court rejected this argument by first reviewing the case law on wiretaps and determining that if wiretaps did not constitutionally require investigative necessity, than neither did production orders under s. 487.012.

Section 186 of the Criminal Code allows the police to perform wiretaps and intercept the private communications of third parties where none of the parties to the communication consent to the interception (a “third party intercept”). To authorize a third party intercept, a judge must be satisfied (a) that it would be in the best interests of justice to do so, and (b) that other investigative procedures have been tried and failed, other investigative procedures aren’t likely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures. This latter requirement, part (b) is known as the investigative necessity requirement.

Wiretaps and Investigative Necessity

Contrary to the appellant’s argument, the court stated that investigative necessity is not a constitutional requirement for wiretap authorizations. This is based on prior cases. In R v Garifoli, [1990] 2 SCR 1421, the Supreme Court stated that “reasonable and probable grounds” to believe that an offence has been committed and that there is evidence to be found at the place of the search is the minimum constitutional requirement. While investigative necessity is written into the text of section 186 of the Criminal Code, it is not constitutionally required.

If investigative necessary is not a constitutional requirement for wiretap authorizations, the court reasoned that it is also not a constitutional requirement for production orders because wiretaps are more intrusive of privacy interests than production orders. Wiretaps are sweeping and target future communications based on an investigative theory. The subject matter is speculative. By contrast, the scope of a production order for historical text messages may be focused, limited and less speculative than a wiretap.

The court concluded that after rejecting the appellant’s argument on this point, it followed that the law was not unreasonable.

Other Arguements

The Court gave four other reasons why the Appellant’s argument should be rejected.

First, production orders have built in safeguards. The statutory requirements must be met. Judicial discretion must be exercised with consideration to the individual’s interest in their privacy balanced with the state’s interest in intruding on that privacy for the purposes of law enforcement.

Second, the Crown argued that an investigative necessity requirement for all seizures of historical text messages would unduly hamper the ability of law enforcement to investigate and prevent crime without a corresponding benefit to the legitimate privacy interests of Canadians. To obtain a production order, thee must be reasonable grounds to believe both that an offence has been or will be committed and that the record sought will give evidence of the commission of the named offence. There may be cases where police receive information about communications that are central to the investigation of an offence, but it would be unreasonable to require that the police prove investigative necessity.

Third, the investigative necessity would be difficult to reconcile with other Supreme Court jurisprudence. Text messages can already be seized from phones and other devices with ordinary search warrants or searches incident to arrest without any investigative necessity requirement, and these seizures have been upheld on appeal.

Fourth, Parliament has not enacted any limitation on the ability of law enforcement to use production orders to seek historical text messages. Amendments were made to the Code as recently as 2014, and no investigative necessity requirement was incorporated into s. 487.014 at this time.

Conclusion

Based on prior rulings by the Supreme Court on the topic, the court rejected the appellant’s argument that investigative necessity is a constitutional requirement for wiretaps. Therefore, it follows that it should not be a requirement for historical text messages. The appeal was dismissed.

Flashback: R v Sinclair 2010 SCC 35

Key Takeaways:

Section 10(b) of the Charter of Rights and Freedoms, the right to counsel, does not require the presence of defence counsel throughout a police interrogation. In most cases, an initial warning that the detainee can consult with a lawyer, coupled with a reasonable opportunity to do so, satisfied their s. 10(b) rights.

However, the police must provide additional opportunities to receive legal advice where the ongoing investigation makes this necessary. A second consultation with a lawyer will be required where circumstances change as a result of:

  1. New procedures involving the detainee, such as a line up or lie detector test;
  2. A change in the jeopardy (type of offence) facing the detainee; or
  3. A reason to believe that the previous consultation was deficient.

These categories are not closed and are meant to enforce the purpose of s. 10(b), which is to provide legal advice relevant to the detainees right to choose whether or not to cooperate with the police investigation.

Background Facts

The appellant, Mr. Sinclair, was charged with second degree murder in November 2002. Ultimately, he was convicted by a jury of manslaughter. When arrested, Mr. S was advised that he was being arrested for murder and that he had the right to retain and instruct counsel without delay. He was told that he could have any lawyer he wanted and if he couldn’t afford one a Legal Aid lawyer would be made available for free. When asked if he wanted to call a lawyer, Mr. S responded “Not right this second.”

After being booked at the RCMP detachment, Mr. S was asked again if he wanted to exercise his right to counsel. He told the officer that he wanted to speak to a lawyer named Mr. Janicki, who he had retained on a previous charge. After consulting twice with Mr. Janicki, Mr. S was interviewed by an officer for five hours. Multiple times Mr. S expressed discomfort with being interviewed without his lawyer, and each time the officer reiterated that he had the right to choose whether or not to talk.

Altogether, Mr. S alternately said he wanted to speak with his lawyer and his intention to remain silent about the killing four or five times. Each time, the officer emphasized it was his decision whether to cooperate. Later, the police placed Mr. S with an undercover officer in his cell, who obtained more incriminating statements. Finally, Mr. S accompanied the police to where the killing occurred and participated in a re-enactment.

At trial, Mr. S was convicted of manslaughter. He challenged the admissibility of his incriminating statements to the police, arguing that his right to counsel had been violated. The judge denied the application and allowed the statements into evidence. The Court of Appeal endorsed the trial judge.

On appeal to the Supreme Court, Mr. S argues that s. 10(b) of the Charter imposes a duty on the police to stop questioning where the detainee has expressed a desire to speak with counsel again. He further argued that s. 10(b) requires the police to respect a detainee’s request to have counsel present during an interrogation.

Verdict: Appeal dismissed. The section 10(b) Charter application was denied and the manslaughter conviction was allowed to stand.

Section 10(b) – Right to Counsel

Section 10(b) of the Charter of Rights and Freedoms states:

“Everyone has the right on arrest or detention: to retain and instruct counsel without delay and to be informed of that right”

The purpose of s. 10(b) is to provide a detainee with an opportunity to obtain legal advice relevant to their legal situation. The court’s recent decisions on this section emphasize that this right to counsel must be read alongside the right to silence found under s. 7.

Section 10(b) has two components: (1) it requires that the detainee be advised of their right to counsel, and (2) it requires that the detainee be given an opportunity to exercise their right to counsel. The duty of the police to hold off on questioning until this consultation has occurred is implied by the second component.

The detainee can waive their right to counsel and voluntarily cooperate with the police investigation. A valid waiver of the right to counsel still respects the purpose of s. 10(b).

Section 24(2) of the Charter

Though not discussed extensively in this case, Section 24(2) provides the appropriate remedy if a section 10(b) violation had been found. It allows a judge to exclude evidence obtained as the result of a Charter breach if admitting that evidence would “bring the administration of justice into disrepute.”

Analysis

There were three decisions written in this case. One majority (Chief Justice McLachlin, Justice Charron and three others) and two dissents. One dissent was written by Justice Binnie, writing alone, and a second dissent was delivered by Justice Lebel, Justice Fish and endorsed by Justice Abella.

Majority Decision (CJ McLachlin and Charron)

The Chief Justice and Justice Charron, writing for a majority of five supreme court justices, dismissed the appeal.

Analyzing the literal text and purpose of section 10(b), the majority judges determined that there is no requirement for a lawyer to be present throughout a police interview. As for the right to re-consult counsel after an initial consultation, they determine that there is a limited right to do so under 10(b), but only in certain changes of circumstances.

These circumstances include the following.

  1. There is a new procedure involving the detainee, such as participation in a line-up or submitting to a polygraph. These generally would not be expected during the initial consultation with a lawyer, and require additional advice.
  2. There is a change in jeopardy facing the detainee. A detainee is told upon detention the reasons for their detention. This is constitutionally required (see section 10(a) of the Charter). The initial consultation follows. If the investigation takes a new and more serious turn (for example, if the victim of an assault dies), this initial advice may no longer be adequate.
  3. There is a reason to question the Detainee’s understanding of their section 10(b) right. A detainee can waive their right to counsel, but if the police have reason to believe that they did not fully understand this right, then there is a duty on the police to give them a further opportunity to talk to a lawyer.

These categories of circumstances are not closed. Where the circumstances do not fall into a situation previously recognized, the question is whether a further opportunity to consult a lawyer is necessary to provide the detainee with advice in the new or changing situation.

The majority judges explained that to expand the scope of s. 10(b) beyond this would interfere with the police’s ability to conduct their investigation. They have the right to gather evidence from all sources, including the suspect of a crime. To give the suspect unfettered access to counsel, they say, would interfere with the police’s ability to conduct an interrogation. There must be a balance between the public’s interest in investigating crimes and the detainee’s right to counsel.

They applied their reasoning to the current facts. The main issue is whether Mr. S should have been given a second opportunity to consult with a lawyer. The court determined that no, Mr. S did no fall into any of the categories where a right to re-consultation has been recognized as necessary under s. 10(b). There was therefore no violation. The appeal was dismissed.

Dissent 1 (Binnie J)

Justice Binnie strongly disagreed with the majority and proposes a different interpretation of the right to counsel. He felt that their interpretation of the 10(b) right in this case was far too narrow, and that the s. 10(b) right to counsel should be designed to ensure that persons arrested or detained are treated fairly in the criminal process.

Justice Binnie proposed that s. 10(b) may be engaged by the evolving circumstances of an interrogation. The disagreement with the majority relates to the conditions that are necessary for a defence lawyer to provide meaningful assistance to a client in trouble with the law. The detainee should be entitled to, in his view, receive advice from counsel during an interview where the detainee’s request is to satisfy a need for legal assistance rather than simple delay or distraction, and such a request is reasonably justified by the circumstances. “Reasonably justified” is determined objectively.

Justice Binnie declined to accept that s. 10(b) requires the presence of defence counsel in the interrogation room with them. However, the majority’s categories of circumstances was still far too narrow, and “undershoots” the right of s. 10(b). Preliminary advice is a good start, but it does not provide adequate advice for detainees as an investigation progresses and evolves.

He instead proposed an intermediate position that would allow detainees reasonable access to legal advice from time to time in the course of a police interrogation, but without defence counsel’s actual presence in the room. What circumstances reasonably warrant additional consultation depends on context. The police should not be required to shut down their interrogation simply because the detainee expressed a desire o consult counsel again.

Factors that may justify additional consultation include, but are not limited to:

  1. The extent of prior contact with counsel.
  2. The length of the interview at the time of the request.
  3. The extent of other information provided by the police to the detainee about the case, which may suggest that the initial advice may have been overtaken by events.
  4. The existence of circumstances that make any delay in the interrogation difficult or impossible.
  5. Whether a legal issue arose in the course of the interrogation concerning the evidence.
  6. The mental and physical condition of the detainee.

Justice Binnie applied his interpretation to the current case. He found that the breach of s. 10(b) occurred when after several hours or so of suggestions and argument, the police interrogator confronted Mr. S with what he claimed was “absolutely overwhelming” evidence linking him to the crime and he appellant repeated his desire to consult with his counsel before going further. Reasonably, Mr. S must have wondered whether the initial six minutes of legal consultation he had up to this point was still enough.

The police’s refusal to grant him access to counsel at this point was, in Justice Binnie’s view, a breach of 10(b). The subsequent confession to the undercover officer and his participation in the re-enactment were also invalid because of the breach.

Binnie would therefore have excluded the evidence under s. 24(2) of the Charter, allowed the appeal, and ordered a new trial.

Dissent 2 (LeBel and Fish)

Of the three judgements the one written by Justices LeBel and Fish went the furthest in expanding the right to counsel under s. 10(b). They too critiqued the majority, stating that their interpretation of section 10(b) was far too narrow, and undermines the protection against self-incrimination and presumption of innocence. They also rejected Justice Binnie’s “intermediate approach,” stating that that fresh access to counsel should not hinge on the police interrogator’s judgement of whether circumstances had changed enough to make new advice necessary. The right to counsel should not focus on the objective observations and the conclusions of the police, they emphasize, because of police’s total control over the detainee.  

The three dissenting judges instead advocated for an expansive interpretation of 10(b), with an ongoing right to the assistance of counsel. This right to counsel should not be “spent” on an initial warning and consultation. The opportunity to consult with counsel should remain active throughout the interrogation. To not allow this would subject detainees to persistent and sustained interrogation without legal assistance, with the express purpose of obtaining a confession. This places a duty on the police to cease the interrogation and allow the detainee to access counsel whenever they assert that right.

The dissenting judges applied their interpretation to the facts. Mr. S’s multiple requests for counsel were coupled with firm assertions of his right to silence. The police interrogator at one point asserted that to continue to exercise this right would be a “mistake.” The police’s failure to suspend the interrogation and allow Mr. S to consult with a lawyer, in the face of his numerous requests, was a breach of his right to counsel. As a result of this breach, any statements made after that point in the interrogation and to the undercover officer should be inadmissible.

The Justices Lebel and Fish would have excluded the statements under s. 24(2), allowed the appeal, and ordered a new trial.

Discussion Questions

Which judgement do you agree with: the Chief Justice, Justice Binnie, or Lebel and Fish? Would you have allowed the appeal and thrown out the conviction?

Does a constitutional right to counsel require continuous access at-will to be effective?

What should the proper ceriteria be for Binnie’s contextual, “intermediate” approach?

Should the Court have adopted Mr. S’ argument that s. 10(b) requires the presence of a defence lawyer in the interrogation room?

Feel free to drop a comment about what you think below or find me on twitter @teddyweinstein.

July 17: Reference re Genetic Non-Discrimination Act

Note: This case has three written decisions. Click here for an explanation of majority, concurring and dissenting reasons.

Background

In 2017 Parliament enacted the Genetic Non-Discrimination Act (the Act). Section 2 of the Act defines a genetic test as “a test that analyzes DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis.”

The Act also creates certain prohibitions relating to genetic tests. Individuals and corporations cannot force individuals to take genetic tests or disclose genetic test results as a condition of obtaining access to goods, services and contracts; cannot refuse an individual access to goods, services and contracts because they have refused to take a genetic test or refused to disclose the results of a genetic test; and cannot use individuals’ genetic test results without their written consent in the areas of contracting and the provision of goods and services.

Physicians, pharmacists or other health care practitioners are exempt from these prohibitions, as are people conducting certain kinds of research. Doing anything prohibited by the act is a criminal offence. The Act also amends the Canada Labour Code to protect employees from discrimination on the basis of genetic testing, and amends the Canadian Human Rights Act to add genetic characteristics as a prohibited ground of discrimination.

The Government of Quebec referred the Constitutionality of sections 1 to 7 of the Act to the Quebec Court of Appeal, asking whether these provisions were ultra vires the jurisdiction of Parliament over criminal law under s. 91(27) of the Constitution Act, 1867. The Court of Appeal answered in the affirmative and declared the law unconstitutional. The Canadian Coalition for Genetic Fairness, an intervener in the Court of Appeal Case, appealed the decision to the Supreme Court.

Verdict: Appeal allowed. The act is intra vires Parliament’s power over criminal law and therefore constitutional.

Sidebar: Reference Cases

Courts in Canada are empowered to hear reference questions, which are questions of law that do not arise out of any legal dispute between parties. At the Supreme Court of Canada, these questions are delivered by the Governor General in accordance with the Supreme Court Act. In the Provinces, the power of Superior Courts or Courts of Appeal to hear reference questions come from their respective local legislation. Once a provincial court has given their answer to a reference question, there is an automatic right to appeal the decision to the Supreme Court.

Sidebar: The Division of Powers

To determine whether a law falls within the authority of Parliament or a provincial legislature to make, a court must first characterize the law and then, based on that characterization, classify the law by assigning it to one of the federal and provincial heads of power under sections 91 and 92 of the Constitution Act, 1867.

In the past, this exercise was limited by the “Watertight Compartments” theory. That is, that the federal government and the governments of the provinces each had their own separate powers and neither can intrude upon the power of the other. That has now changed, with the courts allowing some interplay and flexibility in how the heads of power are interpreted as the world has become more nuanced and complicated.  

Municipal governments are considered creations of the provinces and have their powers delegated to them by the provincial legislature. They have no constitutional status.

To properly characterize the law, a court must identify the law’s “pith and substance”; determine the law’s true subject matter, even where that may not be immediately apparent or stated up front. The court will characterize the specific provisions challenged, rather than the legislative scheme as a whole, to determine whether they are validly enacted. Identifying a law’s pith and substance requires considering both the law’s purpose and its legal and practical effects. The law’s matter must be precisely defined, with a focus on the law itself and what it is really about.

Determining a law’s purpose requires looking at both internal and external evidence. Internal evidence includes the text of the law, and the provisions that expressly set out the law’s purpose. External evidence includes statements made during parliamentary proceedings and what is written in government publications. Legal and practical effects are also relevant to identifying pith and substance. Legal effects flow directly from the provisions of the statute, and practical effects flow from its application.

Once the pith and substance of the law has been determined, it must then be assigned to a “head of power” under sections 91 or 92 of the Constitution. A partial list of the exclusive powers of the Federal government include:

  • Taxation;
  • Postal Service;
  • Defence;
  • Quarantine; and
  • Criminal Law

The Provincial governments, meanwhile, have the exclusive power over, among other topics:

  • Municipalities;
  • Property and Civil Rights;
  • Hospitals;
  • Incorporation of Properties; and
  • Matters “of a merely local or private nature”

If the law can be placed within an appropriate head of power, it is considered intra vires (“within the powers”) of that government and therefore constitutional. If not, it is ultra vires (“beyond the powers”), and therefore invalid.

Majority Decision (3 Judges)

The majority concluded that Parliament had the power to enact the Genetic Non-Discrimination Act under s. 91(27) of the Constitution Act, 1867. The pith and substance of the challenged law is to protect individuals’ control over their detailed personal information disclosed by genetic tests. The purpose for this was to address Canadians’ fears that their genetic test results will be used against them and to prevent discrimination based on that information. This matter is properly within Parliament’s power over criminal law. The provisions are supported by a criminal law purpose because they respond to a threat of harm to several overlapping public interests traditionally protected by the criminal law – autonomy, privacy, equality and public health.

The court looked at the parliamentary debates around the bill. They provided strong external evidence that the purpose of section 1 to 7 is to combat genetic discrimination. The debates make it clear that the immediate mischief that the law was intended to address was the lack of legal protection for the results of genetic testing. Those concerns correspond to the title of the Act and the text of the prohibitions. The simultaneous amendments to the Canada Labour Code and the Canadian Human Rights Act suggest a coordinate approach to tackling this issue.

Having determined the purpose the court then turns to the law’s effects. The most direct and significant practical effect of the prohibitions is to give individuals control over the decision of whether to undergo genetic testing and over access to the results of genetic testing. They do so by preventing genetic testing requirements from being imposed on individuals as a condition of access to goods, services and contracts, and by preventing individuals’ genetic test results from being used non-consensually when they seek to obtain goods and services and enter into contracts.

The court then moved to the classification stage, placing the pith and substance of the law under one of the heads of power in the Constitution. Section 91(27) of the Constitution Act gives Parliament the exclusive authority to make laws in relation to criminal law. A law will be valid criminal law if, in pith and substance, (1) it consists of a prohibition, (2) accompanied by a penalty and (3) backed by a criminal law purpose. Here, there are unquestioningly prohibitions accompanied by penalties, leaving the only remaining issue as whether sections 1 to 7 of the Act are supported by a criminal law purpose.

A law is backed by a criminal law purpose if it represents Parliament’s response to a threat of harm to public interests traditionally protected by the criminal law, such as peace, order, security, health, and morality, or to a threat of harm to another similar interest. The standard used is that Parliament is addressing a “reasoned apprehension of harm” to one or more of these public interests. The degree of seriousness of the harm does not need to be proven to make criminal law.

The Act represents Parliament’s response to the risk of harm that genetic discrimination poses to several public interests traditionally protect by the criminal law: autonomy, privacy, equality, and public health. Genetic discrimination poses a risk of harm to autonomy and personal privacy because individuals have an interest in protecting their genetic information from others. Genetic test results potentially reveal highly personal information about the individual tested and there is immense potential for abuse. Genetic discrimination also threatens the fundamental social value of equality by stigmatizing and burdening individuals because of inherited genetic characteristics. The court stated that protecting these core interests is an established, proper use of the criminal law power.

Concurring Decision (2 Judges)

Moldaver and Côté agree that sections 1 to 7 of the Act represent a valid exercise of Parliament’s power over criminal law. However, they disagree with the majority’s classification of the pith and substance of the law.

Their conclusion is that the pith and substance of sections 1 to 7 of the Act is to protect health by prohibiting conduct that undermines individuals’ control over the information revealed by genetic testing. By giving people control over the decision to undergo genetic testing and over the collection, disclosure and use of the results of such testing, Parliament sought to mitigate their fears that their genetic test results could be used against them in a variety of contexts. Parliament had evidence of the harm this fear was causing to the health of individuals and their families.

This is a valid exercise of Parliament’s power over the criminal law. The criminal law purpose is suppressing a threat to health, specifically the detrimental health effects caused by people foregoing genetic testing out of fear as to how the information revealed by such testing could be used.

Dissenting (4 Judges)

The dissenting judges wrote that the appeal should be dismissed and the law found to be ultra vires parliament’s authority over criminal law. Sections 1 to 7 were not enacted constitutionally. Rather, they fall within the province’s jurisdiction over property and civil rights under s. 92(13).

They stated that the pith and substance of sections 1 to 7 of the Act is to regulate contracts and the provision of goods and services, in particular contracts of insurance and employment, by prohibiting some perceived misuses of one category of genetic tests. Sections 1 to 7 do not satisfy the substantive component of criminal law – a valid criminal law purpose – because Parliament has neither articulated a well-defined threat that it intended to target, nor did it provide any evidentiary foundation of such a threat. Instead sections 1 to 7 substantially affect the law of insurance as well as human rights and labour legislation.

The court first examined the internal evidence. Nothing in the law itself supports a conclusion that sections 1 to 7 seek to prohibit or prevent discrimination on genetic grounds. There is also no evidence that Parliament’s dominant purpose as focused on privacy and autonomy. No preamble or purpose sections exist to guide the inquiry into the law’s dominant purpose.

The text of sections 1 to 7 do not prohibit the use of genetic information that was disclosed voluntarily or obtained through other means, and they do not prohibit genetic discrimination. Sections 1 to 7 are limited in scope to a category of certain health-based genetic tests, as defined in section 2.

The court turned to external evidence next. The amendments to the Canadian Human Rights Act and Canada Labour Code in sections 8 to 10 of the Act create prohibitions against genetic discrimination which are absent from sections 1 to 7 of the Act [note that sections 8 to 10 are not challenged in this case, only sections 1 to 7]. Sections 1 to 7 offer limited control to individuals over their genetic information, but they do not reduce their fears surrounding genetic testing in any real measure, since they do not prohibit genetic discrimination.

Next, there are the legislative debates. They may indicate the legislature’s intent when crafting the law, but they cannot stand in for the text of the Act itself. In this case, the debates emphasize that sections 1 to 7 were included as a way to encourage Canadians to undergo genetic tests by mitigating the fear of misuse, in particular in respect of insurance and employment.

In light of the evidence, the court concludes that the true purpose of sections 1 to 7 is to regulate contracts, particularly contracts of insurance and employment, in order to encourage Canadians to undergo genetic tests without fear that those tests would be misused. This will ultimately improve the health of Canadians.

With the purpose determined the court moves on to the effects. The dominant effects of sections 1 to 7 concern the regulation of insurance and promotion of health rather than in the protection of privacy and autonomy or the prevention of genetic discrimination.

The sole remaining issue was whether there was a valid criminal law purpose. When determining if there is a valid criminal law purpose, there are three questions. First, does the law relate to a public purpose, such as public peace, order, security, health, or morality? Second, did Parliament articulate a well-defined threat to be suppressed or prevented by the impugned legislation? Third, is the threat “real” in the sense that Parliament had a concrete basis and a reasoned apprehension of harm?

Regarding the first question, the dissenting judges agreed that the provisions can be said to relate to health, which is a valid public purpose. The provisions also have an impact on privacy and autonomy, but the scope of the definition of “genetic test” in s. 2 means that health is the primary character of the law and these other subjects are derivative.

Regarding the second question, the court states that Parliament must clearly define the scope of the threat it seeks to suppress. This requirement is particularly important when matters have provincial aspects, such as health, to preserve the balance of federal and provincial powers. To say the pith and substance merely related to health is not sufficient. It must also involve suppressing an evil or undesirable effect upon the public.

In this case, there is no well-defined public health evil or threat to be suppressed. The objective of the legislation is to promote beneficial health practices. It seeks to encourage Canadians to undergo genetic testing, which may then result in better health outcomes. This will not suffice as a valid criminal law purpose. The mere fact that genetic testing is a novel development does not, on its own, bring it within the purview of the criminal law. Moreover, a gap in provincial legislations across the country is not a well-defined threat that justifies recourse to the criminal law.

Finally, on the third question, the reasoned apprehension of harm, there is no adequate evidentiary foundation here that the law is aimed at preventing harm. Rather, Parliament seeks to improve the health of Canadians by making them aware of underlying conditions they may have and does so by encouraging the use of genetic tests.

Topic: Standards of Proof

Note: This is a “Topic” post, in which I will briefly cover a legal concept using a few leading cases. Topics will be found in their own category and may be updated in the future if necessary.

Introduction

It is common knowledge by this point that in order to convict someone in criminal court, the prosecution must prove its case “beyond a reasonable doubt.” These words are echoed in endless cases, news articles, and even popular courtroom dramas such as Law and Order.

Slightly less well-known is the civil standard of proof, in which the plaintiff (the party that initiated the case) must prove their case on a “balance of probabilities.” This is a lower standard of proof than beyond a reasonable doubt, which is appropriate given the potential outcomes of a civil trial versus a criminal trial.

The civil standard is used in a wide range of litigation, from Charter challenges, to personal injury cases, to tribunal hearings.

“Beyond a Reasonable Doubt”

The meaning of “beyond a reasonable doubt” in the context of the criminal law is best understood through jury instructions, since these are meant to be understood by the layperson. It also mirrors what the judge must consider when arriving at a decision on their own. The case in which the Supreme Court of Canada provided guidance on how to instruct a jury on the burden of proof was R v Lifchus, [1997] 3 SCR 320. The case was appealed because the judge told the jury that in order to find the defendant guilty, they had to find proof that he committed fraud beyond a reasonable doubt, stating “proof beyond a reasonable doubt” had its ordinary, natural, every day meaning. She said “doubt” and “reasonable” are “ordinary, every day words that…you understand.”

The Supreme Court said this instruction was unacceptable. The jury must clearly understand the meaning of the term “reasonable doubt.” It is of fundamental importance to the criminal justice system, and is closely linked to the presumption of innocence. It is one of the principal safeguards to ensure no innocent person is convicted. If jurors do not clearly understand the concept of the standard of proof that the Crown must meet to obtain a conviction, there cannot be a fair trial.

How should “reasonable doubt” be explained? We know already that saying the words mean nothing more than the “everyday sense” of the words is a mistake. The court provides further guidance on what the definition should and should not contain. As a non-exhaustive list about what should be said about proof beyond a reasonable doubt:

  1. The standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;
  2. The burden of proof rests on the prosecution throughout the trial and the accused never has to prove they didn’t commit the offence [Note: the burden is on the accused to prove certain defences, such as self-defence or automatism, but this is another topic];
  3. A reasonable doubt is not a doubt based upon sympathy or prejudice;
  4. Rather, it is based upon reason and common sense;
  5. It is logically connected to the evidence or absence of evidence.
  6. It does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and
  7. More is required than proof that the accused is probably guilty — a jury which concludes only that the accused is probably guilty must acquit.

Certain other descriptions of the standard of proof must be avoided, for example:

  1. Describing the term “reasonable doubt” as an ordinary expression which has no special meaning in the criminal law context;
  2. Inviting jurors to apply the same standard of proof that they apply to important, or even the most important decisions in their own lives;
  3. Equating proof “beyond a reasonable doubt” to proof “to a moral certainty”;
  4. Qualifying the word “doubt” with adjectives other than “reasonable”, such as “serious,” “substantial” or “haunting”, which may mislead the jury; and
  5. Instructing jurors that they may convict if they are “sure” that the accused is guilty, before providing them with a proper definition as to the meaning of the words “beyond a reasonable doubt”.

A charge consistent with these principles will be sufficient, according to the court, regardless of the particular words used by the trial judge.

“Balance of Probabilities”

In civil court cases the Canadian system uses the “balance of probabilities” standard to indicate when the plaintiff has proven their case. “Balance of probabilities” means the alleged events are more likely to have occurred than not, with 51 percent or greater certainty in the mind of the decision maker. The trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.

In FH v McDougall, 2008 SCC 53, the Supreme Court discussed how various approaches in civil cases have been used in different jurisdictions, particularly where “criminal or morally blameworthy” conduct is alleged to have occurred. It has been proposed, in these situations, that the criminal standard of proof should be used, or an intermediate standard of proof between a balance of probabilities and beyond a reasonable doubt.

The Supreme Court endorsed the approach that only one civil standard of proof exists at common law and that is proof on a balance of probabilities. Any alternatives should be rejected. They go on to explain why.

In civil cases, there is no presumption of innocence. As was said by Justice Sopinka et al. in The Law of Evidence in Canada (2nd ed. 1999): “Since society is indifferent to whether the plaintiff or the defendant wins a particular civil suit, it is unnecessary to protect against an erroneous result by requiring a standard of proof higher than a balance of probabilities.” There may be serious consequences to a finding of liability in a civil case, but the difference is that a civil case does not involve the government’s power to penalize or take away the liberty of the individual.

An intermediate standard of proof poses problems. The concept of “51 percent probability” is easy to understand for decision makers, but the concept of 60 percent or 70 percent probability is not. Findings of fact in court cases are binary – one or zero, true or false. The fact is either true or it is not. The only practical way to reach a factual conclusion in a civil case, according to the court, is to decide if it is more likely than not that the event occurred.

The court also states that no matter how serious the allegations, there is a consistent legal rule in all cases that the evidence must be scrutinized with care by the trial judge. Evidence must also always be sufficiently “clear, convincing and cogent” to satisfy the balance of probabilities test. There is no objective standard to measure sufficiency. This means the judge must use the best evidence available to make a decision. For example, when dealing with events that took place in the distant past with only testimony of the plaintiff and defendant, the judge still has the difficult task using this evidence to decide the outcome of the case.

June 28: Uber Technologies v Heller 2020 SCC 16

Key Takeaway: Forced arbitration clauses in standard form contracts are unconscionable and therefore unenforceable when they prevent the weaker party to an agreement from meaningfully pursuing a dispute against the stronger party.

Overview

H is a food delivery driver using Uber Eats. To become an Uber driver, H had to accept the terms of Uber’s standard form services agreement. Under the terms, H has to resolve any dispute with Uber through mediation and arbitration in the Netherlands. This carried hefty up-front fees of US $14,500 plus legal fees and other costs. These costs represent most of H’s annual income earned working for Uber.

In 2017, H started a class action against Uber in Ontario for violations of employment standards legislation. Uber countered by bringing a motion to stay the action in favour of arbitration in the Netherlands, relying on their own arbitration clause in the agreement.

Verdict: The Supreme Court found in favour of H, deeming the arbitration clause to be “unconscionable,” refusing Uber’s motion to stay the proceedings and allowing the class action to move forward in an Ontario Court.

Sidebar: Unconscionability

The doctrine of unconscionability comes from the court of equity in England and it is used to set aside unfair agreements that resulted from an inequality of bargaining power. The purpose of unconscionability is to protect those who are vulnerable in the contracting process from loss resulting from the unfair bargain that was made.

The doctrine requires both an inequality of bargaining power and a resulting “improvident” bargain. A bargain is improvident if it unduly advantages the stronger party or unduly disadvantages the more vulnerable.

Sidebar: Majority, Concurring and Dissenting Decisions

Whenever a judgement is written by an appellate court with multiple judges on the bench (typically convened in panels of 3, 5, 7 or 9 judges) you may have multiple decisions that are issued by the court.

The “majority” decision is just that: the set of reasons endorsed by the majority of judges on the bench. These reasons carry the ruling verdict and the legal reasoning has the strongest authority when cited in future cases.

“Concurring” decisions agree with the majority in the result of the case but uses different legal reasoning to reach their conclusion. Concurring judgements may disagree with the majority’s interpretation of the law as they see it, and may even offer sharp critiques of their legal reasoning while still arriving at the same result.

“Dissenting” decisions disagree with majority’s result and offers a different verdict that has no force in law. Dissenting reasons may disagree with the majority’s interpretation of the law and therefore arrived at a different result, agree with their interpretation yet still arrived at a different result, or some combination of the two.

Analysis

Majority Decision: Wagner, Abella, Moldaver, Karakatsanis, Rowe, Martin and Kasirer JJ

The arbitration clause in Uber’s standard form contract was unconscionable. Unconscionability does not require that the transaction was grossly unfair that the imbalance of bargaining power was overwhelming or that the stronger party intended to take advantage of a vulnerable party.

The doctrine has particular implications for standard form contracts. These contracts have great potential for creating an inequality of bargaining power, and potentially enhances the advantage of the stronger party at the expense of a the more vulnerable party. In particular, clauses that enforce choice of law, forum selection, and forced arbitration clauses violate a party’s reasonable expectations by depriving them of possible remedies.

In this case, there was clearly inequality of bargaining power between Uber and H. The arbitration agreement was part of a standard form contract and H could not have anticipated the $14,500 fees existed as a hurdle to resolving a dispute. These fees were close to H’s annual income and disproportionate to the size of an arbitration award he could have reasonably foreseen.

Based on both the financial and logistic disadvantages faced by H in his ability to protect his bargaining interests and the unfair terms that resulted, the arbitration clause is unconscionable and therefore invalid.

Concurring Decision: Brown J

Justice Brown agrees with the majority that the arbitration clause should be struck out but does not agree that the doctrine of unconscionability should be used to reach this conclusion.

Arbitration agreements are invalid and unenforceable not because of unconscionability but rather because they undermine the rule of law by denying access to justice. They are therefore contrary to public policy.

The majority vastly expands the scope of the doctrine of unconscionability through their ruling. This is not necessary because other legal principles exist which operate to prevent contracting parties from insulating their disputes from independent adjudication. Expanding the scope of unconscionability will increase the uncertainty that already exists within the doctrine, and also introduce uncertainty into the enforcement of contracts generally.

The public policy doctrine provides grounds for setting aside specific types of contractual provisions including those that harm the integrity of the justice system. It applies when a provision penalizes or prohibits one party from enforcing the terms of their agreement, which serves to uphold the rule of law. The rule of law is undermined without access to an independent judiciary that can vindicate legal rights.

Here, the arbitration agreement effectively bars any claim that H might have against Uber and is disproportionate in the context of the parties’ relationship. This form of limitation on legally determined dispute resolution undermines the rule of law and is contrary to public policy.

Dissent: Côté J

Justice Côté disagrees with the other judges and would allow Uber’s stay of proceedings, but only on the condition that Uber advances the funds required to initiate the arbitration proceedings.

The strongest emphasis is placed here on the freedom of contract and party autonomy. The Court’s own past jurisprudence supports respecting the parties’ commitment to submit disputes to arbitration.

In light of H’s evidence that he cannot afford the arbitration fees, Uber should be required to advance the filing fees to enable him to initiate arbitration. Additionally, if the arbitration clauses were unconscionable or contrary to public policy, the rules selection and place of arbitration clauses could be severed from the contract. The other judges do not explain why they have chosen not to address severance in their reasons.

Approaching the enforceability of arbitration agreements in the fashion taken by the majority, using a hypothetical case with an undetermined reward, compromises the certainty upon which commercial entities rely on in structuring their operations. The arbitration clause should therefore be upheld.