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But prioritizing a business-oriented case simply because of its scope is insensitive to the needs of other Canadians waiting for their cases to be resolved by the SCC. Parents desperately seeking a resolution by the SCC on the question of whether government is required to pay for the intensive early behavioural therapies which are widely considered to be the only effective intervention for autism no doubt feel for the individuals holding mountains of worthless commercial paper, but their case has been preceding through the courts for over three years at this point - and they’ve been lucky that it was that quick.

No one disputes the seriousness of the matters in Metcalfe & Mansfield, because you can’t dispute that $32 billion isn’t important - both to the holders of that capital and to the Canadian economy as a larger whole. But most cases that make it to the Supreme Court of Canada pose important legal questions that must be answered, and behind most of those legal questions lies human suffering. Allowing a business-oriented case to take precedence over the other cases the Supreme Court of Canada must consider - to effectively jump the queue - is to effectively assign dollar value to tragedy and decide on case decisions that way.

The parties in Metcalfe & Mansfield should be heard by the Supreme Court - and they should also have the grace to wait their turn. Nobody forced them to buy potentially shoddy assets.

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Mr. Anekwu challenged the admissability of the Canadian-gathered statements at the extradition hearing. Specifically, he submitted that the impugned evidence was inadmissable for two reasons, (1) that it had been obtained in a manner that violated his section 8 Charter protection against unreasonable search and seizure, and (2) that the evidence constituted hearsay.

The committal judge rejected both arguments by Mr. Anekwu, finding that the impugned evidence was in fact admissable. Mr. Anekwu then appealed the second argument (above) to the British Columbia Court of Appeal.

British Columbia Court of Appeal

A divided B.C. Court of appeal ruled in Mr. Anekwu’s favour, setting aside committal and surrender orders and ordering a new hearing. After identifying the appropriate standard of review as one of correctness, Prowse J.A., writing for the majority, launched into a consideration of the admissability of the Canadian-gathered evidence. Smith J.A. agreed with Prowse J.A. but wrote a separate concurring opinion.

Prowse J.A. considered the matter before the court as primarily related to the statutory interpretation of s. 32 of the Extradition Act, which reads:

32.(1) Subject to subsection (2), evidence that would otherwise be admissible under Canadian law shall be admitted as evidence at an extradition hearing. The following shall also be admitted as evidence, even if it would not otherwise be admissible under Canadian law:

(a) the contents of the documents contained in the record of the case certified under subsection 33(3);
(b) the contents of the documents that are submitted in conformity with the terms of an extradition agreement; and
(c) evidence adduced by the person sought for extradition that is relevant to the tests set out in subsection 29(1) if the judge considers it reliable.

(2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.

Section 33 of the Act details the rules about introducing evidence through a record of case:

33(1) The record of the case must include

(a) in the case of a person sought for the purpose of prosecution, a document summarizing the evidence available to the extradition partner for use in the prosecution;
…

(2) A record of the case may include other relevant documents, including documents respect-ing the identification of the person sought for extradition.
(3) A record of the case may not be admitted unless

(a) in the case of a person sought for the purpose of prosecution, a judicial or prose-cuting authority of the extradition partner certifies that the evidence summarized or contained in the record of the case is available for trial and

(i) is sufficient under the law of the extradition partner to justify prosecution, or
(ii) was gathered according to the law of the extradition partner; or
…

(4) No authentication of documents is required unless a relevant extradition agreement provides otherwise.

Prowse J.A. thus summarized the issues relating to the statutory interpretation as follows:

The first question raised as a matter of statutory interpretation is whether evidence that is lawfully gathered in Canada and summarized in the record of the case is automatically admissible as part of the record of the case pursuant to s. 32(1)(a) of the Act, or whether that evidence must still satisfy the rules of evidence under Canadian law in order to be admitted in accordance with s. 32(2). The second question concerns what it means “to satisfy the rules of evidence under Canadian law” within the meaning of s. 32(2) where the evidence in issue is hearsay.

With respect to the first question, drawing on United States of America v. Martinez, [2000] O.J. No. 647 (Sup. Ct. J.), Prowse J.A. found that all “Canadian-gathered evidence contained in a record of [a] case ha[s] to satisfy the rules of evidence under Canadian law to be admitted.”

To fortify this finding, Prowse J.A. launched into a purposive analysis of s. 32(2) of the Extradition Act, pointing, among other things, to the fact that Hansard records indicated that Parliament had drawn a distinction between foreign-gathered evidence (which, for reasons of expediency was presumably subject to automatic admission) and Canadian-gathered evidence.

Prowse J.A. then turned her attention to s. 33 of the Act and in her analysis, she drew heavily on Moldaver J.A.’s opinion for the Ontario Court of Appeal in United States of America v. McDowell (2004), 237 D.L.R. (4th) 677. She agreed with Moldaver J.A. that “s. 33 of the Act, which sets forth what may be contained in a record of the case, does not, on its face, preclude the Requesting State from including Canadian-gathered evidence in the record of the case,” however she took issue with the finding in McDowell that “s. 33 is silent with respect to Canadian-gathered evidence gives rise to the inference that Parliament intended to permit such evidence to be admitted at an extradition hearing if it would otherwise be inadmissible under Canadian law.”

“That question” she explained, “is specifically addressed in s. 32(2) of the Act which makes it clear that Canadian-gathered evidence must comply with the Canadian rules of evidence to be admitted at an extradition hearing.” What s. 32(2) does not say, Prowse J.A. continued, was that “Canadian-gathered evidence, except that forming part of a record of the case, must comply with Canadian rules of evidence; nor, in my view, can that be reasonably inferred from these provisions when read together.”

Ultimately, however, the Supreme Court will have the final say on the precise nature of the evidentiary requirements that attach to Canadian-gathered evidence in extradition hearings.

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The reaction to the Morgentaler affair today is also about how we make law. Canada still has no laws regulating the practice of abortion. This is an outlook that not even the Supreme Court intended in R. v. Morgentaler, [1988] 1 S.C.R. 30. In a 5-2 decision with four separate judgments, the majority merely agreed to strike down section 251 of the Criminal Code. The 1969 Abortion Law required the assent of three members of a therapeutic committee in an accredited hospital to deem the abortion necessary if it would likely endanger the woman’s health or life. Morgentaler’s defense suggested this law infringes on women’s right to freedom of conscious and religion, to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice, not to be subjected to any cruel and unusual treatment or punishment, to be equal before and under the law and to equal protection and benefit of the law without discrimination. The constitutional questions before the Supreme Court were the following:

1. Does section 251 of the Criminal Code infringe or deny the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms?

2. If section 251 of the Criminal Code infringes or denies the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms, is s. 251 justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?

3. Is section 251 of the Criminal Code ultra vires the Parliament of Canada?

4. Does section 251 of the Criminal Code violate s. 96 of the Constitution Act, 1867?

5. Does section 251 of the Criminal Code unlawfully delegate federal criminal power to provincial Ministers of Health or Therapeutic Abortion Committees, and in doing so, has the Federal Government abdicated its authority in this area?

6. Do sections 605 and 610(3) of the Criminal Code infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d), 11(f), 11(h) and 24(1) of the Charter?

7. If sections 605 and 610(3) of the Criminal Code infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d) 11(f), 11(h) and 24(1) of the Charter, are ss. 605 and 610(3) justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?

Indeed, Dickson C.J. and Lamer J found the impugned law in violation of the right to security of the person and that it cannot be saved by meeting the procedural standards of fundamental justice. The procedural requirements to section 251 of the Criminal Code were also found to put women’s health at risk because of delays in obtaining the assent of the therapeutic committee, lack of guidelines and availability of accredited hospitals. Beetz and Estey JJ. found that the means to protecting the foetus did more harm than was proportional to the good and thus failed the “reasonable limit clause” test under the Charter. The five judges, including Bertha Wilson – who provided the most comprehensive defense to women’s physical autonomy - did not provide a right to abortion, nor was there a suggestion that another regulatory law cannot necessarily meet constitutional standards.

Three attempts were made by the government of the day to respond to the Supreme Court reasoning, but failed. Our political representative did not go beyond the Supreme Court’s ruling that abortion was not unlawful. And that summarizes the state of the law today and how we got there. The disquiet, outrage and complaints over the law surrounding abortion when no legislation exists in Canada is not surprising. The surprising aspect however, is the oversimplification of the issue that is reduced to the question of to abort or not to abort and summarized in the person of Dr. Morgentaler. Meanwhile, other relevant and broader debates on child rearing responsibility, welfare, health care, affordable housing, shelters, mental health, access to higher education, job parity and minimum wage - all of which deal with structural reforms that may reduce the number of abortions without robbing women the right to choose, are not tackled.

Criminal law can do so much to create a good society and the courts can go only so far in shaping social practices and norms based on a single case. Nearly two decades after the Supreme Court ruling, that single case continues to dominate and limit the discussion. Maybe the ambiguity in Mr. Harper’s statement is not to divert but to point out that the complexity of the issues involved in the act of abortion does not just fit in the current debate on abortion; and that is worth contemplating.

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ABCP is an short-term investment tool which is collateralized by other financial investments. The ABCP at issue in ATB Financial were at least partially backed by subprime mortgage investments in the United States, which largely became worthless (or at least perceived as such) thanks to those mortgages becoming worthless.

Ivanhoe requests the Supreme Court review as an investor in Metcalfe and Mansfield’s alternative investment corporations (Ivanhoe holds approximately $70 million in devalued ABCP) because the deal that was worked out last year to bail out ABCP holders potentially sets a precedent allowing greater immunity to become available to managing parties in cases of financial mismanagement. In this case, immunity was granted to bankrupt third parties who were not themselves creditors of the debtor party. (The “third parties” in question are actually only third parties in the sense of technical structuring of the web of corporations that comprised Metcalfe and Mansfield. They are by no means unrelated to the monetary collapse of the ABCP.)

Ivanhoe (and any additional investors wishing to join their attempt to appeal) are likely not attempting to get the Supreme Court to overturn the deal because of their dislike of the immunity, of course; they’re using the necessity of determining a solid precedent in order to advance their cause, which is to scrap the rescue deal in favour of a new deal that hopefully would afford them a better (or, more accurately, less worse) financial outcome when they sell their devalued ABCP. Regardless, the Supreme Court will likely have to accede to their request for an appeal; even if the legal precedent was not so thorny as to demand involvement, the simple issue of this being the largest financial meltdown in Canadian history would require it.

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At the same time, the Court recognized that the sovereigntist movement in Quebec would obtain democratic legitimacy for the secessionist option if a clear majority of Quebecers, on a clear question, expressed their desire that Quebec leave Canada. Moreover, that clear expression of desire would give rise to an obligation on all parties to the federation to negotiate terms and conditions. This, of course, was an interesting and unexpected development for sovereigntists, many of whom immediately embraced this aspect of the Court’s ruling.

Yet it should be remembered that the democratic principle which would legitimize the sovereigntist option was characterized by the Court as an inherent principle of the Constitution of Canada. The duty to negotiate is a constitutional duty, flowing both from the constitutional principle of democracy and the right (or power) of democratically-elected representatives to initiate constitutional amendments pursuant to Part V of the Constitution Act, 1982 (Quebec Secession Reference, ibid, paras. 69, 88).

Moreover, the duty to negotiate is a reciprocal obligation on all parties; the corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution. The conduct of the parties would be governed by constitutional principles: federalism, democracy, constitutionalism itself and the rule of law; and the protection of minorities. A political majority that did not act in accordance with the underlying constitutional principles would put at risk the legitimacy of the exercise of its rights. The conduct of the parties would assume primary constitutional significance. Secession could not be achieved under the Constitution unilaterally; that is, without principled negotiation within the existing constitutional framework.

What all this amounts to is that sovereigntists as much as federalists have a stake in the proper operation and application of the Constitution of Canada. The Constitution, including its underlying principles, rights and obligations, and its amending procedures, is relevant for sovereigntists because it safeguards their legitimate interests, just as it does those of all Canadians.

The ruling of the Court was immensely salutary for Canada’s civic traditions and political culture. It was not healthy for a significant portion of the country’s population to perceive, rightly or wrongly, that its interests were perpetually “outside” the structure of the country’s supreme and fundamental law, any more than it was healthy for a provincial government to act as if it could ignore the law. As the Court reminded the political actors, “[t]he Constitution binds all governments, both federal and provincial, including the executive branch … They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.” Quebec Secession Reference, para, para. 72).

However, in embracing the Court’s finding of an obligation to negotiate, sovereigntists must also accept the Court’s rules as to the circumstances in which such a duty would arise—a clear expression by a clear majority of a desire to secede from Canada—and the rules governing the conduct of negotiations: respect by all participants, including a sovereigntist government, of the underlying principles of the Constitution of Canada identified as applicable to the secession context. This includes respect for the principle of the rule of law, but also of constitutionalism itself, which the Court went out of its way to particularize as being embodied in s. 52(1) of the Constitution Act, 1982 and requiring that all government action comply with the Constitution.

Respect for constitutionalism—especially in circumstances such as secession, where a constitutional amendment is required and where a duty to negotiate arises as a corollary to the right to initiate constitutional change under the Constitution Act, 1982—must mean, at least, respect for the provisions that govern the procedure for amending the Constitution.

Beyond the immediate historical, political and legal context giving rise to the Quebec Secession Reference, the Supreme Court’s analytical approach, and in particular, its insistence on the normative weight and force of the underlying principles of the Constitution—a trend already well underway in earlier cases, including New Brunswick Broadcasting (New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 [New Brunswick Broadcasting]) and the Provincial Court Judges Reference, (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3.) but especially highlighted in the Secession Reference—has led to spirited academic commentary1. and further judicial consideration, most recently as respects the scope of the principle of the rule of law, in Imperial Tobacco (British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473.)) and Christie, (British Columbia (Attorney General) v. Christie, [2007] 1 S.C.R. 873.) and the application of the principle of federalism, in Canadian Western Bank (Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3) and Lafarge (British Columbia (Attorney General) v. Lafarge Canada Inc., [2007] 2 S.C.R. 86.).

Constitutional judicial review has been heretofore largely founded upon the rule, expressed in the words of s. 52(1) of the Constitution Act, 1982, that any law that is inconsistent with the provisions of the Constitution is invalid and of no force and effect. In the preface to a book on the Quebec Secession Reference and the rule of law published in 1999, I queried whether the Supreme Court’s emphasis on constitutional principles (albeit in the specific context of secession, and while affirming the primacy of the written Constitution) had “made more plausible claims that the courts should have a role in reviewing and perhaps even striking down laws allegedly enacted in contravention of broad and open-ended constitutional principles, even where the provisions of the Constitution are arguably not engaged in the debate over the validity of the impugned legislation?” As a practicing constitutional lawyer I demurred from answering that question, noting that it “must be left to another day, and to another forum.” That still seems the prudent course to follow here, although now there is no dearth of commentary and case law on the issue for those disposed to respond to it.2.

Through the Supreme Court’s opinion in the Quebec Secession Reference, Canada overcame an unprecedented threat to its constitutional integrity, legal order and the rule of law, in a manner that permits the legitimate political forces at play within this country to continue to promote their options for change within the prevailing constitutional framework, while respecting basic rights and fundamental principles. That the debate on Canada’s future has taken place with an additional degree of clarity, and in circumstances of some serenity, with a better understanding and appreciation of the legal system within which fundamental political choices are made in this country, is in no small measure due to the profoundly intelligent efforts of the judges of the Supreme Court in the Quebec Secession Reference.

__________________________________

*D.C.S., B.A., B.C.L., LL.B. (McGill), LL.M. (Osgoode); Senior General Counsel, Constitutional and Administrative Law Section, Department of Justice of Canada; Director, LL.M. Professional Development Program in Constitutional Law, Osgoode Hall Law School; of counsel to the Attorney General of Canada in the Quebec Secession Reference.  These remarks draw upon those expressed in W.J. Newman, The Quebec Secession Reference—The Rule of Law and the Position of the Attorney General of Canada, Toronto: York University, 1999, and in articles published in the Supreme Court Law Review and the National Journal of Constitutional Law.  They should not be taken as expressing the official views of the Attorney General of Canada or the Department of Justice.

1. For a sample of the voluminous academic debate on this issue, see J. Cameron, “The Written Word and the Constitution’s Vital Unstated Assumptions”, in P. Thibeault, B. Pelletier and L. Perret, eds., Les mélanges Gérald-A. Beaudoin / Essays in Honour of Gérald-A. Beaudoin, Cowansville: Les Éditions Yvon Blais Inc., 2002; S. Choudry, “Unwritten Constitutionalism in Canada: Where Do Things Stand?” (2001) Can. Bus. Law J. 113, R. Elliott, “References, Structural Argumentation and the Organizing Principles of Canada’s Constitution” (2001) 80 Can. Bar Rev. 67, J. Leclair, “Canada’s Unfathomable Unwritten Constitutional Principles” (2002) 27 Queen’s Law J. 389; P.W. Hogg, Constitutional Law of Canada, 5th ed. supplemented., vol., 1, heading 15.9(g), “Unwritten constitutional principles”, Toronto: Thomson-Carswell; P.J. Monahan, “The Public Policy Role of the Supreme Court of Canada in the Secession Reference”, (1999) 11 Nat. Journal of Const. Law 65; M.D. Walters, “The Common Law Constitution in Canada: Return of Lex Non Scripta as Fundamental Law”, 51 (2001) Univ. of Toronto Law J. 91.

2.For my contribution to the academic debate, see W.J. Newman, “’Grand Entrance Hall, Back Door or Foundation Stone? The Role of Constitutional Principles in Construing and Applying the Constitution of Canada” (2001) 14 Sup. Ct. Law Rev. (2d) 197; “The Principles of the Rule of Law and Parliamentary Sovereignty in Constitutional Theory and Litigation”, (2005) 16 Nat. Journal of Const. Law 175.

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The Chief Justice’s comments are perplexing for two main reasons. First, though candid, they are politically risky. At bottom, McLachlin CJ.’s remarks amount to an admission that, without a ninth member on Canada’s top court, a diminished precedential value will attach to any controversial decisions that the (seven-judge) court renders. Therefore, though presumably intended to put pressure on the Harper government to move fast in appointing the next Supreme Court Justice and thereby enhance the court`s credibility, it is entirely possible that the Chief Justice`s comments will dampen its authority until the next Judge is appointed.

This is confounded by the fact that, particularly in in the area of criminal justice, the Federal Government and the Supreme Court have routinely butted heads in recent years. In fact, in the past few months in particular, several of the top court’s decisions have been poorly received by the feds, (Canada (Justice) v. Khadr, 2008 SCC 28 (May 23, 2008), R. v. D.B., 2008 SCC 25 (May 16, 2008) as well as the companion cases, R. v. A.M., 2008 SCC 19 (April 25, 2008) and R. v. Kang-Brown, 2008 SCC 18, (April 25, 2008) are just a few examples).

In the event that a seven-judge court reaches a split decision that the federal government dislikes, (especially if it is a 4-3 decision), McLachlin CJ.’s admission that the jurisprudence of a seven-judge court lacks the same level of credibility as a nine-judge court could embolden the federal government to ignore the decision, or, to bide its time, then challenge it after installing a judge with a judicial temperament that is more compatible with the government’s objectives.

McLachlin CJ.`s comments are also significant because, at bottom, the Chief Justice is attempting to exert an influence on Supreme Court nomination process. To be fair, her motivations for doing so seem squarely administrative in nature. Nevertheless, it is not clear that McLachlin CJ. should be inserting herself into the selection process. Just as the unwritten constitutional principle of judicial independence dictate that Parliament should stay out of judicial decisionmaking, the unwritten principle of democracy counsels against allowing unelected members of the judiciary to interfere with political processes.

Although the extent to which partisan politics should be allowed to creep into the Supreme Court is a matter of considerable debate, it is far less controversial that the appointment process itself, (as per s. 4(2) of the Supreme Court Act R.S., c. S-19), is a responsibility that resides with the federal government.

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In terms of the nature of the claim, which was unfortunately not at issue, Justice Brenner noted that the Supreme Court of Canada has previously accepted the existence of a constitutional right to civil legal aid in certain circumstances (New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46). However, Justice Brenner distinguished the case at bar in that the plaintiff is a national organization and not an individual litigant seeking funding. “Since the CBA has no direct interest in this action, it must meet the criteria for public interest standing in order for the case to proceed in its current form” [19]. The defendants challenged the standing of the CBA as a preliminary matter and the CBA did not oppose arguing standing in a preliminary setting. This meant that issues of substance, as they regard the provision of civil legal aid, were not assessed on merit. Instead, the case was dismantled for technical and procedural points of law.

A quartet of cases set out the test to determine public interest standing (pre-Charter:Thorson v. Canada (Attorney General), 1974 CanLII 6 (S.C.C.), [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, 1975 CanLII 14 (S.C.C.), [1976] 2 S.C.R. 265; Canada (Minister of Justice) v. Borowski, 1981 CanLII 34 (S.C.C.), [1981] 2 S.C.R. 575; post-Charter: Finlay v. Canada (Minister of Finance), 1986 CanLII 6 (S.C.C.)). In order to obtain standing to challenge legislation, a party must establish:

(1) there is a serious issue as to the invalidity of the legislation;

(2) the plaintiff is affected directly by or has a genuine interest in the validity of the legislation; and

(3) there is no other reasonable and effective manner in which the issue may be brought before the court.

The issue raised by the CBA was deemed not serious because it does not challenge any particular legislation or administrative action said to be ultra vires. The case ultimately required the court “to define a constitutionally valid civil legal aid scheme and order its provision by the defendants” [45]. Justice Brenner determined that “[t]here is no question that the provision of legal aid for non-criminal matters is a serious public issue, but that does not render it a serious issue warranting the grant of public interests standing. I am reluctant to extent the concept of public interests standing so far beyond what has been clearly set out by the Supreme Court of Canada” [48]. The fact that the Supreme Court of Canada refused to hear this case can be interpreted as a positive acknowledgment to this conclusion.

The CBA did not fail the second part of the test that determines genuine interest and Justice Brenner determined he would not decline granting standing to the CBA solely on this issue anyway. However, the CBA did not pass the third part of the test that looks into whether there is any other reasonable and effective manner in which the issue may be brought before the court. The CBA relied on Chaoulli v. Quebec (Attorney General), [2005], 1 S.C.R. 791, to establish the third requirement in circumstances “where individual resources are lacking and/or where individual circumstances are otherwise dire” [66]. While Chaoulli establishes the case for standing in circumstances where the affected people can not be expected to exhaust their little resources in individual court challenges, Justice Brenner was not convinced. He distinguished the case based on the first two parts of the test. First, he noted that Chaoulli was an individual challenge initiated by individual patients. Second, he noted the Chaoulli was challenging the constitutional validity of a legislation, which is not the case at bar.

In this brave attempt, the CBA was found to be lacking public interest standing. Moreover, Justice Brenner deemed that the constitutional claims forwarded by the CBA did not disclose causes of action and that “the interests or legal rights claimed were not of a type that would allow him to provide relief, whatever the outcome of the case”. At the final round of battle, the association was denied the opportunity to state its case before the Supreme Court. So, after years of lobbying, the CBA lost its bid to ensure constitutional rights for low-income people in the court system and from media reports on their most recent meeting, CBA members are back to lobbying political entities.
To conclude, it is ironic that, in this particular case, the plaintiffs lost on the public interest standing test. It is especially because people with low income cannot access lawyers or seek reasonable and effective ways to bring the issues at court that the CBA has taken up this task. Who else but the largest Canadian lawyers’ organization can? With the CBA not granted standing or leave to appeal to the Supreme Court, the ratio from this case is that Poor People will have to continue relying on charitable “publically minded counsel in the best traditions of the profession” [73] and that organization trying to incorporate social justice into their practice need to stick to the role of providing “professional expertise through generous intervener provisions” [77].

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In short, the list of “42 organizations” is shockingly dishonest even before it says anything, seeking to portray individuals as political organizations and overstating the political impact of the actual organizations by falsely multiplying their number. However, it does not stop there. From the letter:

Under the policy section of the Constitution of the Order of Canada, paragraph 3(b)(ii) disallows a nominee if the person “has been subject to official sanction, such as a fine or a reprimand, by an adjudicating body, professional association or other organization.” The Chair must have been or should have been fully aware that Dr. Henry Morgentaler was sanctioned by the Disciplinary Committee of the Professional Corporation of Physicians of Quebec. In 1976 his medical license was revoked for one year.

The letter is incorrect. The Constitution of the Order of Canada requires the Advisory Council to consider termination of an appointment to the Order of Canada in such a situation; it does not demand it. In this instance, given that Dr. Morgentaler’s sanctions and punishments were delivered for his medical practice, which society at large has since deemed acceptable, it seems likely that the Advisory Council considered the sanctions to be outdated and not relevant in current Canadian society, where support for legalized abortion polls at seventy-five to eighty-five percent.

[P]aragraph 3(b)(i) requires rejection if “the conduct of the person constituted a significant departure from generally recognized standards of public behaviour which is seen to undermine the credibility, integrity or relevance of the Order.” Dr. Morgentaler admittedly broke Canadian law for 19 years and his appointment has severely undermined the credibility of the Order and regard for the law of the land.”

Again, this is untrue; p.3(b)(1) only requires the Council to consider termination of the appointment. Further, one might point out that in such cases, traditionally one considers whether the person’s behaviour would constitute a significant departure from current recognized standards of public order, which is why this portion of the Order’s Constitution uses the word “constitutes,” rather than “constituted,” as the CFAC’s letter claims. Abortion rights in Canada are no longer particularly controversial, so Morgentaler’s actions, in retrospect, are not a significant departure.

Chief Justice McLachlin knows that the Constitution’s clause 7(4) requires that “The Council shall invite the Deputy Minister of the Department of Foreign Affairs and International Trade to participate in the review of nominations for honorary Companions, Officers and Members.” The Chair intentionally did not obey this section of the Constitution.

This is because there is no Deputy Minister of the Department of Foreign Affairs and International Trade. The Ministry became a dual ministry (a Ministry of Foreign Affairs and a Ministry of International Trade) in 1995, and although it has since become one ministry again, there are still separate Ministers for each of the two aspects, and with them, two Deputy Ministers. The Constitution’s Clause is outdated and has not yet been updated to reflect these changes (most likely since current governmental trends lead one to believe the two ministries will soon be recombined into one).

Furthermore, the Constitution of the Order only requires that the Council invite the Deputy Minister to participate in the review of nominations for honorary nominations to the Order. Honorary nominations are given to foreign citizens (Nelson Mandela, for example, is an honorary Companion of the Order of Canada), which is why the Deputy Minister for Foreign Affairs and International Trade is asked to weigh in. Henry Morgentaler, last I checked, is not a foreign citizen.

Long standing Order of Canada regulations do not allow a new Advisory Council to overrule the decision of a previous Council. Two past Advisory Councils rejected Dr. Morgentaler as a nominee. Chief Justice McLachlin violated this and brought forward and approved Henry Morgentaler.

This is either ignorant or dishonest. The Council’s approval of Morgentaler in 2008 is not an “overruling” of previous Councils, no more than the Academy Awards recognizing Al Pacino in 1993 for his performance in Scent of a Woman “overruled” his failures to win an Oscar for The Godfather or Dog Day Afternoon. Justice McLachlin did not retroactively make Henry Morgentaler a member of the Order of Canada.

In the history of the Order of Canada, Advisory Council consensus has been required for approval of a nominee. At least two voices of dissent were present, however the Chair ignored the consensus norm and allowed the nominee by a vote process.

This would be noteworthy, but not explicitly disallowed under the Order’s Constitution, were there a tradition of consensus. However, according to Chief Justice McLachlin and others, there is no such tradition. Thus we have a “he-said-she-said” situation, where on one side you have a deeply respected Chief Justice of the Supreme Court and on the other an organization which attempted to represent construction companies as pro-family political committees.

The votes of dissent represented democratic voices. The Clerk of the Privy Council and the Deputy Minister of the Department of Canadian Heritage act according to the elected Government and the people of Canada. By altering process in the face of democracy the unelected Chair overruled the votes of the elected representatives.

Oddly, I don’t remember voting for the Clerk of the Privy Council or the Deputy Minister of the Department of Canadian Heritage, who were appointed by a minority government that entered office with slightly more than forty percent of the seats in Parliament and thirty-six percent of the popular vote, and who represent a populace who - and this bears repeating - support legalized abortion by a vast margin.

7. The Chief Justice compromised the Supreme Court of Canada’s neutrality, impartiality and integrity by overriding regulations to approve of abortion and Henry Morgentaler’s actions. The Chair’s vote and actions are clear indicators of her position on abortion. The current New Brunswick case regarding funding of Morgentaler’s private clinics before the court may have been impacted by her actions. There is real possibility that this case will come before the Supreme Court. If a case involving abortion or Henry Morgentaler comes to the High Court during Beverley McLachlin’s tenure the Chief Justice’s judgement is predetermined.

Of all the allegations contained within this deeply spurious letter, this is the most serious, which is no doubt why it led Chief Justice McLachlin to take the rare step of publicly addressing the matter. She explained that she did not lead discussion or even vote for Morgentaler, but merely chaired the meeting to make sure that the vote is conducted fairly. In response to this eminently reasonable answer, the Canada Family Action Coalition complained that she did not address their spurious complaints and insulted her repeatedly.

The Canada Family Action Coalition and their “42 organizations” have misrepresented themselves, misrepresented Chief Justice McLachlin and misrepresented the law. This is dishonest. More ironically, it is also un-Christian: as the Bible states in Isaiah 8:20, “To the law and to the testimony: if they speak not according to this word, it is because there is no light in them.”

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The Pre-Trial Debate About the Admissability of Evidence

In Pre-Trial submissions, defence counsel sought to introduce evidence relating to the fact that, at the time of death, the deceased was in possession of 39 pills of ecstasy. The defence argued that such evidence was relevant for three reasons, (1) to establish a general “narrative of the night on which the murder took place,” (2) to help explain the animus that existed between Mr. Coulter and Mr. Jabaji, and (3) to substantiate the argument that there is reason to believe that other people, aside from Mr. Tuck, might have had a motive to kill Mr. Jabaji.

The Crown opposed the admission of any such evidence on the basis that it was irrelevant, and moreover that any probative value it might have was easily outweighed by its prejudicial nature.

The trial judge was concerned about the defence counsel’s motive for introducing the evidence in question. In particular, he was concerned that the defence counsel’s legal strategy was to improperly rely on the idea that as a drug dealer, Mr. Jabaji had a propensity towards aggressiveness.

However, defence counsel assuaged the fears of the trial judge by assuring him that he would not use evidence relating to the 39 pills of ecstasy as a means to have the jury draw an inference that Mr. Jabaji “had a violent disposition or was dealing drugs or there was any connection between the two.”

Apprehensively, the trial judge admitted the evidence, primarily out of a concern that a failure to do so might deprive the defendant of the opportunity to argue that it was Mr. Coulter as opposed to Mr. Tuck who was responsible for the death of Mr. Jabaji.

At Trial

The trial itself was punctuated by several arguments between the Crown and defence about the admissibility of evidence that spoke to the aggressiveness (and propensity to “throw the first punch”) of both the deceased and the accused.

For example, defence counsel tried to call a witness to testify that they had known Mr. Jabaji as having a temper, and often instigated fights.

Wary of the possibility that defence counsel, (contary to his assurances to the trial judge) was attempting to rely on Mr. Jabaji’s general propensity to violence to make out a self defence argument, the Crown insisted (with the trial judge’s approval), that Mr. Vandelaar’s testimony only be admitted if Mr. Tuck’s record as a young offender, (which included assault and bodily harm) also be fair game.

Controversial Closing Statements

Notwithstanding the assurances that he would not pursue a propensity-based argument, defence counsel’s closing statement proceeded on the basis that there is an inherent connection between drugs and violence:

Who do we know for sure smuggles something into the Docks? Salim Jabaji. He smuggled thirty-nine tabs of ecstasy into the Docks, and perhaps more.

Thirty-nine tabs of ecstasy is more than one person would need for personal use, no matter how late this party went. Is there a hook-up, a link, between drugs and violence more so than say chess and vilence or reading and violence? [emphasis added by appeals court judge].

In light of defence counsel’s deliberate attempt to sketch out an intimate connection between drugs and violence, the Crown immediately objected, and requested that the trial judge instruct the jury to exclude the 39 pills:

…what’s more ttroublign to me … is this road that Mr. Hicks deliberately went down in his closing saying that drugs and violence are connected. We spent hours of court time dealing with this issue and the issue of whether by making such a suggestion he would bring Mr. Tuck’s character into issue and the Crown would be able to point to the jury that if that is a liegitimate inference to make then really the person that should be hung by it is Mr. Tuck, and not Mr. Jabaji …

Although clearly upset at defence counsel’s tactics, the trial judge decided not to give any additional instructions relating to the 39 pills to the jury. He concluded that instructing the jury in this way would create more problems than it would solve, and added that “throwing mud” at Mr. Hicks might have unfair consequences.

The accused was acquitted and the Crown appealed.

The Ontario Court of Appeal

The Ontario Court of Appeal allowed the appeal on the grounds that the trial judge had failed to correct defence counsel’s impermissible use of the 39 pills in his closing address. “In our view,” the anonymous court explained, “the impugned statements carried the implication that the trial judge took from them. They invited the jury to conclude that the deceased was a drug dealer, and as such, had a propensity for violence and was more likely to be the agressor.”

Like the trial court, the Ontario Court of Appeal chided defence counsel for assuring the trial judge that he would not entreat the jury to engage in propensity reasoning, and then doing precisely that in his closing statement.

Moreover, the Ontario Court of Appeal pointed to the unlikelihood that defence counsel’s motives were (as claimed), to cast a reasonable doubt on the identity of Mr. Jabaji’s assailant, (as opposed to illustrating his general propensity toward violence).

The Ontario Court of Appeal placed particular emphasis on R. v. Rose [1998] 3 S.C.R. 262 and R. v. Finta [1994] 1 S.C.R. 701, which established two duties on the part of a trial judge (respectively), (1) to “undertake to remedy any improper address by counsel,” and (2) to “correct unfair or improper statements made in closing addresses.”

Bearing these in mind, the Ontario Court of Appeal concluded that “the cumulative effect of the admission of the 39 pills evidence, the exclusion of evidence of the respondent’s propensity for violence, the defence counsel’s impermissible use of the evidence and the trial judge’s failure to take corrective action, left the jury with a distorted factural picture on the key issue.” Therefore, the acquittal was quashed and a new trial ordered.

The Supreme Court

Less interesting than the actual verdict the SCC will arrive at in Tuck will be the particular balance it strikes between the Charter right to make full answer and defence, and the need to discourage the use of improper and deceitful propensity reasoning in criminal proceedings.

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