Responding to what some have coined anti protest legislation, protestors outside of Quebec have joined in on the Montreal student protest. On May 22, 2012, demonstrators in Montreal, Vancouver, Calgary, New York, and even Paris united in red to show their support for the protestors. The protests began three months ago, in response to tuition increases in Quebec. Ironically, Quebec students face some of the lowest tuition fees in the country.

Last Friday, the Quebec government passed Bill-78 in an effort to curb the protests plaguing the province. The law not only asks for at least eight hours written notice to the police before beginning demonstrations, but the fines that can be levied against those who do not comply with the new legislation are hefty. Students may be forced to pay $35,000. The law expires in July 2013.

In response to the legislation, Quebec’s student group, CLASSE (The Coalition large de l’association pour une solidarité syndicale étudiant), invited protestors to defy the bill, which they did in stride. Parti Quebecois leader, Pauline Marois explained that “The premier has lost control of the situation”. Despite the Quebec government passing the law in an effort to stop the protests, they have persisted with greater fervour. With the legislation being employed as a mechanism to prohibit protest, it is no wonder that they have continued anyway. The fee increase was only $325 per year, and yet the protests have gone on for a hundred days – clearly these protesters are people of principle. By implementing a law that takes away those students’ right to protest, it is not surprising that the legislation has had the opposite effect.

Canada’s Voting Woes Continue As Judge Nullifies Election Result

Even as the ongoing robo-call scandal has now led to a legal challenge against the validity of the last Canadian federal election, an Ontario Superior Court (ONSC) judge has invalidated the 2011 victory of a candidate in the Etobicoke Centre constituency of Toronto. Wrzesnewskyj v Attorney General (Canada), 2012 ONSC 2873 was filed by the Liberal candidate and former Member of Parliament, Borys Wrzesnewskyj, who alleged that that a number of “voting irregularities” in the registration and identification of voters were found in the 2011 election records. Further, instances where improper voting procedures were followed, such as allowing voters to cast their ballots in stations other than the ones they initially registered at, were also cited.

In ruling for the plaintiff and ordering a new poll through by-elections, Justice Lederer was quick to point out that the issue was a complicated one that involved balancing the fairness interests of Mr. Wrzesnewskyj against those of public confidence in the democratic process. At the same time, the judge also noted that his assessment of the need for a new election was not a comment on wrongdoings on the part of the candidates themselves, and should not be deemed so. Adopting a thoroughly scrutinizing approach, Justice Lederer began with the presumption of regularity in the electoral process, the onus to disprove which was placed squarely on the appellant. Further, because the application was brought under s. 524(1) of the Canada Elections Act (CEA), the court also placed some importance on assessing the meaning of “irregularities,” within the ambit of the legislation. After spending some time discussing whether the term should be read generally to include everything from the most serious concerns (e.g. fraud), to minor clerical errors, Justice Lederer ultimately deemed a broader interpretation was appropriate, but noted that such concerns did not affect the ruling in this case. Rather, the outcome of Wrzesnewskyj turned on whether the irregularities were within the definition of s. 524, and if these were serious enough to affect the result of the election.

Ultimately, the ONSC ruled in favour of a new by-election, setting aside 52 votes on account of failure of registration, and 27 for failure of vouching. In doing so, Justice Lederer reiterated that the judgment had to weigh the effect a re-election would have on public confidence, versus the fundamental requirements of ensuring that the election process was legitimately carried out. In his own words, Justice Lederer stated that “what [the] case represents is an opportunity to learn and for the process to evolve in order to guard against the particular problems,” positing that Canada’s election issues must be taken in the right spirit – of fairness, and in the public interest. The statement is certainly resounding, and one that warring federal political parties should take note of, in the current robo-call controversy.

The Age of Innocence, Gone?

Earlier this week, New York City police arrested a man in connection with the death of Etan Patz. Etan, then a six-year old school boy, disappeared on his way to home. Despite the thirty years that have gone by, his disappearance has remained in our collective consciousness. There are other cases of children who were victims of foul play, such as Tori Stafford, but the case of Etan Patz was arguably the first to catapult these crimes into media spotlight; it started the missing children’s movement. It awakened us, according to the President of the National Centre for Missing and Exploited Children.

Patz was on his way to catch the school bus when he disappeared on May 25, 1979. An extensive search took place later that night and on subsequent days, but the little boy was never found. Police looked “floor-by-floor, wall-by-wall, rooftop-by-rooftop, backyard-by-backyard.” They did this for two months, the longest New York police officers had searched for a missing child for decades. Even though the police had named a main suspect, they did not have enough evidence to charge him with any criminal offences relating to Paz’s disappearance. According to news sources, the man charged with Patz’s disappearance made a confession to police. His name is Pedro Hernandez and he was a stock clerk who once lived in the same neighbourhood as the Patzs.

The New York Times warns us to not get ahead of us ourselves, as the police have not yet revealed any details of Hernandez’s involvement in the crime. But it nonetheless gives us some closure on the first case of missing children that brought the issue to the forefront of society. It corresponded with a “proliferation of media outlets with growing interest in compelling visual images – such as a heart-rending photo of a smiling child or a video of parents pleading for their child’s safe return.”  Four years after Patz never came back home, President Reagan declared May 25 “National Missing Children’s Day”. Congress subsequently passed a bill that would open the National Center for Missing and Exploited Children, which has a 24-hour toll-free line for those who have tips about where these children may be located.

Investigators in the Patz case used a novel technique to try and locate him. They put his name on thousands of milk cartons, which would become a trend in the next few years. Barbara Friedman, an associate professor at the School of Journalism and Mass Communication at the University of North Carolina, explains: “The use of milk cartons as another form of media to locate missing children was a way to bring the issue into the family space — the breakfast table — heightening awareness as well as anxieties.” Billboards and fliers containing Patz’s image were also distributed. These initiatives are the predecessors of what we now know as the AMBER alert system, which broadcasts news about missing children on TV, radio, the Internet, mobile phones, etc.

The cases of children being abducted by strangers are still very few. But with the case of Etan Patz, the issue of missing children has forever been seared into the fabric of our lives.

Facts and Judicial History

In the fall of 2007, twin brothers Steven and Keith Pridgen took a legal survey course at the University of Calgary. Professor Aruna Mitra taught the course for the first time. Several students in the course, including the Pridgens, posted to a public Facebook wall, criticizing Professor Mitra and the course. There was even a group created and called, “I no longer fear hell, I took a course with Aruna Mitra.” Both brothers posted a comment to the group’s wall – Steven complained about a mark he received, and inquired about how he could apply to have it remarked. Neither brother responded to the highly critical and offensive comments students made regarding Professor Mitra’s qualifications.

Two months after the completion of the course, in February 2008, a student posted on the wall explaining her enthusiasm for her new law class. She also posted that to her knowledge, Professor Mitra was not teaching any courses that semester. Six months later, Keith Pridgen responded, based on a conversation he had with Associate Dean Brent regarding Professor Mitra’s marking:

Hey fellow LWSO homees [sic]… So I am quite sure Mitra is NO LONGER TEACHING ANY COURSES WITH THE U OF C !!!!! Remember when she told us she was a long-term professor? Well actually she was only sessional and picked up our class at the last moment because another prof wasn’t able to do it … lucky us. Well anyways I think we should all congratulate ourselves for leaving a Mitra-free legacy for future LWSO students!

Concerned about the page and its contents, Professor Mitra complained to Dean Tettey in September 2008. She was no longer employed by the university at that time. Dean Tettey treated the complaint as an allegation of Non-Academic Misconduct. Dean Tettey ultimately found all members of the Facebook group guilty of non-academic misconduct – irrespective of their activity within the group.

Both Pridgens appealed their sanctions to the Review Committee. Steven Pridgens notably explained that his post was a justifiable comment that ought to be protected as freedom of expression. He equated comments on the Facebook site with having an online conversation – one that is not meant to be the subject of intense scrutiny, similar to “standing in the middle of the University of Calgary hallway and saying the exact same thing. It is openly, publicly available to anybody who is walking by.”

The committee upheld Dean Tettey’s finding of Non Academic Misconduct. Subsequently, the brothers tried to appeal the decisions of the Review Committee to the University’s Board of Governors.  As per s 31(1)(a) of the Post Secondary Learning Act SA 2003, c P-19.5 (PSL Act), disciplinary decisions of general faculty council are “subject to a right of appeal to the board [defined as the board of governors of a public post-secondary institution]”. However, the board refused to hear the appeal, because the students were only placed on probation and not fined, suspended or expelled.

Determined, the brothers applied for judicial review in the Court of the Queen’s bench. A comment on that decision can be found here. Briefly speaking, the Chambers judge found that the Charter applies to disciplinary proceedings taken by the university, and that those Charter rights were infringed.

What’s at Issue: 3 Judges – 3 Opinions

The University appealed to the Alberta Court of Appeal on two issues. The first was whether the Charter applied to university disciplinary proceedings, and the second was that the Chambers judge had erred in his ruling. In this appeal, the University alleges that the lower court judge substituted her own opinion for that of the Review Committee, and that she applied a standard of correctness to her review of the Committee’s decision, rather than the standard of reasonableness.

An interesting component of the Alberta Court of Appeal’s decision is the split unanimity of it. While all three judges upheld the Chambers judge’s decision to quash the Review Committee’s decision, they each wrote concurring opinions. The differences between the judges are nuanced; however, they have major implications as to the treatment of universities.

The first verdict, penned by Paperny J, insists that the Committee’s decision was not reasonable. The judge uniquely finds that the Charter applies, which essentially causes a revisiting of the Supreme Court of Canada’s decision in McKinney v University of Guelph, [1990] 3 SCR 229.

The second judgment, written by McDonald J, affirms the Chambers judge’s decision that the respondents’ comments did not constitute non-academic misconduct. However, the judge did not think that this court ought to reconsider whether or not universities are subject to the Charter. Since the decision could be decided entirely on established administrative law grounds, there was no need to resort to a Charter analysis here.

The third and final decision, written by O’Ferrall J, explains that the real issue in this case is whether in disciplining the students for their comments critical of a University employed lecturer, or for the students’ association with the Facebook group, the University’s disciplinary body ought to have considered whether its techniques violated the students’ right to the freedoms of expression and association. The judge takes the view of Alberta’s Bill of Rights, rather than the Charter. He stated that the Review Committee’s decision was unreasonable, because no consideration was given to whether expression and association were protected rights.

Revisiting McKinney?

Justice Paperny goes into a lengthy discussion as to Charter applicability. Section 32(1) of the Charter, 1982 explains that the Charter applies:

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

Paperny J outlines five scenarios by which the Charter ought to apply: legislative enactments, government actors by nature, government actors by virtue of legislative control, bodies exercising statutory authorities and non-governmental bodies implementing government objectives. What becomes problematic in this decision is whether a university may be classified as a body of government, or doing something “governmental”.

In McKinney, the SCC explained that a university is not subject to Charter scrutiny. Justice Paperny distinguishes Pridgen from McKinney; in the latter, the issue was whether the University of Guelph had infringed the section 15 rights (equality) of its employees, by imposing mandatory retirement at age of 65 on its professors. “It did not deal… with the imposition of discipline or the relationship between university administration and students.” She also insists that McKinney left the door open for certain activities conducted by universities to be considered governmental in nature. If that were the case, they would be subject to Charter scrutiny.

Agreeing with Justice Paperny, I believe this case provides the perfect opportunity to revisit McKinney. Not only was McKnney a split decision, but the justices all find that there may be some situations that could attract Charter scrutiny. Although I appreciate that universities would want academic freedom, and fear that if the Charter was to apply to them, they may be limited in their self-governance, the Charter is meant to reflect Canadian values. Moreover, scrutiny under it would not necessarily interfere with academic freedom.

The freedoms of expression and association are fundamental values that should not be limited – especially by institutions that are funded by the government. Simply because our generation has moved towards a more electronic platform for executing these values (case in point as I write in a legal blog), does not mean that the mode of the expression or association ought be stopped.

The comments expressed on the page may have been unnecessarily hurtful to Professor Mitra, but they did provide feedback on the course and information about the grade appeal process. This was a free flow of information – a tenet the Charter protects. If this mode of expression was forbidden, where would the line be drawn?  Justice Paperny explained, “Respecting Charter rights…will promote the institution as a place of discourse, dialogue and the free exchange of ideas; [with] all the hallmarks of a credible university and the foundation of a democratic society.”

Given the judicial debate on this case, and the appellate process coming out of the Pridgens, perhaps Professor Mitra was not as bad an instructor as the Facebook page made her out to be.

Facts

On appeal from the British Columbia Court of Appeal (BCCOA), the facts of the case revolved around a barroom altercation between the victim, the two sibling defendants and the bouncer of the establishment. The defendants appealed, bringing the case to the Supreme Court. While the two brothers (Timothy and Matthew Maybin) played pool in the early hours of 21 October 2006, the victim, Michael Brophy, was involved in a conversation with a female patron of the bar. At some point, Brophy touched a ball on the pool table, upsetting the Maybin brothers, who were still playing their game. As a result, Timothy and Matthew Maybin began to punch Brophy in the head, with Timothy eventually delivering a blow that caused Brophy to fall face forward on the pool table. He became unconscious. Since the bar was crowded, and considerable commotion had commenced since the altercation, the bouncer, Buddha Gains, arrived on scene. Upon hearing, albeit mistakenly, that Brophy was responsible for starting the fight, Gains proceeded to punch him in the back of the head.  The combination of punches caused internal brain hemorrhaging in Brophy’s head; he died from his injuries later in the day.

In court, the trial judge found that the medical evidence could not distinguish which punch had caused the death. Thus, he had to acquit all three of the accused. Contrary to the initial judgment, the BCCOA determined that factual causation, based on the ‘but-for’ test, had been found. The appellate court therefore decided that the trial judge’s ruling was too narrowly based on medical evidence without considering causation, and that the chain of causation had not been broken by Buddha Gains’ intervening act of punching the unconscious victim. The Supreme Court largely agreed with the majority’s approach in the BCCOA ruling, and further clarified that, as per the cases of R. v Smithers [1978] 1 SCR 506 and R v Nette, 2001 SCC 78 that the “factual cause is not limited to the direct or immediate cause, nor is it limited to the most significant cause” (Maybin at para 20). Rather, the focus is still the wrongful act, but for which the victim would still be alive.

Analysis and Implications

The SCC framed their issues as the following:

1. Whether the trial judge erred in failing to address whether the appellants’ assaults were in fact a cause of death?

1. Was it open to the trial judge to find that the appellants’ assaults remained a significant contributing cause of death despite the intervening act of the bouncer because (a) the intervening act was reasonably foreseeable; or (b) the intervening act was not an intentional, independent act?

After determining that the BCCOA was correct in unanimously determining that the trial judge should have found factual causation.the SCC agreed that the relevant test should be to consider if, but for the actions of the Maybin brothers, Brophy would still be alive. Citing the inclusivity of factual causation, the SCC reiterated that its primary purpose was to inquire about “how the victim came to his or her death,” (Maybin at para 15) given the facts of the case. The SCC established that the contributing causes of death need only extend beyond the de minimis range, and do not need to be limited by the direct, immediate and significant causes (Maybin at para 20). Thus, the scope of the factual cause was and remains considerably extensive. Furthermore, the SCC underlined the holding in Nette: there need not be polarizing extremes with respect to factual causation; just because a single, conclusive cause of death cannot be established does not automatically mean that there were multiple operative causes in action. That is, Nette holds that the courts must not lose focus of the primary question in manslaughter cases, i.e. whether the accused’s actions caused the victim’s death.

To counter the broad scope established by factual causation, and to consider whether the bouncer, Buddha Gains’ act of punching the unconscious victim could have been the intervening cause that could sever the appellants’ connection to Brophy’s death, the SCC turned to the concept of legal causation. Specifically, it considered the two approaches employed by the majority and minority in the BCCOA ruling, ultimately agreeing that the majority’s “reasonable foreseeability approach” was the preferred one (Maybin at paras 23-50).

The majority’s approach centered on the standard set out in R v Shilom, [240 C.C.C. (3d) 401], in which a trier of fact was left to determine “whether the intervening act was objectively or reasonably foreseeable.” The SCC viewed this within the realm of fairness and justice, asking whether it was fair to consider the appellants responsible for a final result, if their initial act was interrupted by another one, particularly if the latter act was more serious. Recognizing that this finding could lead to confusing and inconsistent interpretation, the SCC further clarified that the criteria need only consider the “general nature” of the intervening act and the harm caused, in order to satisfy the reasonable foreseeability sub-criterion (Maybin at paras 57-59).

In contrast, the minority of the BCCOA adopted the test in R v Sinclair, 2010 SCC 35, asking whether Buddha Gains’ punch constituted an independent and intervening act that was serious enough to absolve the Maybins of culpability in Brophy’s death. The SCC clarified that an intervening act could be considered independent, if it did not arise as a result of the first, and if its effects could override the effects of the first in its seriousness. By looking at the facts of the case, SCC then determined that Buddha Gains’ punch arose as a result of the initial altercation that was started by the Maybins. Additionally, it was the punches thrown by the Maybins that left Brophy in a vulnerable position to receive Gains’ single punch. As a result, the SCC refused to accept that the acts of the brothers and the bouncer were separate, thereby shifting the definition of what an independent and intervening act is away from previous case law.

The ruling is the latest in the spectrum in the jurisprudence of the law of causation. The SCC continued to emphasize that the core issue, namely whether the accused’s actions caused the death of the victim, must not be overwhelmed by complicated analytical approaches. Whether the ruling clarifies the matter for lower courts across the country, however, remains to be seen.

“I’m not even sure that having the decision — having to rewrite some aspect of the Criminal Code — will have that much of an impact in the short term,” she said. “I think it’s still something that we need to educate a lot of people [about]. There’s something else at the core of this, so it’s not just a criminal case. It’s social. There’s so many aspects to it.”

What is underlined by Boivin in her statement is that prostitution is not a legal phenomenon, but rather a social phenomenon. Courts reverse decisions, laws change and political regimes come and go, but the “world’s oldest career” persists. We human beings do not change, even if our ways of connecting with each other have. My two-part series will highlight the Bedford decision within a larger context, specifically the increasingly dangerous entanglement between technology, specifically the Internet, and human trafficking.

Bedford: What it means

Much attention has already been drawn to the Canada (Attorney General) v. Bedford, 2012 ONCA 186 decision by my colleagues at TheCourt.ca and elsewhere online and in print. Essentially, the landmark decision would allow sex-trade workers to conduct business in homes and brothels and hire security so long as the relationship is not exploitative. Soliciting prostitution on the street, however, would remain illegal, according to the Court of Appeal. Prior to the decision, much of what would allow a woman to practice her trade was not legal, even though prostitution was technically legal in Canada. (There are no provisions in the Criminal Code or elsewhere in law that prohibits prostitution in this country.)

Of the three provisions in the Criminal Code that sets up parameters around the sex trade, the Court of Appeal held that two of the three impugned provisions were unconstitutional: Section 210, which prohibits the operation of common bawdy-houses; and Section 212(1)(j), which prohibits living on the avails of prostitution.

Section 212(1)(j) encompasses more than just pimps. Anyone who profits from prostitution would be considered engaging in a criminal activity. The Court of Appeal, however, interpreted this section in a very narrow way. If there exists a non-exploitative commercial relationship between the sex-trade worker and other people (such as security guards hired for the purpose of offering protection), the sex-trade workers’ Section 7 Charter right could be infringed. That is, the Court of Appeal held that Section 212(1)(j) only applies to those who live on the avails of prostitution in circumstances of exploitation.

Public place?

Section 213(1)(c), however, was upheld by the Court. According to that section, communicating for the purpose of prostitution in public remains illegal. That would prevent prostitutes from offering their services in public, and particularly on the streets. The words of the provision are:

213(1) Every person who in a public place or in any place open to public view

…

(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

As the Court reminds us at paragraphs 14 and 15, the Criminal Code has a set of useful definitions in place to guide our interpretation of this provision. The Criminal Code defines “public place” to mean “any place to which the public has access as of right or by invitation, express or implied (s. 197(1))”. Furthermore, s. 213(2) elaborates on “public place” as also including “any motor vehicle located in a public place or in any place open to public view.” Together with s. 197(1), s. 213(2) concerns a real, or physical, space.

The dangers of privacy

Without even considering how technology facilitates “communication for the purpose of engaging in prostitution or obtaining the sexual services of a prostitute,” some immediate concerns can be raised. Angel Wolfe, who claims that her mother, Brenda, was one of the first victims of the serial killer, Robert Pickton, objected to the decision in Bedford in April. Aligned with Sex Trade 101, an organization that helps women leave the sex-trade profession, she argued that by keeping the women away from public streets, “those girls get hidden and they get beaten by the ‘johns.’” Furthermore, the legalization of brothels would make it more difficult for police to get warrants for sweeps; these sweeps could lead us to illegal child trafficking and abuse. Allowing prostitution in a public arena may offend some of our social sensibilities, but, according to Wolfe, the increased transparency would keep some women safer and children away altogether.

On the other hand, the appellants in the case argue that sex-trade workers are better off in terms of personal safety and dignity if they could work indoors and off the streets. In privately-owned property, including brothels, safeguards can be put in place to make sure that their security can be protected, such as by hiring security guards. So, contrary to what Wolfe and others may believe, the Bedford decision does not merely sweep the dirt under the carpet. The debate about prostitution, and how to make it safer for women, including how to get them out of the profession when they desire to do so, will surely continue. As an interim decision, Bedford is basically a pause in the debate; recently, the Supreme Court of Canada granted leave to appeal to this case.

How backpage.com could shape the debate about Bedford

In anticipation for next week’s post, which will link the Bedford decision to the increasing problem of human trafficking around the world, we should turn briefly services like backpage.com. Backpage.com is an online marketplace; it contains an ‘Adults’ section, which lists ‘Adult jobs’ and ‘Escorts’ among other sub-categories. It is often compared to Craigslist’s advertisements for escort services, which were taken down by the company after mounting pressure from Congress, state Attorney Generals and the public in the United States. Last year, a lawsuit was filed against the parent company of backpage.com, Village Voice Media, alleging that they knowingly promoted child prostitution on their website. Attorney Generals from almost every state in the United States have banded together to ask backpage.com to eliminate their adults’ services sections. Nicholas Kristof, a well-respected lawyer and journalist, makes the claim that backpage.com is the biggest forum for sex-trafficking of under-aged girls in the United States.

Backpage.com operations extend beyond the fifty United States. It has operations in Canada’s major cities too. Partly because prostitution has always been legal in our country, whereas it is only legal in one state in the United States, Canadian lawmakers have not put pressure on backpage.com – yet. But the Bedford decision should force us to grapple with its real implications: first, could online advertisements for prostitution be considered in a “public space,” under s. 213(1)(c) of the Criminal Code? Stemming from this question, we will tackle the question of how our legal regime can better fight human trafficking, specifically human trafficking of under-aged girls, in the next part of this series.

The Court Won’t Hear Court versus Church

Earlier this week, the SCC refused to hear the case of Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, in Canada  2011 ONCA 728. While the church and the issue may be different, this case can be placed alongside Bentley v. Anglican Synod of the Diocese of New Westminster 2010 BCCA 506, which was also denied by the same Court last year. (You can read a summary of the case and the appellate court decision by our colleague, Laura Achoneftos, here.) It can be argued that the latter was a much thornier case as it involved a group of churches that planned to leave the larger Anglican Church of Canada for the reason of same-sex marriage; they sought to take property with them, but the British Court of Appeal found that to be illegal. Avoiding the debate about same-sex marriage and church doctrine, the SCC denied leave to appeal to the appellant in Bentley.

Hart is different, but the result is similar. Father Hart was ordained by the Roman Catholic Church, and served as a priest in various local churches around Ontario. There were some irregularities with parish finances, which ultimately lead to Father Hart being removed from office. Three decrees were issued to him by the Archdiocese. Under Canon Law, Father Hart was free to appeal each of the three decrees. Instead, he opted to bring an action for damages for constructive dismissal. The Archdiocese responded, stating that the court had no jurisdiction over his claim, according to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C-43 and rule 21.01(3) of the Rules of Civil Procedure, R. R. O. 1990, Reg. 194. Because the relationship between the Archdiocese and Father Hart was ecclesiastical in nature, it is to be governed by Canon Law, not Civil Law.

Like in Bentley, the heart of the case is church independence: can the civil courts intervene in matters of church governance, including the management of property (Bentley) and employee relations (Hart)? Put simply, the answer is no. In the same way that the appellants in Bentley tried to argue that church property was a matter of Civil Law, namely trusts, the appellant in Hart tried to argue that civil courts have always maintained jurisdiction over employment and contractual disputes. Father Hart also argued that the nature of his employment with the Archdiocese was “multi-faceted” – that some of responsibilities were religious, while others were not. According to the trial judge and the appellate court judges, that was enough for the church to intervene. Even if he fulfilled non-religious duties in the course of his employment, the nature of Father Hart’s dispute with the church is indeed ecclesiastical; his appointment as a pastor is expressly subject to canon law. There are only two exceptions that would allow civil courts to intervene in church affairs. These narrow exceptions are explained clearly by Justice Laskin in paragraph 19 of his decision:

The courts will interfere in the internal affairs of a self-governing organization in only two situations: where the organization’s internal processes are unfair or do not meet the requirements of natural justice; or where the aggrieved party has exhausted the organization’s internal processes.

As we witnessed in Bentley last year, the courts have been relatively comfortable with these two narrow exceptions and with their limited role. Based on the facts of Hart, it is not clear whether he could have appealed on the grounds of natural justice. But one cannot help but imagine future cases in which the boundaries of “natural justice” are pushed and when an organization’s internal processes are so deeply unfair to the appellant. We in Canada have never decreed that the state and the church ought to be separated. We do seem more and more comfortable with that imaginary wall of separation though.

SCC is Not Hearing Any of It: Leave to Appeal for Three Section 8 PM(NOC) Cases Denied

The Supreme Court of Canada’s (SCC) disinclination towards s.8 of the Patented Medicines (Notice of Compliance) Regulations (PM(NOC)) has been indicated in its 17 May 2012 denial of the leave to appeal for three intellectual property law cases. While the same section held sway in all three instances— Apotex Inc. v Eli Lilly Canada Inc., 2011 FCA 358 (“Eli Lilly”), Apotex Inc. v Nycomed Canada Inc., Nycomed GmbH, also 2011 FCA 358 (“Nycomed”), and Merck Frosst Canada & Co. v Apotex Inc., 2011 FCA 329 ­(“Merck Frosst”)— the interpretive issues ranged from the permissibility of restitutionary recovery in the first two cases, to the technical question of which version of the PM(NOC) applied in the third.

In both the Eli Lilly and Nycomed appeals, the Court would have been asked to consider whether the plaintiff could have been entitled to a portion of the defendant’s profits, since it was the latter’s issuance of prohibition order against the former that prevented the plaintiff from marketing its drugs generically in the market. A more complete consideration of s.8 would have allowed the SCC to address whether a restrictive interpretation of the legislation could have allowed for a disgorgement of the defendant’s profits as a remedy, especially since the PMNOC is generally compliant with corresponding regulation, like the Patent Act. Since the SCC’s denial, however, conflicting interpretations in lower courts will likely continue to muddy the waters around restitutionary recovery under s.8, complicating this possibility considerably.

The Merck Frosst appeal sought clarification on which version of s.8 applied in the case – the older 1993 version, or the amended 1998 one. This determination was a crucial one, since the applicability of the retroactive effects of the 1998 regulations did not absolve Merck Frosst from liability at the Federal Court level. By refusing to hear the case, the SCC has implied consent with the FCA’s reasoning. Merck Frosst’s failure to recognize the inherent uncertainty in s.8 at the time it filed the  prohibition order in 1993, coupled with the reasonably foreseeability of legislative changes created a “black box” of liability. For now at least, it seems that the law as it stands. As per Merck Frost specifically, there appears to be an emphasis on the greater promotion of generic drugs in the Canadian markets.

Extradition Case Denied Leave to Appeal

The Supreme Court of Canada refused to hear an appeal by Ragavan Thamby seeking to avoid extradition. Mr. Thamby is a Canadian citizen who is wanted to stand trial in the United States District Court of Texas. It is alleged that he participated in a fraudulent telemarketing scheme based in Canada preying on elderly Texans.

Facing charges in Canada, Mr. Thamby entered into a plead of guilty with the crown prosecutor – or what he thought to be a plea agreement. The lower court judge even approved the deal; however, there was a clerical error delaying the proceedings. But for this error, the guilty plea would have been entered on July 24, 2009, and the applicant would have faced just under two years in prison, two years probation and being subject to a restitution order of $200,000.

This clerical error is of great importance because in mid-May 2009, the United States sent a diplomatic note to Canada requesting Mr. Thamby’s extradition.  In the U.S., he would face charges of conspiracy to commit fraud, mail fraud, and wire fraud. The conduct underlying the charges in the U.S. and Canada are identical. The difference lies in the sentencing provisions. While Mr. Thamby was prepared to take a plea of two years in Canada, the sentencing provisions in the United States may exceed fifteen years. Counsel for the Attorney General stayed the Canadian charges so that the extradition could proceed. Subsequently, the extradition judge ordered Mr. Thamby’s surrender.

Mr. Thamby appealed this decision successfully. The Ontario Court of Appeal found that the Minister had not sufficiently identified relevant considerations warranting surrender. Although the Minster is afforded a great deal of discretion, as outlined in United States of America v Cotroni [1989] 1 SCR 1469, the court will only interfere with the Minster’s discretion in cases where the decision is unreasonable (United States v Lake [2008] 1 SCR 761). ONCA found that Mr. Thamby was entitled to have the Minster weigh all of the relevant considerations favouring a domestic prosecution, which the court found the Minister did not perform satisfactorily in allowing the extradition. Upon the Minster revisiting the case, bearing in mind the factors that the court instructed him to consider, the Minster still found that extradition was appropriate.

Despite Mr. Thamby’s further appeals, ONCA found that “The Minister engaged in a proper Cotroni analysis.  He considered the unusual factual history of this case, noting that the applicant would have pleaded guilty to the Canadian charges before the United States requested his extradition. He observed that the decision of the provincial Crown to stay the Canadian charges on the eve of resolution because of the extradition request was entirely proper, as found by both the extradition judge and this court.”

The error of law that court of appeal found was in the Minister’s use of discretion in that he failed to account for several factors. The Minister, in revisiting the case for extradition. considered these factors. This decision was reasonable and free from the legal errors that weighed down upon the previous decision. According to Lake, this decision is therefore not reviewable by higher courts which is likely why the SCC denied leave to further appeal. For Mr. Thamby, a clerical error coupled with unfortunate timing may garner him an additional thirteen years in American prison.  When a case is successfully appealed because a Minister fails to consider certain factors and then once the those factors are considered the decision is still not favourable, there is little more a person can do.

Despite claiming he is not guilty, a jury and judge have said otherwise. After being found guilty of a jury on all three counts of kidnapping, sexual assault causing bodily harm and first degree murder of Victoria (Tori) Stafford, Michael Rafferty was sentenced on Tuesday morning by Justice Heeney in London, Ontario.

Tori Stafford went missing in Woodstock, Ontario outside her elementary school in April, 2009.  Terri-Lynne McClinctic, one of Rafferty’s girlfriends at the time, pleaded guilty to first degree murder two years ago. She testified in March that she had been the one to lure Tory into Rafferty’s car under his orders. Rafferty sexually assaulted Tori multiple times and, upon being overcome with rage, McClintic beat the girl to death with a hammer.

Members of Tori’s family read heart wrenching victim impact statements in court on Tuesday. In delivering the sentence, Justice Heeney further condemned Rafferty’s behaviour, stating: “Only a monster could commit an act of such pure evil. You sir are a monster.” 

Rafferty is sentenced to life in prison without the opportunity of parole for twenty-five years. He also received ten years each for kidnapping and sexual assault causing bodily harm. The latter charges are to be served concurrently with the sentence for first-degree murder. He is forbidden from owning weapons in addition to having his name added to the sex offenders registry.

When his lawyer, Dirk Derstine, was asked by the CBC as to whether Rafferty plans to appeal, he answered, “It cannot be contrary to Mr. Rafferty’s interest to appeal… There’s no downside to it. If Legal Aid agrees to fund his appeal, he may very well appeal.”

‘Court’ing History: Kirpans Now Allowed in Toronto Lawhouses

In what is fast being hailed as a landmark event, Toronto became the first Canadian city, on May 16, 2012, to allow members of the Sikh faith to carry a kirpan–the ceremonial dagger that is considered one of the five pillars of the religion–into Ontario courthouses. The policy was the result of negotiations between the World Sikh Organization of Canada, Toronto Police, the Toronto Police Services Board, the Ministry of the Attorney General and the Ontario Human Rights Commission.

The settlement however, applies only to practicing Sikhs who adhere to the other four mainstays of Sikhism and self-identify as members of the religion. Moreover, the kirpan must not be in excess of 7.5 inches when sheathed, must be worn underneath clothing, and cannot be accessible when the wearer is in court.

The decision was prompted because of two separate instances where kirpan-wearers were prohibited from entering courthouses with the daggers, and were asked to remove them to gain access. Neither individual complied, citing it contrary to their faith to be leave behind their kirpans. The policy, then, is not only designed to improve court accessibility to members of the public, but is also an extension of the recognition of religious rights and freedoms under the Charter. The legality and admissibility of the kirpan in various facets of Canadian life has previously been addressed and the federal level in Multani v Commission scolaire Marguerite‑Bourgeoys, 2006 SCC 6, and by the House of Commons and the Quebec National Assembly.

The decision has attracted some criticism, primarily because of its potential use a weapon that could exacerbate tense courtroom situations into ones endangering the lives of people present. However, its defenders are quick to point out the kirpan’s spiritual symbolism, and the fact that almost any mundane item can, if used in the same capacity, become a threat. While this decision is another step towards the recognition of religious freedom for Canadians, it remains to be seen if other jurisdictions will follow Toronto’s example, and implement official kirpan- allowance policies.

North Carolina Says “I Don’t”

Last Tuesday, North Carolinians went to the polls to decide the fate of an amendment that would ban same-sex marriage, partnerships and civil unions. One side championed marriage, defending the amendment as a statement about marriage, as opposed to about homosexuality. The other side argued that the amendment would jeopardize families, particularly the 150,000 families comprising a straight couple. It would invalidate domestic violence protections, undercut child custody arrangements and jeopardize hospital visiting rights.

North Carolinians overwhelmingly voted in favour of the amendment. North Carolina became the 30^th state to render same-sex marriage unconstitutional under their state constitution.

There was a certain fervor in North Carolina on the morning of Tuesday, May 8, 2012. Half a million North Carolinians voted earlier, which set a record for a primary in a state. Generally, the turnout was high. This was not wholly unexpected, though, given the amount of national and, to an extent, international attention paid to the Bill. North Carolina had a ban on same-sex marriage in place before this historic Bill. But this Bill is more expansive in scope: It also carries with it constitutional force. In one sense, North Carolina was playing catch-up to the other states in the Southeast, as all the other states had already made same-sex marriage unconstitutional.

Not long after this amendment was passed, President Obama publicly proclaimed his support for same-sex marriage. He had been painstakingly careful about keeping the debate at arm’s length in the past. President Obama’s endorsement of same-sex marriage puts his re-election campaign in a very politically precarious position, as it could cost votes in swing states, such as Virginia, Colorado and North Carolina come next November.

After shoring up his position, President Obama has already come out on the offensive, comparing his position on the issue to that of his Republican challenger, Governor Romney. Between May and November, the debate is likely to escalate and to turn in the direction of the law: President Obama stands by the federal government, and believes that the United States Constitution is the place where the debate should be settled; Governor Romney, on the other hands, would leave it to individual states. Like the fate of ‘Obamacare,’ or the Affordable Care Act, the debate on same-sex marriage may turn on the ever-problematic idea of federalism. Even though North Carolinians made a decisive decision last week, the debate will surely rage on.

The “real and substantial connection” test was designed and developed as a method of adding an element of objectivity to the process of determination of an appropriate jurisdiction. Initially developed to help Canadian provincial courts recognize and enforce decisions from other provinces in their own jurisdictions, the test was gradually expanded to apply to issues of private international law as well. On April 18, 2012, the Supreme Court of Canada (SCC) further clarified the factors of the test in Club Resorts v Van Breda, 2012 SCC 17 (“Van Breda”). In doing so, it followed the Canadian preference of prioritizing the application of a set of presumptive factors connecting the issue at hand to the jurisdiction over purely individualized judicial discretion. The SCC was mindful of the fact that the latter approach has created uncertainty in the precedent for forum non conveniens litigation, and sought to provide a definite shape to the test.

Facts

Two separate cases were heard under the Van Breda decision, both at the Ontario Court of Appeal (ONCA) and at the federal level. In Van Breda, the plaintiff had signed a contract to provide professional tennis lessons to the clients of a resort in Cuba, in exchange for lodging and boarding, but was severely injured while conducting exercises on a metal structure that collapsed, and which was on the premises of a resort owned and operated by the defendant. As a result, the plaintiffs brought actions in contract and tort, framing them as damages for personal injury, and for the loss of care, guidance, support and companionship. Punitive damages were also sought.

In Club Resorts v Charron (“Charron”), the deceased plaintiff and his wife had booked a vacation, which included scuba diving, through the defendants. The plaintiff drowned on his second dive while in Cuba, and his estate and family sought recovery for breach of contract and negligence, specifically for loss of future income, love, care, guidance and companionship as per the Family Law Act (R.S.O. 1990, c. F.3). A number of foreign parties were also served under the Rule 17.02 of the Ontario Rules of Civil Procedure, and these parties then sought to have the action dismissed on grounds of lack or jurisdiction.

Analysis

The SCC revisited the issues of whether the Ontario courts had the jurisdiction over the cases (the test for jurisdiction simpliciter), and whether, once jurisdiction was found, the court could decline to exercise its authority to do so. It built on the analyses of the lower courts, by tracing the evolution of the real and substantial connection test from both its constitutional and private international law origins. However, it also took care to point out that the former’s role is not to overwhelm the latter – in the provincial application of conflicts of laws rules, for instance, but to place limits on the scope of provincial courts. At the same time, Justice LeBel, in writing for a unanimous majority stated that the test also provides uniform guidelines for the cross-provincial enforcement of decisions, but allows individual provinces the freedom to determine the content of these guidelines. The ultimate aim, naturally, is to ensure that any conflicts of laws norms and rules fit within Canada’s constitutional framework.

The SCC provided a brief overview of the development of the real and substantial connection test in Canadian law. Moran v. Pyle National (Canada) Ltd. [1975] 1 S.C.R. 393 was the first instance of Canadian courts’ recognizing the necessity of a set of guidelines that would set out a uniform approach to determining appropriate jurisdiction; subsequently, Morguard Investments v De Savoye [1990] 3 S.C.R. 1077 formally adopted the test, putting it in primarily in a conflict of laws framework, ‘with constitutional overtones.’ By the time Hunt v T&N plc. [1993] 4 S.C.R. 289 was decided, the dual nature the test was well accepted, and applied to challenges against the Canadian constitution. Finally, the SCC  applied the test to foreign jurisdictions in Beals v Saldanha [2003] 3 S.C.R. 416, 2003 SCC 72.

Until Van Breda however, the principle ruling was Muscutt v Courcelles (2002), 60 O.R. (3d) 20 (C.A.) (“Muscutt”), which outlined eight factors that a Canadian court would consider, in order to determine whether it was appropriate to hold jurisdiction over a typically extra-territorial case. Justice LeBel’s concern in Van Breda, which was echoed in the jurisprudence after Muscutt, was that the test had come to rely too heavily on the expectations of the parties, and that its very flexibility was becoming its downfall. This was because excess emphasis on judicial discretion leading to an inconsistent application of the test, and endangering its purpose by creating a bias in favour of the plaintiff. The test was also leading to an analysis of the most convenient forum on a case-by-case basis, thus creating a skewed perception of objectivity.

Justice LeBel then analysed the reformation of the real and substantial connection test as it was set out in the Ontario Court of Appeal’s (ONCA) decision in Van Breda v Village Club Resorts Ltd 2010 ONCA 84, a commentary of which can be found at this post on TheCourt.ca. As outlined by Justice Sharpe, the determination of jurisdiction was to be split between the presumed factors that would lead to an automatic assumption of jurisdiction if met, and the adoption of the eight factors in Muscutt, to deem if jurisdiction can still be assumed (the onus for which falls on the plaintiff), if it does not fall within the presumed categories.

While remaining receptive to the ONCA’s characterization of the Van Breda-Charron version of the test, Justice LeBel’s concern centered on the tensions between the test’s constitutional and private international law aspects. While acknowledging that the modern conflict of laws system is built on the principle of comity, the SCC also stressed the importance of standardized guiding norms having place in the revised version of the test, deeming order as a precursor to comity.

Recognizing that connecting factors linking both the plaintiff and the defendant to the choice of forum was the foundation of the revised test, Justice LeBel’s interpretation of the test nevertheless leans towards determining jurisdiction on presumptive factors (whether existing or new). In his view, these factors, once established, will automatically lead to Canadian and foreign courts recognizing jurisdictions on the principles of comity. Further, he also deemed that once a court has assumed jurisdiction, it must do so over all aspects of the case, and splitting causes of action over jurisdictions is contrary to the principles of fairness and efficiency. And finally, once jurisdiction has been established, the onus of disproving the jurisdiction as appropriate shifts to the defendant in a case.

Justice LeBel also stressed the importance of demarcating between the ‘existence and the exercise of jurisdiction,’ stating that the doctrine of forum non conveniens only applies once the jurisdiction has been established, and does not play a role in the analysis of determining its applicability. Just as the defendant is responsible for invoking this doctrine, it is also the defendant’s responsibility to show, using the same real and substantial connection test, if another forum has the necessary connection with both parties to assume jurisdiction. If so, the question of why this alternate forum will be the better choice to litigate in, rather than the established Canadian one must also be answered by the defendant.

Citing s. 11(1) and (2) of the Court Jurisdiction and Proceedings Transfer Act (CJPTA), the SCC sets out a list of non-exhaustive considerations that provide an inclusion of relevant circumstances that might affect the choice or jurisdiction, ultimately positing that the standard to transfer an already established authority over jurisdiction is a high one, as reflected by the words “clearly more appropriate.” In Justice LeBel’s reasoning, this is to ensure that both parties are treated fairly, and the plaintiff’s hard work in establishing the proper jurisdiction, along with related factors such as the financial costs of transferring a case, and problems of enforcing judgments etc., do not automatically place the plaintiff at a disadvantage.

The revised test was then applied to the two cases in the appeal, with the SCC eventually determining that, for the individual Van Breda case, the existence of a contract was the decisive factor in Ontario being deemed the appropriate jurisdiction. Further, it also upheld the ONCA’s decision that Ontario was the best jurisdiction to hear the case, given that Cuban courts could not assure impartiality and fairness, thus showing that Cuba could not be a better forum than Ontario. Similarly, in the case of Charron, the SCC also upheld the ONCA’s decision that Ontario was an established and valid jurisdiction (by virtue of the parties’ business activities being carried out in it), and that Cuba was clearly not a more appropriate forum.

Van Breda has already proved to be an enormously influential decision, with the revised real and substantial connection test being applied to two cases of international defamation that were decided on the same day. A full comment on the application of the test in Breeden v Black, 2012 SCC 19 and Éditions Écosociété Inc. et al. v Banro Corp., 2012 SCC 18 can be found here. Additionally, the case has implications that stretch to the liabilities of foreign companies that conduct business within the confines of Canada, since the presence of a presumptive connecting factor is the core of the new analysis through the test.

In R v R.P., 2012 SCC 12, the Supreme Court of Canada restored a conviction after deciding that the Court of Appeal incorrectly dismissed the trial judge’s verdict as unreasonably rendered, given the trial judge’s findings of fact and the inferences he drew from them. Justices LeBel and Fish dissented in the case, objecting to the logical (or illogical) connections drawn by the trial judge, particularly related to credibility. So, what was supposedly a question of law really rests on answers to questions of fact; a witness’s credibility can only be established factually. Of course, it is not the facts that make the case stand it–this case further demarcates power in our judiciary, and reveals that those demarcated lines are sometimes blurry.

Facts & Procedural History

The facts of the case, and the trial judge’s subsequent decision, aroused the suspicions of the judges on the Court of Appeal of Quebec from the very beginning. The respondent was convicted of indecently assaulting the complainant, who was the then sister-in-law of the respondent. His trial was held over 30 years after the impugned acts.

The victim was a minor at the time (thirteen years of age). On top of it all, there is no physical evidence. The case is circumstantial, with the credibility of the witnesses essentially determinative.

The victim testified that the sexual assaults took place when she went to babysit for her sister and the accused, sometimes in the house and other times in the accused’s car.

The accused denied this.

Despite some serious problems with the victim’s testimony, the trial judge believed her. According to his decision, he did not believe the respondent or his wife. Even though his wife’s testimony contradicts the victim’s testimony on important facts, such as the dates on which she babysat for the couple, the trial judge did not find the testimony to raise reasonable doubt. The trial judge sets out a number of reasons as to why he found the victim to be more credible. This is what the Court of Appeal took issue with. They found that the trial judge erred in assessing the credibility of the accused’s wife. Thus, they concluded that the verdict was unreasonable and entered an acquittal.

Legislative Background & Case Law

As stated earlier, the question of whether a verdict is unreasonable is a question of law. Specifically, the right of the Court of Appeal of Quebec to intervene in this respect is couched in Section 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, which reads:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by evidence.

A trio of cases from the Supreme Court of Canada has offered an interpretation of this section. R v Yebes, [1987] 2 SCR 168, and R v Biniaris, 2000 SCC 15,  held that a verdict is reasonable when a properly instructed jury or judge could have reasonably rendered it. In two further cases, R v Sinclair, 2011 SCC 40, and R v Beaudry, 2007 SCC 5, it was further held that a verdict is unreasonable if the trial judge has drawn an inference or made a finding of fact essential to that verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge.

At the heart of the appeal is the question of a witness’s credibility. That is a question of fact, as opposed to a question of law. For an appellate court to interfere with a trial judge’s assessment of the witness’s credibility, it must be determined that the trial judge’s assessment “cannot be supported on any reasonable view of the evidence” (R v Burke, [1996] 1 SCR 474, para. 7). In other words, the appellate court is very limited in its power to scrutinize and subsequently override a trial judge’s findings about a witness’s credibility.

Application to the Case

According to Justice Deschamps, writing for the majority of the bench at the Supreme Court of Canada, the appellate court of Quebec overstepped its bounds. They did not have the right to substitute their own assessment of the credibility of the witness for that of the trial judge. It was not sufficient that they considered the trial judge to have not accorded enough weight to the testimony of the respondent’s wife, which at times challenged the credibility of the victim’s testimony. This is not enough to conclude that the verdict is unreasonable and acquit the accused, according to the majority of the bench.  In R v A.G., 2000 SCC 17, Justice Arbour directly addresses the issue at hand: “As this Court’s s. 686(1)(a)(i) jurisprudence makes clear, the fact that an appeal court judge would have doubt when the trial judge did not is insufficient to justify the conclusion that the trial judge was unreasonable [italics added].”

Any disagreement between the trial court and the appellate court would be merely a disagreement. It would merit intervention if, on a point essential to the verdict, the trial judge made factual findings that were obviously contradictory to and incompatible with the larger body of evidence. But that is not the case here. Justice Deschamps underlines the caution that the trial judge used in examining the credibility of the victim, who was speaking out about a crime that took place thirty-four years ago. That is, the trial judge examined her credibility under a critical lens.

There is also reason to believe that the trial judge was appropriately skeptical of the respondent’s wife’s testimony. The respondent’s wife’s testimony concerned the events that took place on specific days, days that passed some thirty years ago. As the trial judge points out, there was no good reason for the respondent’s wife to have these details from her daily life “fixed” in her memory. Moreover, her testimony vacillated between being too precise and too general. This very contrast between specific details and general expressions supports the trial judge’s finding that the witness did not really remember the specific details. What was taken to be a contradiction in the eyes of the Court of Appeal of Quebec could actually be reconciled. Justice Deschamps and the majority of the court therefore accept the trial judge’s approach as coherent and supported by evidence.

Dissent

Justice Fish wrote a spirited dissent in this case. He seems to be more interested in how a review of the trial court’s verdict can be undertaken, as opposed to when it should be undertaken. He applauds Justice Pelletier on the Court of Appeal of Quebec for dissenting with the majority. Pelletier, J.A. reviewed the evidence in detail. Justice Fish argues that appellate courts must investigate the evidence in full before they can make a conclusion about the reasonableness of a verdict handed down by a lower court. He considers Justice McLachlin, as she was then, to be an important authority on this issue. In R. v. W. (R.), McLachlin J. states: “It is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt, must re-examine, and to some extent at least, reweigh and consider the effect of the evidence.”

After a careful re-examination, reweighing and re-consideration of the effect of the evidence, Justice Fish agrees with Justice Pelletier that the trial judge erred in excusing the inconsistencies in the victim’s testimony while he brushed aside the testimonies of others, namely victim’s wife and accused’s sister, when they seemed to oppose that of the victim. Thus, the trial judge’s reasons for his decision do not escape scrutiny, even if we are sensitive to the time lapses in this case. With new light shed on the evidence, Justice Fish concludes that no trier of fact could have reasonably concluded that R.P. is guilty beyond a reasonable doubt of the offence with which he is charged.

Concluding Remarks

This case is not about an internal strife within our judiciary; it does not seem as though the case is about a struggle of power among judges. At the heart of the case is a struggle to keep our justice system transparent and the courts accountable for the justice that is served to our community. The reasons that underlie a judge’s decision – a decision that may deprive someone of their freedom – need to be clearly stated. There must an internal logic to the legal reasoning, such that lines can be drawn between a fact, or a set of facts, and a conclusion. Only then can we hold these judges accountable for their decisions. It follows, then, that a more active role can be taken by the appellate-level courts when they review decisions handed down by lower courts. Justices Fish and Lebel may be right then.

On the other hand, lower courts need to have their independence; if lower court decisions were more readily reviewed and evidence scrutinized in full by other courts, their role as fact finders may be usurped. We should be concerned about efficiency, too. Our court system is already plagued by backlogged cases. A highly interventionist approach taken by the appellate courts may lead to a greater backlog.

There are obviously strengths and weaknesses on both sides of the debate. One deciding factor may be the nature of the crime and the punishment. In a case such as R v R.P., where the accused would face incarceration for a number of years, we may benefit from a more active appellate court. The degree of activeness would therefore be directly proportional to the severity of the charge. But there may be an extraordinary case in the future that challenges this rule, and our courts should have the flexibility to take it on as they deem fit. There might be another court that checks that decision anyway.

Facts

In 1998, two women, J.C.M. and A.N.A., began a spousal relationship. As a couple, they purchased sperm straws one year later from the same donor at an American sperm bank for about $250 per sperm straw. A.N.A and J.C.M. conceived a child with the donor’s sperm in 2000 and 2002 respectively.

In 2007 the couple entered into a separation agreement. This agreement provided for custody and support of the children. Each woman had primary custody over the child she conceived, but allowed visitation rights to the non-biological child. The agreement also divided all joint property of the relationship; however, the thirteen remaining sperm straws from the donor were not divided under the agreement.

In 2009, J.C.M. met T.L. and one year later the pair began a spousal relationship. T.L. now wishes to have a child with J.C.M. using the remaining sperm straws so that the child will be biologically related to J.C.M.’s child. J.C.M. offered to purchase what she considered to be A.N.A.’s interest in the sperm straws, six and a half straws, for $250 per straw. A.N.A. preferred the sperm straws be destroyed. J.C.M. in turn looked for other venues to find the donor’s sperm. No such sperm straws were available, and the American sperm bank had no contact information for the donor.

Without consent from A.N.A. to release the sperm straws, and without other affordable options to get sperm from the sperm donor, J.C.M. filed an application for a court order that the sperm straws become her sole property. A.N.A. opposed and requested the straws be destroyed.

Issues and Answers

The issue the court grappled with is whether or not sperm straws are considered property and, if so, how they should be divided. The court ultimately found that the sperm was property. Since the parties had the intent to divide the assets fairly, the remaining gametes were to be divided between the parties – seven for J.C.M. and six for A.N.A (with J.C.M. compensating A.N.A $125 for the additional one half that she will receive).

There is a very small body of caselaw in Canada on this matter. As a result, the claimant and the respondent approached the novelty of the claim differently.

The claimant discussed various cases from the United States and the United Kingdom and one from Canada arguing that the basis of the determination should be that of parental obligation. If awarding the sperm straws to one of the parties does not create a parental obligation on the other party who chooses not to procreate, then there is no reason to treat the sperm as anything other than property. The respondent addressed the lack of Canadian cases that treat gametes as property. Therefore, she argued that the issue is a moral one, and relied on academic papers to counter the property argument.

Russell J begins her analysis with a disclaimer insisting that the future analysis is not an attempt to devalue the substance at issue. She then frames the issue by recognizing that “sperm used to conceive two children for two loving parents does not have the same emotional status as a vehicle or a home.”

The court relied primarily on C.C. v A.W., 2005 ABQB 290, which involved a dispute over four embryos remaining in in vitro fertilization. Twins were born to C.C. through a donation of sperm from A.W. He refused to consent to the release of the embryos because of the difficulty he faced from C.C over access to the twins. The Alberta Court found that the embryos were the property of C.C. as “they are chattels that can be used as she sees fit.” In C.C the court found that sperm became the plaintiff’s property once it was given to her. Similarly, once the claimant and respondent purchased the sperm straws, they became their property and could be used for their benefit.

The court here rejected the respondent’s argument of morality. Russell J explained that it is not the role of the court to engage in such philosophical arguments. A major component of the respondent’s argument cites Dr. Steinbock, who claims that there must first be a determination of what may be done with the sperm (can it be donated, sold, stored, et cetera) before it can be classified as property. In this case, the sperm has already been donated, sold and stored. Furthermore, Russell J emphasized the timing of this argument: it was a little late to be making a moral argument regarding the commercialization of reproduction, since the couple had already made use of the gametes for their benefit.

Something is Missing

At paragraph 57, Russell J insists that once the sperm was purchased it became their property and could be used for their benefit. She then goes on to recognize that the Federal government prohibited the purchase of sperm in section 7(1) of the Assisted Human Reproduction Act which states the following:

Purchase of gametes

7. (1) No person shall purchase, offer to purchase or advertise for the purchase of sperm or ova from a donor or a person acting on behalf of a donor.

Although she addresses the legislation, she dismisses it in shaping her view of whether the sperm may be classified as property. She posits that “the sperm has been treated as property up until this point, in my view the legislation does not dictate or even influence whether or not the gametes in this case are property.”

Her analysis lacks an interaction with the legislation. Whether this is because the couple purchasing the sperm in 1999 (several years before the Act was enacted), because the sperm was purchased in the United States and not Canada, or because she does not think it is relevant is not clear based on her reasoning. Instead, she relies on the fact that the gametes had already been purchased, the legislation does not impact the way in which the court will treat the gametes. Does that mean that couples who transgress s. 7(1) of the Act, will be able to dispute possession of sperm in the future? The choice to not engage in such analysis leaves the question of how this precedent will be applied in future cases a bit unclear.

Perhaps then the question on the property exam has still not been answered. In this particular case, the court found that gametes may be classified as property. Without meaningful engagement with the Act, it is unclear how the court will rule in future disputes.

In regards to the June 23rd statement, Justice Spies concluded that Mr. Sonne had sufficient knowledge of his legal rights and thus his statement was made voluntarily. However, in regards to the June 26th statement, she found that only part of it could be considered voluntary because the detectives had used questionable strategies that compromised Mr. Sonne’s ability to remain silent. What is most interesting about this decision is the evidence put forward by the Crown to demonstrate that Mr. Sonne was well aware of his legal rights prior to the June 23rd statements. To prove this point, the Crown presented copies of documents that were obtained through links on Mr. Sonne’s Twitter account. On June 21, he Tweeted  “read EVERY PDF on this page and know your rights” and posted a link to movementdefence.org, a website with materials created specifically for the G20, including a “Legal Guide for Activists” and a brochure entitled “What to do if the police come knockin’.”

After reviewing these documents, Justice Spies found that the legal guide “is intended to provide the person who reads it with an overview of their rights when dealing with the police. It also deals with what a person should do if arrested by police. This includes asserting the right to silence.” While Mr. Sonne did not testify in regards to his understanding of these documents, Justice Spies concluded that “it is reasonable to infer that Mr. Sonne had read these documents and was generally familiar with their contents.” She further concluded that, combined with the fact that Mr. Sonne had actively challenged the police during his interrogation, it was reasonably to conclude that he had sufficient knowledge of his legal rights during the June 23rd interrogation.

What does this decision mean for the use of social media as evidence?

The decision in this case demonstrates the unexpected and unintended impact of social media on the criminal trial process and the rights of the accused. The use of social media as evidence is an evolving area of the law and one that will likely struggle to keep pace with the rate at which social media evolves. Until the legal system has developed a firm understanding of how social media should be introduced as evidence, activists, and all Internet users for that matter, may want to take heed of the cautionary tale that this decision holds.

While Mr. Sonne’s Tweet was intended to inform other activists of their legal rights, it was ironically used by the Crown to prove that his own rights had not been infringed. In this case the Tweet was not the sole piece of evidence used against Mr. Sonne, as Justice Spies also considered how Mr. Sonne’s interaction with the detectives demonstrated his understanding of legal rights. This consideration shows that while the Tweet was integral to the Crown’s case, it was not sufficient to prove its case. However, had the Tweet been used as the sole piece of evidence against Mr. Sonne, the result may have seemed less fair. For example, it is not difficult to imagine a situation in which an individual with the same level of legal knowledge as Mr. Sonne makes a statement to the police without being informed of his or her legal rights, but that statement is later found to be involuntary because there was no evidence to demonstrate that the individual actually possessed the legal knowledge. In this situation, the distinguishing evidence between a statement that is rendered voluntarily (such as in Mr. Sonne’s case) and a statement rendered involuntarily would be reduced to a single Tweet.

This hypothetical illustrates the difficulties of drawing the line when it comes to statements made by an accused through social media, especially when such statements provide the foundation for the Crown’s case. In such cases, extra caution must be taken to ensure the authenticity of the statements and the knowledge that is actually possessed by an accused. In this case, Mr. Sonne’s Tweet did not go so far as to incriminate him for the offences that he has been charged with, but it is easy to imagine a myriad of situations where a single Tweet or Facebook post could produce that result. The recent case of R v Smickle, 2012 ONSC 602, provides a compelling example of how an individual’s social media activity can be used to construct an entire case against an accused. Mr. Smickle was infamously caught red-handed taking pictures with a loaded firearm on his webcam when the police burst into his apartment to carry out a search warrant against his cousin. While Mr. Smickle was innocently taking the pictures for his Facebook profile, he was charged with and convicted of possession of a loaded firearm. However, Justice Molloy struck down the mandatory three-year sentence for possession of a loaded firearm after she found it to be “grossly disproportionate” for those circumstances.

The Smickle case reads somewhat like a Kafka novel, but in reality, this is exactly the type of case that we could expect to see more of as social media becomes a frequent source of evidence in criminal cases. Mr. Smickle was charged with the offence before he even had the opportunity to post the photos; however, even if the police had not coincidentally burst into his apartment at that moment, a similar charge could have been made if the evidence was posted to Mr. Smickle’s Facebook page. The absurdity of this situation, and the result in the Sonne decision are particularly relevant in light of the ongoing debate surrounding online security and the introduction of Bill C-30 by the Conservative government. In its current form, Bill C-30 would allow police officers to obtain information about Internet users without a search warrant and require Internet Service Providers to store information about their customers. The proposed measures have been presented as necessary tools to combat Internet evils such as child predators and to facilitate criminal investigations. However, the increased policing of the Internet also raises serious questions about Internet privacy and the implications of using Internet records as evidence in criminal trials.

Of the many concerns that the proposed bill raises, the question of authenticity is perhaps the most important and the most relevant to Mr. Sonne’s case. Very little effort is required for any individual to create a fake Facebook or Twitter account. This point was poignantly illustrated through the creation of Vikileaks, the Twitter account created in protest to Bill C-30 to disseminate personal information about Public Safety Minister Vic Toews. That account was obviously created to make a statement about privacy rights and has since been traced to a former Liberal staff member. However, Vikileaks also demonstrates the ease with which an online identity can be fabricated and thus highlights the additional caution that is required when using social media as evidence.

The debate on the merits of Bill C-30 is on hold until its second reading commences in the House of Commons. In the meantime, there are plenty of reasons for Internet activists, lawyers and lawmakers to ponder whether its purported benefits truly outweigh the potentially damaging effects on privacy and justice. When the decision in Mr. Sonne’s case is finally released, his Tweet will only have played a minor role in comparison to the other evidence presented at trial. Whether Mr. Sonne is found guilty or not, there is still reason to pause and reflect on what this decision might mean for activists. If everything you post on the Internet can and will be used against you, then activists might think twice before posting information that may be useful for others but potentially damaging to themselves.