Saturday, November 6, 2010

Police brutality

The Star has had a series of articles about police wrongdoing and failures of the SIU to address the wrongdoing.

The wrongdoings are serious and it does look like there are some bad apples amongst police. And it does seem that the SIU is too quick to dismiss allegations of serious wrongdoing.

But ... .

It's easy to base judgment on the many by considering the actions of a few.

And it's also easy to look back and see that someone is a harmless drunk who might have been a danger. Hindsight is always perfect. When considering self defence it's not fair to use to nice a calculation as to appropriate force.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Friday, November 5, 2010

Furtwangler conducts Brahms: rehearsal in London in 1954, first BPO tour to the UK after the war

Nemo dat and Bank Act security

Bank of Montreal v. Innovation Credit Union, 2010 SCC 47, released today, deals with the interaction of Bank Act security and PPSA security.  Put briefly, the Court holds that nemo dat quod non habet (literally meaning "no one [can] give what he does not have") applies.


The focal point for resolving a priority dispute involving a Bank Act security and provincial interests, such as PPSA security interests, is the Bank Act itself.  The Bank Act security provisions are valid federal legislation which cannot be subject to the operation of provincially enacted priority provisions.  Where the Bank Act contains an express priority provision that is applicable to a particular priority dispute, that provision will govern.  Where the priority dispute is between a Bank Act security interest and a conflicting security interest acquired prior to the bank taking its security in the collateral, the priority rule set out in s. 428 does not assist in resolving the dispute.  In such cases, the provisions of the Bank Act nonetheless govern.  That said, the Bank Act security can only attach to the interest held by the debtor.


The Court writes:



[30]                          In determining what interest the debtor may have already conveyed to another creditor and, in such circumstances, what interest he or she had left to convey to the bank at the time of execution of the Bank Act security agreement, it becomes necessary to resort to the provincial property law, either at common law or under applicable provincial statutes.  It is at this point that resorting to the PPSA becomes relevant.  It is true that the internal priority rules of the PPSA cannot be invoked to resolve the dispute.  However, it does not follow that the provincial security interest created under the PPSA does not exist outside these priority rules.  Nor can the fundamental changes brought about by the PPSA be ignored in determining the nature of the prior competing interest.  Far from being irrelevant under the Bank Act, provincial property law plays a complementary role in defining the rights granted under the Bank Act:  see Agricultural Credit Corp.; R. C. C. Cuming and R. J. Wood, “Compatibility of Federal and Provincial Personal Property Security Law” (1986), 65 Can. Bar Rev. 267, at p. 274; R. C. C. Cuming, C. Walsh, and R. J. Wood, Personal Property Security Law (2005), at p. 589.


[31]                          While the provinces cannot legislate in order to oust the bank’s rights, they can alter the law as it relates to property and civil rights in the province.  This is what the common law provinces did when they enacted the PPSAs, and what Quebec did in 1994 when it adopted the Civil Code of Québec, Book Six.  Just as the prior rules of the Civil Code of Lower Canada relating to security interests no longer apply, the prior rules of the common law have been significantly altered by statute. Thus, in determining the nature of any competing provincial security interest, resort has to be made to the relevant provincial statute and the Bank Act has to be read in harmony with it.  This approach is reflected in the preamble to the Federal Law—Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4 (“Harmonization Act”):


WHEREAS the harmonious interaction of federal legislation and provincial legislation is essential and lies in an interpretation of federal legislation that is compatible with the common law or civil law traditions, as the case may be;


. . .


WHEREAS the provincial law, in relation to property and civil rights, is the law that completes federal legislation when applied in a province, unless otherwise provided by law;


            . . .


Section 8.1 of the Interpretation Act, R.S.C. 1985, c. I-21, as amended by s. 8 of the Harmonization Act specifically provides for the application of the “rules, principles and concepts in force in the province at the time the enactment is being applied”.



[32]                          Indeed, the relationship between the Bank Act and provincial property law is in many ways analogous to the way in which this Court in Giffen (Re), [1998] 1 S.C.R. 91, at para. 64, characterized the relationship between federal bankruptcy law and provincial law:


Even though bankruptcy is clearly a federal matter, and even though it has been established that the federal Parliament alone can determine distribution priorities, the [Bankruptcy and Insolvency Act] is dependent on provincial property and civil rights legislation in order to inform the terms of the BIA and the rights of the parties involved in the bankruptcy.


In much the same way, the Bank Act is dependent on provincial property law in order to give content to its provisions and to identify precisely the rights of the parties in a priority dispute involving Bank Act security.


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Burden of going forward in summary judgment

Kapy v. Hwang, 2010 ONCA 740, released today online, deals with the burden of proof in summary judgment cases. The moving party has the initial burden of showing their case in full; if they meet that burden then it falls to the responding party to adduce evidence of the defence. Both sides must put their best foot forward however the initial burden does rest with the moving party and if that burden is not discharged the motion will fail regardless of what the responding party does or does not adduce. The Court holds:

[3] The appellant recognizes that he did not place before the court any evidence to show that the landfill site posed a health risk. However, he submits the burden was on the vendor to file evidence to establish that it did not pose a health risk. This is because, he says, the vendor, as the moving party, bore the initial burden of showing there is no genuine issue for trial. He relied on the Supreme Court of Canada decision, Papaschase Indian Band No. 136 v Canada (A.G.), [2008] 1 S.C.R. 372, for the proposition that each side to a summary judgment motion, not just the respondent, must put its best foot forward.

[4] The appellant is correct that the vendor, as the moving party, bore the legal or persuasive burden to satisfy the court that there is no genuine issue for trial. The vendor accomplished that by affidavit evidence before the court that was sufficient to establish, prima facie, that the real reason the appellant failed to close the transaction was his inability to arrange the necessary financing. In fact, para. 26 of the appellant’s statement of defence constitutes an admission that this is so. In para. 26, the appellant pleaded that notwithstanding the certificates that were on title he was still willing to complete the purchase when he obtained the necessary funds.

[5] Once the vendor established financing was the reason the appellant failed to close the transaction, the evidentiary burden was on the appellant to lead evidence to show the landfill site raised a genuine issue for trial. He filed evidence that he refused to close the transaction because of his discovery of the nearby landfill site, but failed to lead any evidence that it posed a health and safety risk. Absent such evidence, it could not be said that the existence of the landfill site raised a genuine issue for trial.

Sleep in more?

Thursday, November 4, 2010

Labour relations presumptively a provincial matter

NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45, released today, is yet another Supreme Court of Canada federal/provincial jurisdiction case.

Canadian courts have long recognized that labour relations are presumptively a provincial matter. To displace that presumption, a court must conduct an inquiry having two distinct steps, the first being the “functional test”, which examines the nature, operations and habitual activities of the entity to determine whether it constitutes a federal undertaking. Only when this first test is inconclusive, should a court proceed to the second step, which is to ask whether the provincial regulation of that entity’s labour relations would impair the “core” of the federal head of power at issue. There is no reason why the jurisdiction of an entity’s labour relations should be approached differently when dealing with s. 91(24) of the Constitution Act, 1867. The fundamental nature of the inquiry is — and should be — the same. The Court holds:

[11] Jurisdiction over labour relations is not delegated to either the provincial or federal governments under s. 91 or s. 92 of the Constitution Act, 1867. But since Toronto Electric Commissioners v. Snider [1925] A.C. 396 (P.C.), Canadian courts have recognized that labour relations are presumptively a provincial matter , and that the federal government has jurisdiction over labour relations only by way of exception. This exception has always been narrowly interpreted (Snider; Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529 (the “Stevedoring case”); Reference re Minimum Wage Act of Saskatchewan, [1948] S.C.R. 248; Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767; Agence Maritime Inc. v. Conseil canadien des relations ouvrières, [1969] S.C.R. 851; Letter Carriers’ Union of Canada v. Canadian Union of Postal Workers, [1975] 1 S.C.R. 178; Canada Labour Relations Board v. City of Yellowknife, [1977] 2 S.C.R. 729; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Northern Telecom; Four B; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327; Consolidated Fastfrate, at paras. 27-28).

[12] The approach to determining whether an entity’s labour relations are federally or provincially regulated is a distinct one and, notably, entails a completely different analysis from that used to determine whether a particular statute is intra or ultra vires the constitutional authority of the enabling government. Because the regulation of labour relations falls presumptively within the jurisdiction of the provinces, the narrow question when dealing with cases raising the jurisdiction of labour relations is whether a particular entity is a “federal work, undertaking or business” for purposes of triggering the jurisdiction of the Canada Labour Code.

[13] The principles underpinning this Court’s well-established approach to labour relations jurisdiction are set out by Dickson J., writing for a unanimous Court, in Northern Telecom. The case dealt with the jurisdiction of the labour relations of a subsidiary of a telecommunications company which was itself unquestionably a federal “work, undertaking or business” under s. 92(10)(a) of the Constitution Act, 1867. Adopting Beetz J.’s majority judgment in Construction Montcalm, Dickson J. described the relationship between the division of powers and labour relations as follows:

(1) Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule.

(2) By way of exception, however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject.

(3) Primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence.

(4) Thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one. [p.132]

[14] He then set out a “functional test” for determining whether an entity is “federal” for purposes of triggering federal labour relations jurisdiction. Significantly, the “core” of the telecommunications head of power was not used to determine, as part of the functional analysis, the nature of the subsidiary’s operations:

(5) The question whether an undertaking, service or business is a federal one depends on the nature of its operation.

(6) In order to determine the nature of the operation, one must look at the normal or habitual activities of the business as those of “a going concern”, without regard for exceptional or casual factors; otherwise, the Constitution could not be applied with any degree of continuity and regularity. [Emphasis added; p. 132.]

[15] Four B, decided the same year as Northern Telecom, also adopted the principles from Construction Montcalm, and again found the functional test, which examined the “normal or habitual activities” of the entity, to be determinative. The issue in Four B was whether provincial labour legislation applied to a provincially incorporated manufacturing operation that was owned by four Aboriginal band members, employed mostly band members, and operated on reserve land pursuant to a federal permit. Beetz J., for the majority, set out the governing principles and concluded that the “operational nature” of the business was provincial:

In my view the established principles relevant to this issue can be summarized very briefly. With respect to labour relations, exclusive provincial legislative competence is the rule, exclusive federal competence is the exception. The exception comprises, in the main, labour relations in undertakings, services and businesses which, having regard to the functional test of the nature of their operations and their normal activities, can be characterized as federal undertakings, services or businesses.

There is nothing about the business or operation of Four B which might allow it to be considered as a federal business: the sewing of uppers on sport shoes is an ordinary industrial activity which clearly comes under provincial legislative authority for the purposes of labour relations. Neither the ownership of the business by Indian shareholders, nor the employment by that business of a majority of Indian employees, nor the carrying on of that business on an Indian reserve under a federal permit, nor the federal loan and subsidies, taken separately or together, can have any effect on the operational nature of that business. By the traditional and functional test, therefore, The Labour Relations Act applies to the facts of this case, and the Board has jurisdiction. [Emphasis added; pp. 1045- 46.]

Beetz J. was satisfied that the functional test was conclusive and that Four B was a provincial undertaking.

[16] At no point, in discussing the functional test, does Beetz J. mention the “core” of s. 91(24) or its content. In fact, he makes it clear that only if the functional test is inconclusive as to whether a particular undertaking is “federal”, should a court consider whether provincial regulation of labour relations would impair the “core” of whatever federal regulation governed the entity.

[17] He went on to discuss, in obiter, whether this conclusion would have been different if the functional test had been inconclusive:

The functional test is a particular method of applying a more general rule namely, that exclusive federal jurisdiction over labour relations arises only if it can be shown that such jurisdiction forms an integral part of primary federal jurisdiction over some other federal object: the Stevedoring case.

Given this general rule, and assuming for the sake of argument that the functional test is not conclusive for the purposes of this case, the first question which must be answered . . . is whether the power to regulate the labour relations in issue forms an integral part of primary federal jurisdiction over Indians and Lands reserved for the Indians. The second question is whether Parliament has occupied the field by the provisions of the Canada Labour Code. [Emphasis added; p. 1047.]

[18] In other words, in determining whether an entity’s labour relations will be federally regulated, thereby displacing the operative presumption of provincial jurisdiction, Four B requires that a court first apply the functional test, that is, examine the nature, operations and habitual activities of the entity to see if it is a federal undertaking. If so, its labour relations will be federally regulated. Only if this inquiry is inconclusive should a court proceed to an examination of whether provincial regulation of the entity’s labour relations would impair the core of the federal head of power at issue.


Baby panda born in Atlanta

Lun Lun, Zoo Atlanta's 13-year-old giant panda gave birth to her third cub. The cub is the only giant panda born at a U.S. zoo this year.

Video link here:

The squeeking of the newborn is remarkable when you realize how small the baby panda is...

Divorce insurance to cover damages when the vows break



  • By Misty Harris, Postmedia News November 4, 2010

Because the “for poorer” part of marriage vows often comes with a nasty split, couples have a new type of contract to consider: divorce insurance.

A scholar at one of Canada’s leading law schools predicts the controversial insurance, recently unveiled in the U.S., will come to be “offered widely” in this country, where nearly two in five marriages — 38 per cent — are dissolved before the 30th wedding anniversary.

Given such odds, the insurance itself may be less surprising than the time it took someone to come up with it.

“That old maxim that when you get divorced, you lose half of everything? That’s wishful thinking,” says John Logan, whose North Carolina-based company is behind Wedlock divorce insurance. “You might give your spouse half your net worth, but you’re going to give another quarter to expenses and legal fees.”

Divorce insurance is sold in units of protection, with each unit costing about $16 per month for $1,250 in coverage. Wedlock adds $250 in coverage to each unit every year after the mandatory waiting period of three to four years — a caveat in place to prevent imminently separated couples from exploiting the product.

“It’s not cheap, but look at the risk we’re taking,” says Logan, who lost his house and effectively went broke during his own divorce a decade ago. “We’re not home insurance, where the chances are one in 300 that you file a claim; our odds are one in three.”

James Morton, adjunct professor at Osgoode Hall Law School in Toronto, predicts we’ll come to see such insurance offered broadly across Canada. He notes that a lump-sum payout upon divorce may make more sense to some people than a pre-nup — or domestic contract, as it’s called here — because judges have “broad discretion to ignore” the latter.

He’s unsure, however, of how well the product will take off.

“It’s important to make sure the insurance is worth it,” says Morton. “If the matter is not contentious and the spouses are pretty well agreed, (divorce) costs should be fairly low — say, in the $5,000 range, all included. But if the matter is contested, costs can be enormous. I’ve seen cases with legal costs exceeding a million dollars.”

Ineffective counsel

R. v. Qiu, 2010 ONCA 736, released online today, gives a helpful review of the law on effective representation:

[6]               The applicable legal principles are not in dispute.  An accused represented by counsel is entitled to effective representation.  An appeal court will receive fresh evidence concerning an allegation of ineffective assistance of counsel under s. 683(1) of the Criminal Code.   If an appellant establishes ineffective representation that resulted in a miscarriage of justice, his or her conviction will be quashed.   See R. v. Joanisse (1995), 102 C.C.C. (3d) 35 at 43-44, 56-58 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347; R. v. Archer (2005) O.J. No. 4348 (Ont. C.A.) at 118.

[7]               To succeed in a claim of ineffective assistance of counsel, an appellant must establish the three components described by Doherty J.A. at paras. 119 and 120 of Archer:

First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. Second, the appellant must demonstrate that counsel's acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance": R. v. G.D.B. (2000), 143 C.C.C. (3d) 289 at 298 (S.C.C.).

Third, the appellant must demonstrate that counsel's ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel's ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different: G.D.B., supra, at pp. 298-99; Joanisse, supra, at pp. 62-64.

[8]               In G.D.B., at p. 298, Major J. suggested that a court should first decide whether the alleged incompetence of counsel resulted in a miscarriage of justice because, in the absence of a miscarriage of justice, it would be unnecessary to consider the other two elements that deal with counsel's performance.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Causing a disturbance by foul language

Does the use of foul language cause a disturbance? Perhaps, it depends on the circumstances.

See today's decision in R. v. Swinkels, 2010 ONCA 742 where the Court holds:

[18]          Generally speaking, the trial jurisprudence has held that shouting obscenities at police officers is not a disturbance in and of itself: see for example, R. v. Wolgram, (1975), 29 C.C.C. (2d) 536 (B.C.S.C.); R. v. Peters, (1982), 65 C.C.C. (2d) 83 (B.C.C.A.).  In a recent Ontario case, R. v. Osbourne, 2008 ONCJ 134, two police officers questioned two individuals by the roadside.  The defendant, Osbourne, refused to answer the officers' questions, shouted abuse at them, and walked away.  The following reasons of the trial judge at paras. 21 and 22 in Osbourne provide some helpful guidance:

[T]he law is clear that yelling and swearing in a public place is not in itself a criminal offence.  Equally, the existence of emotional disturbance, such as Constable Correa's belief that the defendant's language was vulgar, aggressive and inappropriate, is insufficient to establish a disturbance within section 175(1)(a).

I accept that by the time of Mr. Osbourne's arrest a crowd of between 10 and 15 people had gathered outside of the strip plaza.  Some of these people were voicing anti-police sentiments.  Yet, based on the evidence of Constable Correa, I find that people did not begin to come out of the plaza and do more than briefly observe the situation until after the defendant had been unlawfully detained and cautioned for causing a disturbance when there was no disruption of the public peace.  But for the actions of the police in disregarding his rights, Mr. Osbourne would not have been yelling and swearing.  I find that any disturbance of the public was attributable to the conduct of the police.

[19]          According to Lohnes, at p. 180, "the test for a disturbance in or near a public place under s. 175(1)(a) should permit the court to weigh the degree and intensity of the conduct complained of against the degree and nature of the peace which can be expected to prevail in a given place at a given time."  The court also observes:

[D]escriptions of conduct without more may be inadequate; the context in which the activity takes place must be considered so that the countervailing interests can be duly weighed. The lawful jangling of the street musician at an urban intersection at noon may become criminal if conducted outside a citizen's bedroom window at three o'clock in the morning: p. 175.

[20]          As Lohnes notes at p. 178-179, the objective of 175(1)(a) "was not the protection of individuals from emotional upset, but the protection of the public from disorder calculated to interfere with the public's normal activities."

Wednesday, November 3, 2010

Failure to consider aboriginal background may render sentence subject to review even if Gladue issues not raised on sentencing

R. v. Nahmabin, 2010 ONCA 737 is a good source for the principle that Gladue factors must be considered. Even there is an express refusal of such consideration on sentencing a review on fresh evidence with a Gladue report may be available. Aboriginal background is a factor for consideration on sentencing in all areas of criminal and quasi-criminal law:

[1]               This appellant has had a tragic background that has led to almost continuous terms of imprisonment since a young age. He faces considerable challenges in dealing with substance abuse, anger management and commitment to treatment. That said, it is conceded that the trial judge erred in principle in failing to make further inquiries into the appellant's aboriginal background and failing to take into account s. 718(2)(c) of the Criminal Code.  In fairness to the trial judge, it does not appear that defence counsel at trial wished to have a Gladue report. The fresh evidence before this court in the form of a Gladue report and an updated report suggests a planned response to the appellant's treatment needs resulting from the impact of systemic factors and the appellant's personal needs.

Bollywood mysteries of the North

Why does Arctic Ventures play nothing but Bollywood music as background?

Michael Ignatieff’s speech to the Montreal Council on Foreign Relations

As always, sensible and balanced. I focus on the Middle East, because it is of concern to me, but the rest of the speech is one of balance and sense. Canada has a role to play but we need to be the reasonable voice - dare I say the voice crying in the wilderness?

"We support a two-state solution. A safe, secure and democratic Israel, beside a viable, secure and democratic Palestinian state. Two states for two peoples – that is Canada’s position.

We have never compromised our commitment to peace. We have never been neutral between terrorists and democratic states. Equally, we have defended the rights of two peoples to have a state and live in peace.

We have been a friend to Israel – and also a friend to the Palestinians. But our friends need friends who have friends.

Think what we could have done as a member of the UN Security Council. We could have stopped the parade of one-sided resolutions, restored balance to human rights monitoring, and pushed for tougher sanctions against Iran – which remains the single biggest threat to the entire Middle East."

Read more:

Tuesday, November 2, 2010

Stoning commuted to hanging

Not exactly a triumph for human dignity and women's rights:

"BERLIN—An Iranian woman whose sentence of execution by stoning for adultery provoked a worldwide outcry will instead be hanged for murder on Wednesday, a human rights group said."

More judges for the Nunavut

Nunavut has a single level court structure. There are no "provincial court" judges in the territory. And there are precious few "superior court" judges here. Presently Nunavut judges are facing a circuit (travel) one week out of three -- the current solution of part time judges from other provinces doesn't bring local justice to the people of the territory. Nunavut's citizens deserve judges who live among them and know what issues face them locally.

The easy, and obvious, short term solution is to appoint a few more judges -- there doesn't need to be that many, perhaps three or four immediate appointments.

In the longer term the creation of a territorial court (whether federal or territorial appointments doesn't matter) makes sense. Local judges who preside in, and live in, Cambridge Bay, Cape Dorset, Pond Inlet and circuit through the regions around. Perhaps that is a decade away but for now a few more judges are needed urgently.


Raven created the world and created the gods. He scooped them from the earth, filled their veins with ocean blood and their lungs with mountain winds. Raven gave them the spirits of the stars, so that, like him, they would never die.

Misapprehension of evidence

R. v. Nartey, 2010 ONCA 729, released online today, deals with appeals based on misapprehension of evidence. The bar is very high:

[2] As properly acknowledged by the appellant's counsel, an exacting standard of review applies to the determination of whether a misapprehension of evidence argument has merit. Under this standard, it is incumbent on the appellant to demonstrate that the evidential misapprehension at issue is material rather than peripheral to the reasoning of the trial judge. In addition, the identified error must play an essential part not just in the narrative of the judgment but in the reasoning process resulting in a conviction.

Bizarre northern story

Recently relocated Federal government employee told me the relocation service suggested he move his belongings to Iqaluit "by U-Haul".

I suspect they were unaware Iqaluit is on Baffin Island rather far north of Ottawa.

Monday, November 1, 2010

View over Iqaluit

Exhibit at preliminary inquiry available to media once publication ban expires

R. v. Canadian Broadcasting Corporation, 2010 ONCA 726, released today on line, holds the Supreme Court of Canada caselaw in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and R. v. Mentuck, [2001] 3 S.C.R. 442, generally know as the "Dagenais/Mentuck" test, applies to preliminary inquiries and, specifically, after any publication bans expire the media has a right to exhibits filed. The Court holds:

[40]          I conclude that the trial judge was correct in applying the Dagenais/Mentuck test to CBC's request for access to and copies of the exhibits at issue in this case.  If CBC is to be denied access, or to have its access limited, it is for the party seeking to assert or uphold that denial to demonstrate through convincing evidence that the two-part Dagenais/Mentuck test has been satisfied.

[41]          Accordingly, I would dismiss the cross-appeal.
[42]          In my view, the application judge erred by limiting CBC's right of access to only those portions of the exhibits that were played in open court.  While this result follows from much of what I have already said about the application of the Dagenais/Mentuck test, I add the following considerations.

[43]          When an exhibit is introduced as evidence to be used without restriction in a judicial proceeding, the entire exhibit becomes a part of the record in the case.  While a party may choose to read or play only portions of the exhibit in open court, the trier of fact, whether judge or jury, is not limited to considering only those portions when deciding the case.  A party who introduces an exhibit without restriction cannot limit the attention of the trier of fact to only portions of the exhibit that favour that party and that the party chooses to read out or play in open court.

[44]          As the entire exhibit is evidence to be used in deciding the case, I can see no principled reason to restrict access to only those portions played or read out in open court. When Dickson J. articulated and applied the open court principle to accord a journalist access to an affidavit filed in support of a search warrant application in MacIntrye, he was plainly confronted with material that had not been read out in open court.  Yet he did not hesitate to order access.  Absent some countervailing consideration sufficient to satisfy the Dagenais/Mentuck test, the open court principle and the media's right of access to judicial proceedings must extend to anything that has been made part of the record, subject to any specific order to the contrary.

[45]          Accordingly, it is my view that the application judge erred by limiting CBC's access to only those portions of the exhibits that were played in open court.

Sunday, October 31, 2010

Wolf on Baffin Island

UNESCO Approves Full Membership for Palestine

Australia, the United States, Canada and Germany voted against Palestinian membership.

Brazil, Russia, China, India, South Africa and France voted in favour, while Japan and Britain abstained.

"NY Times – PARIS — Unesco defied Washington’s threat of an American funding cutoff on Monday and approved a Palestinian bid for full membership by a vote of 107 to 14, with 52 abstentions."

A jury trial in Cape Dorset off the coast of Baffin Island

A jury trial is always a significant undertaking. That's the case even when you go home every night through rush hour traffic. In the High Arctic there are some extra challenges -- and rewards -- to a jury case.

The trial is conducted with a jury including unilingual Inuktituk speakers. Saying even a few words in Inuktituk is greatly appreciated. Most people here speak some English but many speak it slowly and you can see them translating mentally. As a result everything at trial is translated consecutively or simultaneously. But not all English words can be translated into Inuktituk and vis-a-versa. For example, during my trial a witness spoke of a rifle when clearly the weapon was a shotgun. Inuktituk uses the same word for all long guns and that word is usually translated as 'rifle'; when there is both a rifle and a shotgun confusion is caused. (Indeed, one wonders if there are other confusions that go unnoticed?).

The jury pool is very small and everyone knows everyone. Walking to the local store you invariably meet witnesses and jurors. And they want to chat -- obviously the risk of offering offence is high but you can't talk to a juror or witness for fear of somehow prejudicing the case. The best you can do is smile, say hello and move on quickly.

The facilities are primitive. The judge's "chamber" is a low closet mostly filled with supplies. The witness room is a boiler room (at least it's warm!). The "courtroom" is just the community hall and the tables and chairs come down every night to allow for bingo or local council meetings. There is no hotel to put the jury in so once the jury is charged they cannot be sent anywhere overnight; they have to decide the same day as they are charged. At best a few cots can be found so the jurors can some rest. And there is no easy way to get catering so the registrar makes frozen pizza. Snacks for the jurors are limited to say the least. Everyone pitches in to make things work.

Alcohol is a huge problem; it underlies almost all crime here. Although alcohol is theoretically not for sale without special licence it is easy to find -- but at an enormous price. A large bottle of vodka runs about $600 - $800 cash. But, despite the poverty (which is very real) people find the money. One witness, a person with a good job and family, on being asked 'how often do you drink' replied, in Inuktituk, 'as much and as often as I can'.

Now all that said, the people are not despairing or unfriendly. Quite the opposite -- people are extraordinarily open and friendly. People come up to you and just chat. Food is scarce but offered freely. Every evening I had an invitation to a meal -- seal or whatever else had been caught. Walking down by the ocean a group of men with long guns ran up to me and asked me to join them on a boat as they had just spotted a whale -- I declined but they returned successful to offer meat to the hamlet.

The court operates as best it can and is careful to deliver the same level of justice as in, say, Ottawa. The judge's charge is careful and thorough (and translated). The jury takes an Inuktituk indictment with them to the jury room. Photographs are reproduced for the jury to review. Although different than a southern trial, justice is done just the same in the north.

Oppression Remedy subject to two year limitation period

There is some dispute as to whether there is a limitation period for claims under the oppression remedy under the OBCA. This confusion arises as a result of cases decided under the old Limitations Act (Ontario). Under a careful reading of the current Limitations Act (2002) there can be no doubt that a two year limitation period applies to oppression remedy claims.

Every claim discovered after January 1, 2004 is governed by the Limitations Act (2002): s. 24. Unlike the former Act, under the Limitations Act (2002) there is a generally applicable limitation period of two years subject only to exceptions. Section 4 provides:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Sections excluding actions from the application of the general limitation period deal with real estate, aboriginal rights, sexual assault, governmental claims and some procedural matters: ss. 2, 10, 16, 17. None of the exclusion sections contain any reference to the OBCA or to fiduciary breaches.

There is a caselaw in Ontario that holds an oppression claim to be a claim sounding as a breach of fiduciary duty. Based on that finding lower level courts have held that no limitation applies under the former Limitations Act for oppression claims: Cutajar v. Frasca 2009 CarswellOnt 7476, para 69; Paragon v Sonka 2009 CarswellOnt 1654, para 163. Other Ontario cases have held that the limitation for an "action on the case" applies although this conclusion was doubted by the Court of Appeal: Ford v. O(MERB), [2006] O.J. No. 27 (Ont C.A.) para 169 - 174. Regardless, since the current Act covers all claims and does not exclude oppression or fiduciary breach, the old caselaw is inapplicable.

In this regard, the decision of Chief Justice Monnin of the Manitoba Queen's Bench in Inc. v Canwest [2009] 5 W.W.R. 522 at para 115 is helpful. There the Chief Justice holds it would be "contrary to policy reasons" for no limitation period to apply to oppression claims. More generally see the decisions following for an application of a limitation period to an oppression remedy claim: Hughes v Tallman 2005 MBCA 16; Seidel v. Kerr 2003 ABCA 267; Inc. v. Canwest, supra.