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In 2007, the Supreme Court of Canada held that these secrecy mechanisms violated the s.7 Charter right to a fair judicial process. The key failing of the regime was that it allowed for the detention and deportation of an individual “without providing for an independent agent at the stage of judicial review to better protect the named person’s interests.” The SCC recognized that the pressing need to preserve some level of secrecy over information concerning national security means that in some circumstances ‘administrative constraints’ might make it impossible for the government to adhere to procedural protections in their usual form. That is to say, there are times when national security prevents the government from disclosing information in the traditional manner. In such circumstances, however, the government must provide some other ‘meaningful and substantial’ substitute for normal procedural protection. National security does not give the government a carte blanche to violate procedural rights – s.7 demands some creative adherence to fundamental justice.

The 2007 Amendments

It was against this backdrop that in late-2007 parliament amended the IRPA. The new amendments provide for ‘special advocates’ who may appear at the secret hearings and gain access to secret evidence in the absence of the detainee. These security-cleared lawyers would act to ensure that the interests and rights of the detainee are protected in the hearings, and may challenge the government’s case. Importantly, however, their ability to communicate with the detainees, other lawyers and the public is significantly curtailed. S.85.4 of the new Act states that once a special advocate receives secret evidence, he or she cannot communicate with any other person about the proceedings except with authorization of the presiding judge. This meant that special advocates could not speak with their clients, other lawyers, members of the public, the media or any one else about anything concerning to the proceedings, whether it was about the confidential information or not.

The Case

In short, the applicants in the Almrei case argued that the restrictions on special advocates simply go too far. Read liberally, they would restrict special advocates from communicating with their spouses concerning travel to or from hearings, it would restrict communication with administrative and support staff, and communication with other special advocates on the same case. In attempting to strike a balance between protecting national security and protecting the procedural rights of the detainees, parliament simply tipped the scales too far to the side of national security.

At the end of the day, however, Chief Justice Allan Lutfy balked at the challenge stating that notwithstanding the applicant’s understandable anxiety and frustration, without time for an evidentiary base to develop, the claim is at best speculative. It would be preferable to wait and see how the regime operates in practice rather that rule on its constitutionality simply on the basis of hypotheticals. The applicants admittedly characterized their challenge as a ‘facial challenge’ based almost entirely on legislative facts rather than adjudicative facts, but perhaps with good reason. It is hard to see what evidence might develop given that the special advocates find themselves unable to communicate.

In any event, the constitutional dialogue over security certificates has come to a temporary impasse. If the history of this issue is any indication, however, this writer is willing to bet that the last word has yet to be spoken.

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The jury convicted the accused of manslaughter by criminal negligence, but acquitted him of manslaughter by failing to provide the necessaries of life. He appealed on the grounds that the two verdicts were inconsistent, to which the Ontario Court of Appeal agreed and ordered a retrial.

Supreme Court Chimes In

The Supreme Court split 6-1 in their decision. Writing for the majority, Justice Fish held that the two verdicts were indeed inconsistent, as both charges relied on “exactly the same failure to perform exactly the same duty,” the accused’s duty being to protect the victim against a violent spouse.

In order to attract a conviction under section 215(2), the accused’s omission had to have been a “marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health of the child” (as per R. v. Naglik, [1993] 3 S.C.R. 122). Meanwhile, to be convicted under criminal negligence, the omission had to have been “a marked and substantial departure from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to the life of his child, or, alternatively, gave no thought to that risk (as per R. v. Tutton, [1989] 1 S.C.R. 1392). The majority found that the actus reus of the two offences were the same (ie. the omission from protecting the victim) but that the fault element for criminal negligence was higher.

Since the jury convicted the accused of manslaughter by criminal negligence, they must have found that his actions represented a marked and substantial departure from that of a reasonably prudent parent under the circumstances. It was therefore illogical for the jury to acquit the accused for manslaughter by failure to provide the necessaries of life, as it would mean that they did not find the accused’s actions to be a marked departure from that of a reasonable prudent parent.

The Crown tried to argue that the two verdicts were not inconsistent because each was in relation to a distinct predicate offence. Criminal negligence requires the accused to show a wanton disregard for the life and safety of a person he was legally bound to protect, while a conviction for failing to provide the necessities of life requires this disregard to effectively endanger the victim’s life or permanently endanger the victim’s health. Fish J. rejected this argument, saying that such distinctions are not only abstract but also that they were not raised during trial, so the jury could not have made this distinction.

Fish J. clarified that criminal negligence is still compatible with failure to provide the necessaries of life, but only when the former is viewed as an extension of latter. He explained:

“Where criminal negligence is ‘piggy-backed’ onto the alleged failure to provide necessaries of life […] the analysis may be expected to proceed in two stages. The jury would then consider whether the accused had a duty to protect the child — that is, to provide the necessaries of life — and whether the accused failed in that duty. […] The jury would then be required to decide whether the accused, in failing to provide the necessaries of life, showed a wanton or reckless disregard for hte life or safety of the child. […] If not, the jury could still find the accused guilty of failure to provide the necessaries of life, but not of criminal negligence.”

However, when the jury convicts an accused person for criminal negligence but acquits them for failing to provide the necessaries of life based on the same acts or omissions, the result is necessarily inconsistent.

As far as determining the appropriate remedy, the majority chose not to follow the Ontario Court of Appeal and order a retrial, but instead set aside the accused’s conviction. They reasoned that, since the jury acquitted the accused on a lower fault standard than that of his conviction, he should be given the benefit of that acquittal, especially since the Crown never appealed the acquittal.

Justice Deschamps’s lone dissent awarded more deference to the trial judge and jury. Deschamps J. found that the verdicts were not inconsistent, and she accepted the Crown’s argument that the two predicate offences at issue have distinguishable actus reus. The actus reus of criminal negligence requires the Crown to prove that the accused had a legal duty to do something, and that the failure of this duty shows a wanton or reckless disregard for the lives or safety of others. The failure to provide the necessaries of life also requires proof of a duty, but is different from criminal negligence in that a failure of the duty must, when viewed objectively, endanger the victim’s life or permanently endanger the victim’s health.

Furthermore, Deschamps J. found that the jury was adequately charged to account for this difference between the two offences. Drawing on the trial record, she pointed out that, for the s. 215(2) predicate offence, the jury was instructed to first consider whether there was a duty to provide the victim with necessaries of life, and whether the accused’s failure in this regard represented a marked and substantial departure from what a reasonably prudent parent would do in the circumstances. This charge “was essentially identical to the charge for criminal negligence,” so therefore an answer in the affirmative would establish culpability for criminal negligence.

However, for s. 215(2) the jury had to take an additional step, which was to ask whether accused’s failure in his duty “endanger[ed] the life of [the victim, or] cause or was likely to cause his health to be endangered permanently.” In acquitting the accused of failure to provide the necessaries of life, the jury recognized a causal disconnect between the accused’s failure to uphold his parental duty and the fact that the victim’s life and health were at risk. Hence the verdicts could be viewed as consistent with each other: the jury may well have decided that the accused’s failure to protect his foster son showed a wanton or reckless disregard (enough to attract criminal negligence), but it did not sufficiently cause the endangerment of the fosters son’s life nor the permanent endangerment of his health (therefore escaping the s. 215(2) predicate offence).

Deschamps J.’s dissent, while well-reasoned, has the odd consequence of making criminal negligence a permanent appendage to the failure to provide necessaries of life. If the analysis for s. 215(2) occurs only after criminal negligence has been established, then any conviction under s. 215(2) must also be accompanied by a conviction for criminal negligence. As pointed out by the majority, this would be strange as criminal negligence has harsher penal consequences. The dissent also skirts the fact that the jury charge was flawed, as the standard for the fault element of s. 215(2) is a marked departure from a reasonably prudent parent, not a marked and substantial departure.

However, Deschamps J. writes, “had I found the verdict unreasonable, the just order would have been a new trial on both counts.” Deschamp J.’s support of a retrial seems to me more fair-minded, as the conclusion that the verdicts were inconsistent infers that a wrongful conviction was just as possible in this case as a wrongful acquittal. To uphold the acquittal while quashing the conviction shows little consideration to the jury who found the accused guilty of one of the charges.

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The chambers judge issued an interlocutory injunction in favour of four of the residents, finding that they had raised a serious issue regarding Band membership and that failure to grant such an injunction could result in irreparable harm if the four residents were removed from the Black Bear Crossing before the constitutional issues surrounding their membership status could be determined. The Band appealed the granting of the injunction in its eviction action, arguing that the interim injunction should be set aside as there is no irreparable harm and requesting that the court enforce the eviction notices and order the residents to evacuate the premises.

The Alberta Court of Appeal found that while there was no need for an interim injunction, the Band was not entitled to a final notice of eviction until the constitutional issues regarding the residents’ membership statuses were resolved. Since the eviction notices in this case were directed to “non-members” of the Band living at the Black Bear Crossing, as opposed to specific people, the Band must prove, at a minimum, that each person it proposes to evict is both a non-member of the Band and has received a notice of eviction. In order for the Band to demonstrate that each proposed evictee is a non-member of the Band, a trial judge must first deal with the constitutional issues raised by the residents with regard to their rights of membership in the Band. Since the constitutional issues must first be dealt with before the final eviction notice can be issued, the court concluded that there was no irreparable harm present. Thus, there was no need for an interim injunction since the Band could not evict the residents until they received a final eviction order.

The SCC’S dismissal of the Band’s application for leave to appeal serves as a “win” for the residents remaining at the Black Bear Crossing Reserve who claim membership status with the Band. While the court may ultimately find that they are not members of the Band and allow the Band to issue final eviction notices, until these constitutional issues regarding Band membership are resolved, the residents are allowed to stay on the Reserve. In the meantime, according to an online article by CBC News, there have been rising tensions between the residents still living at Black Bear Crossing and the Band, as the residents’ electricity and water have both been shut off. On October 29, 2008, however, a Court of Queen’s Bench Justice ordered that all utilities be maintained until the membership and eviction issues can be resolved. While the Court of Appeal’s refusal to allow the issuance of eviction notices until the constitutional issues surrounding the residents membership in the Band are laid to rest may potentially push back the date for demolition and the construction of the new residences, it only seems fair that the remaining residents’ membership statuses be determined before the Band is allowed to follow through with the final eviction notices requiring the residents to vacate the property, as the issue that they have raised regarding Band membership is an important constitutional matter.

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A more detailed enumeration of the facts, the trial decision and the B.C. Court of Appeal decision are outlined in my previous post, found here.

In his previous appeal, the appellant argued that the trial judge improperly instructed the jury that only a momentary restraint or confinement could escape the ambit of s. 231(5)(e). The problem with this instruction, argued the appellant, was that the jury was only required to consider the length of the confinement, rather than the nature and extent of the domination imposed on the victim. As a result of this allegedly erroneous instruction, the jury could have found that confinement had taken place merely because a robbery occurred, without having to consider the degree of force used by the assailant. The appellant would then be faced with a charge of first degree murder.

The appellant was unsuccessful at the B.C. Court of Appeal because of his heavy reliance on the case of R. v. Strong (1990), 60 C.C.C. (3d) 516. The B.C. Court of Appeal found that this case was wrongly decided due to the statutory misinterpretation of confinement incidental to robbery under s. 231(5)(e). As a result, the appellate court held that the trial judge’s jury instruction was proper, and the nature and extent of the confinement was not erroneous.

In coming to a similar conclusion regarding the interpretation of s. 231(5)(e), the SCC first looked at the intent of Parliament in drafting s. 231(5). Under this section, an accused is charged with first degree murder when death is caused during the commission, or the attempt to commit, certain offences that are characterized as crimes of domination. In addition to the impugned section (e) regarding kidnapping and forcible confinement, the additional offences of hijacking an aircraft, several types of sexual assault, and hostage taking are named under this section because they are also considered crimes of domination. According to the SCC, the first degree murder charge stemming from this section reflects Parliament’s sentencing policy that crimes of domination necessitate severe punishment.

The SCC further elaborated upon the rationale for this severity by citing an excerpt from R. v. Harbottle, [1993] 3 S.C.R. 306 at p. 323. In this case, Cory J. explained that s. 231(5) comes into play when the jury must determine “whether such aggravating circumstances exist that they justify ineligibility for parole for a quarter of a century … [t]he gravity of the crime and the severity of the sentence both indicate that a substantial and high degree of blameworthiness, above and beyond that of murder, must be established in order to convict an accused of first degree murder.” The determination of a “high degree of blameworthiness” was more specifically defined in R. v. Pare, [1987] 2 S.C.R. 618 at p. 633, as committed by someone already abusing his power by illegally dominating another.

While unlawful confinement is one of the “aggravating circumstances” included in s. 231(5), robbery is not. This distinction was of the utmost importance to the appellant, who argued that the confinement inherent to any robbery is minimal. To decide whether a victim was confined “for a purpose other than facilitating theft,” the trier of fact must consider the degree and nature of confinement during a robbery. This section should be read purposefully and textually, according to the appellant, because the consequence of applying s. 231(5) is so drastic: a charge of first degree murder, and its accompanying 25-year parole ineligibility. For such a severe section to be appropriately applied, there must “be evidence of unlawful confinement ‘independent’ of the robbery for s. 231(5) to be invoked.”

Though the appellant raised a thought-provoking argument in theory, the SCC deftly rejected it by alluding to its potentially troubling practice: “[i]f the appellant’s argument is correct an accused would be better off having forcibly confined, robbed and killed his victim than if he had just forcibly confined and killed her.” The appellant’s flawed reasoning essentially allows a criminal wrong to mitigate the effect of s. 231(5). According to the SCC, this was certainly not Parliament’s intent in drafting the section.

Having dispatched this argument, the Supreme Court proceeded to characterize the true question before it as whether, in addition to murder, the necessary elements of confinement (laid out in s. 279(2)) were established on the evidence. This section reads:

2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of:
(a) an indictable offence …

Case law has demonstrated that unlawful confinement occurs if, for any significant period of time, the victim is coercively restrained or directed contrary to his wishes, so that he cannot move about according to his own inclination or desire. Though the more specific term of “forcible confinement” is used in s. 231(5)(e), the SCC explained that “forcible” is only inserted for ease of reference, and adds nothing to the elements of the offence set out in s. 279(2).

The appellant alluded to Strong, an Alberta Court of Appeal case, to support his theory that robbery immunizes him from the effect of s. 231(5), but the Supreme Court disagreed with his reasoning in this respect as well. The court in Strong held that the omission of robbery from the s. 231(5) list of offences means that the violent restraint inherent in every robbery does not trigger the section. The SCC did agree that not all robberies involve domination of the victim, and thus not all robbery-murders will satisfy the section. As stated in R. v. Kimberley (2001), 157 C.C.C. (3d) 129 (Ont. C.A.), the confinement and murder must constitute distinct criminal acts in order to trigger s. 231(5)(e). The requirement of distinct acts in Kimberley is further explained by the Supreme Court; the issue in s. 231(5)(e) is not whether there was confinement independent of the act of robbery, but whether there was unlawful confinement distinct from the act of killing.

With regard to the first aspect of the Kimberley holding (that confinement independent of the act of robbery does not matter), the SCC cited several cases to support this view. While the appellant argued that Strong requires evidence of an unlawful confinement, independent of the robbery, in order for s. 231(5) to apply, the SCC dismantled this argument by listing cases to the contrary from a variety of high-ranking jurisdictions. Appellate courts from Ontario, B.C. and Saskatchewan have uniformly held that confinement for the one purpose of robbery should not be excluded from the interpretation of s. 231(5)(e). Rather, they have stated that the relationship of confinement to robbery is irrelevant to the section’s application.

The court then addressed the second aspect of the Kimberley decision, that of the necessity of temporal or causal connection between the killing and the commission of the enumerated offence. In Pare, the Supreme Court specified that while “an exact coincidence” in the timing of the murder and the predicate offence is not required, “it is the continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder” (at p. 633). On the facts of Mr. Pritchard’s case, the SCC found that it was reasonable for the jury to decide that the offences were temporally and causally linked.

In sum, the Supreme Court’s analysis of s. 231(5) jurisprudence was clear. Murder is elevated to the first degree under this section when the murder and the predicate offence are temporally and causally linked so that the course of conduct can be characterized as a single transaction. More specifically, in the context of unlawful confinement under subsection (e), this temporal-causal connection is met when the confinement allows the accused to assume a position of power that is exploited in order to murder the victim. Finally, and most problematic to Mr. Pritchard’s argument, the Supreme Court held that s. 231(5) still applies even if, along the way, other offences are committed.

When the SCC applied its thorough legal analysis to the facts, it found that “there was ample evidence to support the requisite elements of a confinement within the meaning of s. 279(2) quite independent of the killing,” and that it was open to the jury to conclude that the appellant exploited his position of dominance over the victim by killing her. These events constituted a single transaction within the Pare definition. In addition, the trial judge’s instruction to the jury, that the Crown must establish unlawful confinement that was not an integral part of the robbery, was actually beneficial to the appellant because it suggested that confinement integral to the robbery would not trigger the section. Even with an overly-favourable interpretation of the impugned Code section, the jury still returned a finding of guilt. The B.C. Court of Appeal’s decision that the trial judge did not erroneously instruct the jury towards this verdict was echoed by the Supreme Court.

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Comparing Rojas and Illes

Although the Court rejected the use of the Duncan instruction, it also indicated that its use would not necessarily constitute a reversible error. Rather, it would be “a matter to be determined on a case-by-case basis, having regard to the charge as a whole and the evidence at trial.” (Rojas, para. 5) In particular, Justice Charron noted in para. 41 of Rojas that, “where the instruction is couched in terms of a legal presumption, the prejudicial effect may be difficult to overcome.”

Thus, the difference between the two cases was the actual words used by the trial judges in giving the Duncan instruction. In Rojas, the judge had instructed the jury as follows:

Since some of the alleged statements of each accused contain exculpatory statements or denials which tend to exonerate them, you must consider that, in the ordinary course of human behaviour, it often occurs that statements of an incriminating nature such as admissions or confessions are likely to be true, otherwise why say them. On the other hand, excuses for one’s own behaviour do not necessarily carry the same persuasive weight. (para. 27)

In Illes, the trial judge told the jury:

On the other hand, any portion of the statements that tend to incriminate Mr. Illes in the commission of the offence only assist the Crown’s case if you are convinced that portion is true beyond a reasonable doubt. This is because the law presumes any incriminating part of the accused’s statement is likely to be true, otherwise why would an accused say so. [emphasis added] (para. 15)

Surprisingly, despite the fact that the trial judge in Illes had “couched [the jury instruction] in terms of a legal presumption” in the way that she had warned against in Rojas, Justice Charron nevertheless found that:

[H]aving regard to the contents of the letters in question, their admitted fabrication by Mr. Illes, the respective use made of the evidence at trial by the Crown and the defence, and the instructions to the jury as a whole, I agree with the majority in the Court of Appeal that this unfortunate instruction, although given in error, could not realistically have impacted on the verdict. (Illes, para. 59)

In contrast, the majority found that the jury instruction could be interpreted in a way that it might have encouraged the jury to discredit the Defence theory and place more weight on the Crown’s interpretation of the mixed statements. Notably, what appears to have convinced the majority is the length of time and the apparent difficulty the jury had in reaching its verdict:

It is nonetheless worth noting that the jury deliberated over four days; that the jurors indicated in a note to the judge on the evening of the first full day of deliberations that they were split on their decision; and that the jury was re-charged with a portion of the instructions containing the impugned language on the very day that it finally rendered the verdict. (Illes, para. 22)

A Question regarding Illes

What is confusing about the majority decision in Illes is that it seems to imply the trier of fact should take the exculpatory parts of mixed statements at face value, rather than within the context of the other evidence advanced in trial. As Justices Fish and LeBel indicated in para. 9:

[T]he letters urge the accused’s associates “not to confess to anything you haven’t done”; state that “NOTHING EVER HAPPENED, so ANYTHING ANYBODY MAKES UP IS A LIE;” accuse the police of using “KGB police trick[s]”; and warn that the police “will try EVERYTHING to try to build a case, to try to fabricate evidence” (emphasis in original). While many of these statements are implausible in the context of the other evidence at trial, they are all exculpatory statements on their face. [emphasis added]

Also, in para. 19:

The potential for jury confusion on the scope of the Duncan instruction is even more apparent when one appreciates that a single statement can be exculpatory on its face, but inculpatory when regarded in light of other evidence. Thus, for example, the claim that “NOTHING EVER HAPPENED, so ANYTHING ANYBODY MAKES UP IS A LIE” is clearly exculpatory if accepted as literally true. But when read with other statements in the same letter, such as speculation that Ms. Ovalle may have killed the victim or that the victim was in hiding, the statement might appear disingenuous. When one considers that the statement was addressed to Mr. Madinsky, the only other person who could have killed the victim, the claim that “NOTHING EVER HAPPENED” takes on a decidedly conspiratorial valence. [emphasis added]

Isn’t the jury supposed to decide on a verdict based on the totality of the evidence? If the statements that appear to be exculpatory on its face become inculpatory when considered in its context, isn’t it likely that the jury would have inevitably reached the same guilty verdict?

Conclusion

The rejection of the Duncan instruction would appear to be consistent with Canadian jurisprudence. Prior to Rojas and Illes, courts in Canada had been divided on the validity and usefulness of the Duncan instruction, and the problem exacerbated by the inconsistent use of different wording of the instruction. As noted earlier, it would seem “dangerous” or improper “for the judge to instruct the jury in a manner that suggests that inculpatory and exculpatory statements ought to be weighed differently”, and eliminating its use would prevent confusion and inconsistent verdicts in future cases.

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As the law firm’s financial situation continued to deteriorate, Perez continued to transfer funds from her personal account into that of the law firm. By March of 2004, the total amount loaned was close to $200,000. Many of the deposits were made without the advance knowledge of the respondent.

During the law firm’s period of financial decline, Perez had also asked one of the firm’s lawyers to assist her in preparing a will and completing mortgage transactions. While the respondent was not personally involved in this legal work, he was clearly aware of it. Further, the respondent never suggested to Perez that she ought to have independent legal advice with regard to either the unsecured loan or with regard to the effect of the loan on the will and mortgage.

In March 2004, the respondent assigned himself into bankruptcy and the firm went into receivership. Although the respondent acknowledged that his firm owed Perez, the firm’s secured creditors left nothing for her to recover.

The automatic stay of proceedings in relation to bankruptcy was lifted by leave of the court, and Ms. Perez was allowed to bring an action for breach of contract, negligence and breach of fiduciary duty.

Trial Decision:
Ms. Perez’s action was dismissed on the ground that she had not established the causes of action pleaded. In particular, the trial judge found that Perez was not a client at any of the times that she made loans to the firm. Whereas she had engaged the services of the firm, each of the retainers was for a limited and discrete task, not entitling Perez to the “full panopoly of protective duties.”

The trial judge further determined that in relation to the money loaned, Perez had not asked the respondent for legal advice, but had voluntarily given him the loan. Ultimately, the trial judge was most swayed by the finding that Perez had not proven that she had relinquished her decision-making power with respect to the loan or that the respondent had the ability to exercise unilateral discretion over it.

The Court of Appeal:
As at trial, the major issue before the BCCA was whether the respondent had breached a fiduciary duty owed to Ms. Perez. After a review of the case law, Rowles J., writing for the majority, determined that a mutual understanding that one party had relinquished its own self-interest so as to act solely in the interest of the other party was not a necessary element of a fiduciary relationship.

Unlike the recent case of Strother v. 3463920 Canada Inc.[2007] 2 S.C.R. 177, the case at bar was not one that could be entirely defined under the rubric of a solicitor-client relationship (a per se fiduciary relationship). As such, and largely applying the dissenting logic of McLachlin J. (as she was then) in Norberg v. Wynrib [1992] 2 S.C.R. 226, Rowles J. found that the relationship in question could be better defined under the broader concept of “power-dependency:”

In the circumstances this case presents, I am of the view that evidence of a “mutual understanding”…was not required in order for the court to make a finding that fiduciary obligations arose. The evidence overwhelmingly supports the conclusion that the respondent took advantage of the trust reposed in him by the appellant, who was in a position of vulnerability in terms of her employment, her knowledge of the firm’s prospects and her knowledge of legal rights and obligations.

Thus, it would seem that Rowles J. was most influenced by her determination that the respondent had exploited Perez’s trust, and that an overly-narrow approach to the definition of fiduciary duty would bar her from recovering. Perez was thus granted judgment in the amount of $200,000; an award which, if upheld by the SCC, will likely involve the respondent’s professional liability insurer. Ultimately, on a broad and equitable approach to the law of fiduciary duty, the decision seems to be a sound one. However, the value of such an unusual and context-driven case is likely to prove rather limited.

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The Decision

While recognizing that fishing licenses are a major commercial asset (para. 23), Binnie J. noted that the Nova Scotia Supreme Court’s (2006 NSSC 34) emphasis on ‘commercial realities’ was not appropriate. At para. 42, he writes,

I agree with the Court of Appeal that “commercial realities” cannot legitimate wishful thinking about the notion of “property” in the BIA and the PPSA, although commercial realities provide an appropriate context in which to interpret the statutory provisions. The BIA and the PPSA are, after all, largely commercial statutes which should be interpreted in a way best suited to enable them to accomplish their respective commercial purposes.

As such, the SCC characterized their task as one primarily of statutory interpretation, i.e., determining the appropriate definition of ‘property’ in the context of the BIA and the PPSA. At para. 43, the decision notes the privileges that come with the license:

[T]he holder of a s. 7(1) [of the Fisheries Act, R.S.C. 1985, c. F 14] licence acquires a good deal more than merely permission to do that which would otherwise be unlawful. The holder requires the right to engage in an exclusive fishery under the conditions imposed by the licence and, what is of prime importance, a proprietary right in the wild fish harvested thereunder, and the earnings from their sale.

At para. 44, the decision notes that this falls within the definition of ‘property’ for the purposes of the BIA:

The terms of the definition are very wide. Parliament unambiguously signalled an intention to sweep up a variety of assets of the bankrupt not normally considered “property” at common law. This intention should be respected if the purposes of the BIA are to be achieved.

Likewise, at para. 51, the definition of ‘intangible’ property in the PPSA is also fulfilled:

The definition of “intangible” simply describes something that otherwise constitutes “personal property” but is not one of the listed types of tangible personal property. “Intangible” would include an interest created by statute having the characteristics of a licence coupled with an interest at common law … Our concern is exclusively with the extended definitions of “personal property” in the context of a statute that seeks to facilitate financing by borrowers and the protection of creditors. In my view the grant by the Fisheries Minister of a licence coupled with a proprietary interest as described above is sufficient to satisfy the PPSA definition.

Limited Rights

It should be noted that despite this decision, the court was careful not to recognize a property right in the license per se. That is, the SCC has not created rights in the license beyond that which the original owner had. Para. 50 of the decision makes this clear:

It may well be that in the course of a bankruptcy the fishing licence will expire, or has already expired. If so, the trustee will have the same right as the original holder of an expired licence to go to the Minister to seek its replacement, and has the same recourse (or the lack of it) if the request is rejected. The bankrupt can transfer no greater rights than he possesses. The trustee simply steps into the shoes of the appellant Saulnier and takes the licence “warts and all”.”

This limitation also addressed the Attorney General’s concerns. At para. 48, the decision also notes:

Counsel for the Attorney General of Canada was greatly concerned that a holding that the fishing licence is property in the hands of the holder even for limited statutory purposes might be raised in future litigation to fetter the Minister’s discretion, but I do not think this concern is well founded. The licence is a creature of the regulatory system. Section 7(1) of the Fisheries Act speaks of the Minister’s “absolute discretion”. The Minister gives and the Minister (when acting properly within his jurisdiction under s. 9 of the Act) can take away, according to the exigencies of his or her management of the fisheries. The statute defines the nature of the holder’s interest, and this interest is not expanded by our decision that a fishing licence qualifies for inclusion as “property” for certain statutory purposes.

Conclusion

While this decision may seem to facilitate the getting of loans by Canadian fishers, it remains to be seen whether this right recognized by the SCC is sufficient to address the concerns of banks in taking security in these licenses. Regardless, it certainly seems like a step in the right direction in helping the growth of the Canadian fishing industry.

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In 2001 Mr. Elmaati traveled to Syria to be married and was subsequently held for two months in Syria and two years in Egypt. Justice Iacobucci found that Mr. Elmaati’s mistreatment while in the custody of foreign officials resulted indirectly from several actions of the Canadian government. These actions included the failure of government officials to warn consular staff overseas of Mr. Elmaati’s detention, submission of interrogation questions to foreign agencies by CSIS and the RCMP’s sharing of information.

Abdullah Almalki travelled to Syria from Malaysia in May 2002 to visit his grandmother who was ill at the time. Upon arrival, he was taken into custody by Syrian officials and was subjected to “degrading and inhumane” conditions for 22 months. The commission held Mr. Almalki’s mistreatment arose indirectly from two actions of Canadian Officials:

(1) in April 2002, the RCMP shared its Supertext database, which contained a considerable amount of information regarding Mr. Almalki, with U.S. agencies; and (2) in January 2003, the RCMP sent Syrian officials questions to be posed to Mr. Almalki while in Syrian detention.

Muayyed Nureddin traveled to Syria in December 2003 on his way home to Toronto. He was immediately detained by Syrian officials for 33 days and also subjected to degrading and inhumane conditions, interrogated and mistreated.” Justice Iacobucci found the sharing of information that likely contributed to Mr. Nureddin’s detention Syria also likely contributed to his mistreatment while there.

The provision of consular services by Canadian officials overseas was found deficient for Mr. Elmaati and Mr. Almalki but not for Mr. Nureddin.

Responses to the Commission of Inquiry’s Final Report

Broadly speaking, Justice Iacobucci found the Canadian government was not directly responsible for the torture of Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin. Nevertheless, it is still troubling that their mistreatment arose indirectly from the actions of Canadian officials. This is especially true as all of the impugned detentions were likely the result of information shared by the Canadian government.

The appropriate modus operandi for information sharing between the Canadian government and another state with a reputation for torturing was outlined in a recent editorial in the National Post: “When Canadian intelligence agents know a country practices torture, they must be particularly stingy with the information about Canadian citizens they share with their counterparts in those countries.” The editorial goes on to suggest that sharing information with countries like the U.S. who engage in rendition, sending suspects overseas to be tortured, is also problematic.

Putting the fairly measured reaction to the Commission’s report featured in the Post into sharp relief, were several reader responses to an article in the Toronto Star. The article’s main point is that the commission’s most disturbing findings were limited by Justice Iacobucci’s narrow interpretation of his mandate and subsequent media simplification of the issues. The Star subsequently received a phone message from a reader, which it summarized as follows:

“More Muslims faking it,” hissed the man. “Are you actually suggesting that each of these three guys get another $10 million like we wasted on Arar? You f—— Muslims!

“These are not Canadians. They are not born in this country …

“No one gives a s— about this 544-page report. What that cost the Canadian taxpayers? More money wasted on f——, bad immigrants.

“Why don’t you go back to the hole-in-the-wall country that you came from and take all these other fake people, claiming to have been tortured, that no Canadian citizen gives a f— about.”

Obviously, and thankfully, this caller does not represent the majority opinion of Canadians.

All too often however, mention of terrorism and the torture of Arab Canadians elicit such incendiary remarks. These men were returning to Canada after visiting their spouses and family. They did nothing deserving of the racial animus contained in the comments above. Regardless of the ethnic or religious background of any Canadian citizen, the government of Canada has both a legal and a moral obligation not to condone the torture of its citizens, whether directly and indirectly.

In a rare moment of agreement between the right and left banks of Canada’s mainstream media, the National Post captured this sentiment best: “if we are a country that condemns torture,” the Post remarked, “then we have an obligation to defend our citizens – all our citizens – against such barbarism. Period.”

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Justice Ross went on to find that the deprivation to life, liberty and security of the person violated two principles of fundamental justice, namely: they were arbitrary and overbroad. The purposes of the prohibition were to ensure that use of public spaces was open to all members of society, to protect the natural environment from damage, and to address public health and safety concerns. But the specific ban on setting up a tent in a park, failed to target any of these purposes. In short, the total ban on sleeping in parks overshot the legislative mark, running afoul of the constitution.

Of note in the decision is the fact that Justice Ross stopped short of declaring that s.7 mandates a positive duty on the government to provide adequate housing. Citing the majority and dissent decisions in Gosselin 2002 SCC 84, Justice Ross reiterated that the possibility for s. 7 being expanded to include positive rights had not been foreclosed, but that in the present case, the applicants were not seeking an order that would require such a finding. Instead, she likened the situation to that of Chaoulli 2005 SCC 35 in which the prohibition on accessing private health care was found to violate the Charter. It was the state’s deprivation of a right which was problematic, not the failure to provide it.

Looking past the prima facie ruling, though, the case stands for a much bolder proposition, which to date has not received recognition by Appellate courts: that the regulation of public space must seriously take into account the needs of society’s most marginalized citizens. Previous similar efforts at defending the rights of squeegee kids, for example, against the inconvenience of the more gentrified public have invariably failed. The issue is increasingly becoming the subject of debate especially in BC where the 2010 Olympics is being criticized for trampling on the rights of the poor. Likewise, courts in Ontario and BC will soon be asked to rule on whether the criminalization of public prostitution runs contrary to ss. 7 and 15 of the Charter. The BC Attorney General has already indicated his intention to appeal the Adams decision to the Court of Appeal, so this country may well be in for a dramatic change in how the Charter views the relationship between governments and the poor.

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While lower courts in Alberta were inconsistent in determining whether an information was valid in the face of an erroneous election, courts in Ontario and Newfoundland held that when “the Crown’s election to proceed summarily after six months is void, the underlying information remains valid.” By contrast, the British Columbia Court of Appeal indicated in the 1997 case R. v. B. (M.), 119 C.C.C. (3d) 570 that an election by the Crown to proceed summarily outside the limitation period has the effect of invalidating the charging document.

The B.C. decision, however, was made just before section 786(2) of the Criminal Code was amended to include the phrase “unless the prosecutor and the defendant so agree.” The Alberta Court of Appeal found that Parliament’s amendment strongly suggests that the information advancing a charge remains alive notwithstanding an invalid election from the Crown. Otherwise, the statutory amendment “would have the unlikely result that the parties, through the mere fact of consent, could make valid what would otherwise be a fundamentally void proceeding.” It would give the accused the strange option of allowing an invalid action to proceed against her.

Furthermore, even if the information were nullified by an invalid election, the Crown could simply start over by laying a new information with the same charges. A nullity would not preclude the Crown from submitting a fresh charging document against the accused.

With regard to whether the Crown is allowed to re-elect with the original information, the Alberta Court of Appeal heard two competing interpretations. The “no jurisdiction view” holds that an invalid election nullifies both the election and the whole proceeding, allowing the Crown to switch to indictment after the error is discovered. By contrast, the “defence view” holds that the Crown’s election, even if invalid, is binding; the Crown is required to continue summarily and “the accused can successfully raise s. 786(2) as a limitations defence at trial.” A re-election would only be allowed if it is not prejudicial to the accused.

Although the Alberta Court of Appeal devoted a fair amount of analysis to both the “no jurisdiction view” and the “defence view,” the Court did not ultimately declare which approach should be adopted. Instead, the Court found that, under either approach, the Crown in this case should have been allowed to re-elect since the trial had not yet begun when the defence counsel submitted the limitations defence.

The Court concluded that when the Crown erroneously chooses to proceed summarily and the limitation period has already passed, it has three options: (1) it can lay a new information and elect to proceed by indictment, (2) it can re-elect to proceed by indictment on the original information, or (3) it can seek the accused’s consent to continue summarily as per s. 786(2).

It is unlikely that the SCC will overturn the Alberta Court of Appeal’s decision and defer to the provincial court, as that would allow the accused to avoid prosecution based on a technicality. However, the SCC will want to reconcile the “no jurisdiction view” and the “defence view” and clarify when re-election is denied to the Crown. The ABCA suggested, in obiter, that one way to reconcile the two approaches is to allow the Crown to re-elect up until the point when evidence is called during trial. The Crown would not subsequently be permitted to switch to an indictment since it would expose the accused to greater penalties than previously contemplated. However, ABCA’s proposal is problematic because it would allow the accused to wait until evidence has been led before ambushing the prosecution with a limitations defence. It will therefore be interesting to see how the SCC deals with this possibility and whether they will draw a line for when a Crown can re-elect.

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