Friday, October 21, 2016

Extremely Important Supreme Court of Canada Decision on Joint Sentencing Submissions

It appears the Court has adopted the Alberta, rather than the Ontario, practice.  This will change the approach in Ontario Courts immediately.

 R. v. Anthony-Cook, 2016 SCC 43:

Joint submissions on sentence — that is, when Crown and defence counsel agree to recommend a particular sentence to the trial judge, in exchange for the accused entering a plea of guilty — are vitally important to the well‑being of the criminal justice system, as well as the justice system at large. Generally, such agreements are unexceptional and they are readily approved by trial judges without any difficulty. Occasionally, however, a joint submission may appear to be unduly lenient, or perhaps unduly harsh, and trial judges are not obliged to go along with them (Criminal Code, s. 606(1.1) (b)(iii)).

There is a lack of consensus regarding the legal test trial judges should apply in deciding whether it is appropriate in a particular case to depart from a joint submission. There are four possible approaches: the fitness test; the demonstrably unfit test; the public interest test; and, the approach that treats the fitness and public interest tests as essentially the same. The public interest test is the proper legal test that trial judges should apply. Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. For joint submissions to be possible, the parties must have a high degree of confidence that they will be accepted. The public interest test, by being more stringent than the other tests proposed, best reflects the many benefits that joint submissions bring to the criminal justice system and the corresponding need for a high degree of certainty in them.

Crown and defence counsel are well placed to arrive at a joint submission that addresses the interests of both the public and the accused. Trial judges should not reject a joint submission lightly. They should only do so where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system. A lower threshold than this would cast the efficacy of resolution agreements into too great a degree of uncertainty.

Where the joint submission is contentious and raises concerns with the trial judge, the following procedures should be followed. First, the trial judge should approach the joint submission on an "as‑is" basis. Second, the public interest test should be applied when a trial judge is considering going above or below the sentence proposed in the joint submission, although different considerations may inform the public interest in each context. Third, the trial judge may inquire about the circumstances leading to the joint submission — and, in particular, any benefits obtained by the Crown or concessions made by the accused. Fourth, the trial judge should notify counsel of any concerns and invite further submissions on those concerns, including the possibility of allowing the accused to withdraw his or her guilty plea. Fifth, if the trial judge's concerns are not alleviated, the judge may allow the accused to withdraw his or her guilty plea. Finally, if the trial judge remains unsatisfied by counsel's submissions, he or she should provide clear and cogent reasons for departing from the joint submission.

Thursday, October 20, 2016

Lawyers and Conflict of Interest

Suppose you are married and you and your spouse decide to split up. Everything is very amicable and everyone agrees on everything. There really is nothing to fight about but money is (as always) a little tight. You and you spouse both want a separation agreement and a divorce and since everything is agreed decide you will both use one lawyer since that's a bit cheaper.

At first blush it may seem silly but you cannot share a lawyer.

And when you look at the bigger picture that makes very good sense.

The primary duty of a lawyer is to be totally loyal to the interests of the client. As Jesus pointed out you cannot serve two masters – and in the family situation I just mentioned the husband and wife have different interests and they are interests that conflict. It is a good thing that separating couples figure out what they want and agree is fair but as a legal matter if the wife gets more of the family property the husband gets less. And that means if I help my client the wife I hurt my client the husband. As a result a lawyer cannot act for both the husband and the wife.

The idea of conflict is broader than just not acting for two people with opposing interests. If there is anything that could put the lawyer in a position where the lawyer cannot give all their loyalty to the client there is a conflict and the lawyer should not act. So say I want to buy a property in Cambridge Bay. I am bidding on a house there – and a client wants me to help them try to get that very same house. I have a real incentive to make sure my client doesn't get the house – and that means there is a conflict and I should not act. Someone who is a Crown prosecutor cannot properly prosecute a family member or close friend. A plaintiff's lawyer can't legitimately issue a claim against, say, a parent for negligence.

A lawyer had to be outside of the claim and not entangled personally with the situation.

Now sometimes clients can, at least on minor conflict situations, waive the conflict and work with the lawyer anyway . Such situations are rare and only apply where the client has full knowledge of the facts and agrees, anyway, to use the lawyer.

What Is the Nunavut Land Claims Agreement All About?

Unlike most jurisdictions Nunavut was recognized as a result of negotiation and a statute. The Nunavut Land Claims Agreement (NLCA) created Nunavut as jurisdiction and recognized the right of the Inuit of Nunavut to self-government and a separate territory.

The basis for the NLCA was an exchange or conversion of existing Inuit rights into a new form – the Territory of Nunavut together with specific ancillary benefits. In a sense Nunavut existed before the NLCA – the NLCA just recognized existing rights.

As a result the NLCA must not be seen as a gift of the Federal Government. Rather it is an agreement between two sovereign parties (Canada and the Inuit of the eastern Arctic) in which the Inuit exchanged their existing Aboriginal title to all their traditional land in the Nunavut Settlement Area for the rights and benefits set out in the NLCA.

Aboriginal title is the inherent Aboriginal right to a territory. This right was not granted from by Canada but is a result of Inuit occupation and use of the territory we now call Nunavut. Accordingly Aboriginal title is quite independent of Canada and preexists Canada – the surrender of such title was a major concession by the Aboriginal people of Nunavut.

Negotiating the NLCA took two decades and involved the Government of Canada through the terms of four prime ministers. The final result - self government and a separate territory – reflects how exhaustive the negotiations were. Nunavut has its own Legislative Assembly and public government, something unique in North America – this alone is a massive achievement.

Although Nunavut has a modest population it covers nearly one-fifth the land mass of Canada – giving up even partial jurisdiction to such a huge territory was a dramatic step for the Federal Government. Equally though the surrender of existing Aboriginal title to the entire area of Nunavut was a major leap of faith for Inuit negotiators. Compromise was made by both sides.

Beyond self government the NCLA provides specific legal rights to Inuit to harvest wildlife. Inuit always take part in decisions on wildlife management through the Nunavut Wildlife Management Board. More generally the NLCA creates tribunals and Boards that allow for joint management of all lands, waters and wildlife resources in Nunavut. There will be joint management of planning and impact review, negotiated benefits agreements and resource revenue sharing.

The NLCA gives legal title to vast Inuit-owned lands measuring about 350,000 square kilometres of which about 35,000 square kilometres include mineral rights.

Finally, as part of the NLCA the Federal Government agreed to make capital transfer payments of $1.148 billion over 14 years. The NLCA ensures a share of federal government royalties for Nunavut Inuit from oil, gas and mineral development on Crown lands. The NLCA also provides the right to negotiate with industry for economic and social benefits as part of non-renewable resource developments.

There have been teething problems implementing the NLCA – that is to be expected – but the NLCA is a framework for the future. In the time of our grandchildren the NLCA will still be remembered as the foundational document for relations between Nunavut and Canada.

Wednesday, October 19, 2016

Division of powers: Vires and Paramountcy

CITATION: Canada Post Corporation v. Hamilton (City), 2016 ONCA 767:

[31]        The following section first articulates the general principles of the division of powers analysis, specifically the doctrines of ultra vires and paramountcy, and then applies them to the facts of this appeal.

(1)           The general principles

(a)           Pith and Substance

[32]        The first step in a division of powers analysis is to characterize the law being challenged. This characterization is a matter of determining the "pith and substance" of the challenged law: Union Colliery Co. of British Columbia v. Bryden, [1899] A.C. 580 (P.C.), at p. 587. In more contemporary language, this step has been described as determining the "true character" (RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 29) or "true nature of the law" (Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 26) or of "identifying the 'matter' to which [the law] essentially relates" (Canadian Western Bank, at para. 26). 

[33]        Although the terminology is well-settled, there is no single test for determining a law's matter and, as the Supreme Court cautioned in R v. Morgentaler, [1993] 3 S.C.R. 463, at p. 481, "[t]he approach must be flexible and a technical, formalistic approach is to be avoided." 

[34]        The initial question of "what is a law's pith and substance" invites two prior questions: "[w]hat in fact does the law do and why?": Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536, at para. 17 ("COPA"), citing D. W. Mundell, "Tests for Validity of Legislation under the British North America Act: A Reply to Professor Laskin" (1955), 33 Can. Bar Rev. 915, at p. 928;see also Grégoire Webber, "Asking Why in the Study of Human Affairs", (2015) 60:1 Am. J. Juris. 51 at p. 54. These two paths of inquiry are often expressed as a search for: (1) "the purpose of the enacting body", and (2) "the legal effect of the law": Canadian Western Bank, at para. 27; Reference re Firearms Act (Can.), 2000 SCC 31, [2001] 1 S.C.R. 783, at para. 16. These two inquiries are related: while purpose is often "the key to constitutional validity", "[l]egal effect is often a good indicator of the purpose of the legislation": Morgentaler, at pp. 482-83. 

(i)              Effect of the law

[35]        The effect of the law can include both (1) legal effect, and (2) the practical consequences that result from legislation: Morgentaler, at pp. 482-83; Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453, at para. 20.

[36]        Acts of legislation are, paradigmatically, reasoned plans enacted either to change or confirm existing legal rights and obligations of persons. Thus, the legal effect of legislation is determined "from the terms of the legislation itself", by asking how the legislation affects the legal rights and obligations of those subject to it (Morgentaler at p. 480. See also, Richard Ekins, The Nature of Legislative Intent (Oxford: Oxford University Press, 2012), at pp. 121-27). 

[37]        The effects of legislation are an important indicator of its purpose. The Supreme Court has cautioned, however, that the enquiry into effects not be truncated by considering only the means chosen by the legislature and ignoring the more ultimate ends. For example, in Ward v. Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569, a federal regulation prohibited the sale of two types of young seals. The Supreme Court rejected the argument that the subject matter of the legislation was the regulation of the sale of seal products, which would be a matter within provincial jurisdiction (i.e., as a matter related to "property and civil rights in the province"). The immediate effect of the regulation was to prohibit the sale of seals. But this effect was only an intermediate end: a means, by way of removing the financial incentive to hunt seals and curtailing the commercial hunt, to achieve the more ultimate end of protecting a fisheries resource. An adequate account attends to both the intended effects and means chosen to bring them about. 

(ii)            Purpose of the enacting body

[38]        The effects of legislation are one guide to its purpose, but there are others, bearing in mind that the relevant purpose for analysis is, as Binnie J. stated at para. 27 of Canadian Western Bank, the purpose of the "enacting body" in enacting the legislation, and not the purpose of any individual member.

[39]        In determining the purpose of the enacting body, a reviewing court may consider both intrinsic evidence (evidence contained within the text, such as statements in a preamble or a purpose clause) and extrinsic evidence (evidence outside of the text, such as minutes of parliamentary debates): Canadian Western Bank, at para. 27. 

[40]        This analysis is not concerned with the motives of the government in proposing the legislation, or the motives of the enacting body or of any of its individual members: Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693, at paras. 35-38 ("Gun Registry II"). Motive, in this context, should be understood as the desire to achieve some end other than the immediate change in legal rights and obligations achieved by the legislation. 

[41]        For example, in Gun Registry II, the Supreme Court considered Quebec's argument that federal legislation resulting in the destruction of a firearms database was motivated by a desire to prevent or hinder Quebec from developing its own long-gun registry. The court decided that although that may well have been the government's motive, it did not play a role in the characterization of the matter of the legislation. At para. 38, the court commented:

Quebec's submissions, in our respectful view, confuse the subject matter of s. 29 of the ELRA with Canada's motives and the means employed by Parliament. In determining the true character of s. 29, we are not concerned with whether destroying the data is good policy, whether Canada's motives were sound, or whether the destruction of that data conflicts with the policy objectives of Quebec. We recognize that the federal government's ultimate goal may well have been to prevent Quebec from creating its own long-gun registry. We also accept that the destruction of the data is the means chosen by Canada because of its irremediable nature. That being said, these considerations are not indicative of a "colourable" purpose from a division of powers' perspective. An intention on the part of one level of government to prevent another from realizing a policy objective it disagrees with does not, on its own, lead to the conclusion that there is an encroachment on the other level of government's sphere of exclusive jurisdiction.  

The subject matter of legislation is thus distinct from the motives of government and of individuals within a government.

(b)       Heads of power

[42]        Once the matter of the challenged legislation is ascertained, the next step is to determine whether the matter comes within one of the heads of power allocated to the enacting legislative body by s. 91 or s. 92 of the Constitution Act1867. If not, the legislation is ultra vires and void. 

[43]        Legislation will not be ultra vires, however, simply because its subject matter, for another purpose, could have fallen under the jurisdiction of the other level of government under a different head of power. The double aspect doctrine provides that "subjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 91": Hodge v. The Queen (1883), 9 A.C. 117, at p. 130 (P.C.). Accordingly, the doctrine contemplates that some subjects will fall equally under two distinct heads of power, one federal and one provincial: Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, 397 D.L.R. (4th) 611, at para. 50.

(c)       Paramountcy

[44]        This double aspect raises the possibility of conflict between valid federal and provincial laws that both deal with the same subject matter. The doctrine of paramountcy stipulates that such conflict is to be resolved in favour of federal legislation: Canadian Western Bank, at para. 32. Where there is a conflict, federal legislation is paramount and the conflicting provincial legislation is inoperative to the extent of the conflict.

[45]        The Supreme Court has recently clarified its jurisprudence on what is required for a conflict: Alberta (Attorney General) v. Moloney, 2015 SCC 51, [2015] 3 S.C.R. 327, at paras. 17-29. It summarized when a conflict will occur, at para. 29:

[I]f the operation of the provincial law has the effect of making it impossible to comply with the federal law, or if it is technically possible to comply with both laws, but the operation of the provincial law still has the effect of frustrating Parliament's purpose, there is a conflict. 

Of the Law Societies of Upper Canada and Nunavut 

Thursday, October 13, 2016

Limitations Defences Must Be Pleaded

Singh v. Trump, 2016 ONCA 747:

[132]    This court has consistently held that "[t]he expiry of a limitation period is a defence to an action that must be pleaded in a statement of defence": Collins v. Cortez, 2014 ONCA 685, [2014] O.J. No. 4753, at para. 10, per van Rensburg J.A. (citing S. (W.E.) v. P. (M.M.) (2000), 50 O.R. (3d) 70 (C.A.), at paras. 37-38, leave to appeal to S.C.C. refused, [2001] 149 O.A.C. 397). This requirement is embodied in rule 25.07(4) of the Rules of Civil Procedure, which Ontario courts have consistently held "applies to pleadings relating to limitations that might bar an action": S. (W.E.) v. P. (M.M.), at para. 37Rule 25.07(4) provides as follows:

In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party's pleading.

[133]    Justice Cronk explained the rationale behind the requirement that a party specifically plead a limitation period defence in Hav-A-Kar Leasing Ltd. v. Vekselshtein, 2012 ONCA 826, 225 A.C.W.S. (3d) 237, at para. 69:

The failure to raise substantive responses to a plaintiff's claims until trial or, worse, until the close of trial, is contrary to the spirit and requirements of the Rules of Civil Procedure and the goal of fair contest that underlies those Rules. Such a failure also undermines the important principle that the parties to a civil lawsuit are entitled to have their differences resolved on the basis of the issues joined in the pleadings.

[134]    In S. (W.E.) v. P. (M.M.), MacPherson J.A. confirmed that Ontario courts "have consistently held that rule 25.07(4) applies to pleadings relating to limitations that might bar an action": at para. 37. He went on to explain that even though in that case the trial judge had given counsel time to prepare submissions on the issue after he raised it during closing arguments, it did not remove the potential prejudice to P:

If S had raised the issue in his pleadings, P might have tried to settle, or even have abandoned, her counterclaim. Either decision might have had costs consequences. Another potential source of prejudice arises from the fact that counsel for P might have adopted different tactics at trial. In particular, counsel might have called different or additional evidence to support an argument that the discoverability principle applied (at para. 38).

Friday, October 7, 2016

Judicial Officers show presumptively have their costs of a discipline hearing regardless of result

Massiah v Justices of the Peace Review Council, 2016 ONSC 6191:

[49]           In my view, the 2012 Panel started from a flawed premise, that is, that where there has been a finding of judicial misconduct, the presumption should be that compensation will not be made.  Specifically, the 2012 Panel said:

… it is only in exceptional circumstances that the public purse should bear the legal costs of a judicial officer who has engaged in judicial misconduct.

The 2012 Panel adopted this presumption from an earlier decision of a different Hearing Panel of the JPRC in Re Foulds (JPRC, July 21, 2013).  

[50]           I do not accept that any such presumption exists nor do I find any cogent reasons why such a presumption should exist.  Rather, there are compelling reasons for the opposite approach.  

[51]           First, and as noted above, dismissal of a judicial officer is a matter of public importance.  The considerations to be taken into account in dismissing a judicial officer include not only the conduct of the individual, but its effect on the justice system as a whole.  The principal objective of the complaint process is to restore and maintain public confidence in the integrity of the judiciary, not to punish the judicial officer holder, although punishment may result.

[52]           Second, where a Provincial Attorney General makes a complaint against a federally appointed judicial officer, a hearing is mandatory.[1]  While the same provision does not apply in the case of judges of the Ontario Court of Justice or of justices of the peace, the prospect of a complaint emanating from the Government is, nonetheless, a real one.  This possibility is of some significance given that one of the most important roles performed by a judicial officer is to stand between the state and the citizen, in terms of the application of government powers.  This role is referenced in the earlier statement I quoted above from Re Therrien.  Judicial officers are therefore exposed not only to the vagaries of complaints by citizens but also to those of government.  

[53]           Thirdly, judicial office holders, by the very nature of their duties, and the decisions that they make, naturally attract criticism and animosity.  It is an easy matter for someone, or some group, to make a complaint regarding something that a person, who holds judicial office, does, says, or decides.  While there are screening mechanisms to ensure that only complaints that appear to have a requisite degree of validity, and that are related to judicial conduct rather than judicial decisions, are permitted to proceed beyond the stage of the initial complaint, the impact on the holder of a judicial office, where a hearing is called, is significant, as this case and others have amply demonstrated.

[54]           Fourthly, there is a serious risk that, if we hold to a presumption that a judicial officer holder will not be compensated for their legal expenses, where a finding of misconduct is made, those persons will then face the judicial equivalent of the Gordian Knot.  On the one hand, the person can choose to defend themselves but with the knowledge that, if the adjudicator decides against them, they will not only lose their position but may effectively bankrupt themselves and their family in the process.  That result arises from the reality that the legal expenses associated with responding to a complaint, and participating in such a hearing, are likely to be significant.  Few judicial office holders would be able to self-fund those expenses.  On the other hand, that same person, in order to avoid those dire financial consequences, may simply decide that it is easier, and financially safer, to simply resign their office.  In doing so, though, they leave the allegations unanswered and consequently, in most persons' minds, admitted to.  If that is the knot that a judicial officer holder faces, it means that the mere fact of a complaint becomes, in and of itself, a threat to judicial independence, because it may lead to one of two undesirable results.  Either the judicial office holder, for reasons other than the merits of a particular complaint, acquiesces in their removal from office or they may choose to avoid decisions that will subject them to criticism.

[55]           The legal expenses issue is not a fanciful one.  In this case, for example, the applicant incurred legal fees in excess of $600,000.  In setting out that fact, I do not, for a moment, mean to suggest that that level of legal fees was either appropriate or justified for what took place in this case.[2]  I merely use it as an example of the type of financial consequence that may arise for a judicial officer holder, who finds her/himself in the position of having to decide whether s/he can actually afford to respond to a complaint.

[56]           For these reasons, adjudicative bodies, dealing with complaints against judicial office holders, ought to start from the premise that it is always in the best interests of the administration of justice, to ensure that persons, who are subject to such complaints, have the benefit of counsel.  Consequently, the costs of ensuring a fair, full and complete process, ought usually to be borne by the public purse, because it is the interests of the public, first and foremost, that are being advanced and maintained through the complaint process.  Again, this reflects the public interest nature of the process.

Of the Law Societies of Upper Canada and Nunavut