Western Weekly Reports

WESTERN WEEKLY REPORTS Reports of Cases Decided in the Courts of Western Canada and Certain Decisions of the Supreme Court of Canada 2013-VOLUME 12 (Cited [2013] 12 W.W.R.)

All cases of value from the courts of Western Canada and appeals therefrom to the Supreme Court of Canada

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[Indexed as: Lower v. Stasiuk] Scott Philip Lower, Appellant (Claimant) and Michelle Helen Stasiuk, Respondent (Respondent) and Dr. William Hay, Respondent British Columbia Court of Appeal Docket: Vancouver CA040145 2013 BCCA 389 Levine, Neilson, Groberman JJ.A. Heard: May 7, 2013 Judgment: September 6, 2013 Family law –––– Costs — Custody and access –––– Parties had one child, born November 15, 2001 — Mother initially had custody of child — In report prepared pursuant to s. 15 of Family Relations Act, Dr. C made certain findings and observations relating to mother’s parenting capacity and expressed concern about her anxiety and emotional needs — Mother’s psychiatrist expressed concern regarding impact of Dr. C’s report on mother’s chances of custody — At trial, father was granted sole custody of child — Father brought unsuccessful application to add psychiatrist as third party for purpose of seeking special costs against him — Father appealed — Appeal dismissed — Trial judge properly considered applicable test for adding party for purpose of assessing special costs — Psychiatrist did not promote litigation that would not otherwise have gone ahead, did not involve himself for his own interest, and did not set out to deliberately commit fraud on court — There was no basis to interfere with trial judge’s conclusion that witness immunity barred father’s application to add psychiatrist as party. Civil practice and procedure –––– Costs — Persons entitled to or liable for costs — Non-party –––– Parties had one child, born November 15, 2001 — Mother initially had custody of child — In report prepared pursuant to s. 15 of Family Relations Act, Dr. C made certain findings and observations relating to mother’s parenting capacity and expressed concern about her anxiety and emo- 2 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

tional needs — Mother’s psychiatrist expressed concern regarding impact of Dr. C’s report on mother’s chances of custody — At trial, father was granted sole custody of child — Father brought unsuccessful application to add psychiatrist as third party for purpose of seeking special costs against him — Father appealed — Appeal dismissed — Trial judge properly considered applicable test for adding party for purpose of assessing special costs — Psychiatrist did not promote litigation that would not otherwise have gone ahead, did not involve himself for his own interest, and did not set out to deliberately commit fraud on court — There was no basis to interfere with trial judge’s conclusion that witness immunity barred father’s application to add psychiatrist as party. Cases considered by Levine J.A.: Ali v. Sidney Mitchell & Co. (1978), [1978] 3 All E.R. 1033, [1980] A.C. 198, [1978] 3 W.L.R. 849 (U.K. H.L.) — considered Anchorage Management Services Ltd. v. 465404 B.C. Inc. (1999), 1999 BCCA 771, 1999 CarswellBC 2947, 132 B.C.A.C. 72, 215 W.A.C. 72, 72 B.C.L.R. (3d) 389, 2 B.L.R. (3d) 246, [1999] B.C.J. No. 2976 (B.C. C.A.) — considered Carnahan v. Coates (1990), 47 B.C.L.R. (2d) 127, 27 R.F.L. (3d) 366, 71 D.L.R. (4th) 464, 1990 CarswellBC 145, [1990] B.C.J. No. 1421 (B.C. S.C.) — considered Doug Boehner Trucking & Excavating Ltd. v. United Gulf Developments Ltd. (2010), 2010 NSSC 364, 2010 CarswellNS 764, 940 A.P.R. 17, 296 N.S.R. (2d) 17 (N.S. S.C.) — considered Elliott v. Insurance Crime Prevention Bureau (2005), 2005 NSCA 115, 2005 CarswellNS 353, 256 D.L.R. (4th) 674, 236 N.S.R. (2d) 104, 749 A.P.R. 104, 26 C.C.L.I. (4th) 1, [2005] N.S.J. No. 323 (N.S. C.A.) — considered Evans v. London Hospital Medical College (1980), [1981] 1 All E.R. 715, [1981] 1 W.L.R. 184 (Eng. Q.B.) — referred to Hargreaves v. Bretherton (1958), [1958] 3 All E.R. 122, [1959] 1 Q.B. 45, [1958] 3 W.L.R. 463 (Eng. Q.B.) — referred to Jones v. Kaney (2011), [2011] 2 All E.R. 671, [2011] UKSC 13 (U.K. S.C.) — considered MacMillan Bloedel Ltd. v. Binstead (1981), 58 B.C.L.R. 173, 1981 CarswellBC 415, [1981] B.C.J. No. 1611 (B.C. C.A.) — referred to Marrinan v. Vibart (1962), [1963] 1 Q.B. 528, [1962] 3 All E.R. 380 (Eng. C.A.) — referred to McDaniel v. McDaniel (2008), 2008 CarswellBC 1064, 2008 BCSC 653 (B.C. S.C. [In Chambers]) — followed McDaniel v. McDaniel (2009), 266 B.C.A.C. 163, 449 W.A.C. 163, 2009 Car- swellBC 3329, 307 D.L.R. (4th) 559, 2009 BCCA 53, [2009] B.C.J. No. 218 (B.C. C.A.) — considered Neville v. London Express Newspaper Ltd. (1918), [1919] A.C. 368, [1918- 1919] All E.R. Rep. 61 (U.K. H.L.) — considered Lower v. Stasiuk 3

Oasis Hotel Ltd. v. Zurich Insurance Co. (1981), [1981] 5 W.W.R. 24, 28 B.C.L.R. 230, 21 C.P.C. 260, [1982] I.L.R. 1-1459, 124 D.L.R. (3d) 455, 1981 CarswellBC 107, [1981] B.C.J. No. 690 (B.C. C.A.) — considered Oriakhel v. Vickers (2008), [2008] EWCA Civ 748, [2008] C.P. Rep. 37 (Eng. & Wales C.A. (Civil)) — considered Perez v. Galambos (2008), 59 C.C.L.T. (3d) 15, [2008] 11 W.W.R. 197, 60 C.P.C. (6th) 3, 300 D.L.R. (4th) 329, 2008 BCCA 382, 2008 CarswellBC 2032, 83 B.C.L.R. (4th) 201, [2008] I.L.R. I-4741, 259 B.C.A.C. 310, 436 W.A.C. 310 (B.C. C.A.) — followed Phillips v. Symes (2004), [2004] EWHC 1887 (Eng. Ch. Div.) — considered Phillips v. Symes (2004), [2005] 4 All E.R. 519, [2005] W.L.R. 2043, [2004] EWHC 2330, [2005] C.P. Rep. 12 (Eng. Ch. Div.) — considered R. v. Goodman (1939), 1939 CarswellQue 41, [1939] S.C.R. 446, [1939] 4 D.L.R. 361, 72 C.C.C. 305 (S.C.C.) — considered S. (J.A.) v. S. (N.J.) (2005), 2005 CarswellBC 2526, 2005 BCSC 1508 (B.C. S.C.) — referred to S. (J.A.) v. S. (N.J.) (2008), 77 B.C.L.R. (4th) 66, 2008 BCCA 5, 250 B.C.A.C. 101, [2008] 9 W.W.R. 483, 2008 CarswellBC 20, 48 R.F.L. (6th) 41, 289 D.L.R. (4th) 315, 416 W.A.C. 101, [2008] B.C.J. No. 21 (B.C. C.A.) — considered Strata Plan LMS 1212 v. Coquitlam (City) (2004), 2004 BCCA 500, 2004 Car- swellBC 2125, [2004] B.C.J. No. 2015 (B.C. C.A. [In Chambers]) — considered Strata Plan LMS 1816 v. Acastina Investments Ltd. (2004), 246 D.L.R. (4th) 57, 11 C.P.C. (6th) 85, 2004 BCCA 578, 2004 CarswellBC 2652, 33 B.C.L.R. (4th) 69, (sub nom. Strata Plan LMS 1816, Owners v. North Fraser Holdings Ltd.) 205 B.C.A.C. 104, (sub nom. Strata Plan LMS 1816, Owners v. North Fraser Holdings Ltd.) 337 W.A.C. 104, [2004] B.C.J. No. 2372 (B.C. C.A.) — considered Strata Plan No. VIS3578 v. Canan Investment Group Ltd. (2010), 90 C.L.R. (3d) 4, 6 B.C.L.R. (5th) 31, 295 B.C.A.C. 132, 501 W.A.C. 132, 323 D.L.R. (4th) 482, 2010 BCCA 329, 2010 CarswellBC 1645, [2010] B.C.J. No. 1280 (B.C. C.A.) — considered Symphony Group plc v. Hodgson (1993), [1993] 4 All E.R. 143, [1994] Q.B. 179 (Eng. C.A.) — considered Watson v. Jones (1905), [1905] A.C. 480, (sub nom. Watson v. M’Ewan) [1904- 7] All E.R. Rep. 1, 74 L.J.P.C. 151, 93 L.T. 489, 13 S.L.T. 340 (U.K. H.L.) — referred to Wong (Guardian ad litem of) v. Rosario (1997), 1997 CarswellBC 2273, 41 B.C.L.R. (3d) 1 (B.C. S.C.) — considered Young v. Young (1990), 50 B.C.L.R. (2d) 1, 75 D.L.R. (4th) 46, 29 R.F.L. (3d) 113, 1990 CarswellBC 223, [1990] B.C.J. No. 2254 (B.C. C.A.) — considered 4 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

Young v. Young (1993), [1993] 8 W.W.R. 513, 108 D.L.R. (4th) 193, 18 C.R.R. (2d) 41, [1993] 4 S.C.R. 3, 84 B.C.L.R. (2d) 1, 160 N.R. 1, 49 R.F.L. (3d) 117, 34 B.C.A.C. 161, 56 W.A.C. 161, [1993] R.D.F. 703, 1993 CarswellBC 264, 1993 CarswellBC 1269, [1993] S.C.J. No. 112, EYB 1993-67111 (S.C.C.) — considered Statutes considered: Family Relations Act, R.S.B.C. 1996, c. 128 s. 15 — considered Rules considered: Rules of Court, 1990, B.C. Reg. 221/90 R. 15(5)(a)(iii) — referred to R. 60(16) — referred to Supreme Court Civil Rules, B.C. Reg. 168/2009 Pt. 11 — referred to R. 6-2(7)(c) — referred to Supreme Court Family Rules, B.C. Reg. 169/2009 R. 3-1(5) — referred to

APPEAL by father from judgment reported at Lower v. Stasiuk (2012), 2012 BCSC 1087, 2012 CarswellBC 2172, 36 B.C.L.R. (5th) 397 (B.C. S.C.), dismissing father’s application to add psychiatrist as third party for purpose of seeking special costs against him.

S.N. Mansfield, for Appellant J. Meadows, R. Irving, for Respondent, William Hay

Levine J.A.: Introduction 1 The issue on this appeal is whether a psychiatrist who acts and testi- fies as an advocate for a party in a custody dispute may be added as a party on the application of the other party for the purpose of seeking an award of special costs against him. The trial judge dismissed the father’s application, accepting the psychiatrist’s arguments that his conduct did not meet the test for adding a party for the purpose of assessing special costs and that he was immune from civil liability as a witness to the court proceedings. The father appealed. 2 During submissions on the application to add the psychiatrist as a party, the trial judge described the psychiatrist’s role in these proceedings as “outrageous”. I agree with the trial judge’s comment, and I also agree with his assessment of the relevant legal principles and their appli- Lower v. Stasiuk Levine J.A. 5

cation in this case. The court has the jurisdiction to assess special costs against a non-party and there are exceptions to witness immunity, but both of these concepts are applied in rare circumstances. The psychiatrist’s conduct in this case did not amount to the type of conduct that either subjects him to exposure to liability for special costs or excepts him from the protection of witness immunity. 3 I would dismiss the appeal.

Background 4 The custody dispute concerned the child born November 15, 2001 after a brief relationship between the parties. The mother had custody of the child until the trial judge ordered, after a 29-day trial, that the father have custody. The litigation began in Provincial Court in December 2001, and included, in addition to the trial in B.C. Supreme Court, approximately 27 orders in Provincial Court, two appeals to the B.C. Su- preme Court, one application for leave to appeal to this Court, and four orders of the B.C. Supreme Court. 5 The psychiatrist, Dr. William Hay, first saw the mother on a referral from her family doctor in June 2000. He treated her for approximately three years for substance abuse and other issues. 6 Dr. Hay’s involvement in the litigation began around the time a court- ordered custody and access report was produced on November 27, 2002 (the “s. 15 report”). In anticipation of the s. 15 report, the mother’s mother requested a letter from Dr. Hay, the first draft of which was faxed to her October 16, 2002. 7 The s. 15 report raised significant concerns about the mother’s capacity to foster the child’s relationship with the father. The author, Dr. Geof- frey D. Carr, suggested the mother “manifests characteristics and shares personality dynamics with people diagnosed with BPD [borderline personality disorder]”. Dr. Carr was concerned about these characteristics leading to the mother alienating the child from the father, and recommended treatment by a professional with expertise in treating individuals with personality disorders. He also recommended substantially increased access for the father. 8 The mother sought Dr. Hay’s assistance to deal with the s. 15 report. Dr. Hay provided various letters of support, starting with the letter of October 16, 2002. He edited the original draft of the letter at the request of the mother’s mother. The editing included removing references to the mother’s referring family doctor and reports of previous addiction and 6 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

mental health treatments which had in turn made reference to borderline personality disorder. He also changed the date of the mother’s sobriety date from July 9, 2001 (during the pregnancy) to January 25, 2001 (before the pregnancy). 9 Dr. Hay also recommended another psychologist, Ms. Eroca Shaler, to prepare a critique of the s. 15 report, in particular with respect to the conclusions that the mother showed borderline personality traits. Ms. Shaler relied heavily on information she received from Dr. Hay, including that a diagnosis of borderline personality disorder of the mother had never been considered by any psychiatrist. Dr. Hay told Ms. Shaler that he had met the father and found him to be superficial, narcissistic and “speedy” and that he was a drug user. Ms. Shaler’s report, dated April 16, 2003, was highly critical of the s. 15 report. 10 On October 21, 2004, the parties entered into a consent order in Pro- vincial Court providing sole custody to the mother, joint guardianship and provisions for co-parenting and evolution of access. That did not occur and in January 2005 the father applied to vary the order seeking sole custody with liberal access to the mother, or alternatively, increased access. That application did not proceed. Co-parenting counselling was unsuccessful and ceased in December 2005. 11 In December 2005 and January 2006, the mother made allegations that the father had sexually abused the child. The Ministry of Children and Family Development investigated and found there was no likelihood of sexual abuse. 12 In 2004 through 2006, Dr. Hay wrote various letters to the mother’s doctors in which he denied the mother had ever been diagnosed as having borderline personality disorder; denigrated the father, accusing him of encouraging the mother to have an abortion, drug use, abusive behavior, and harassment in the custody proceedings; and referred to the s. 15 report as the “psychologist’s offensive report bought by him [the father]”. 13 In February 2008, the father obtained an order for production of the records of Dr. Hay and other third parties. The father commenced a family law proceeding in B.C. Supreme Court in December 2008, seeking variation of the October 2004 Provincial Court order. In June 2009, the parties consented to transferring the Provincial Court proceedings to B.C. Supreme Court. The Court ordered another s. 15 report, prepared by Dr. M. Elterman, dated December 4, 2009. Lower v. Stasiuk Levine J.A. 7

14 The trial proceeded in March and April 2010. The mother was unrep- resented through part of the trial. The father subpoenaed Dr. Hay to testify. 15 In his reasons for judgment released July 30, 2010, the trial judge was highly critical of Dr. Hay’s evidence. He found that Dr. Hay had never met the father though he described him in his evidence as “supercharged, speeded up and angry”; Dr. Hay allowed the mother’s mother to edit the original draft of his letter of October 16, 2002; Dr. Hay admitted the mother had suffered from borderline personality traits but never gave this information to Ms. Shaler; Dr. Hay criticized the s. 15 report as a biased, “bought report” without having ever met the author and having no understanding of the nature of a s. 15 report as a court-ordered report. The trial judge concluded his description of Dr. Hay’s evidence (at para. 27): I do not accept the evidence of Dr. Hay. He is truly an advocate and appears to be prepared to do or say whatever is necessary to assist his client, even if it means attempting to destroy the reputation of Dr. Carr and even if it means allowing the defendant’s mother to edit his letter of support for the defendant. 16 The trial judge awarded custody of the child to the father.

Application to Add Dr. Hay as a Party 17 In June 2012, the father applied to add Dr. Hay as a party for the purpose of seeking special costs against him for his role in the custody dispute. He invoked the summary process utilized in Young v. Young, [1993] 4 S.C.R. 3 (S.C.C.) and S. (J.A.) v. S. (N.J.), 2008 BCCA 5 (B.C. C.A.). That process contemplates a two-stage inquiry. The first is to determine whether the circumstances meet the threshold test for adding a party to a proceeding for the purpose of an award of special costs. The second stage is to have a hearing to determine the added party’s liability for special costs. 18 Dr. Hay objected to the application on two bases: that Dr. Hay’s conduct did not meet the threshold test for adding a party for the purpose of assessing special costs against him, and that he was immune from liability for costs under the doctrine of witness immunity. 19 The trial judge found in favour of Dr. Hay’s arguments, and dismissed the application. He did so after expressing, during submissions, highly critical views of Dr. Hay’s involvement in the proceedings. After reviewing the relevant authorities and principles, he concluded that Dr. Hay’s conduct was not an abuse of process and did not amount to main- 8 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

tenance, and that he had no financial interest in and was not the “operating mind” of the litigation. He concluded (at para. 17): I appreciate the fact that this application only involves adding Dr. Hay as a party and that the bar for that is a low one. However, the claimant has not convinced me he has even met this low threshold and I therefore dismiss the application and decline to award costs because of the conduct of Dr. Hay as set forth in my reasons for judgment.

The Appeal 20 The father appeals on two grounds: that the trial judge determined the merits of the claim for special costs instead of applying the test for adding a party, and the trial judge applied the wrong tests in determining whether the father had a cause of action against Dr. Hay for special costs. 21 Dr. Hay responds that the trial judge correctly applied the relevant legal principles: that his conduct does not expose him to liability for special costs and he is immune from liability as a witness in the proceedings.

The Test for Adding a Party 22 I will deal at the outset with the father’s argument that the trial judge decided the merits of an application for special costs instead of the application to add a party. 23 There is no dispute between the parties about the test for adding a party. The applicable Rule is Rule 3-1(5) of the Supreme Court Family Rules, B.C. Reg. 169/2009, which mirrors Rule 6-2(7)(c) of the Supreme Court Civil Rules, B.C. Reg. 168/2009. These rules create the same tests as their predecessors: Rule 60(16) (applicable to family law proceedings) and Rule 15(5)(a)(iii) of the Supreme Court Rules, B.C. Reg. 221/90. 24 The trial judge cited Strata Plan LMS 1212 v. Coquitlam (City), 2004 BCCA 500 (B.C. C.A. [In Chambers]) at para. 11, for the applicable test for adding a party, noting that “the threshold test for adding Dr. Hay as a party is a low one” (at para. 3). The first part of the test is whether there is a question or issue between the parties relating to or connected with the relief claimed or subject matter of the proceeding. The judge deciding the application must determine whether “the question or issue is a real one in the sense that it is not entirely frivolous and would result in courts wasting judicial time”: Strata Plan LMS 1816 v. Acastina Investments Ltd., 2004 BCCA 578 (B.C. C.A.) at para. 5, quoting MacMillan Bloedel Ltd. v. Binstead (1981), 58 B.C.L.R. 173 (B.C. C.A.), at 176 -76. Lower v. Stasiuk Levine J.A. 9

25 The trial judge considered the applicable test for adding a party for the purpose of assessing special costs against him, and whether the bar of witness immunity applied. Both of these were necessary legal considerations in determining whether the question raised — assessing special costs against Dr. Hay — was a real one or would result in the court wasting judicial time. The trial judge determined that the father could not meet the “low threshold” because the applicable law blocked his claim. 26 In his concluding paragraph (para. 17, quoted above), the trial judge said he “decline[d] to award special costs because of the conduct of Dr. Hay”. In my opinion, the trial judge misspoke. His reasons for rejecting the father’s application addressed the applicable threshold tests for adding Dr. Hay as a party. 27 I would not accede to this ground of appeal.

Adding a Party to Assess Special Costs 28 It is settled law in British Columbia that an award of costs may be made against a non-party. In Oasis Hotel Ltd. v. Zurich Insurance Co. (1981), 28 B.C.L.R. 230 (B.C. C.A.), Mr. Justice Lambert in reasons for the Court traced the history of the discretionary inherent power of the B.C. Supreme Court to award costs, and affirmed the court’s jurisdiction to award costs against a non-party. He upheld an order of costs against the principal (not a party to the litigation) of a corporate plaintiff. The principal had deliberately burned down a hotel owned by the corporation and then signed its insurance claim. When the insurance claim was denied, the corporation commenced the action. Mr. Justice Lambert found the principal had conceived and carried out a fraud “involving duplicity and abuse of the court” (at 238). 29 In Young v. Young (1990), 50 B.C.L.R. (2d) 1 (B.C. C.A.), this Court reversed a trial judge’s order granting special costs of a protracted matrimonial dispute against a religious organization which had financially assisted the father in the litigation. Mr. Justice Cumming reviewed the relevant authorities on when special costs may be awarded against a non- party. He concluded (at 80): To my mind, there is no essential difference between condemning a non-party in costs and awarding damages for the tort of maintenance. Thus, unless the necessary ingredients of that tort are found, it would be an improper exercise of the discretion to make such an award. 30 He went on to discuss “What then constitutes maintenance?”, citing R. v. Goodman, [1939] S.C.R. 446 (S.C.C.). In Goodman (at 53), the 10 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

Supreme Court referred to Neville v. London Express Newspaper Ltd. (1918), [1919] A.C. 368 (U.K. H.L.), in reaching the conclusion that “to make a person liable as a maintainer, he must have intervened officiously or improperly”, supporting litigation in which the meddler has no legitimate interest. 31 The Supreme Court of Canada upheld the decision of this Court (Young v. Young, [1993] 4 S.C.R. 3 (S.C.C.)). Justice McLachlan (as she then was), said (for the majority) (at 136-137): Since the Watch Tower Bible and Tract Society (the Society) did not appear as a party, the costs awarded against it must be taken to have been premised on the fact that it supported the litigation financially. In effect, this was equivalent to an award for the tort of maintenance: see Re Sturmer and Town of Beaverton (1912), 25 O.L.R. 566 (Div. Ct.), at pp. 568-69. To be liable for maintenance, a person must intervene “officiously or improperly”: Goodman v. The King, [1939] S.C.R. 446. Provision of financial assistance to a litigant by a non- party will not always constitute maintenance. Funding by a relative or out of charity must be distinguished from cases where a person wilfully and improperly stirs up litigation and strife: Newswander v. Giegerich (1907), 39 S.C.R. 354. In this case there was no evidence that the respondent had been in- duced to allow the Society to use his name in order that it might avoid liability for costs while advancing its own interests, that he would not have advanced his own interests in the absence of its help, that the Society’s funding was for other than charitable motives, or that it controlled or directed the proceedings. Its support was “out of charity and religious sympathy” and did not constitute maintenance. The fact that the Society had a common interest with the respondent (as followers of the same religion) did not affect this. 32 This Court again addressed the issue of an award of costs against a non-party in Anchorage Management Services Ltd. v. 465404 B.C. Inc., 1999 BCCA 771 (B.C. C.A.). The trial judge had awarded 50% of the respondent’s costs against the principal of the corporate plaintiff. The Court reversed that order. In his reasons for the Court, Mr. Justice Hall affirmed the court’s inherent jurisdiction “to impose costs to achieve justice between parties” but cautioned that “the imposition of costs upon non-parties is an unusual event and such a costs order should, I venture to suggest, be made only in special circumstances” (at para. 21). On review of the authorities, he found that the principal was not the “real litigant”, the litigation was not an abuse of process, there was no fraudulent Lower v. Stasiuk Levine J.A. 11

conduct or “what some of the Ontario cases have denominated ‘gross misconduct’ in the instigation or conduct of litigation” (at para. 27). 33 Madam Justice Rowles summarized these principles in Perez v. Galambos, 2008 BCCA 382 (B.C. C.A.) at paras. 17-18, where a claim for costs against a non-party insurer of a lawyer was dismissed: The court does have jurisdiction to order costs against a non-party: Oasis Hotel Ltd. v. Zurich Insurance Co. (1981), 28 B.C.L.R. 230 (C.A.). However, an award of costs against a non-party is unusual and exceptional, and should only be made in “special circumstances”: Anchorage Management Services Ltd. v. 465404 B.C. Inc., 1999 BCCA 771, 72 B.C.L.R. (3d) 389, at para. 21. “Special circumstances” have been held to include situations where the non-party has engaged in fraudulent conduct, an abuse of process, or gross misconduct in the commencement and/or conduct of the litigation, or when the non-party is the “real litigant”: Anchorage. 34 The father relies primarily on S. (J.A.), in which this Court upheld an order finding H.M., the mother of B. (the mother in the custody dispute), jointly liable with B. for the special costs of the litigation. H.M. involved herself in the proceedings in numerous ways, including sending an 80- page unsolicited missive to the trial judge attaching documents including the father’s medical records to demonstrate why the father should not be granted access; sending the father’s medical and psychiatric reports to his relatives stating that one of the doctors had perjured himself; fabricating evidence, denying having been served with a court order and making other false statements; assisting B. to remove the children from B.C. to Hawaii; preventing the father from contacting the children and frustrat- ing his court-ordered access; financing the litigation by paying for lawyers in B.C. and Hawaii, and disobeying court orders and encouraging B. in her contempt of court orders. 35 The trial judge found that H.M. “stirred up strife between the parties which might have been resolved earlier but for [her] close involvement in instructing counsel on [B.]’s behalf”; enabled B. to take legal and practical steps to deny the father access to the children; influenced B.’s conduct of the litigation; acted in concert with B.; and encouraged B.’s contempt of court (S. (J.A.) v. S. (N.J.), 2005 BCSC 1508 (B.C. S.C.) at paras. 70-73). 36 In this Court (2008 BCCA 5 (B.C. C.A.)), after reviewing Young v. Young, Madam Justice Prowse found that costs were not awarded on the basis of maintenance, but rather on the basis that H.M. had been a party 12 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

to B.’s contemptuous behaviour and had engaged in other reprehensible behaviour (at para. 47). She said (at para. 58): In my view, if there was ever a factual matrix calling for special costs, including special costs of the special costs proceedings, this is it. The trial judge found that H.M. acted reprehensibly throughout the proceedings, and that she continued to attempt to mislead the court, and to underplay the extent of her involvement in blocking J.A.S.’s right to access, during the special costs proceedings. The effect of her misconduct will undoubtedly be to increase the length and complexity of any assessment of costs which may ensue. It follows that there is no basis for interfering with the trial judge’s order of February 8, 2006. 37 The Court also upheld the summary process followed by the trial judge in awarding special costs against H.M. He first ordered that H.M. be added as a party to enable J.A.S. to claim special costs against her. He consulted with counsel about the appropriate process to follow with respect to hearing the question of whether special costs should be awarded against H.M., made orders requiring former counsel for B. to disclose communications involving H.M. in relation to the action, and allowed H.M. to file affidavit material and make full submissions. The father says that this was the process contemplated by him in his application to add Dr. Hay as a party. 38 The trial judge considered these principles. He distinguished S. (J.A.) on the basis that “[t]here was no evidence that Dr. Hay was involved in financially assisting the mother or in disobeying court orders” (at para. 8). He acknowledged that in S. (J.A.) special costs were not awarded on the basis of maintenance but on the contemptuous behavior of H.M. (at para. 13). He considered the meaning of maintenance discussed in Doug Boehner Trucking & Excavating Ltd. v. United Gulf Developments Ltd., 2010 NSSC 364 (N.S. S.C.), where maintenance was defined as “maintaining, supporting or promoting the litigation of another”, and found he was “not satisfied that there is evidence that Dr. Hay was involved with maintaining, supporting, or promoting” the mother’s litigation (at paras. 12-13). 39 The father argues that the trial judge took too narrow a view of the meaning of maintenance in refusing to add Dr. Hay as a party. He says that there is at least a “real issue” as to whether Dr. Hay’s conduct amounts to maintenance as described in Goodman in that he provided “officious assistance” by providing advice, took “great pains” to assist in Lower v. Stasiuk Levine J.A. 13

litigation in which he had no personal interest, and stirred up strife in the litigation. 40 In my opinion, the descriptive phrases relied on by the father with respect to the meaning of maintenance do not properly reflect the context in which they arise. As explained by McLachlan J. in Young v. Young (at 136-137), underlying the concept of maintenance is the improper direction of litigation by another person in order to advance the personal interest of the maintainer, such as putting up a “straw man” to avoid liability for costs or to motivate litigation that would not otherwise proceed. It was in this context that Hall J.A. spoke of abuse of process in Anchorage (at para. 21). 41 In this case, Dr. Hay was overzealous and unprofessional as an advocate. His evidence was rejected and he was criticized by the trial judge. However, he did not promote litigation that would not otherwise have gone ahead; he did not involve himself for his own interest; he did not set out to deliberately commit a fraud on the court (though he provided false information to Ms. Shaler and in his letters of support for the mother, which undermined the s. 15 report). 42 In considering the trial judge’s decision not to add Dr. Hay as a party, I must be guided by the standard of review: see Strata Plan No. VIS3578 v. Canan Investment Group Ltd., 2010 BCCA 329 (B.C. C.A.) at para. 41: A determination as to whether new parties should be added to an action is a discretionary decision and attracts appellate deference. This Court will interfere only if the chambers judge misdirected himself, or erred in law or principle, or if the result is so plainly wrong on the facts as to work an injustice Strata Plan LMS 2643 v. Harold Devel- opments Ltd., 2009 BCCA 342, 94 B.C.L.R. (4th) 218. 43 The trial judge was uniquely situated in this case to make the decision he did. He presided over the litigation, including the 29-day trial. He heard Dr. Hay’s evidence. He knew first-hand the impact it had on the litigation. He considered the proper principles, and did not misdirect himself on the law or err on the facts. The law is clear that adding a party for the purpose of assessing special costs requires special circumstances. There is no basis to conclude that the trial judge did not properly exercise his discretion in refusing the father’s application. 44 I would not accede to this ground of appeal. 14 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

Witness Immunity 45 Dr. Hay argues, and the trial judge found, that the doctrine of witness immunity protects Dr. Hay from liability for his participation in the litigation because he was a witness. 46 The father argues that witness immunity does not extend to Dr. Hay’s participation as an expert witness, and if that exception does not apply, he says that the court’s power to control its own process to prevent an abuse of its process by assessing costs creates an exception to witness immunity in this case. 47 Because I would uphold the trial judge’s decision not to add Dr. Hay as a party on the ground that his conduct did not amount to the special circumstances required, it is not necessary to consider this aspect of the appeal. However, witness immunity was the primary basis for Dr. Hay’s objection to the father’s application, and the issue has been fully argued, including in written submissions to the Court following the hearing of the appeal. I will therefore deal with this aspect of the appeal. 48 Witness immunity is well established at common law. Mr. Justice Groberman summarized the doctrine in McDaniel v. McDaniel, 2008 BCSC 653 (B.C. S.C. [In Chambers]) at paras. 18-19: ...Witnesses are absolutely immune from civil liability for anything that they say in court, even if what is said is false and even if they harboured malicious motives for giving evidence. The immunity is expansive. It applies to evidence given before quasi-judicial administrative tribunals as well as courts. It also applies to out-of-court statements made in the course of preparing to give testimony and even to discussions with counsel for the purpose of determining whether or not the witness has relevant evidence to give. Where litigation is in contemplation, statements made by a potential witness on the subject matter of the litigation will fall within the immunity: Monje-Alvarez v. Monje-Alvarez (1992), 69 B.C.L.R. (2d) 99, 93 D.L.R. (4th) 659 (BCCA). The immunity is essential to the administration of justice. In order to foster an atmosphere in which witnesses and counsel are unfettered in their preparations for judicial proceedings, neither should face the possibility of a civil suit over their discussions. The immunity, however, does have limits. It does not apply to everything a lawyer does in his or her professional capacity, nor does it apply simply because matters discussed between the parties might potentially at some point come before a judicial or quasi-judicial body. The immunity is directed at facilitating the gathering and preparation of evidence for Lower v. Stasiuk Levine J.A. 15

litigation. Where that is not the context in which a statement is made the immunity will not apply. 49 On appeal from the decision of Groberman J. (McDaniel v. McDan- iel, 2009 BCCA 53 (B.C. C.A.)), this Court extended the application of witness immunity to a potential witness in the proceeding with respect to information provided to a solicitor involved in the litigation. 50 In their analysis of the doctrine of witness immunity, both courts referred to Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115 (N.S. C.A.), where Mr. Justice Cromwell conducted a comprehensive review of the jurisprudence touching on witness immunity. He highlighted two primary policy considerations which support witness immunity: “First, it is critical that witnesses be willing to tell the whole truth as they see it, free of concern about consequences to themselves. ... Second, the immunity protects the substance of the evidence from collateral attack in other proceedings” (at para. 119). 51 In Carnahan v. Coates (1990), 47 B.C.L.R. (2d) 127 (B.C. S.C.) Madam Justice Huddart undertook a useful analysis of the application of witness immunity to an expert in a custody dispute. The expert, a psychologist, had authored a report and given evidence in court that the children’s negative views of their father had not been influenced by the mother. The court deleted the father’s weekend access on application by the mother. Years later, another psychologist determined that the children’s views were the result of the mother’s manipulation and the court ordered more extensive access. By then, the relationship between the father and the children was irretrievably broken. The father commenced an action against the first psychologist for negligence and abuse of process. 52 The psychologist applied for summary judgment on the basis that the father had no reasonable claim. One of his arguments was that he was immune from civil action in respect of “any words written or spoken in the ordinary course of judicial proceedings, or for the preparation of the evidence which is to be given in those proceedings” (at 134). The father argued that witness immunity should not apply to an expert “if he is hired by one party to an action” and that “the rule does not immunize a witness from an action for abuse of process” (at 134-135). 53 Madam Justice Huddart reviewed the history of the rule of witness immunity, noting its application to ordinary lay witnesses (Watson v. Jones, [1905] A.C. 480 (U.K. H.L.), Hargreaves v. Bretherton (1958), [1959] 1 Q.B. 45 (Eng. Q.B.); Marrinan v. Vibart (1962), [1963] 1 Q.B. 528 (Eng. C.A.)), as well as experts (Evans v. London Hospital Medical 16 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

College (1980), [1981] 1 W.L.R. 184 (Eng. Q.B.)). She also noted that in Ali v. Sidney Mitchell & Co. (1978), [1980] A.C. 198 (U.K. H.L.), the House of Lords balanced “the tension between the basic principles that there should be no wrong without a remedy, and the public’s interest in the administration of justice” and “restricted a barrister’s immunity from suit to the minimum necessary to ensure that the administration of justice was not impeded” (at 138). 54 After examining the policy reasons for the application of witness immunity to experts, Huddart J. concluded that “the protection of the integrity of the judicial process requires at least that an expert witness be immune from suit by any person with whom his only relationship derives from the judicial proceeding” (at 142). Thus, an expert is protected from legal actions by an opposing party with respect to his testimony and preparation, and the expert’s duty to the court would outweigh any duty owed to a disgruntled litigant (see 139). 55 Madam Justice Huddart then considered limits to witness immunity in the context of a claim for abuse of process. She said (at 143): The essential elements of the tort of abuse of process are a wilful misuse or perversion of the court’s process for a purpose extraneous or ulterior to that the process was designed to serve, and some damage flowing therefrom [citations omitted]. The wilful perversion of the court’s process constitutes the necessary malice. ... It is arguable that a non-party to a process might participate in an abuse of that process (champerty and maintenance spring to mind). But there is no evidence that [the psychologist] conspired in any abuse of process of [the mother]. The process was an application by [the mother] to vary access to her children by their father. It was not a process instituted by [the psychologist] to assist [the mother] to some ulterior purpose. 56 In this case, the trial judge considered McDaniel and Carnahan, and concluded that he was “not satisfied that Dr. Hay’s conduct was an abuse of process” (at para. 11). As noted above (at para. 39), he considered maintenance and champerty in the context of an abuse of process as discussed in Boehner, and concluded that he was “not satisfied that the conduct of Dr. Hay amounted to maintenance” (at para. 13). 57 It is at this point that the test for adding a party to assess special costs and the limits of witness immunity coincide. At the hearing of the application to add Dr. Hay as a party, the father argued that his conduct Lower v. Stasiuk Levine J.A. 17

amounted to maintenance. In his factum, Dr. Hay acknowledges that witness immunity is not absolute and may not apply where there has been an abuse of process such as maintenance and champerty. Thus, the trial judge’s findings that Dr. Hay’s conduct did not amount to maintenance precluded the father’s application to add him as party on both grounds. 58 All but one of the authorities referred to by the parties considered the application of witness immunity to civil actions. Only in Wong (Guardian ad litem of) v. Rosario (1997), 41 B.C.L.R. (3d) 1 (B.C. S.C.) at para. 8, was the issue the imposition of costs on a witness. Mr. Justice McEwen refused to impose costs on a doctor who, it was alleged, altered his clinical records causing the plaintiff to enter into an improvident settlement. Mr. Justice McEwen said (at para 7); The cases where third parties or strangers to litigation have been obliged to pay costs appear, in general, to arise out of situations where the actual operating mind behind the entity or position being sanctioned in costs is not technically before the court. Counsel have not produced any authority for the exercise of this discretion against persons who are merely witnesses. 59 He went on to express the concern (at para. 8): ... in general, the possibility that witnesses could be liable in costs for modifying their testimony does not strike me as a way to enhance the quest for truth in the court room. Any witness who had ever given one version of his or her evidence would, from that point on, cease to be entirely disinterested. 60 In the U.K., Mr. Justice Peter Smith of the High Court of Justice decided in Phillips v. Symes, [2004] EWHC 2330 (Eng. Ch. Div.), that witness immunity does not protect experts from applications for costs. He allowed an application by the claimants in the action to join the respondent’s expert as a party for the purpose of costs. He interpreted the decision of the Court of Appeal in Symphony Group plc v. Hodgson, [1993] 4 All E.R. 143 (Eng. C.A.), as allowing, in appropriate circumstances, a third party costs order against a witness as a result of the manner in which he gave evidence as a witness (at para. 63). After considering relevant authorities on the nature and scope of witness immunity and the underlying policies for its existence, Smith J. addressed the question of its application to the court’s power to order costs against witnesses (at paras. 93-98): [93] It seems to me that I should approach the matter along the principles (for example) set out in the Stanton [Stanton v. Callaghan, [2000] 1 Q.B. 75 (C.A.)] case. Do expert witnesses need immunity 18 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

from a costs application against them as a furtherance of the administration of justice? Alternatively, is it against the administration of justice principles not to allow a costs application of the type envis- aged by the Administrators to be brought against Dr Zamar? ... [95] It seems to me that in the administration of justice, especially, in spite of the clearly defined duties now enshrined in CPR 35 and PD 35, it would be quite wrong of the Court to remove from itself the power to make a costs order if appropriate against an Expert who, by his evidence, causes significant expense to be incurred, and does so in flagrant reckless disregard of his duties to the Court. [96] I do not regard the other available sanctions [perjury and contempt proceedings] as being either effective or anything other than blunt instruments. The proper sanction is the ability to compensate a person who has suffered loss by reason of that evidence. This flows from the Myers [Myers v. Elman, [1940] S.C. 282 (H.L.)] case applied to Experts. I do not accept that Experts will, by reason of this potential exposure, be inhibited from fulfilling their duties. That is a crie de cour often made by professionals, but I cannot believe that an expert would be deterred, because a costs order might be made against him in the event that his evidence is given recklessly in flagrant disregard for his duties. The high level of proof required to establish the breach cannot be ignored. The floodgates argument failed as regards lawyers and is often the court of last resort. ... [98] I appreciate that in so concluding this is the first occasion the Court has been asked to consider this. I do not think that the authorities cited by Mr. Fenwick QC bind me to come to a different conclusion. I do not accept the question of the separate jurisdiction of the Court to ensure duties owed to it are complied with was within the contemplation of the Courts when they were discussing witness immunity. The idea that the witness should be immune from the most significant sanction that the Court could apply for that witness breaching his duties owed to the Court seems to me to be an affront to the sense of justice. [Emphasis added.] 61 In Jones v. Kaney, [2011] UKSC 13 (U.K. S.C.), the United Kingdom Supreme Court considered whether experts are protected from civil liability by witness immunity. In Jones, the appellant sued his own expert for negligently signing a statement of matters agreed to with the expert instructed by the opposing side, resulting in a reduced settlement. The Lower v. Stasiuk Levine J.A. 19

majority of the Supreme Court decided that expert witnesses are not immune from claims in tort or contract for matters connected with their participation in legal proceedings, though they remain entitled to absolute privilege in respect of claims in defamation. 62 Some of the justices in Jones referred to Phillips, without expressly approving it, as excepting experts from witness immunity with respect to “wasted costs orders”: see Lord Phillips at para. 44; Lord Hope (in dissent) at para. 165, and Lady Hale (in dissent) at para 177. 63 Both Phillips and Jones rest on the conclusion that the furtherance of the administration of justice does not require that expert witnesses be immune from orders for costs or from actions in tort or contract. The courts concluded (as Huddart J. did in Carnahan) that experts would not be deterred from providing their services, and that their duties to the court would in most cases limit the circumstances in which they would be subject to costs orders or claims against them by their own clients. 64 The father argues that the principles underlying the decision in Phil- lips that expert witnesses are not immune from costs orders should be applied in this case. While I find much of the discussion of whether the application of the underlying policy considerations of witness immunity properly extend to costs orders compelling, particularly where the conduct of experts results in increased litigation and attendant costs, in my opinion this is not the case to change the law in British Columbia to that extent. 65 Firstly, in both Phillips and Jones, the courts clearly distinguished the circumstances of an expert from a lay witness. Both parties emphasized the significance of the clear duties owed to the court by expert witnesses, at common law and as enshrined in the applicable rules of court. Experts are considered to understand those duties and to know that if they breach them by their conduct in relation to the court they could be liable for costs. 66 In this case, Dr. Hay’s position is not clear. Although his counsel characterized him as an expert witness at the hearing before the trial judge, in his submissions on appeal he says he was a lay witness. Before the trial judge, the father’s counsel said Dr. Hay did not testify as a court- appointed witness and was not called as an expert, but on appeal he argues Dr. Hay was an expert witness to which the exception from witness immunity found in Phillips applies. 67 It is clear that Dr. Hay used his expertise as a psychiatrist in his involvement in this case, including recommending Ms. Shaler, providing 20 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

information about the mother’s condition, and in his testimony. He was not called as an expert, however, within the meaning of Part 11 of the Supreme Court Civil Rules, and was not therefore expressly subject to the duties set out there. He did not provide a report to the court and was not paid by the mother for his letters or advice. He acted and appeared as her treating physician. 68 In Oriakhel v. Vickers, [2008] EWCA Civ 748 (Eng. & Wales C.A. (Civil)), the England and Wales Court of Appeal affirmed the decision of the trial judge that witness immunity bars a claim for costs against a fact (non-expert) witness. 69 It is not clear to me that the exception to witness immunity articulated in Phillips properly applies to a witness in Dr. Hay’s position. 70 Secondly, as noted by at least two of the justices in Jones, it has not been determined that Phillips was correctly decided. Dr. Hay argues that Smith J. misinterpreted the Symphony case, on which he relied, and points out that in Symphony, the claim for third party costs (which was rejected by the Court of Appeal) was made on the basis that the third- party company had funded and been the “driving force” behind the defence (at 149) — akin to maintenance. Mr. Justice Smith expressly acknowledged that one of the bases for the claim against the third party in Symphony was that it was maintaining the action (at para. 60). 71 Thirdly, Dr. Hay suggests that adopting the exception to witness immunity from Phillips creates uncertainty about the boundaries of the immunity. The evidence of the expert witness in Phillips was rejected on the basis that he breached his duty to the court by failing to view the issues objectively and straying into advocacy (see Smith J.’s reasons for judgment from the hearing in which the expert’s evidence was considered: Phillips v. Symes, [2004] EWHC 1887 (Eng. Ch. Div.) at para. 94). Dr. Hay asks how an expert would know in advance what conduct could expose him to a claim for costs. 72 All of these reasons suggest caution in adopting the exception to witness immunity as has apparently been done in the U.K. 73 Another reason not to follow Phillips is that the trial judge did not have the opportunity to consider it and this Court does not have his decision on the question to review. Were we to embark on such a change in the law at first instance, Dr. Hay’s only opportunity for an appeal would be with leave of the Supreme Court of Canada. It is more appropriate that such a change be considered in the normal manner at first instance by a justice of the B.C. Supreme Court, followed by review by this Court. Lower v. Stasiuk Groberman J.A. 21

74 I find no basis to interfere with the trial judge’s conclusion that witness immunity bars the father’s application to add him as a party for the purpose of assessing special costs. 75 It follows that I would not accede to this ground of appeal.

Letter of College of Physicians and Surgeons 76 The father introduced in evidence at the hearing of the application to add Dr. Hay as a party a letter from the Deputy Registrar of the College of Physicians and Surgeons which referred to a review by an inquiry committee of a complaint filed against Dr. Hay by the father. The father sought to rely on the contents of the letter in characterizing the conduct of Dr. Hay in these proceedings. 77 Dr. Hay argued before the trial judge that the letter was inadmissible. The trial judge made no ruling, and referred to the letter in his reasons for judgment. Dr. Hay again argues on appeal that the letter is inadmissible. 78 I do not find it necessary to deal with Dr. Hay’s argument concerning the admissibility of the letter. It is not relevant to the questions raised on the appeal.

Summary and Conclusion 79 The trial judge was properly critical of Dr. Hay’s conduct in these proceedings. He was also correct in deciding that the conduct did not amount to the type of conduct that either subjects him to exposure to liability for special costs or excepts him from the protection of witness immunity. 80 I would dismiss the appeal.

Neilson J.A.:

I Agree

Groberman J.A.:

I Agree: Appeal dismissed. 22 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

[Indexed as: R. v. Dickson] Her Majesty the Queen, (Respondent) Respondent and Wade Anthony Dickson, (Accused) (Appellant) Appellant Manitoba Court of Appeal Docket: AR 11-30-07666 2013 MBCA 58 Barbara M. Hamilton, Richard J. Chartier, Marc M. Monnin JJ.A. Heard: May 17, 2013 Judgment: June 17, 2013 Natural resources –––– Waters and watercourses — Miscellaneous –––– Ac- cused was charged, pursuant to s. 23(1)(a) of Water Rights Act, with two counts of establishing or maintaining illegal trenches without license, contrary to s. 3(1)(c) of Act — Trial judge convicted accused — Trial judge determined that although there was no evidence that accused had established, constructed or actively maintained trenches, fact that accused knew about existence of trenches and did nothing to eliminate them was evidence of passive maintenance sufficient to support convictions — Accused appealed, and summary conviction appeal judge (“appeal judge”) determined that passive acts of maintenance were insufficient to support convictions, but upheld convictions — Accused appealed — Appeal dismissed — Appeal judge erred in law in upholding convictions on basis of facts not supported by trial record — Offence of failing to comply with s. 3(1) of Act was strict liability offence — Word “maintain” in phrase “maintain any water control works” in s. 3(1)(c) of Act imports both passive and active meaning — Because offences with which accused was charged were strict liability offences, Crown was not required to prove his knowledge or awareness of underlying facts constituting offence — Crown had proved accused maintained trenches situated on his lands, by keeping them in existence, and in absence of evidence establishing that he acted with due diligence by taking all reasonable care, accused was guilty of these offences — As issuance of ministerial order under s. 4 of Act could not be considered “prosecution” of “offence”, time limit in s. 23(5) of Act did not apply to issuance of order under s. 4. Statutes –––– Interpretation — Role of court — Bilingual legislation. Cases considered by Richard J. Chartier J.A.: Lévis (Ville) c. Tétreault (2006), 36 C.R. (6th) 215, 2006 CarswellQue 2911, 2006 CarswellQue 2912, 2006 SCC 12, 31 M.V.R. (5th) 1, (sub nom. Lévis (City) v. Tétreault) 346 N.R. 331, 207 C.C.C. (3d) 1, [2006] 1 S.C.R. 420, R. v. Dickson 23

(sub nom. L´evis (City) v. T´etreault) 266 D.L.R. (4th) 165, [2006] S.C.J. No. 12 (S.C.C.) — considered R. v. Henneberry (2009), (sub nom. R. v. Ivy Fisheries Ltd.) 901 A.P.R. 151, (sub nom. R. v. Ivy Fisheries Ltd.) 284 N.S.R. (2d) 151, 2009 CarswellNS 617, 2009 NSCA 112, [2009] N.S.J. No. 524 (N.S. C.A.) — referred to R. v. Hildebrandt (2000), 33 C.E.L.R. (N.S.) 84, 2000 CarswellMan 146, 185 D.L.R. (4th) 132, 10 M.P.L.R. (3d) 176, 145 Man. R. (2d) 77, 218 W.A.C. 77, [2000] M.J. No. 136 (Man. C.A.) — considered R. v. Lewis (1996), [1996] 5 W.W.R. 348, 19 B.C.L.R. (3d) 244, 105 C.C.C. (3d) 523, 133 D.L.R. (4th) 700, 196 N.R. 165, [1996] 1 S.C.R. 921, 75 B.C.A.C. 1, 123 W.A.C. 1, [1996] 3 C.N.L.R. 131, 1996 CarswellBC 951, 1996 CarswellBC 951F, EYB 1996-67061 (S.C.C.) — considered R. v. Raham (2010), 213 C.R.R. (2d) 336, 260 O.A.C. 143, 92 M.V.R. (5th) 195, 99 O.R. (3d) 241, 253 C.C.C. (3d) 188, 74 C.R. (6th) 96, 2010 CarswellOnt 1546, 2010 ONCA 206, [2010] O.J. No. 1091 (Ont. C.A.) — referred to R. v. Sault Ste. Marie (City) (1978), 1978 CarswellOnt 24, [1978] 2 S.C.R. 1299, 85 D.L.R. (3d) 161, 21 N.R. 295, 7 C.E.L.R. 53, 3 C.R. (3d) 30, 40 C.C.C. (2d) 353, 1978 CarswellOnt 594, [1978] S.C.J. No. 59 (S.C.C.) — followed R. v. Vaillancourt (1987), 1987 CarswellQue 18, 1987 CarswellQue 98, 81 N.R. 115, [1987] 2 S.C.R. 636, 47 D.L.R. (4th) 399, 68 Nfld. & P.E.I.R. 281, 10 Q.A.C. 161, 39 C.C.C. (3d) 118, 60 C.R. (3d) 289, (sub nom. Vallaincourt v. R.) 32 C.R.R. 18, 209 A.P.R. 281, [1987] S.C.J. No. 83 (S.C.C.) — considered R. v. Wholesale Travel Group Inc. (1991), 1991 CarswellOnt 117, 4 O.R. (3d) 799 (note), 1991 CarswellOnt 1029, 67 C.C.C. (3d) 193, 130 N.R. 1, 38 C.P.R. (3d) 451, 8 C.R. (4th) 145, 49 O.A.C. 161, 7 C.R.R. (2d) 36, [1991] 3 S.C.R. 154, 84 D.L.R. (4th) 161, [1991] S.C.J. No. 79, EYB 1991-67633 (S.C.C.) — considered Reference re s. 94(2) of Motor Vehicle Act (British Columbia) (1985), 1985 Car- swellBC 398, [1986] D.L.Q. 90, 1985 CarswellBC 816, [1985] 2 S.C.R. 486, 24 D.L.R. (4th) 536, 63 N.R. 266, 69 B.C.L.R. 145, 23 C.C.C. (3d) 289, 18 C.R.R. 30, 36 M.V.R. 240, [1986] 1 W.W.R. 481, 48 C.R. (3d) 289, [1985] S.C.J. No. 73 (S.C.C.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 1 — considered s. 7 — considered s. 11(d) — considered Interpretation Act, S.M. 2000, c. 26 s. 7 — considered 24 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

Manitoba Act, 1870 (U.K.), S.C. 1870, c. 3, reprinted R.S.C. 1985, App. II, No. 8 s. 23 — considered Water Rights Act, R.S.M. 1988, c. W80 Generally — referred to s. 1 “entretenir” — referred to s. 1 “maintain” — considered s. 1 “water control works” — considered s. 2 — considered s. 3 — referred to s. 3(1) — considered s. 3(1)(c) — considered s. 4 — considered s. 4(1) — considered s. 5(1) — referred to s. 9.2 [en. S.M. 2005, c. 26, s. 42] — referred to s. 14(1) — referred to s. 14.1 [en. S.M. 2005, c. 26, s. 42] — referred to s. 16 — referred to s. 17(1) — referred to s. 17(2) — referred to s. 18(1) — referred to s. 19(1) — referred to s. 20 — referred to s. 23 — considered s. 23(1)(a) — considered s. 23(4) — considered s. 23(5) — considered Words and phrases considered maintain . . . the word “maintain” in the phrase “maintain any water control works” in s. 3(1)(c) of the [Water Rights Act, R.S.M. 1988, c. W80] imports both a passive and active meaning . . .

APPEAL by accused from judgment reported at R. v. Dickson (2011), 2011 Car- swellMan 517, 2011 MBQB 236, 269 Man. R. (2d) 236 (Man. Q.B.), upholding certain convictions.

J.M. Waldron, for Appellant A.S. Littman, S. De Filippis, for Respondent R. v. Dickson Richard J. Chartier J.A. 25

Richard J. Chartier J.A.: Introduction and Issue 1 The appellant was charged, pursuant to s. 23(1)(a) of The Water Rights Act, C.C.S.M., c. W80 (the Act), with two counts of establishing or maintaining illegal trenches (T1 and T3) without a licence, contrary to s. 3(1)(c) of the Act. The trial judge convicted the appellant and fined him $1,500.00 on each count. He determined that, although there was no evidence that the appellant had established, constructed or actively maintained the trenches, the fact that the appellant knew about the existence of the trenches and did nothing to eliminate them was evidence of passive maintenance sufficient to support the convictions. 2 The appellant appealed by way of a summary conviction appeal. The summary conviction appeal judge (the appeal judge) determined that passive acts of maintenance were insufficient to support the convictions. However, he upheld the convictions, determining that evidence that a crop was planted and harvested indicated that one of the trenches (T1) was being actively maintained, and that, because there was no evidence that the other trench (T3) existed when the appellant’s land had previously been inspected by government officials, the only reasonable inference was that he had established or constructed it. 3 The appellant was granted leave to appeal the decision of the appeal judge on the following two questions of law: 1) Did the appeal judge err in law in concluding that any work which has the effect of keeping a drainage trench clear constitutes maintenance of that trench, and that it is no defence that the work is being done in accordance with normal farming practices? 2) Did the appeal judge also err in law in substituting his own views of the evidence for those of the trial judge? 4 The Crown conceded at the appeal hearing that the appeal judge erred in law in upholding the convictions on the basis of facts not supported by the trial record. There was simply no evidence that the appellant had constructed or established T3 during the time alleged in the Information, nor was there evidence that he planted and harvested in T1. 5 As a result of this material misapprehension of the facts, the appeal judge erred in law. 6 The real issue on this appeal is the interpretation of the word “maintain” in the phrase “maintain any water control works” in s. 3(1)(c) of the 26 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

Act. More specifically, does “maintain” import a passive meaning, an active meaning, or both.

The Facts 7 In 1998, a neighbour complained to the Department of Natural Re- sources (DNR) that water from the appellant’s land was being drained onto his land. DNR employees attended and determined that the appellant was, in fact, unlawfully draining water from a number of his wetlands. They ordered him to close up the trenches. The appellant was also informed that he had to have a licence, issued in accordance with the provisions of the Act, to drain any water from his land. The appellant applied for a licence and received Licence No. 99-DR-85, which identified four specific wetlands, numbered #1 to #4. The licence stated that “[w]etland #1 shall not be drained in any way.” 8 In 2000, a DNR inspection discovered a man-made drainage trench (T1) constructed with respect to wetland #1 and ordered it closed. The appellant complied, but, the following year, it was discovered that wetland #1 had been completely drained by T1. The appellant was charged, but the charge was stayed in November 2002. 9 In 2008, the DNR discovered that wetland #1 and wetland #2 had been completely drained with two man-made trenches, respectively T1 and T3. These trenches had not been authorized by Licence No. 99-DR- 85. The evidence showed that wetland #1 appeared to have been culti- vated and worked through with farm machinery.

The Relevant Legislative Provisions 10 The relevant legislative provisions follow. For reasons that will become apparent later, both the English and French versions are set out. Section 3(1) reads as follows: Prohibition against use of water 3(1) Except as otherwise provided in this Act or the regulations, no person shall (a) in any manner whatsoever use or divert water, unless he or she holds a valid and subsisting licence to do so; or (b) construct, establish, operate or maintain any works, unless he or she holds a valid and subsisting licence to do so; or (c) control water or construct, establish, operate or maintain any water control works, unless he or she holds a valid and subsisting licence to do so. R. v. Dickson Richard J. Chartier J.A. 27

[emphasis added] Interdiction visant l’utilisation de l’eau 3(1) Sauf disposition contraire de la présente loi ou des règlements, il est interdit, selon le cas: a) d’utiliser ou de dériver de l’eau, de quelque manière que ce soit, a` moins d’être titulaire d’une licence valide et en vigueur; b) de construire, d’établir, d’exploiter ou d’entretenir des ouvrages, a` moins d’être titulaire d’une licence valide et en vigueur; c) de régulariser l’eau ou de construire, d’exploiter ou d’entretenir des ouvrages de régularisation des eaux, a` moins d’être titulaire d’une licence valide et en vigueur. [emphasis added] 11 The term “water control works” is defined under the Act as follows: “water control works” means any dyke, dam, surface or subsurface drain, drainage, improved natural waterway, canal, tunnel, bridge, culvert borehole or contrivance for carrying or conducting water, that (a) temporarily or permanently alters or may alter the flow or level of water, including but not limited to water in a water body, by any means, including drainage, or (b) changes or may change the location or direction of flow of water, including but not limited to water in a water body, by any means, including drainage. (« ouvrages de régularisation des eaux ») « ouvrages de régularisation des eaux » Digues, barrages, drains de surface ou souterrains, drainages, cours d’eau naturels améliorés, canaux, tunnels, ponts, buses ou autres dispositifs de drainage servant au transport ou a` la régularisation de l’eau et qui: a) modifient ou peuvent modifier temporairement ou en permanence le cours ou le niveau de l’eau, notamment l’eau d’un plan d’eau, y compris le drainage; b) changent ou peuvent changer l’emplacement ou la direction de l’écoulement de l’eau, notamment l’eau d’un plan d’eau, par quelque moyen que ce soit, y compris le drainage. (“water control works”) 28 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

12 The English word “maintain” and its French equivalent “entretenir” are also defined in s. 1 of the Act as follows: “maintain”, in relation to works or water control works, includes keep in existence. (« entretenir ») « entretenir » En ce qui concerne les ouvrages et les ouvrages de r´egularisation des eaux, assurer, notamment, le maintien en etat.´ (“maintain”) 13 Other relevant provisions are: Removal of unauthorized works or water control works 4(1) Where a person is using, diverting or controlling water or has constructed or established or is operating or maintaining any works or water control works in breach of section 3, the minister may make an order requiring the person, within a period of time stated in the order, (a) to cease using or diverting the water; or (b) to remove the works or water control works; or (b.1) to cease controlling the water; or (c) to repair or reconstruct or alter the works or water control works in a manner stated in the order; as the case may be, and the order shall further state that if the person to whom it is directed fails to comply with the order, an officer or another person authorized by the minister may, without further notice or legal process and at the expense of the person, take or cause to be taken the steps set out in subsection (3). Offence and penalty 23(1) A person who contravenes or fails to comply with (a) a provision of this Act or the regulations; or (b) an order made under this Act; or (c) a condition of a licence or permit issued under this Act; is guilty of an offence and liable on summary conviction to a fine of not more than $10,000. or to imprisonment for not more than three months or both and, where the person is a corporation, to a fine of not more than $25,000. Offence and penalty 23(2) Any person who obstructs, hinders or interferes with an officer or other person exercising a power or performing a duty under this Act is guilty of an offence and liable to a fine not exceeding $10,000. R. v. Dickson Richard J. Chartier J.A. 29

or to imprisonment for not more than three months or both and, where the person is a corporation, to a fine not exceeding $25,000. Offence and penalty 23(3) Any person who defaces, alters or removes any survey monu- ment, bench mark or water gauge or other instrument or device placed by a duly authorized person engaged in making surveys or levels in connection with any works or water control works authorized under this Act, is guilty of an offence and liable to a fine not exceeding $10,000. or to imprisonment for not more than three months or to both and, where the person is a corporation, to a fine not exceeding $25,000. Continuing offence 23(4) Each day’s continuance of any act or default that is an offence under this Act constitutes a separate offence for the purposes of this section. Time limit for prosecution 23(5) A prosecution under this Act may not be commenced later than two years after the day the alleged offence was committed.

Analysis and Decision 14 The appellant was charged, pursuant to s. 23(1)(a) of the Act, and convicted of constructing, establishing or maintaining two illegal trenches without a licence, contrary to s. 3(1)(c) of the Act. Given that this is a regulatory offence arising out of public welfare legislation, it is important to first review the principles articulated in R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.).

a) A Review of Sault Ste. Marie: Do the Principles Still Apply? 15 In Sault Ste. Marie, the Supreme Court of Canada, for the first time, applied the concept of strict liability and introduced the defence of due diligence with respect to public welfare regulatory offences. This represented a middle ground in relation to the law then in effect, in which regulatory offences were either prosecuted as mens rea offences, requiring the Crown to prove the accused’s intent or knowledge beyond a reasonable doubt, or absolute liability offences, in which no defence was open to the accused once the Crown had proved that the prohibited act had been committed. 16 In Sault Ste. Marie, the court concluded that the correct approach to be applied to most public welfare regulatory offences is one of strict lia- 30 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

bility, in which the Crown is relieved of the burden of proving mens rea, but a defence of due diligence, established on a balance of probabilities, will relieve the accused of liability. Thus, as a strict liability offence, once the Crown has proved the actus reus of the offence, the burden shifts to the accused to prove, on a balance of probabilities, that he acted with due diligence by taking all reasonable steps to avoid the particular event or that he acted under a reasonable but mistaken belief. 17 The general principles set out by Dickson J. (as he then was) in Sault Ste. Marie have not only stood the test of time, they have also, essentially, remained intact following a number of challenges under the Cana- dian Charter of Rights and Freedoms (the Charter). The Supreme Court of Canada, in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154 (S.C.C.), held that strict liability offences for which the accused may be imprisoned do not violate s. 7 of the Charter and that, while the reverse onus imposed on the accused in strict liability offences violates s. 11(d) of the Charter, it is justified under s. 1. 18 The Supreme Court of Canada also more recently referred to Sault Ste. Marie with respect to strict liability in the case of L´evis (Ville) c. T´etreault, 2006 SCC 12, [2006] 1 S.C.R. 420 (S.C.C.), and unanimously agreed that the basic principles set out in Sault Ste. Marie were still applicable. LeBel J., for the court, reviewed Sault Ste. Marie and some of the subsequent Supreme Court of Canada case law and confirmed the following: 1) due to the difficulties and injustices caused by the dichotomy between mens rea offences and absolute liability offences, Sault Ste. Marie recognized the need for, and existence of, strict liability offences (para. 15); 2) strict liability offences, as defined in Sault Ste. Marie, are offences in which the Crown is under no obligation to prove mens rea or a lack of due diligence — proof of the prohibited act prima facie imports the offence (para. 15); 3) where an offence is one of strict liability, the accused may avoid liability by proving due diligence on a balance of probabilities — “the accused in fact has both the opportunity to prove due diligence and the burden of doing so” (para. 15); 4) with strict liability offences, an objective standard is applied, such that the conduct of the accused is assessed against that of a reasonable person in similar circumstances (para. 15); R. v. Dickson Richard J. Chartier J.A. 31

5) the due diligence defence is available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event (para. 15); 6) public welfare offences are prima facie strict liability offences (para. 16); 7) public welfare offences will fall into the category of a mens rea offence “only if such words as ‘wilfully,’ ‘with intent,’ ‘knowingly,’ or ‘intentionally’” are used (para. 16); 8) absolute liability offences still exist, but have become the exception, requiring clear proof of legislative intent (para. 17); 9) developments in constitutional law since the Charter have reinforced the legal foundations of the three categories of offences (para. 18); and 10) without abolishing the category of absolute liability offences, cases such as Reference re s. 94(2) of Motor Vehicle Act (British Columbia), [1985] 2 S.C.R. 486 (S.C.C.), and R. v. Vaillancourt, [1987] 2 S.C.R. 636 (S.C.C.), have determined that the imposition of penal liability for an absolute liability offence would violate s. 7 of the Charter where a conviction would expose an accused to imprisonment (para. 18). 19 After confirming these points, LeBel J. endorsed the approach outlined in Sault Ste. Marie as the manner in which a court is to determine under which of the three categories a regulatory offence might fall. When determining whether an offence is one of strict or absolute liability, the court should consider the overall regulatory pattern adopted by the legislature, the subject-matter of the legislation, the importance of the penalty and the precision of the language used. 20 While the Supreme Court of Canada decision in Lévis is a civil law case from Québec, I see no reason why the principles and approach relating to Sault Ste. Marie set out therein would not apply to this case. Indeed, Lévis has been followed in other common law jurisdictions. See, for example, R. v. Raham, 2010 ONCA 206 (Ont. C.A.) at para. 43, (2010), 99 O.R. (3d) 241 (Ont. C.A.), and R. v. Henneberry, 2009 NSCA 112 (N.S. C.A.) at para. 36, (2009), 284 N.S.R. (2d) 151 (N.S. C.A.). 32 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

b) Is Section 3(1) a Strict Liability Offence? 21 Both the appellant and the Crown submit that the offences in question are strict liability offences, as defined in Sault Ste. Marie. I agree. A brief review of the Act demonstrates its public welfare nature, which, prima facie, calls for strict liability offences (see Sault Ste. Marie). 22 The Act proclaims, in s. 2, that all property in, and all rights to the use, diversion or control of, all water in the province is vested in the Crown. The legislation then prohibits all persons from certain actions with respect to the use of water in Manitoba (s. 3(1)). Unless they are licensed to do so, a person may not use, divert or control water, nor may a person construct, establish, operate or maintain works or water control works which divert or may divert water, or alter/change or may alter/change the flow, level, location or direction of flow of water. 23 Pursuant to the definitions in the Act, “works” do not have to actually divert water; they just need to be capable of doing so. Similarly, “water control works” do not have to actually alter or change the flow, level, location or direction of water; they just need to be capable of doing so. 24 Under the scheme of the Act, where someone uses, diverts or controls water, or has constructed or established, or is operating or maintaining works or water control works without a valid licence, the minister can order the person to cease doing so and may order the person to remove or otherwise alter the works or water control works (s. 4(1)). The legislation also gives the minister the ability to issue licences for the use, diversion and control of water and for the construction, establishment, operation or maintenance of works or water control works (s. 5(1)). 25 The minister may also cancel and suspend licences for a variety of reasons, including concerns about the protection and maintenance of aquatic ecosystems (ss. 9.2, 14(1) and 14.1) and for reasons of public interest (s. 19(1)). Furthermore, the minister may make orders requiring a licensee to make repairs or additions to unsafe works or water control works, or to demolish unsafe works or water control works that have been constructed, established or maintained (s. 16). In addition, if a licence expires or is cancelled by the minister, the minister may make an order requiring the person to breach, block, fill, demolish or remove the works or water control works (s. 17(1)). Where the person fails to comply, the minister can cause the works or water control works to be removed (s. 17(2)). Moreover, a person may also be charged for breaching the Act, and the penalty upon conviction may include imprisonment (s. 23). R. v. Dickson Richard J. Chartier J.A. 33

26 The Act also authorizes officers to enter upon any land without a warrant and inspect the land and any works or water control works that have been maintained or are being constructed there (s. 18(1)). The Act even authorizes officers to remove or destroy natural obstructions which divert a flow of water, including beaver dams (s. 20). 27 Finally, it should be noted that there are none of the usual indicators of a mens rea offence within the Act, such as “wilfully,” “with intent,” “knowingly” or “intentionally.” 28 These provisions ensure that the province has complete control over the use, diversion and drainage of water in Manitoba, including control over all works and water control works that could divert water or could alter/change the flow, level, location or direction of water in Manitoba, whether those works or water control works are licensed or not. 29 This goal of having complete control over the drainage of water from lands is also made clear from the legislative history of the Act. The Act was amended in 2000, in response to a decision from this court, R. v. Hildebrandt (2000), 145 Man. R. (2d) 77 (Man. C.A.), in which the court held that the Act (as it then read) only applied where someone diverted water to make use of it, but not where someone diverted water for drainage purposes. In introducing the amendments to clarify that the Act applied to all possible diversions of water, the Minister of Conservation at the time, the late Honourable Oscar Lathlin, stated: .... Unregulated piecemeal drainage projects can have serious consequences on people, on property and on the infrastructure. In order to ensure such potential damage does not occur, the provincial government must maintain its authority and responsibility for drainage...... The responsibility of the Province as owner of the water resources means that we cannot abandon even if we wished our role in addressing the overall and potentially widespread impacts of individual water management decisions...... The amendments that I am proposing clearly establish provincial authority over drainage and other diversion works, as it was determined to be lacking by the court. .... [Manitoba, Legislative Assembly, Hansard, 37th Leg., 1st Sess., vol. 21A (4 May 2000)] 30 The minister’s concerns over the need to regulate any and all drainage projects in order to protect people, their property and the public infrastructure are well understood given this province’s history of flooding. 34 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

31 For these reasons, I have concluded that an offence of failing to comply with s. 3(1) is a strict liability offence.

c) Is Knowledge of the Existence of the Trenches Required? 32 In the present case, the appellant argued that someone charged with the offence of illegally maintaining a trench would have to be aware of the existence of the trench in order to be convicted. In other words, can someone maintain something without knowing what he was maintaining? This is exactly the issue raised in Sault Ste. Marie, where it was argued that a person could not be said to be permitting something unless he knew what he was permitting. In that case, Dickson J. indicated that this argument was an over-simplification and reiterated that, for strict liability offences, proof of “the prohibited act prima facie imports the offence” (at p. 1326). 33 With strict liability offences, the Crown is relieved of the burden of proving mens rea, but a defence of due diligence, established on a balance of probabilities, will relieve the accused of liability. Thus, for strict liability offences, once the Crown has proved the actus reus or the prohibited act, the burden shifts to the accused to prove, on a balance of probabilities, that he acted with due diligence or acted under a reasonable but mistaken belief. 34 In the case at bar, the Crown would only need to prove the prohibited act — that an illegal trench was being maintained. The Crown would not be required to prove that the appellant knew that the trench existed. However, it would be open to the appellant to avoid liability by establishing, on a balance of probabilities, that he reasonably did not know that the trench existed.

d) Does Section 3(1)(c) Require Proof of Active Maintenance? 35 The principal issue on this appeal is whether the Crown proved the prohibited act, being that an illegal trench was being maintained. More to the point, does “maintain” under s. 3(1)(c) of the Act import a passive meaning, an active meaning, or both? 36 The appellant argues that the prohibited act or actus reus of the offence requires proof of active maintenance of the trenches, while the Crown argues that keeping them in existence without active maintenance establishes the actus reus. Both parties also argue that the English and French versions of the definitions of “maintain” and “entretenir” support their argument. In accordance with s. 23 of the Manitoba Act, 1870, the R. v. Dickson Richard J. Chartier J.A. 35

English and French versions of all Acts and regulations in Manitoba have equal authority. See also, s. 7 of The Interpretation Act, C.C.S.M., c. I80, which reads: Bilingual versions 7 The English and French versions of Acts and regulations are equally authoritative, in accordance with section 23 of the Manitoba Act, 1870. 37 The two fundamental rules of interpretation applying to bilingual legislation are described in The Honourable Mr. Justice Michel Bastarache et al., The Law of Bilingual Interpretation (Markham: LexisNexis Can- ada Inc., 2008), as follows (at p. 15): The bilingual model is based upon two fundamental principles, which we will discuss in this section. The first principle is the Equal Authenticity Rule. According to this rule, both the English and French versions of a statute are equally authentic statements of legislative intent, and neither one is supreme or paramount over the other. The second principle is the Shared Meaning Rule. This rule provides, in short, that both versions of the statute are expressions of the same legislative intent and that courts interpreting statutes should, as far as possible, attempt to ascertain that intent through a determination of the shared or common meaning of the two versions. 38 Thus, under the first principle, the Equal Authenticity Rule, neither the French nor the English version of an Act can be given paramountcy. On this point, Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008), states (at p. 96): The most important implication of the equal authenticity rule is that neither version of bilingual legislation can be assigned paramountcy over the other. Any rule of interpretation that purports to resolve conflicts or discrepancies between the two versions by giving priority to one of the languages is inconsistent with the rule. 39 The second fundamental principle, the Shared Meaning Rule, is described by Bastarache et al. as follows (at p. 32): In interpreting bilingual legislation, the goal is to seek out the shared meaning between the two versions; this meaning has a prima facie status as the correct interpretation of the provision. However, the shared meaning is not decisive and can be abandoned in the face of clear signals that the intention of the legislator was other than that suggested by the shared meaning. Moreover, if there is no shared meaning discernible, normal techniques of interpretation should be employed. 36 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

40 As a result, the interpretation of bilingual legislation consists of a search for the interpretation of the provision that most readily conforms to the axiom that legislative provisions state only one law, but state it in two languages. Due to the fundamental principles of bilingual statutory interpretation, “both versions of a statute must be read together to assess Parliament’s intention” (R. v. Lewis, [1996] 1 S.C.R. 921 (S.C.C.) at para. 72). When attempting to determine the common legislative intention, the first step will be to ascertain whether there is discordance between the English and French versions of the provision. If there is discordance, then the court must determine what type of discrepancy exists and then apply the case law to arrive at a shared meaning. The second step will require consideration of whether the shared meaning is consistent with the legislator’s intent. 41 To determine whether there is discordance between the two versions, it is first necessary to determine what the plain or ordinary meaning of each version is, as established in each language. Once the ordinary meaning of each version is established, the two versions may then be compared. 42 The English definition of “maintain” in the Act reads as follows: “‘maintain’, in relation to ... water control works, includes keep in existence.” As the English definition of the word “maintain” uses the verb “includes,” it is clearly an inclusive and non-exhaustive definition. Therefore, the meaning of “maintain” in the Act will include “keep in existence” as well as any other ordinary meanings of the word “maintain.” 43 Dealing firstly with the phrase “keep in existence,” this phrase, in En- glish, strongly suggests the passive meaning of the word “maintain.” Es- sentially, the phrase “keep in existence” implies that nothing necessarily needs to be done to maintain the existence of the thing in question. How- ever, because of the use of the word “includes” in the definition, other ordinary meanings of the word “maintain” should also be considered. They suggest that, in ordinary usage, the word “maintain” can incorporate both an active and a passive meaning (see Webster’s New Encyclo- pedic Dictionary (New York: Black Dog & Leventhal Publishers Inc., 1993) and The Shorter Oxford English Dictionary, 2d ed. (London: Ox- ford University Press, 1936) vol. 1). 44 Both meanings of the word “maintain” also align with the broader legislative provision. As noted above, s. 3(1)(c) prohibits anyone from maintaining “water control works” without a licence. “Water control R. v. Dickson Richard J. Chartier J.A. 37

works” include dykes, dams, drains or canals which alter/change or may alter/change the flow, level, location or direction of water. With respect to drains or canals, it may be that some active maintenance, in the sense of keeping these structures clear of debris, could be required in order that they continue to function properly. However, active maintenance may not, in fact, be required for their proper functioning or their continued existence. With respect to a dyke or a dam, once it has come into existence, it is even less clear that ongoing active maintenance would be required in order to keep it in existence and to keep it functioning. 45 With respect to the French version of the Act, the definition of the word “entretenir” reads as follows: “« entretenir » En ce qui concerne ... les ouvrages de régularisation des eaux, assurer, notamment, le maintien en etat.”´ This definition uses the adverb “notamment,” which connotes inclusiveness and suggests that the item noted is but one particular example, amongst others, which is being singled out (see Marie-Eva´ de Vil- lers, Multidictionnaire de la langue fran¸caise, 4e ed.´ (Montréal: Editions´ Québec Amérique Inc., 2003). The word “notamment” thus corresponds to the English word “includes” or might better signify “notably includes.” It is, therefore, my view that the French definition, like the En- glish definition, is an inclusive and non-exhaustive definition. 46 Being inclusive, the meaning of “entretenir” in the Act will include “assurer ... le maintien en etat”´ as well as any other ordinary meanings of the word “entretenir.” The phrase “assurer ... le maintien en etat”´ firstly needs to be considered. The word “assurer” is quite nuanced, and dic- tionaries give multiple definitions. Suffice it to say that the English equivalent would be “to ensure that something happens, functions, or continues” (see Le Nouveau Petit Robert (2007) and Multidictionnaire de la langue fran¸caise). The phrase “le maintien en etat”´ is also somewhat nuanced, but may be roughly translated to mean “the preservation or keeping (of something) in the same state or condition” (again see Le Nouveau Petit Robert and Multidictionnaire de la langue fran¸caise). 47 The appellant contends that the use of the word “assurer” in the French definition means that someone would have to take some positive action in order to “ensure” or “see to it” that something happens, functions or continues. In my view, this is not necessarily so. Some positive action would likely be required to ensure that something “happens” or “functions”; however, positive action is not necessarily required to ensure or see to it that something “continues.” 38 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

48 Furthermore, the use of the word “assurer” in conjunction with the phrase “le maintien en etat”´ suggests both a passive and active meaning. To “ensure” or “see to” the continuation or preservation or keeping of something in its present condition does not necessarily lead to the conclusion that a person must actively do something. As stated earlier, when discussing the word “maintain,” a person could passively ensure the continuation or preservation or keeping of something in its present condition by doing nothing at all. Furthermore, a person can passively “ensure” the continuation or preservation or keeping of something in its present condition by not destroying it. In my view, therefore, the phrase “assurer ... le maintien en etat”´ incorporates both an active and a passive meaning. 49 The ordinary meanings of the word “entretenir” must also be considered. Although some of the definitions clearly suggest an active meaning to the word “entretenir,” the definitions and synonyms indicate that a passive meaning of the word is also acceptable (see, in particular, Le Nouveau Petit Robert). In my view, the ordinary usage of the word “entretenir” can incorporate both an active and a passive meaning. It is, consequently, my view that the French definition of “entretenir” in the Act includes both passive and active meanings of the word. 50 Thus, in my opinion, both the English definition of the word “maintain” and the French definition of the word “entretenir” in s. 1 of the Act incorporate both passive and active meanings. Consequently, a person can “maintain water control works” either by actively keeping them in a good state of repair or by passively keeping them in their existing state. Furthermore, as discussed above, this viewpoint also aligns with the broader legislative provision, as it reflects an understanding that some “water control works,” such as dykes, dams, drains or canals, will not necessarily require any active maintenance to be “kept in existence” or to ensure the continuation, preservation or keeping of their present condition or state. 51 As a result, there is, in fact, no discordance between the French definition of “entretenir” and the English definition of “maintain.” The shared ordinary meaning of both versions includes both active and passive meanings of the words. As there is no discordance between the two versions, it is unnecessary to consider the remaining steps of the Shared Meaning Rule. 52 This shared ordinary meaning is also consistent with the overall purpose and general scheme of the Act, being to ensure that the province has complete control over the use, diversion and drainage of water in Mani- R. v. Dickson Richard J. Chartier J.A. 39

toba. If the meaning of “maintain” included only the active sense of the word, the legislative goal could be circumvented by a person who surrep- titiously constructed or established works or water control works on his land without a licence. In such a case, there would be no direct evidence to identify the person who constructed or established the works or water control works, and no direct evidence as to when the works or water control works were actually constructed or established. 53 Furthermore, depending upon the nature of the works or water control works, the works or water control works may not need to be operated or actively maintained. Consider, for example, an excavation or a trench which is dug into a field in anticipation of heavy rainfalls or spring flooding. In such a scenario, a prosecution under s. 3(1) of the Act would likely be unsuccessful as there would be no proof that the person operated or actively maintained the works or water control works. With passive maintenance, however, a prosecution would be possible. 54 In addition, s. 4(1) of the Act states that the minister can only make an order requiring the removal of the works or water control works “[w]here a person ... has constructed or established or is operating or maintaining any works or water control works in breach of section 3.” If only active maintenance is included, and there is no proof that the person constructed, established, operated or actively maintained the works or water control works, then there would be no breach of s. 3, and the minister would have no jurisdiction to order the removal of the works or water control works under s. 4(1). This would effectively thwart the intent of the legislation. With passive maintenance, however, upon discovery of the unlicensed works or water control works, the minister would have jurisdiction to act under s. 4(1) and could take immediate steps to have the works or water control works removed before actual water diversion, drainage or control occurs. 55 In short, the goal of the legislation is only achieved if both the active and passive meanings of “maintain” are adopted.

e) Can a Section 4(1) Removal Order Be Issued if the Crown is Statute- Barred from Prosecuting a Breach of Section 3(1)? 56 On a related matter regarding s. 4(1), and in response to the appellant’s position that the word “maintain” only includes the active meaning of the word, the issue was raised whether the minister can issue an order under s. 4(1) to remove unauthorized works if the Crown is statute- barred from prosecuting the breach of s. 3(1). Section 23(5) establishes a 40 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

two-year time limit for the “prosecution” of an “offence.” Significantly, the time limit in s. 23(5) makes no mention of the minister’s power to issue an order under s. 4 for a breach of s. 3. 57 Clearly, as the issuance of a ministerial order under s. 4 cannot be considered a “prosecution” of an “offence,” the time limit in s. 23(5) does not apply to issuance of an order under s. 4. This conclusion also accords with the primary goal of the Act, as it allows the province to re- establish its control over unauthorized diversion and drainage projects irrespective of whether or not a prosecution is statute-barred by s. 23(5). 58 Moreover, while it was not raised at the appeal hearing, I note that the appellant would also have to contend with s. 23(4), which states that, for the purposes of s. 23, each day’s continuance of any act that is an offence under the Act constitutes a separate offence.

f) Application to This Case 59 In the present case, it was uncontested that the T1 and T3 trenches were on the appellant’s land and not properly licensed. The prohibited act required to be proved by the Crown was that the appellant maintained these trenches. It did not have to prove that the appellant knew the trenches were on his land or that he actively maintained them. 60 As “maintenance” of these trenches includes keeping them in existence without active maintenance, it follows that the Crown had established the actus reus of the offence. The appellant could have avoided liability by establishing, on a balance of probabilities, that he reasonably did not know the trenches existed or by proving that, although he had known of their existence, he had acted with due diligence. However, he presented no evidence in defence of the charges brought against him. 61 As a result, I would conclude that the appellant’s passive maintenance of the trenches was sufficient in law to constitute the prohibited act under s. 3(1)(c) of the Act.

Conclusion 62 In summary, I would conclude that: 1) the appeal judge erred in law in upholding the convictions on the basis of facts not supported by the trial record; 2) s. 3(1) offences are strict liability offences; R. v. Dickson Marc M. Monnin J.A. 41

3) the word “maintain” in the phrase “maintain any water control works” in s. 3(1)(c) of the Act imports both a passive and active meaning; 4) the prohibited act or actus reus of the s. 3(1)(c) offence in this case would be maintaining, by keeping in existence, an illegal trench; the Crown need not prove that the appellant actively maintained the trench; 5) because the offences with which the appellant was charged are strict liability offences, the Crown is not required to prove his knowledge or awareness of the underlying facts constituting the offence — that a trench existed; once the Crown has proved the prohibited act, the burden shifts to the appellant to prove, on a balance of probabilities, that he acted with due diligence by taking all reasonable care; this can be established either by proving that he did not reasonably know about the facts or circumstances underlying the offence, or by proving that, although he knew of the underlying facts, he was duly diligent in attempting to avoid the prohibited result; 6) the Crown has proved that the appellant maintained the trenches situated on his land, by keeping them in existence, and that in the absence of evidence establishing that he acted with due diligence by taking all reasonable care, the appellant is guilty of these offences; and 7) as the issuance of a ministerial order under s. 4 cannot be considered a “prosecution” of an “offence,” the time limit in s. 23(5) does not apply to issuance of an order under s. 4. 63 In the result, while the appeal judge erred, I would, for these reasons, uphold the convictions and dismiss the appeal.

Barbara M. Hamilton J.A.:

I agree:

Marc M. Monnin J.A.:

I agree: Appeal dismissed. 42 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

[Indexed as: R. v. Menow] Her Majesty the Queen, Respondent and Robert Alexander Menow, (Accused) Appellant Manitoba Court of Appeal Docket: AR 12-30-07904 2013 MBCA 72 Monnin, Hamilton, Cameron JJ.A. Heard: June 19, 2013 Judgment: August 7, 2013 Criminal law –––– Trial procedure — Charging jury or self–instruction — Direction on onus and reasonable doubt — General principles –––– R. v. W. (D.) — Complainant alleged that she awoke one night to find accused on top of her, having vaginal intercourse — Accused denied that he engaged in sexual intercourse with complainant — Accused was charged with sexual assault — Trial judge found accused not to be credible and convicted him — Accused appealed — Appeal dismissed — Trial judge did not err in her analysis of W. (D.) — It was impossible for accused’s evidence to be considered without factual or contextual backdrop for charge itself — Trial judge rejected accused’s testimony to such extent that she was left with no reasonable doubt after conducting first two stages of W. (D.) analysis — Any misapprehension of evidence by trial judge was not material and did not play essential part in her application of W. (D.) analysis — Trial judge did not err when she took into account fact that there was no evidence to support accused’s testimony. Criminal law –––– Trial procedure — Adjudication — Conviction — Suffi- ciency of reasons for conviction — Miscellaneous –––– Complainant alleged that she awoke one night to find accused on top of her, having vaginal intercourse — Accused denied that he engaged in sexual intercourse with complainant — Accused was charged with sexual assault — Trial judge found accused not to be credible and convicted him — Accused appealed — Appeal dismissed — Reasons were not insufficient — Trial judge explained that she found accused guilty because she believed complainant and other witnesses, and disbelieved accused — Trial judge considered all evidence called by Crown and concluded that it convinced her that accused was guilty beyond reasonable doubt — Reasons explained decision, provided public accountability and permitted effective appellate review. R. v. Menow 43

Cases considered by Cameron J.A.: R. v. B. (D. K.) (2012), 2012 MBCA 114, 2012 CarswellMan 719, [2012] M.J. No. 405 (Man. C.A.) — referred to R. v. Chittick (2004), 24 C.R. (6th) 228, 228 N.S.R. (2d) 81, 2004 NSCA 135, 2004 CarswellNS 465, [2004] N.S.J. No. 432 (N.S. C.A.) — referred to R. c. Gagnon (2006), [2006] 1 S.C.R. 621, 208 C.C.C. (3d) vi (note), 2006 Car- swellQue 3559, 2006 CarswellQue 3560, 2006 SCC 17, 37 C.R. (6th) 209, (sub nom. R. v. G. (L.)) 207 C.C.C. (3d) 353, (sub nom. R. v. Gagnon) 347 N.R. 355, (sub nom. R. v. G. (L.)) 266 D.L.R. (4th) 1, [2006] S.C.J. No. 17 (S.C.C.) — referred to R. v. H. (J.C.) (2011), 2011 NLCA 8, 2011 CarswellNfld 11, 267 C.C.C. (3d) 166, 944 A.P.R. 141, 304 Nfld. & P.E.I.R. 141, [2011] N.J. No. 9 (N.L. C.A.) — considered R. v. Hoohing (2007), 2007 CarswellOnt 5308, 2007 ONCA 577, [2007] O.J. No. 3224 (Ont. C.A.) — considered R. v. Jaw (2008), 2008 NUCA 2, 2008 CarswellNun 17, 424 W.A.C. 297, 432 A.R. 297, [2008] Nu.J. No. 16 (Nun. C.A.) — referred to R. v. Kozakowski (2009), 2009 MBCA 32, 2009 CarswellMan 96 (Man. C.A.) — considered R. v. Liberatore (2010), 262 C.C.C. (3d) 559, 2010 NSCA 82, 2010 CarswellNS 687, 299 N.S.R. (2d) 53, 947 A.P.R. 53, [2010] N.S.J. No. 556 (N.S. C.A.) — referred to R. v. M. (R.E.) (2008), [2008] 11 W.W.R. 383, 83 B.C.L.R. (4th) 44, [2008] 3 S.C.R. 3, 2008 CarswellBC 2037, 2008 CarswellBC 2038, 2008 SCC 51, 235 C.C.C. (3d) 290, 60 C.R. (6th) 1, 297 D.L.R. (4th) 577, 380 N.R. 47, 439 W.A.C. 40, 260 B.C.A.C. 40, [2008] S.C.J. No. 52 (S.C.C.) — considered R. v. McIntosh (2010), 493 A.R. 254, 502 W.A.C. 254, 2010 CarswellAlta 2279, 2010 ABCA 352, [2010] A.J. No. 1331 (Alta. C.A.) — considered R. v. Mends (2007), 2007 ONCA 669, 2007 CarswellOnt 6223, [2007] O.J. No. 3735 (Ont. C.A.) — referred to R. v. P. (N.H.) (2013), 2013 MBCA 30, 2013 CarswellMan 179, [2013] M.J. No. 108 (Man. C.A.) — considered R. v. Rocha (2009), 2009 CarswellMan 79, 2009 MBCA 26, 236 Man. R. (2d) 213, 448 W.A.C. 213, [2009] 6 W.W.R. 37, [2009] M.J. No. 69 (Man. C.A.) — considered R. v. Vuradin (2011), 2011 CarswellAlta 1687, 2011 ABCA 280, [2012] 4 W.W.R. 264, 55 Alta. L.R. (5th) 45, 515 A.R. 25, 532 W.A.C. 25, 278 C.C.C. (3d) 189, [2011] A.J. No. 1057 (Alta. C.A.) — referred to R. v. Vuradin (2013), 2013 SCC 38, 2013 CarswellAlta 1057, 2013 Carswell- Alta 1058, 3 C.R. (7th) 1, [2013] 8 W.W.R. 211, [2013] S.C.J. No. 38 (S.C.C.) — considered 44 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

R. v. W. (D.) (1991), 1991 CarswellOnt 1015, 3 C.R. (4th) 302, 63 C.C.C. (3d) 397, 122 N.R. 277, 46 O.A.C. 352, [1991] 1 S.C.R. 742, 1991 CarswellOnt 80, [1991] S.C.J. No. 26, EYB 1991-67602 (S.C.C.) — followed

APPEAL by accused from conviction for sexual assault.

E.J. Roitenberg, L.C. Robinson, for Appellant R.N. Malaviya, for Respondent

Cameron J.A.:

1 After trial in Provincial Court, the accused was convicted of one count of sexual assault. He appeals that conviction claiming that the trial judge erred by wrongly applying the method of analysis suggested in R. v. W. (D.), [1991] 1 S.C.R. 742 (S.C.C.), that she misapprehended the evidence in her application of the analysis and that she erred in requiring him to provide corroborating evidence. Finally, he argues that the trial judge gave insufficient reasons for convicting him. 2 For the reasons that follow, I conclude that the trial judge did not err in her W.(D.) analysis and that her reasons were sufficient.

Background 3 At the time the allegations arose, the accused and the complainant were part of a group of people working for a construction company carrying on business in Norway House. The construction company maintained a camp near the community for its employees. The trial concerned what occurred between the accused and the complainant one night at the camp. 4 On the night in question, the accused and the complainant, along with a number of other people, went to a social. After the social, they were driven back to the camp in a pick-up truck driven by a co-worker who dropped them off at a camper occupied by Mr. Spring (the General Su- perintendent of the construction company). The party continued at Mr. Spring’s camper. 5 Shortly after arriving at Mr. Spring’s camper the complainant left the party with Mr. Sinclair. The two went to the complainant’s cottage where Mr. Sinclair fell asleep on a recliner chair and the complainant fell asleep while sitting on a chair in the kitchen. 6 The allegations that gave rise to the charge occurred after the complainant fell asleep. Specifically, the complainant testified that after fall- R. v. Menow Cameron J.A. 45

ing asleep, she awoke in her bed to find the accused on top of her, having vaginal intercourse with her without her consent. 7 An independent witness, Mr. Charrier, testified for the Crown. He said that he entered the complainant’s cottage and saw the complainant and the accused in the kitchen. The complainant was leaning with her upper body over a chair and she appeared to be sleeping and incoherent. He said that the accused was behind her and that neither of them had their pants on. 8 The accused also testified. He stated that he went to the complainant’s cottage to borrow some liquor. When he entered the cottage, the complainant was in her bed. He sat beside her and after some brief conversation she started kissing him. He said their amorous interaction continued until both realized that they did not have a condom and then it ended. He denied that he engaged in sexual intercourse with the complainant. 9 As is obvious, the entire case turned on the question of credibility. The trial judge found the accused not to be credible and, based on all of the evidence that she did accept, she convicted him.

Decision of the Trial Judge 10 In reaching her decision, the trial judge undertook a comprehensive review of all of the evidence. She rightly concluded that she was required to assess the evidence in accordance with W. (D.). She then considered the accused’s evidence and rejected it. She said (at para. 39): .... There are problems with Mr. Menow’s evidence, specifically: (1) Mr. Menow testified that he and [the complainant] kissed for the first time for about a minute after she stumbled off the back of the truck and he caught her. This was contrary to [the complainant’s] evidence that she sat in the front of the cab of the truck. There is also no corroborating testimony from any other witness that this incident occurred; (2) Mr. Menow testified that when the group returned to the cot- tages after the social, [the complainant] tried to take him back to her cabin but he did not want to go as he wanted to drink some more alcohol. This is somewhat of a contradiction as Mr. Menow testified that [the complainant] had alcohol in her cabin and the sole purpose for going to see her was to “borrow some alcohol”; 46 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

(3) Mr. Menow’s evidence testimony [sic] that [the complainant] was not wearing a shirt when he went into her bedroom was contradicted by [the complainant] and Mr. Charrier’s evidence that [the complainant’s] pants were down at her ankles. Neither testified that [the complainant’s] shirt was removed; (4) Mr. Menow testified that Ms. Santina Tait was waiting for him in a vehicle when he went to “borrow a bottle” from [the complainant]. There is no evidence to corroborate this; (5) Mr. Menow testified that he saw Mr. Charrier come into the room and that Mr. Charrier told him to “hurry up man.” This was contradicted by Mr. Charrier’s evidence that he believed that Mr. Menow did not see him. In addition, Mr. Charrier testified that he did not say anything to [the complainant] or Mr. Menow when he quickly flicked on the switch; and (6) With respect to [the complainant’s] demeanour the next morning, Mr. Menow testified that he saw [the complainant] and that she looked fine. This was contrary to Mr. Spring’s evidence that he could tell something was wrong with [the complainant] and she looked like she had been crying. 11 Next, the trial judge considered the evidence of the complainant. She rejected the argument put forward by counsel for the accused (not the same counsel as appeared in this appeal) that despite the fact that he agreed that the complainant “came across as a - a consistent witness, and she stuck to her story, and she definitely had a - a good demeanor in the courtroom,” the complainant was unbelievable because she did not seek help when the evidence showed that Mr. Sinclair and the complainant’s roommate were in the cottage at the time. The trial judge accepted the complainant’s explanation that she did not want anyone to know what had happened at that time stating that the complainant was “more than likely confused and not thinking clearly” (at para. 43). The trial judge said that she considered the complainant’s evidence to be sincere. 12 The trial judge noted that the complainant’s evidence was confirmed in a number of areas by the evidence of Mr. Charrier. She found it note- worthy that Mr. Charrier testified that he got along well with the accused. It is obvious from her reasons that she found Mr. Charrier to be a credible witness. 13 She concluded her decision by stating “[w]hen I review the evidence as a whole, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Menow sexually assaulted [the complainant]” (at para. 48). R. v. Menow Cameron J.A. 47

The Grounds of Appeal 14 The accused raised three grounds of appeal: 1. That the trial judge erred in the application of the test set out in W. (D.); 2. That the trial judge erred in law by requiring corroborating evidence to be called by the accused; and 3. That the trial judge failed to give sufficient reasons for not believing the testimony of the accused or why a reasonable doubt was not raised.

Analysis 1. That the trial judge erred in the application of the test set out in W. (D.). 15 The accused alleges that the trial judge erred in her application of the test set out in W. (D.) in two ways. First, he alleges that she misapplied the first stage of analysis in W. (D.) by considering his evidence in the context of the case as a whole and by conflating the first and second stages of the analysis. Second, he contends that she materially misapprehended or was mistaken regarding certain evidence that she relied on in her determination that he was not believable.

a) Application of the Test in W. (D.) 16 Every person is presumed to be innocent until the Crown has proven his or her guilt beyond a reasonable doubt. In W. (D.), the Supreme Court warned that verdicts of guilt should not be based on “whether [triers of fact] believe the defence evidence or the Crown’s evidence” (at p. 757). Rather, the paramount question is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused. To ensure the trier of fact remains focussed on the principle of reasonable doubt, the court suggested that the following analysis be undertaken (at p. 758): First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence 48 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 17 In support of his position that the trial judge erred in her application of the test set out in W. (D.), the accused encourages this court to accept the following method of analysis of the first two prongs of that test: • At the first stage of the analysis the only evidence to be considered by the trier of fact is that of the accused. The trier of fact must not consider any other evidence called in the trial, but rather, must consider the evidence of the accused in isolation. Internal incon- sistencies in the accused’s evidence or other reasons within that evidence are the only basis on which the trier of fact may determine whether an accused is believed or not. • If the evidence of the accused is disbelieved, the trier of fact then proceeds to consider his or her evidence in the context of all of the evidence called at the trial, including the evidence provided by the Crown to determine whether there exists a reasonable doubt as to guilt. 18 Based on the above approach, the accused argues that the trial judge erred by considering the evidence of the complainant and Mr. Charrier when she gave her reasons for concluding that the accused was not believable. He alleges that such an analysis amounts to choosing between the evidence of the accused and that called by the Crown. Further, he contends that consideration of the Crown evidence in the manner and order that she did led the trial judge to err in conflating the first and second steps of the W. (D.) analysis, which resulted in her summarily stating in her decision that she did not believe him and that his evidence did not raise a reasonable doubt. He contends that such a faulty analysis would not have occurred if she had considered his evidence in isolation, as he suggests. 19 The position of the Crown is that the analysis in W. (D.) is contextual and that the trier of fact is entitled to consider all of the evidence called at the trial. The trier of fact should not consider the accused’s evidence in isolation. 20 The manner in which evidence can be considered in the application of the test in W. (D.) is a question of law. Therefore, the parties agree, as do I, that the standard of review is correctness. See R. v. Jaw, 2008 NUCA 2 (Nun. C.A.) at para. 54, (2008), 432 A.R. 297 (Nun. C.A.), R. v. Vuradin, 2011 ABCA 280 (Alta. C.A.) at paras. 46-49, (2011), 515 A.R. 25 (Alta. C.A.), R. v. Liberatore, 2010 NSCA 82 (N.S. C.A.) at para. 9, R. v. Mc- R. v. Menow Cameron J.A. 49

Intosh, 2010 ABCA 352 (Alta. C.A.) at para. 2, (2010), 493 A.R. 254 (Alta. C.A.). 21 The issue of whether or not the evidence of an accused should be analyzed in isolation was specifically considered by the Ontario Court of Appeal in the case of R. v. Hoohing, 2007 ONCA 577 (Ont. C.A.). In that case, the accused appealed their convictions for sexual assault. They complained that when instructing the jury, the trial judge explained the first prong of the W. (D.) approach by stating “if you accept the evidence favouring the particular accused ... and find it to be factually true when weighed against the contradictory evidence you must acquit that accused on that count” (at para. 12). One of the grounds of appeal was that such an instruction had the effect of suggesting to the jury that they should choose between the evidence of the accused and that of the complainant. Feldman J.A., writing on behalf of the court, rejected that argument and noted that the trial judge properly told the jury that they were not com- pelled to choose between the evidence favouring the Crown and the evidence favouring the accused (at para. 14). She then stated (at para. 15): He also properly told the jury that they were to weigh the evidence cumulatively and not in isolation. A jury does not consider an accused’s version of events in isolation as if the Crown had led no evidence. When the jury is applying the first two prongs of the three- pronged test in W. (D.), they are deciding whether they accept the accused’s version of events or whether it leaves them with a reasonable doubt. Clearly they can only do that by assessing the accused’s evidence and the other evidence that favours the accused in the context of all the evidence. See R. v. Hull, [2006] O.J. No. 3177 at para. 5 (C.A.). The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt. 22 Feldman J.A. noted that the court had recently considered the same wording as that used by the trial judge and held that, although it was not the preferred wording, it did not constitute an error (at para. 16): This court recently considered the same impugned wording in the case of R. v. Campbell, [2003] O.J. No. 1352. Relying on its earlier 1996 decision in R. v. D.L.M., [1996] O.J. No. 3596, the court held that the wording in question did not constitute an error. In Campbell, the court acknowledged that “it would have been preferable to describe this step in terms of considering the accused’s evidence in the context of the entirety of the evidence, since this steers more clearly 50 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

away from the risk of simply choosing between the accused’s evidence and the complainant’s evidence.” However, the court did not consider the language fatal because it does not invite the jury to choose between the two versions but recognizes that the jury can only consider the accused’s evidence in the context of the other evidence. See also R. v. Requina, [1994] O.J. No. 1133 (C.A.) at paras. 5-6. See also R. v. Chittick, 2004 NSCA 135 (N.S. C.A.) at paras. 23-24, (2004), 228 N.S.R. (2d) 81 (N.S. C.A.), and R. v. Mends, 2007 ONCA 669 (Ont. C.A.) at para. 18 (QL). 23 Based on the above, I would reject the method of analysis suggested by the accused. To assess the evidence of the accused in a vacuum ignores the fact that the whole purpose of the trial is to determine whether or not the accused is guilty of the offence for which he or she is charged. It is impossible for an accused’s evidence to be considered without a factual or contextual backdrop for the charge itself. Furthermore, such a method of analysis would effectively prevent the court from considering evidence favourable to the accused when deciding whether or not to believe him or her. To ignore evidence favourable to an accused person in assessing his or her credibility is contrary to principles of fundamental justice. 24 The accused maintains that the trial judge also fell into error by ana- lyzing his evidence and finding him unbelievable in the first stage of her analysis. He says that this order of analysis caused her to conflate the first and second prongs of the W.(D.) test in that, having already found him unbelievable, there was nothing left for her to consider in respect of the other evidence called in the trial. 25 In the recent case of R. v. Vuradin, 2013 SCC 38 (S.C.C.) (released after the oral hearing of this matter) Karakatsanis J. writing on behalf of a unanimous court, clearly rejected such a notion when she stated (at para. 21): .... The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration. .... 26 Moreover, contrary to the accused’s assertion that the trial judge con- flated the first and second stages of the W.(D.) analysis, failure by the trial judge to specifically analyze the second prong of W. (D.) does not necessarily constitute an error in law. See R. v. B. (D. K.), 2012 MBCA R. v. Menow Cameron J.A. 51

114 (Man. C.A.) at paras. 5-6, and R. c. Gagnon, 2006 SCC 17 (S.C.C.) at para. 11, [2006] 1 S.C.R. 621 (S.C.C.). 27 In Vuradin, this concept was reinforced by Karakatsanis J. when she stated (at para 27): In the result, the trial judge rejected the appellant’s testimony. In Boucher [2005 SCC 72, [2005] 3 S.C.R. 499], Charron J. (dissenting in part) stated that when a trial judge rejects an accused’s testimony, “it can generally be concluded that the testimony failed to raise a reasonable doubt in the judge’s mind” (para. 59). Similarly, in R.E.M. [2008 SCC 51, [2008] 3 S.C.R. 3], McLachlin C.J. stated that “the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt” (para. 66). 28 In this case, it is clear that the trial judge rejected the testimony of the accused to such an extent that she was left with no reasonable doubt after conducting the first two stages of the W.(D.) analysis. Therefore, the accused’s argument with respect to the manner in which the trial judge undertook the W. (D.) assessment cannot be sustained.

b) Material Misapprehension of the Facts in the Application of W. (D.) 29 Alternatively, with respect to his argument regarding W. (D.), the accused states that when the reasons cited by the trial judge for disbelieving him are carefully considered, it is apparent that they cannot support the finding that he was unbelievable or that his evidence failed to raise a reasonable doubt. He says that many of the reasons given by the trial judge for not accepting his evidence constituted material misapprehen- sions of the evidence or did not place it in context. In support of his argument he relies on the decision in R. v. H. (J.C.), 2011 NLCA 8, 304 Nfld. & P.E.I.R. 141 (N.L. C.A.). In that case, the court held that after careful scrutiny of each of the four reasons given by the trial judge for disbelieving the accused’s evidence, none of them survived because they did not accord with the evidence, and therefore, the trial judge’s assessment of the accused’s credibility was fatally flawed. 30 The Crown argues that the trial judge only misapprehended one piece of evidence, and that the misapprehension was not determinative of her finding that the accused was not believable in the context of all of the evidence. Further, the Crown argues that findings of credibility are entitled to a high level of deference. 52 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

31 In reviewing the decision of the trial judge, the court can consider the reasons of the trial judge in the context of the entire record and the evidence as a whole. See R. v. Rocha, 2009 MBCA 26 (Man. C.A.) at para. 31, (2009), 236 Man. R. (2d) 213 (Man. C.A.), and R. v. M. (R.E.), 2008 SCC 51 (S.C.C.) at para. 37, [2008] 3 S.C.R. 3 (S.C.C.). 32 The standard of deference to be accorded to the trial judge’s determinations regarding credibility is high. As noted by Chartier J.A. (as he then was) in Rocha (at para. 35): .... It has been stated repeatedly and recently, that rarely will defi- ciencies in the trial judge’s credibility analysis warrant appellate intervention. .... 33 I turn now to the specific points complained of by the accused. First, the accused states that the trial judge misapprehended the evidence in the first problem she identified. The trial judge said that the accused’s testimony that he and the complainant first kissed when he was helping her out of the back of the pick-up truck was contradicted by the complainant’s testimony that she sat in the front cab of the truck. The accused asserts that, in fact, the complainant testified that she was in the box of the pick-up truck. 34 I agree that the accused is correct when he states that the trial judge misapprehended the evidence. A review of the transcript shows that the complainant testified that she was in the box of the pick-up truck. Specif- ically, she was cross-examined as follows: Q You stated that you went back to the cabins with the truck- load of guys, they gave you a ride back. Right? From the - from the social. A Yeah. Q Was Mr. Menow, my client, in the vehicle? A Yes, he was. Q When you got out of the vehicle did you say anything to him or touch him or kiss him in any way whatsoever? A No, because he was in the backseat of the truck and I was in the box of the truck. Q Right. I mean when you got out of the vehicle. A No. 35 It is apparent that the trial judge mixed up the complainant’s testimony by reversing the positions of the complainant and the accused in the pick-up truck. In my view, this simple mix up is not material. At the R. v. Menow Cameron J.A. 53

end of the day, the point is the same: the complainant testified that she did not touch or kiss the accused when she got out of the pick-up truck because they were in different parts of the truck. Most importantly, the complainant did not agree with the accused’s testimony that they were both in the box of the truck and that after he jumped out of the box of the truck he helped her off. 36 With respect to the second problem identified by the trial judge, the accused argues that she materially misapprehended his evidence when she found that he contradicted himself. Specifically, the accused testified that when the group returned to the camp after the social, the complainant tried to take him back to her cottage. He said that he did not want to go with her because he wanted to drink some more. Later, he testified that he knew that the complainant had alcohol in her cottage and that the sole reason why he went to her cottage later in the evening was to borrow a bottle of liquor. He states that the trial judge did not consider the context in which the above evidence was given. 37 A review of the transcript shows that the trial judge did not misstate or misapprehend the evidence. In my view, she was entitled to find a contradiction in the area she identified and that finding is entitled to deference. 38 Next, the accused argues that the trial judge was mistaken in the third problem that she identified when she said that the complainant and Mr. Charrier contradicted the accused’s testimony that when he went into the bedroom, the complainant was not wearing a shirt. In making this finding, she noted that neither Mr. Charrier nor the complainant testified that her shirt was removed, but both testified that the complainant’s pants were down. The accused argues that contrary to the trial judge’s statement, neither the complainant nor Mr. Charrier testified as to whether or not the complainant was wearing a shirt. He argues that because there was no evidence either way, a contradiction cannot be found to exist. 39 It is true that neither party was asked whether or not at the material time the complainant was wearing a shirt. However, while the trial judge could have more carefully formulated her reasons, the point is that, again, the accused’s evidence was contradicted by that of the complainant and Mr. Charrier who both testified that the accused and the complainant had their pants off. This was contrary to the accused’s testimony that he had his pants on at all times during his interaction with the complainant in her house. 54 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

40 Regarding the fifth problem that the trial judge identified, the accused argues that she misapprehended the evidence when she found that the accused’s testimony that he had a conversation with Mr. Charrier in the complainant’s cottage was contradicted by Mr. Charrier’s evidence that he believed that the accused did not see him. 41 The accused argues that it was wrong for the trial judge to place any weight on Mr. Charrier’s “belief” or impression that the accused did not see him come into the room. I disagree. Mr. Charrier testified that when he entered the complainant’s cottage he briefly turned on the light and saw the complainant, who appeared to be sleeping, bent over the chair with her pants pulled down and the accused behind her with his pants pulled down. Mr. Charrier was cross-examined on this point as follows: Q You said that you didn’t think that [the accused] knew that you were there. He didn’t notice that all of a sudden the light came on for a second and off again? A No. Q How does somebody not notice that? A I don’t know. Q So you think he was extremely focused on what he was doing and he didn’t see you? A Could very well be. I can’t - I can’t speak for him. You’d have to ask him that. Q Sure. Of course. But he didn’t look up at you at all? A No. Q There was nothing spoken? A No. 42 Based on the questions asked and the answers given, there was sufficient explanation for the trial judge to conclude that the accused did not notice Mr. Charrier. Therefore, the trial judge did not misapprehend the evidence when she put weight on Mr. Charrier’s testimony in this regard. Mr. Charrier’s “belief” was well founded and explained. 43 Next, the accused argues that the trial judge misapprehended the evidence in the sixth problem she identified. That is, she found that the accused’s testimony about the complainant’s demeanor the morning following the incident was contradicted by the testimony of Mr. Spring. 44 The accused maintains that the trial judge was wrong to compare Mr. Spring’s evidence respecting the demeanor of the complainant to that of the accused because they saw her at different times. Mr. Spring testified that he arrived at work at about 7:00 a.m. The complainant testified that R. v. Menow Cameron J.A. 55

she arrived at work at about 7:30 a.m. In direct examination she described the events as they unfolded: A Well when I had got there [work] I went in and grabbed the guys time card and that stuff and [Mr. Sinclair] and [Mr. Spring] knew right by looking at me that something was wrong. So I went to my desk and [Mr. Sinclair] came in there and was asking me what was wrong and stuff like that and then I eventually told him. Q Did you - did you see [the accused] again that day? A Yeah. Q And when did you see him? A I don’t know, maybe a half hour later or something. .... Q Now after you had told [Mr. Sinclair] and [Mr. Spring] what - what happened where did you go? A After they knew - well, I told [Mr. Sinclair] (inaudible) told [Mr. Spring]. Then they wanted to talk to me. But I was mad that [Mr. Sinclair] had went behind my back. He promised me he wouldn’t say anything and told [Mr. Spring]. So I got in my vehicle and [Mr. Sinclair] jumped in with me and we went back to my cabin. So we talked and I eventually told him who it was and then we went to Thompson. 45 Mr. Spring testified that when the complainant came into work “it looked like she had been crying” and that she looked like she was “upset” so he asked Mr. Sinclair to speak to her. He said that he saw the accused that day at around 9:00 a.m. 46 The accused testified that he headed for work at around 8:00 a.m. He said that when he saw the complainant she looked “fine” and that she “didn’t seem like nothing was wrong with her.” 47 None of the times testified to were precise. However, regardless of the exact timeframe, it is clear that the trial judge inferred, based on all of the evidence, that the complainant was upset the morning after the incident and that it was apparent to others. It is also clear that the trial judge was pointing out what she considered to be a contradiction in the evidence of Mr. Spring and that of the accused in the context of the whole of the evidence. Even if the contradiction was not the strongest, it was one the trial judge could find in her assessment of the accused’s credibility. 48 The foregoing review of the evidence demonstrates that the trial judge misstated the evidence on only one occasion as described in paras. 56 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

33-35 herein. In providing her reasons, the trial judge was emphasizing that the accused’s evidence was contradicted by other evidence which she found to be credible. The trial judge did not have to list every contradiction. That said, a review of the transcript indicates that the accused’s evidence was contradicted by other evidence called at the trial in many more areas than those listed by the trial judge. 49 In sum, based on all of the above, I do not find that the trial judge misapprehended the evidence in any material aspect or that any misapprehension played an essential part in her application of the W.(D.) analysis.

2. That the trial judge erred in law by requiring corroborating evidence to be called by the accused. 50 There are two instances where the trial judge mentioned that certain evidence given by the accused was not corroborated and that this was of concern to her. However, contrary to the accused’s suggestion, nowhere in the trial judge’s decision does she suggest that the accused was required to call any evidence or that any such onus existed. As I read her comments, the trial judge was simply noting that there was no evidence consistent with the evidence of the accused. Moreover, as pointed out by the Crown, the witnesses who were called at the trial could have corroborated, or not, the accused’s testimony. 51 It is not improper for the trier of fact to consider a lack of evidence in the context of the case as a whole. For example, in R. v. Kozakowski, 2009 MBCA 32 (Man. C.A.), the accused was charged with aggravated assault and assault. In convicting the accused, the trial judge was aware that the case turned on credibility. In upholding the trial judge’s finding that the accused was not credible, Chartier J.A. (as he then was) stated (at para. 5): Key to the trial judge’s decision was his finding that the accused’s version of events was not corroborated on a substantive point by a single witness, not even by his friend ...... As in this case, a fair reading of the reasons shows that the trial judge was simply stating a fact, that is, that there was no evidence consistent with the evidence of the accused. 52 In my view, an examination of the two concerns that the trial judge had regarding lack of evidence shows that each involved areas of substance in the accused’s version of events. R. v. Menow Cameron J.A. 57

53 First, despite the accused’s testimony that many people were nearby when he and the complainant kissed, nobody else testified that they kissed at that time. The substantive significance of this evidence to the accused would be to try to encourage a trier of fact to infer that because the complainant was a willing participant in the initial kiss, she was at- tracted to him and more likely to have interacted with him at her cottage in the manner he described. 54 Second, the trial judge noted there was no evidence of the fact that the accused’s friend was waiting outside for him to get the liquor from the complainant. While at first this concern may seem insignificant, it does take on substance when consideration is given to the fact that the accused testified that the only reason he went to the complainant’s cottage was to get liquor for his friend. It was during this time that Mr. Charrier testified that he walked from his cottage to the complainant’s cottage and saw the accused and complainant. In his testimony, Mr. Charrier made no mention of the accused’s friend whatsoever, despite the fact that the accused testified that she originally went to Mr. Char- rier’s cottage. 55 In consideration of the above, I conclude that the trial judge did not err when she took into account the fact that there was no evidence to support the accused’s testimony regarding the above two points.

3. That the trial judge failed to give sufficient reasons for not believing the testimony of the accused or why a reasonable doubt was not raised. 56 The accused argued that because each of the reasons given by the trial judge for rejecting his evidence constituted an error, there were no reasons left for the trial judge to make an adverse credibility finding against him and, therefore, her reasons were insufficient. 57 In the recent case of R. v. P. (N.H.), 2013 MBCA 30 (Man. C.A.), Hamilton J.A. undertook an analysis of the jurisprudence relating to suf- ficiency of reasons in cases where credibility is the main issue. She noted at para. 18 that in M. (R.E.), the court allowed that while reasons need not be ideal, they must be adequate. She stated (at para. 19): As explained in R.E.M., the purpose of reasons is to “show why the judge decided as he or she did” (at para. 17). Reasons will be inade- quate if they are found to be insufficient to fulfill their purpose to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal. This is to be discerned 58 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

from a functional approach to the reasons “when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded” (ibid.). 58 She continued her review of M. (R.E.) noting that, in that case, the court relied on its earlier jurisprudence to assert that the reviewing court must determine whether the trial judge appears to have “seized the substance of the issues” (at para. 22) and therefore, show that the trial judge has demonstrated a recognition that credibility was a live issue (at para. 23). 59 As I earlier mentioned, after the parties argued this appeal, the Su- preme Court of Canada released its decision in the case of Vuradin. That case involved the appeal of a conviction for sexual assault on the basis that the reasons of the trial judge were insufficient and that the trial judge erred in not following the analysis in W. (D.). In Vuradin, the court re- peated and reinforced its previous reasoning in M. (R.E.) (at para. 13): In R.E.M., this Court also explained that a trial judge’s failure to explain why he rejected an accused’s plausible denial of the charges does not mean the reasons are deficient as long as the reasons generally demonstrate that, where the complainant’s evidence and the accused’s evidence conflicted, the trial judge accepted the complainant’s evidence. No further explanation for rejecting the accused’s evidence is required as the convictions themselves raise a reasonable inference that the accused’s denial failed to raise a reasonable doubt (see para. 66). [emphasis added] 60 I have already concluded that the trial judge’s reasons for rejecting the accused’s evidence are not wrong in any material aspect. Further- more, they demonstrate that where the accused’s evidence conflicted with the complainant’s, the trial judge accepted the complainant’s evidence. In terms of the first two stages of the W.(D.) analysis nothing further was required of her. 61 Furthermore, for the reasons I have stated at paras. 11-13, the trial judge considered the evidence given by the complainant and gave reasons why she found it credible based on the evidence as a whole. 62 In sum, reasons are only insufficient insofar as they do not: i) explain the decision to the parties; ii) provide public accountability; and iii) permit effective appellate review. Here the trial judge explained why she found the accused guilty; she believed the complainant and the other witnesses and she disbelieved the accused. She considered all of the evi- R. v. Menow Cameron J.A. 59

dence called by the Crown and concluded that it convinced her that the accused was guilty beyond a reasonable doubt. The reasons satisfied all of the above requirements and were not insufficient.

Conclusion 63 In conclusion, I find that none of the grounds raised by the accused convince me that the conviction should be set aside. I would dismiss the appeal.

Michel A. Monnin J.A.:

I agree:

Barbara M. Hamilton J.A.:

I agree: Appeal dismissed. 60 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

[Indexed as: Boxer Capital Corp. v. JEL Investments Ltd.] Boxer Capital Corporation and Yanco Management Ltd., Respondents (Petitioners) and JEL Investments Ltd., Appellant (Respondent) Boxer Capital Corporation, Yanco Management Ltd. and Chung Properties Ltd., Respondents (Plaintiffs) and JEL Investments Ltd. and Les Sallay, Appellants (Defendants) and Marine Land Development Ltd., Jeana Ventures Ltd. Lily Lo, Miriam Pallai, Donald Ruttan, Norman Chung, Christine Chung, Barbara Marrie, Properties Worldwide Limited, 0765998 B.C. Ltd., Felix Tam, Alicia Tam, Melvyn Ackerman Inc., Ronald Robertson, and all other Defendants not known and collectively referred to as John Doe and Mary Doe, Respondents (Defendants) Boxer Capital Corporation, Yanco Management Ltd. and Chung Properties Ltd., Respondents (Plaintiffs) and JEL Investments Ltd. and Les Sallay, Appellants (Defendants) and Marine Land Development Ltd., Jeana Ventures Ltd. Lily Lo, Miriam Pallai, Donald Ruttan, Norman Chung, Christine Chung, Barbara Marrie, Properties Worldwide Limited, 0765998 B.C. Ltd., Felix Tam, Alicia Tam, Melvyn Ackerman Inc., Ronald Robertson, and all other Defendants not known and collectively referred to as John Doe and Mary Doe, Respondents (Defendants) Boxer Capital Corporation, Yanco Management Ltd. and Chung Properties Ltd., Respondents (Plaintiffs) and JEL Investments Ltd. and Les Sallay and all other Defendants not known and collectively referred to as John Doe and Mary Doe, Respondents (Defendants) and Marine Land Development Ltd., Jeana Ventures Ltd. Lily Lo, Miriam Pallai, Donald Ruttan, Norman Chung, Christine Chung, Barbara Marrie, Properties Worldwide Limited, 0765998 B.C. Ltd., Felix Tam, Alicia Tam, Melvyn Ackerman Inc. and Ronald Robertson, Appellants (Defendants) British Columbia Court of Appeal Docket: Vancouver CA040827, CA040909, CA040913 2013 BCCA 297 Donald, Neilson, Hinkson JJ.A. Boxer Capital Corp. v. JEL Investments Ltd. 61

Heard: June 11, 2013 Judgment: June 14, 2013 Alternative dispute resolution –––– Arbitration awards — Finality of award –––– Parties entered into co-owners agreement (COA) with respect to parcel of development property — Petitioners declined respondent’s offer to sell its interest to petitioners, triggering petitioners’ obligation to sell to respondent — Arbitrator ordered that respondent was obligated to buy petitioner’s interests and pay $765,732.26 as compensation for capital adjustments, and to execute indemnity agreement and written instrument terminating COA — On appeal of arbitration award, provisions requiring payment of capital adjustment were set aside — Petitioners commenced action, alleging they had continuing interest in property and seeking restitutionary remedies — Respondent’s application to stay action was allowed pending determination of issues in second arbitration — Second arbitrator found that petitioners had no continuing interest in property after effective date of termination agreement — Second arbitrator determined that principle of res judicata did not apply to arbitration award and that termination agreement ordered as term of award was effective to fully separate parties’ interests — Petitioners’ application for leave to appeal two arbitration awards was granted on basis that res judicata argument raised important question of principle on central dispute between parties — Respondent appealed — Appeals dismissed — Argument that judge erred in concluding that interpretation of COA was relevant to leave application failed since definition of issues in judge said nothing about interpretation of COA — Issue of whether COA was ancillary to award that was partially set aside on terms that rendered termination agreement inoperative addressed question of law and leave to appeal was properly granted — Petitioners raised issue of res judicata squarely with second arbitrator who determined that issue before him was different from that before first arbitrator, and res judicata could not arise from judge’s decision because judge had no jurisdiction to construe COA — Res judicata was live issue on application for leave to appeal and judge was not wrong in granting leave in respect of it. Alternative dispute resolution –––– Appeal from arbitration awards — Leave to appeal — Miscellaneous –––– Parties entered into co-owners agreement (COA) with respect to parcel of development property — Petitioners declined respondent’s offer to sell its interest to petitioners, triggering petitioners’ obligation to sell to respondent — Arbitrator ordered that respondent was obligated to buy petitioner’s interests and pay $765,732.26 as compensation for capital adjustments, and to execute indemnity agreement and written instrument terminating COA — On appeal of arbitration award, provisions requiring payment of capital adjustment were set aside — Petitioners commenced action, alleging they had continuing interest in property and seeking restitutionary remedies — Respondent’s application to stay action was allowed pending determination of 62 WESTERN WEEKLY REPORTS [2013] 12 W.W.R. issues in second arbitration — Second arbitrator found that petitioners had no continuing interest in property after effective date of termination agreement — Second arbitrator determined that principle of res judicata did not apply to arbitration award and that termination agreement ordered as term of award was effective to fully separate parties’ interests — Petitioners’ application for leave to appeal two arbitration awards was granted on basis that res judicata argument raised important question of principle on central dispute between parties — Re- spondent appealed — Appeals dismissed — Argument that judge erred in concluding that interpretation of COA was relevant to leave application failed since definition of issues in judge said nothing about interpretation of COA — Issue of whether COA was ancillary to award that was partially set aside on terms that rendered termination agreement inoperative addressed question of law and leave to appeal was properly granted — Petitioners raised issue of res judicata squarely with second arbitrator who determined that issue before him was different from that before first arbitrator, and res judicata could not arise from judge’s decision because judge had no jurisdiction to construe COA — Res judicata was live issue on application for leave to appeal and judge was not wrong in granting leave in respect of it. Civil practice and procedure –––– Judgments and orders — Res judicata and issue estoppel — Res judicata — Nature of prior proceedings — Gen- eral principles –––– Parties entered into co-owners agreement (COA) with respect to parcel of development property — Petitioners declined respondent’s offer to sell its interest to petitioners, triggering petitioners’ obligation to sell to respondent — Arbitrator ordered that respondent was obligated to buy petitioner’s interests and pay $765,732.26 as compensation for capital adjustments, and to execute indemnity agreement and written instrument terminating COA — On appeal of arbitration award, provisions requiring payment of capital adjustment were set aside — Petitioners commenced action, alleging they had continuing interest in property and seeking restitutionary remedies — Respondent’s application to stay action was allowed pending determination of issues in second arbitration — Second arbitrator found that petitioners had no continuing interest in property after effective date of termination agreement — Second arbitrator determined that principle of res judicata did not apply to arbitration award and that termination agreement ordered as term of award was effective to fully separate parties’ interests — Petitioners’ application for leave to appeal two arbitration awards was granted on basis that res judicata argument raised important question of principle on central dispute between parties — Respondent appealed — Appeals dismissed — Argument that judge erred in concluding that interpretation of COA was relevant to leave application failed since definition of issues in judge said nothing about interpretation of COA — Issue of whether COA was ancillary to award that was partially set aside on terms that rendered termination agreement inoperative addressed question of law and leave to appeal was properly granted — Petitioners raised issue of res judicata squarely with Boxer Capital Corp. v. JEL Investments Ltd. Donald J.A. 63

second arbitrator who determined that issue before him was different from that before first arbitrator, and res judicata could not arise from judge’s decision because judge had no jurisdiction to construe COA — Res judicata was live issue on application for leave to appeal and judge was not wrong in granting leave in respect of it. Cases considered by Donald J.A.: Housen v. Nikolaisen (2002), 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, 2002 CarswellSask 178, 2002 CarswellSask 179, 2002 SCC 33, 30 M.P.L.R. (3d) 1, 219 Sask. R. 1, 272 W.A.C. 1, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, REJB 2002-29758 (S.C.C.) — referred to JEL Investments Ltd. v. Boxer Capital Corp. (2011), 2011 BCSC 1526, 2011 CarswellBC 2938, [2011] B.C.J. No. 2139 (B.C. S.C.) — referred to Statutes considered: Arbitration Act, R.S.B.C. 1996, c. 55 s. 31 — referred to

APPEALS from judgments reported at Boxer Capital Corp. v. JEL Investments Ltd. (2013), 2013 BCSC 678, 2013 CarswellBC 1009, 48 B.C.L.R. (5th) 152, [2013] 12 W.W.R. 68 (B.C. S.C.) and Boxer Capital Corp. v. JEL Investments Ltd. (2013), 2013 CarswellBC 1381, 2013 BCSC 856, 48 B.C.L.R. (5th) 163, [2013] 12 W.W.R. 79 (B.C. S.C.), granting application for leave to appeal two arbitration awards.

I.G. Nathanson, Q.C., for Appellant, JEL Investments C.E. Hunter, for Appellants, CA040913 D.C. Harbottle, for Respondents

Donald J.A. (orally):

1 This is an appeal from the following order: THIS COURT ORDERS that: 1. Leave to appeal the two arbitration awards of Gerald W. Ghikas, QC is granted on the following issues: (a) the arbitrator erred in law by holding that the doctrine of res judicata did not apply to the Arbitration Award of Thomas R. Braidwood, Q.C. dated March 23, 2009 and the subsequent decision of Goepel J. at 2011 BCSC 1526 (B.C. S.C.); and (b) the arbitrator erred in law in holding that a Termination Agreement ordered as a term of the Braidwood Award was effective to fully separate the parties’ interests, and therefore 64 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

the Petitioners did not have a continuing interest in the joint venture project post-September 22, 2009, the effective date of the Termination Agreement. 2. The Petitioner shall recover its costs of and incidental to this application from the Respondent. 2 The appellant takes three points: 1. The judge misconceived the issue before him as involving an interpretation of a joint venture agreement. 2. The judge erred in holding that the arbitrator’s treatment of a termination agreement involved a question of law rather than mixed fact and law. 3. The judge erred by failing to exercise a discretion to refuse leave because he failed to appreciate that res judicata was not an issue relevant to the determination of the leave application. 3 The dispute concerns a property development scheme in North Van- couver. The respondents put more money into the venture than the appellant but their co-owners agreement (COA) provided that the appellant hold a 50% interest in the project and the two respondents 25% each with provision for later adjustment as the project proceeded. 4 The parties fell out and the appellant triggered the compulsory buyout clause in the COA. The upshot was that the appellant asserted the right to buy out the respondents for an amount that did not equalize the difference in capital contributions, while the respondents insisted that the price must include the difference. 5 They went to arbitration. Thomas Braidwood, Q.C. decided in favour of the respondents, having implied a term in the COA providing for equalization of capital on a compulsory buyout. 6 Ultimately, the award was appealed to the Supreme Court. Mr. Justice Goepel ruled that the arbitrator erred in finding that it was necessary to imply the term that he did because according to his reading of the COA, the disproportionate contribution of the respondents “remains in the project” despite the buyout, and the respondents will share in whatever profits the venture may earn in the terms provided in the COA: [53] In the circumstances of this Agreement, the Shotgun does not completely separate the parties’ interests. The Shotgun allows JEL to acquire the Respondents’ shares, but the Respondents’ disproportionate capital contribution remains in the project. If the venture is profit- able, those sums will be paid to the Respondents in priority to JEL pursuant to the provisions of Part 4 of the Agreement. Boxer Capital Corp. v. JEL Investments Ltd. Donald J.A. 65

7 The parties concluded the buyout. The respondents were paid the un- disputed amount and the disputed amount was placed in trust. The respondents gave the appellant a release of all claims which reserved the right to pursue recovery of the disproportionate contribution. 8 The appellant then referred a number of issues to yet another arbitrator, claiming declarations to the effect that the COA was validly terminated, the respondents have been fully paid, and they retain no further interest in the project. 9 The new arbitrator, Gerald Ghikas, Q.C., granted the appellant’s claims. The respondents sought leave to appeal on questions of law and obtained the order recited at the beginning of these reasons. 10 The first ground of appeal alleges that the judge erred in concluding that the interpretation of the COA was relevant to the leave application. 11 At para. 19 of the judge’s reasons, he wrote: [19] Despite an impressive submission by Irwin Nathanson, Q.C. I am satisfied that interpretation of the Termination Agreement and the Co-Owners’ Agreement are questions of law for the reasons expressed by the Court of Appeal in this case at paras. 22, 23 and 25. 12 Since the definition of the issues in the judge’s order says nothing about an interpretation of the COA and he did not elaborate on the matter further in his reasons, I cannot give effect to this point. 13 The second ground of appeal alleges that the issue relating to the termination agreement is one of mixed fact and law and therefore leave ought not to have been granted: see s. 31 Arbitration Act, R.S.B.C. 1996, c. 55. 14 Some further background is necessary. In his award, Mr. Braidwood directed the parties to execute a termination agreement to bring their dispute to a close. When the appellant refused to accept the award, the respondents obtained an order of the Supreme Court incorporating the terms of the award, including the requirement to execute a termination agreement. Prior to Goepel J.’s judgment, the respondents signed the termination agreement and sent it to the appellant’s lawyers. The agreement was premised on the payment of the full amount of the award. 15 The release containing the proviso that the respondents may pursue recovery of the disproportionate contribution was not executed until long after the termination agreement was delivered by the respondents. 16 These facts and others which may be said to bear on the termination agreement are not in dispute. 66 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

17 What is contested in the second issue on which leave was granted are the applicable principles governing the validity of the termination agreement. Should it be treated as a subsisting agreement without regard for a subsequent judicial determination which destroyed the premise on which it was executed? That is a question of law extricable from the facts: Housen v. Nikolaisen, [2002] 2 S.C.R. 235 (S.C.C.) at para. 36. 18 The appellant argues that the validity of the termination agreement depends on the arbitrator’s appreciation of the factual matrix, including the conduct of the parties throughout and so the question is one of mixed fact and law. I respectfully disagree. There is a factual context to every question of law; such questions never arise in a vacuum. The appellant’s proposition would make virtually every commercial arbitration award immune from appellate review. No resolution of disputed facts was necessary in this case; the issue was the effect of Goepel J.’s decision on the validity of the termination agreement. It will be argued that the agreement was ancillary to an award that was partially set aside on terms that rendered the termination agreement inoperative. In my opinion, that addresses a question of law. 19 The third ground alleges the judge failed to exercise his discretion against granting leave. The appellant advances two arguments. First, the appellant says that the dispute has dragged on too long and the objectives of arbitration, speed and finality, would be frustrated by another appeal. To that, one could answer that it seems the matter has dragged on long enough for the appellant to secure a winning award and it is now time to stop. 20 I do not find this argument persuasive. This is a complex matter. The appellant has taken a number of proceedings to challenge adverse rulings and it cannot now say that the respondents should be barred from taking the same course. 21 The second argument is that the judge failed to appreciate that res judicata was not an issue before him and so the issues were stale and should not be subject to further proceedings. I cannot accept this argument. The respondents raised the issue of res judicata squarely with Mr. Ghikas and he dealt with it by determining that the issue before him was different from that with which Mr. Braidwood was concerned and in his view, res judicata could not arise from Goepel J.’s decision because the judge had no jurisdiction to construe the COA. In my opinion, res judicata was a live issue on the application for leave to appeal and the judge was not wrong in granting leave in respect of it. Boxer Capital Corp. v. JEL Investments Ltd. Donald J.A. 67

22 For these reasons, I would dismiss the appeal. There are other proceedings which are affected by the result. In appeals CA040909 and CA040913, the actions taken by the respondents to recover their interests in the project were subject to stays of proceedings pending the Ghikas arbitration, and motions for summary judgment dismissing the actions if leave to appeal the Ghikas award was refused. Appeals were taken by the appellant and by Les Sallay, the appellant’s principal, and others, seeking an order that the actions be dismissed in the event we reverse the grant of leave to appeal. Since I would not disturb the order under appeal, it follows that I would dismiss the companion appeals.

Neilson J.A.:

23 I agree.

Hinkson J.A.:

23 I agree.

Donald J.A.:

25 The appeals are dismissed. Appeals dismissed. 68 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

[Indexed as: Boxer Capital Corp. v. JEL Investments Ltd.] Boxer Capital Corporation and Yanco Management Ltd., Petitioners and JEL Investments Ltd., Respondent British Columbia Supreme Court Docket: Vancouver S126588 2013 BCSC 678 Leask J. Heard: February 1, 2013 Judgment: April 19, 2013* Alternative dispute resolution –––– Arbitration awards — Finality of award –––– Res judicata — Parties had entered into co-ownership agreement with respect to parcel of development property — Respondent offered to sell its interest to petitioner which petitioner declined triggering petitioner’s obligation to sell to respondent — Petitioner claimed respondent had to pay $1,425,000 plus additional $765,732.26 to compensate petitioner for additional funds invested at time property was purchased — Arbitrator made order declaring that respondent was obligated to buy petitioner’s interests and pay capital adjustment and executing indemnity agreement and written instrument terminating co-owners agreement — Arbitration award was converted into court order — On appeal of arbitration award, provisions requiring payment of capital adjustment of $765,732.26 were set aside — Respondent delivered executed version of termination agreement to petitioners — Petitioners commenced action stating that they had continuing interest in property and sought restitutionary remedies — Respondent’s application to stay action was allowed pending determination of issues in second arbitration — Second arbitrator found that petitioners had no continuing interest in property after effective date of termination agreement — Arbitrator determined that principle of res judicata did not apply to arbitration award and termination agreement ordered as term of award was effective to fully separate parties’ interests — Petitioners applied for leave to appeal claiming that second arbitrator erred in law in deciding that he could make determinations that differed from first arbitration and court to which his award was appealed — Ap-

*Additional reasons at Boxer Capital Corp. v. JEL Investments Ltd. (2013), 2013 CarswellBC 1381, 2013 BCSC 856, 48 B.C.L.R. (4th) 163, [2013] 12 W.W.R. 79 (B.C. S.C.); affirmed at Boxer Capital Corp. v. JEL Investments Ltd. (2013), 2013 CarswellBC 2114, 2013 BCCA 297, 48 B.C.L.R. (4th) 165, [2013] 12 W.W.R. 60 (B.C. C.A.). Boxer Capital Corp. v. JEL Investments Ltd. 69 plication allowed — Interpretation of termination agreement and co-owners agreement were questions of law — Petitioner’s res judicata argument raised important question of principle on central dispute between parties. Cases considered by Leask J.: British Columbia v. Surrey School District No. 36 (2005), 37 B.C.L.R. (4th) 36, 252 D.L.R. (4th) 430, 2005 CarswellBC 412, 2005 BCCA 106, 208 B.C.A.C. 282, 344 W.A.C. 282, 21 C.C.L.I. (4th) 157, [2005] I.L.R. I-4440, [2005] B.C.J. No. 364 (B.C. C.A.) — considered Domtar Inc. v. Belkin Inc. (1989), 39 B.C.L.R. (2d) 257, 62 D.L.R. (4th) 530, [1990] 2 W.W.R. 242, 1989 CarswellBC 163, [1989] B.C.J. No. 1714 (B.C. C.A.) — considered Greg Dowling Architects Inc. v. J. Raymond Griffin Architect Inc. (2012), 2012 BCCA 366, 2012 CarswellBC 2751, 356 D.L.R. (4th) 81, 36 B.C.L.R. (5th) 269, [2013] 1 W.W.R. 82, 327 B.C.A.C. 155, 556 W.A.C. 155 (B.C. C.A.) — followed JEL Investments Ltd. v. Boxer Capital Corp. (2010), 2010 BCSC 947, 2010 Car- swellBC 1774 (B.C. S.C. [In Chambers]) — referred to JEL Investments Ltd. v. Boxer Capital Corp. (2011), 18 B.C.L.R. (5th) 75, 303 B.C.A.C. 79, 512 W.A.C. 79, 2011 CarswellBC 639, 2011 BCCA 142, [2011] B.C.J. No. 498 (B.C. C.A.) — referred to JEL Investments Ltd. v. Boxer Capital Corp. (2011), 2011 BCSC 1526, 2011 CarswellBC 2938, [2011] B.C.J. No. 2139 (B.C. S.C.) — referred to Kelantan (Government) v. Duff Development Co. (1923), [1923] A.C. 395, [1923] All E.R. Rep. 349 (Eng. H.L.) — considered Pioneer Shipping v. B.T.P. Tioxide Ltd. (1981), [1982] A.C. 724, [1981] 2 All E.R. 1030, [1981] 2 Lloyd’s Rep. 239, [1981] Com. L.R. 197, [1981] 3 W.L.R. 292 (U.K. H.L.) — considered Student Assn. of the British Columbia Institute of Technology v. British Columbia Institute of Technology (2000), 2000 CarswellBC 1850, 2000 BCCA 496, (sub nom. British Columbia Institute of Technology (Student Assn.) v. British Columbia Institute of Technology) 192 D.L.R. (4th) 122, [2000] 10 W.W.R. 256, 8 B.L.R. (3d) 21, 80 B.C.L.R. (3d) 266, 142 B.C.A.C. 129, 233 W.A.C. 129, [2000] B.C.J. No. 1873 (B.C. C.A.) — considered Statutes considered: Arbitration Act, R.S.B.C. 1979, c. 18 s. 15 — referred to Commercial Arbitration Act, R.S.B.C. 1996, c. 55 s. 29 — referred to s. 31 — referred to s. 31(2) — considered s. 31(2)(a) — considered 70 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

Rules considered: Rules of Court, 1990, B.C. Reg. 221/90 R. 18 — referred to

APPLICATION by petitioners for leave to appeal arbitration award.

D.C. Harbottle, A. McDonell, Q.C., for Petitioners I.G. Nathanson, Q.C., for Respondent

Leask J.:

1 This is an application for leave to appeal two arbitration awards of Gerald W. Ghikas, QC dated August 20 and December 21, 2012. In the awards Arbitrator Ghikas determined that: (a) The doctrine of res judicata did not apply to the arbitration award of Thomas R. Braidwood, QC dated March 23, 2009 and the subsequent decision of Goepel J. of this Honourable Court, 2011 BCSC 1526, [2011] B.C.J. No. 2139 (B.C. S.C.); and (b) a termination agreement ordered as a term of the Braidwood award was effective to fully separate the parties’ interests, and therefore the petitioners did not have a continuing interest in the joint venture project post-September 22, 2009, the effective date of the termination agreement. 2 The procedural history of this matter is quite complex. The parties are parties to a “Co-Owners’ Agreement” with respect to the ownership of a parcel of development property in North Vancouver. The property was originally located by the principal of JEL who put down a deposit of $1.1 million. The total price for the property was $12 million; $4 million was required for closing. He persuaded Boxer and Yanco to provide $3 million shared equally between them while his contribution was to be $1 million. Despite the unequal capital contributions, the parties agreed that in the joint venture JEL would receive 50% and Boxer and Yanco together the other 50%. Boxer and Yanco would receive a preferred return of profits and priority in the repayment of their investment until the capital positions were “equalized.” 3 The “Co-Owners’ Agreement” also included a “shotgun clause” and an arbitration clause. 4 In May 2008 JEL offered to sell its joint venture interest to Boxer and Yanco for $1,425,000. They declined JEL’s offer triggering their obliga- Boxer Capital Corp. v. JEL Investments Ltd. Leask J. 71

tion to sell their interests to JEL for $1,425,000 (or $712,500 each). They declined to sell but their solicitor wrote to JEL’s solicitor stating that JEL would have to pay an additional $765,732.75 to compensate them for the additional funds they invested at the time the property was purchased. They alleged that this was a term of the Co-Owners’ Agreement. Boxer and Yanco then referred the matter to arbitration claiming that JEL was obliged to purchase their interests in the joint venture for $1,425,000 plus $765,732.26 plus interest of 8% on the $765,732.26 calculated from Au- gust 30, 2007. 5 The arbitrator, Thomas Braidwood, Q.C., made an order declaring that JEL was obliged to buy Boxer and Yanco’s interests for $1,425,000 plus the payment of a capital adjustment of $765,732.26. 6 The proceedings before Arbitrator Braidwood had been conducted on the erroneous footing that the arbitrator did not have jurisdiction to make an award for specific performance. Boxer and Yanco applied under s. 29 of the Commercial Arbitration Act and under Rule 18 of the Rules of Court to convert the Braidwood Award into an order of the Court and for an order for specific performance of the purchase obligation that Arbitra- tor Braidwood had declared to exist. JEL sought a stay of the court proceeding. On September 22, 2009 Dickson J. made an order, the terms of which were ultimately settled on November 3, 2009, as follows: 1. The application of [JEL] is dismissed. 2. The declaratory order of Thomas R. Braidwood, Q.C. dated March 23, 2009 (the “Braidwood Order”) is made an order of this Court. 3. [JEL] shall specifically perform the compulsory purchase of the [Boxer Parties’] interests in Marine Land Development Ltd. by: (a) paying to the [Boxer Parties] the purchase price of $1,425,000.00; (b) paying to the [Boxer Parties] the additional sum of $765,732.26 to compensate for capital adjustments; (c) executing an Indemnity Agreement in the form described in the Braidwood Order and delivering it to the [Boxer Parties]; (d) executing a written instrument terminating the Co-Owners Agreement described in the Braidwood Order and delivering it to the [Boxer Parties]. 72 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

4. The Defendant shall pay court order interest on the amounts set out in paragraph 3(a) and (b) in the sum of $25,531.87. 7 By a letter dated September 25, 2009, Boxer and Yanco delivered to JEL for execution the indemnity agreement and a proposed form of termination agreement “as required by the Arbitrator and ordered by the Court.” 8 JEL applied for leave to appeal the arbitration award pursuant to s. 31 of the Commercial Arbitration Act. The chambers judge, finding that the proposed appeal did not raise a question of law alone, dismissed the peti- tion. (JEL Investments Ltd. v. Boxer Capital Corp., 2010 BCSC 947 (B.C. S.C. [In Chambers])). JEL appealed to the Court of Appeal. New- bury, J.A., writing for the Court, found that JEL had raised an issue of law on the question of whether the arbitrator failed to have regard to established principles of law in deciding that a term should be implied in the Co-Owners’ Agreement. The court was also satisfied that the proposed appeal met the criteria in s. 31(2)(a) of the Commercial Arbitration Act. (JEL Investments Ltd. v. Boxer Capital Corp., 2011 BCCA 142 (B.C. C.A.)) 9 The Appeal from the Braidwood arbitration award was heard by Goepel, J. in this court. He allowed the appeal, found that the arbitrator erred in law by implying a term into the agreement and set aside the provisions in the award requiring payment of the capital adjustment of $765,732.26. (JEL Investments Ltd. v. Boxer Capital Corp., 2011 BCSC 1526 (B.C. S.C.)). 10 On December 15, 2011 JEL delivered to Boxer and Yanco an executed version of the termination agreement that had been delivered to them on September 25, 2009. The document, which was dated for reference September 22, 2009 provided that the COA and the “Joint Venture created thereunder are hereby cancelled and terminated and shall be of no further force or effect as and from the date hereof.” 11 On December 22, 2011 Boxer and Yanco commenced an action in the Supreme Court of British Columbia (New Action) against the Trustee, JEL, its principal, Les Sallay, and a number of other parties (Investors) who they allege had, or have acquired or propose to acquire, an interest in the Property or the project that was intended to be developed on the Property. In the New Action Boxer and Yanco allege that they have a continuing interest in the Project of which the defendants were or ought to have been aware and seek restitutionary remedies, including a reme- dial constructive trust and disgorgement of profits, based on unjust en- Boxer Capital Corp. v. JEL Investments Ltd. Leask J. 73

richment and other legal theories. In the alternative, Boxer and Yanco allege a continuing “right to be repaid their disproportionate capital contributions for the project pursuant to Part 4 of the [COA]” and seek damages for breach of the COA from JEL, the Trustee, Sallay and another company allegedly related to Sallay. 12 JEL applied pursuant to s. 15 of the Arbitration Act to have the New Action stayed. On May 11, 2012 Savage, J., ordered the New Action to be stayed pending determination of the issues in the new (GHIKAS) arbitration. 13 In the Ghikas arbitration JEL took the position that Boxer and Yanco have no continuing interest in the Property that was the subject matter of the COA and sought a declaration to that effect. JEL also took the position that by virtue of the Termination Agreement the COA had been terminated. JEL sought a declaration to that effect. JEL also sought other declarations which, if made, would negate some propositions that under- pin claims made in the New Action. 14 Boxer and Yanco originally took the position that arbitrator Ghikas had no jurisdiction to decide any of JEL’s claims. However, at the commencement of the hearing counsel for Boxer and Yanco advised that they abandoned and withdrew their objections to jurisdiction. Boxer and Yanco allege that JEL’s claims are without merit. 15 On August 24, 2012 Arbitrator Gerald Ghikos, Q.C. made a partial award in the following terms: 88. This Award finally determines the claims made by JEL for the First Declaration or, alternatively, the Second Declaration. I have styled this award as a “Partial Final Award” only because there are other claims made in this arbitration which I have not yet been asked to determine. My partial final award is as follows: (a) I declare that Boxer and Yanco, by reason of their sale of their Interest in the Shares and the Property pursuant to the Shotgun Clause (Article 7 of the COA) have no continuing interest in any capital or equity remaining in any of those matters defined in the COA as “Interest”, “Joint Venture”, “JY Interest”, “Shares”, “Land”, or “Property”, including any right to repayment of capital contributions and/or disproportionate equity made or claimed by them; (b) I declare that the COA was terminated as of September 22, 2009. 74 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

16 On December 21, 2012, Arbitrator Gerald Ghikos, Q.C. made a second Partial Final Award: (a) I declare that JEL has not been unjustly enriched by reason of Boxer and Yanco having contributed more capital or equity to the joint venture than JEL pursuant to the terms of the COA; (b) I declare that JEL did not and does not owe to Boxer and Yanco a fiduciary duty or a duty of good faith to repay their Disproportionate Contribution and that as and from Septem- ber 22, 2009 JEL had no continuing duty to account for distri- butions or profits from the project; (c) I declare that the Trustee does not hold the Property in trust (constructive or otherwise) for Boxer or Yanco; (d) I declare that Boxer and Yanco have no claim to a trust (constructive or otherwise) over shares held by JEL in the Trustee; (e) I declare that Boxer and Yanco have no claim to a trust (constructive or otherwise) over any past, present or future profits or proceeds received from the operation of the Property or the sale of strata lots developed or to be developed on the Property; (f) Boxer and Yanco shall pay to JEL: (i) JEL’s actual reasonable legal fees and disbursements (including arbitrator’s fees) to the date of the First Award in the amount of $103,023.47; and (ii) JEL’s actual reasonable legal fees and disbursements (including arbitrator’s fees) after the date of the First Award, as determined by agreement of the parties or, failing agreement, as determined by the arbitrator.

Issues 17 Boxer and Yanco seek leave to appeal to this Court on two issues: (1) Did Arbitrator Ghikos err in law in concluding that it was open to him to make determinations different then Arbitrator Braidwood and Goepel J.? (2) Did Arbitrator Ghikos err in law in failing to recognize that the termination agreement was moot? 18 JEL argues that leave to appeal should be refused for three reasons: (a) the Second Declaration of Arbitrator Ghikas - that pursuant to the Termination Agreement the Co-Owners’ Agreement (“COA”) was terminated as of September 22, 2009 with the result that the appli- Boxer Capital Corp. v. JEL Investments Ltd. Leask J. 75

cants, Boxer and Yanco, had no continuing Interest in the Joint Venture or any rights arising under that Agreement subsequent to September 22, 2009. The application to set aside this determination is based on an issue of mixed law and fact and therefore the application for leave to appeal must be dismissed; (b) The leave application does not meet the requirements of s. 31(2) of the Commercial Arbitration Act; (c) Given the fundamental alteration of the position of the applicants and the lengthy history of the proceedings between these parties, the court should exercise its residual discretion to refuse leave to appeal.

Question of Law 19 Despite an impressive submission by Irwin Nathanson, Q.C. I am satisfied that interpretation of the Termination Agreement and the Co-Own- ers’ Agreement are questions of law for the reasons expressed by the Court of Appeal in this case at paras. 22, 23 and 25. 20 Newbury J.A. began her discussion of this issue by saying that there was a “longstanding rule enunciated by this court and many others that a question of contractual construction per se is a question of law.” She then referred to the decision of Lambert J.A. in Domtar Inc. v. Belkin Inc. (1989), 62 D.L.R. (4th) 530 (B.C. C.A.) where he quoted Lord Diplock, for the House of Lords, in Pioneer Shipping v. B.T.P. Tioxide Ltd., [1981] 2 All E.R. 1030 (U.K. H.L.) at p. 1035: ...it is for too late to change the technical classification of the ascer- tainment of the meaning of a written contract between private parties as being ‘a question of law’ for the purposes of judicial review of awards of arbitrators...from which an appeal to a court of justice is restricted by statute to an appeal on a question of law.” (emphasis in original) 21 She continued to quote Lambert J.A. in Domtar, supra, when he referred to Viscount Cave’s reasons in Kelantan (Government) v. Duff Development Co., [1923] A.C. 395 (Eng. H.L.) at p. 409: ...no doubt a question of construction is (generally speaking) a question of law. (emphasis in original) 76 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

22 Newbury, J.A. also quoted Southin, J.A. in British Columbia v. Surrey School District No. 36, 2005 BCCA 106 (B.C. C.A.) at para. 42: [a] question of construction of a written instrument is, of course, a question of law. 23 As part of her reasoning on this subject Newbury J.A. considered whether, because a contract will be looked at in the matrix of facts in which it was made, “any question involving the implication of a term, or the interpretation of a contract, is therefore a question of mixed law and fact? 24 Her answer to that question was “not necessarily”. She then said: This conclusion has now been clearly endorsed in 269893 Alberta Ltd. v. Otter Bay Developments Ltd., 2009 BCCA 37 where Chiasson J.A. for the Court expressly rejected the argument that the construction of a contractual provision is (always) a question of mixed fact and law. 25 She then quoted a passage from Chiasson J.A.’s judgment where he stated: ...whether by arbitrator or Court, the final determination of the meaning of a contractual provision is a question of law. 26 I have also read Arbitrator Ghikas’ two Partial Final Awards and I am satisfied that his analysis consists of a detailed analysis of questions of law rather than findings of fact.

Section 31(2) of the Commercial Arbitration Act: (2) In an application for leave under subsection (1) (b), the court may grant leave if it determines that (a) the importance of the result of the arbitration to the parties justifies the intervention of the court and the determination of the point of law may prevent a miscarriage of justice, (b) the point of law is of importance to some class or body of persons of which the applicant is a member, or (c) the point of law is of general or public importance. 27 JEL’s argument that the present leave application does not meet the requirements of s. 31(2) of the Commercial Arbitration Act is answered by the Court of Appeal in this case at paras. 28 and 29. 28 Having determined that the errors asserted by JEL are errors of law, we must next consider whether the remaining statutory require- Boxer Capital Corp. v. JEL Investments Ltd. Leask J. 77

ments for leave to appeal are met. Section 31(2) of the Act provides that leave may be granted where: (a) the importance of the result of the arbitration to the parties justifies the intervention of the court and the determination of the point of law may prevent a miscarriage of justice, (b) the point of law is of importance to some class or body of persons of which the applicant is a member, or (c) the point of law is of general or public importance. 29 This issue was not discussed, for obvious reasons, by the court below, or by counsel in this court; but efficiency requires that we address it. In my view, the amount of money involved justifies the inference that the result of the arbitration would be of considerable importance to the parties. As to whether the determination of the point of law may prevent a miscarriage of justice, the alleged errors were material to the decision and thus an erroneous decision could result in a decision contrary to law. I conclude that the condition at s. 3 l(2)(a) is satisfied.

Residual Discretion 28 JEL urged the Court to apply the principle enunciated by Saunders, J.A. in Student Assn. of the British Columbia Institute of Technology v. British Columbia Institute of Technology, 2000 BCCA 496 (B.C. C.A.) at paras. 31 and 32 to the exercise of the court’s residual discretion to grant or refuse leave to appeal: 31. I do not consider that the application of any formula will determine whether a chambers judge should exercise discretion and grant leave to appeal. The discretion is to be exercised judicially, that is, trial judges will take into consideration those matters with which they are well familiar. Those matters include the apparent merits of the appeal, the degree of significance of the issue to the parties to third parties and to the community at large, the circumstances surrounding the dispute and adjudication including the urgency of a final answer, other temporal considerations including the opportunity for either party to address the result through other avenues, the conduct of the parties, and the stage of the process at which the appealed decision was made. Undoubtedly included in this assessment will be respect for the forum of arbitration, chosen by the parties as their means of resolving disputes, and recognition that arbitration is often intended to provide a speedy and final dispute mechanism, tailor made for the issues which may face the parties to the arbitration agreement. 78 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

32. I have not attempted to set out all the considerations a judge may apply to an application for leave. Nor do I intend the considerations I mentioned to be applied as an immutable checklist, which would only serve to direct a chambers judge into making the very error as occurred here. They are but examples of factors which, in my view, frequently will bear on the ultimate disposition of an application. Lastly, I must note that this decision is not intended to, nor should it, open wide a Pandora’s box of arbitration appeals. 29 The Court of Appeal has recently re-affirmed the relevance of these principles in Greg Dowling Architects Inc. v. J. Raymond Griffin Architect Inc., 2012 BCCA 366 (B.C. C.A.) at paras. 27 to 37. In that case the Court found that the issues were questions of law but exercised the residual discretion against granting leave to appeal for three reasons: (1) the appellants had acted in bad faith toward Mr. Griffin; (2) the reasons advanced by them for their expulsion of Mr. Griffin from their architectural partnership lacked substance; and (3) the temporal consideration that Mr. Griffin was in the twilight of his professional years; the dispute was several years old; and further litigation would not meet the expectation of a final resolution in a timely way. 30 In the case before me the dispute is old; the procedural history demonstrates a complete failure to achieve the arbitral goals of a speedy and final dispute resolution; nevertheless I believe leave to appeal should be granted. 31 I want to emphasize that this exercise of my discretion is not based on my assessment of the merits of the appeal. I am in complete and respectful agreement with the views expressed by Newbury, J.A. in the Court of Appeal in this case: I emphasize that I express no view on whether the arbitrator did in fact make the errors advanced by [the appellants]. 32 It is my view that leave to appeal should be granted because the res judicata argument advanced by the present appellants raises an important question of principle and on the central dispute between the parties. Arbi- trator Braidwood and Goepel, J. have arrived at similar legal conclusions and Arbitrator Ghikas has arrived at an opposite conclusion. Application allowed. Boxer Capital Corp. v. JEL Investments Ltd. 79

[Indexed as: Boxer Capital Corp. v. JEL Investments Ltd.] Boxer Capital Corporation and Yanco Management Ltd., Petitioners and JEL Investments Ltd., Respondent British Columbia Supreme Court Docket: Vancouver S126588 2013 BCSC 856 Leask J. Heard: February 1, 2013 Judgment: May 16, 2013 Alternative dispute resolution –––– Arbitration awards — Finality of award –––– Parties entered into co-owners agreement (COA) with respect to parcel of development property — Petitioners declined respondent’s offer to sell its interest to petitioners, triggering petitioners’ obligation to sell to respondent — Petitioners claimed respondent had to pay $1,425,000 plus $765,732.26 to compensate it for additional funds invested when property was purchased — Arbitrator ordered that respondent was obligated to buy petitioner’s interests and pay $765,732.26 as compensation for capital adjustments, and to execute indemnity agreement and written instrument terminating COA — On appeal of arbitration award, provisions requiring payment of capital adjustment were set aside — Petitioners commenced action, alleging they had continuing interest in property and seeking restitutionary remedies — Respondent’s application to stay action was allowed pending determination of issues in second arbitration — Second arbitrator found that petitioners had no continuing interest in property after effective date of termination agreement — Second arbitrator determined that principle of res judicata did not apply to arbitration award and that termination agreement ordered as term of award was effective to fully separate parties’ interests — Petitioners’ application for leave to appeal two arbitration awards was granted — Additional reasons were issued — On basis of counsel’s agreement, judgment should include dismissal of applications for judgment by defendants in both actions. Rules considered: Supreme Court Civil Rules, B.C. Reg. 168/2009 R. 9-6(4) — referred to

ADDITIONAL REASONS to judgment reported at Boxer Capital Corp. v. JEL Investments Ltd. (2013), 2013 BCSC 678, 2013 CarswellBC 1009, 48 B.C.L.R. (5th) 152, [2013] 12 W.W.R. 68 (B.C. S.C.), granting petitioners leave to appeal arbitration awards. 80 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

D.C. Harbottle, A. McDonell, Q.C., for Petitioners I.G. Nathanson, Q.C., for Respondent

Leask J.:

1 On the basis of counsel’s agreement, the judgment in this matter should include dismissal of the application for judgment by counsel for JEL and Les Sallay in Action No. S118836 and also dismissal of the application for judgment in Action No. S118836 by counsel for the De- fendants, Marine Land Developments Ltd., Jeana Ventures Ltd., Lily Lo, Miriam Pallai, Donald Ruttan, Normal Chung, Christine Chung, Barbara Marrie, Properties Worldwide Limited, 0765998 B.C. Ltd., Felix Tam, Alicia Tam, Melvyn Ackerman Inc. and Ronald Robertson, pursuant to Rule 9-6(4). Order accordingly. Pembina v. Director, Northern Region, Alberta (ESRD) 81

[Indexed as: Pembina Institute v. Director, Northern Region, Alberta Environment and Sustainable Resources Development] Pembina Institute, Fort McMurray Environmental Association, Applicants and Director, Northern Region, Alberta Environment and Sustainable Resources Development and Southern Pacific Resource Corp., Respondents Alberta Court of Queen’s Bench Docket: Edmonton 1203-18391 2013 ABQB 567 R.P. Marceau J. Heard: September 5, 2013 Judgment: October 1, 2013 Environmental law –––– Statutory protection of environment — Approvals, licences and orders — Judicial review — Standard of review –––– Applicants were land occupiers who submitted Statement of Concern regarding development project of respondents — Occupiers felt that oil sands project would have negative effect on lands that they held licence to occupy for recreational purposes — Tribunal director dismissed application — Occupiers claimed that director misinterpreted definition of person — Occupiers claimed that improper test was applied as to issue of who was affected by project — Occupiers finally claimed that there was breach of natural justice — Occupiers applied for judicial review, based on these grounds — Application granted — Tribunal decision quashed — Procedural fairness was not granted to occupiers, as reviewed on correctness standard. Environmental law –––– Statutory protection of environment — Environ- mental assessment — Need for assessment — Miscellaneous –––– Applicants were land occupiers who submitted Statement of Concern regarding development project of respondents — Occupiers felt that oil sands project would have negative effect on lands that they held licence to occupy for recreational purposes — Tribunal director dismissed application — Occupiers claimed that director misinterpreted definition of person — Occupiers claimed that improper test was applied as to issue of who was affected by project — Occupiers finally claimed that there was breach of natural justice — Occupiers applied for judicial review, based on these grounds — Application granted — Members of organization who were occupiers had status as persons for purpose of application — Under definition in caselaw, occupiers were “directly affected ”by project and 82 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

had right to make submissions — This was regardless as to whether other groups were making similar submissions. Administrative law –––– Requirements of natural justice — Right to hearing — Duty of fairness –––– Applicants were land occupiers who submitted Statement of Concern regarding development project of respondents — Occupi- ers felt that oil sands project would have negative effect on lands that they held licence to occupy for recreational purposes — Tribunal director dismissed application — Occupiers claimed that director misinterpreted definition of person — Occupiers claimed that improper test was applied as to issue of who was affected by project — Occupiers finally claimed that there was breach of natural justice — Occupiers applied for judicial review, based on these grounds — Ap- plication granted — Tribunal decision quashed — Procedural fairness was not granted to occupiers, as reviewed on correctness standard — Briefing note by department of environment contradicted department’s own policies, by discour- aging public participation in process — Reasons were sparse and fatally flawed, since they were reliant on briefing note — Decision contained reasonable apprehension of bias — As all principles of natural justice were breached, decision was to be quashed. Administrative law –––– Requirements of natural justice — Right to hearing — Procedural rights at hearing — Opportunity to respond and make submissions –––– Applicants were land occupiers who submitted Statement of Concern regarding development project of respondents — Occupiers felt that oil sands project would have negative effect on lands that they held licence to occupy for recreational purposes — Tribunal director dismissed application — Oc- cupiers claimed that director misinterpreted definition of person — Occupiers claimed that improper test was applied as to issue of who was affected by project — Occupiers finally claimed that there was breach of natural justice — Oc- cupiers applied for judicial review, based on these grounds — Application granted — Tribunal decision quashed — As result of process followed by department, occupiers could not respond to allegations made against it as they were not told of these allegations. Cases considered by R.P. Marceau J.: Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — followed Castle-Crown Wilderness Coalition v. Flett (2005), 2005 CarswellAlta 1250, 2005 ABCA 283, 52 Alta. L.R. (4th) 17, 17 C.E.L.R. (3d) 103, (sub nom. Castle-Crown Wilderness Coalition v. Alberta (Minister of Environment)) 371 A.R. 370, (sub nom. Castle-Crown Wilderness Coalition v. Alberta (Minister of Environment)) 354 W.A.C. 370, 33 Admin. L.R. (4th) 68 (Alta. C.A.) — followed Pembina v. Director, Northern Region, Alberta (ESRD) 83

Edmonton Police Assn. v. Edmonton (City) (2007), 76 Alta. L.R. (4th) 64, 409 A.R. 1, 402 W.A.C. 1, 2007 ABCA 184, 2007 CarswellAlta 694, 62 Admin. L.R. (4th) 246, 283 D.L.R. (4th) 695, [2007] A.J. No. 584 (Alta. C.A.) — referred to Kostuch v. Alberta (Director, Air & Water Approvals Division, Environmental Protection) (1996), 35 Admin. L.R. (2d) 160, (sub nom. Kostuch v. Environmental Appeal Board (Alta.)) 182 A.R. 384, 21 C.E.L.R. (N.S.) 257, 1996 CarswellAlta 260, [1996] A.J. No. 311 (Alta. Q.B.) — considered N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Ouimet, Re (2002), 44 C.E.L.R. (N.S.) 114, 2002 CarswellAlta 464, [2002] A.E.A.B.D. No. 1 (Alta. Environmental App. Bd.) — followed Roncarelli v. Duplessis (1959), 1959 CarswellQue 37, [1959] S.C.R. 121, 16 D.L.R. (2d) 689, [1959] S.C.J. No. 1 (S.C.C.) — considered Statutes considered: Environmental Protection and Enhancement Act, S.A. 1992, c. E-13.3 Generally — referred to Pt. 2 — referred to s. 2 — considered s. 2(a) — considered s. 2(a)-2(j) — referred to s. 2(b) — considered s. 2(f) — considered 84 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

s. 2(g) — considered s. 25(1) — considered s. 70 — considered s. 73 — considered s. 84(1)(a)(iv) — considered Water Act, R.S.A. 2000, c. W-3 Generally — referred to s. 109 — considered s. 163(1) — considered Words and phrases considered directly affected The fact that the Director, when deciding whether a person is directly affected, is interpreting his own statute, indicates the decision is to be reviewed on a standard of reasonableness. As I wrote above, the Director’s reasons should indicate application of the principles set out in paragraph 2 of the EPEA and its own statements of policy such as the approvals program policy, APPC-2008-01, En- vironmental Division. Furthermore, I think the process of identifying who is ‘directly affected‘ should not be decided by the application of rigid rules at the level of Statements of Concern.

APPLICATION for judicial review by land occupiers, from decision of tribunal to reject statement of concern regarding environmental project of respondents.

Karin E. Buss, for Applicant Wendy L. Thiessen, Alison L. Altmiks, for Director, Northern Region, Alberta Environment and Sustainable Resources Development Maureen Killoran, Thomas Gelbman, for Southern Pacific Resources Corp.

R.P. Marceau J.: I. Introduction 1 The applicants, Pembina and FMEA, seek judicial review of a decision by the Director to reject the applicants’ Statement of Concern submitted pursuant to section 73 of the EPEA and section 109 of the Water Act, RSA 2000, c. W-3 (collectively “the Acts”). 2 Section 73 of the EPEA and section 109 of the Water Act entitle a “person” who may be “directly affected” by an application for an oil and gas extraction project, and other activities, to submit a “Statement of Concern” to the Director. This in turn entitles the person to other par- ticipatory rights under the Acts, including the right to appeal the Direc- tor’s decision to issue an approval. Pembina v. Director, Northern Region, Alberta (ESRD) R.P. Marceau J. 85

3 In March 2012, the applicants submitted a Statement of Concern with respect to Southern Pacific Corp’s (“STP”) application to construct and operate a steam-assisted gravity drainage oil sands project on the Mac- Kay River (the “Project”). The applicants hold a licence to occupy land for recreational purposes on the MacKay River about 42 kilometers downstream from STP’s proposed expansion. It is to be noted the expansion would not take water directly from the MacKay River but from a groundwater source several kilometers from the MacKay River. 4 The applicants submit that the Director’s decision is wrong in law because it: a. misinterpreted “person” to exclude legal entities other than individuals; b. applied a majority affected test to the applicants’ individual members; c. required the applicants to prove that they “are” directly affected by the application rather than show a reasonable probability of a direct effect; d. breached the principles of natural justice by taking into account improper and irrelevant considerations; and e. in the alternative, if the Director’s interpretation of the relevant provisions of the Acts is correct, his conclusion that the applicants are not affected by STP’s applications is unreasonable given the facts before the Director on the Record.

II. Facts A. OSEC 5 There was some confusion about titles used by OSEC and the individuals who are part of OSEC, only two of which (FMEA and Pembina) applied for judicial review. OSEC itself is not a legal entity. It is an unin- corporated coalition of legal entities or “persons” comprising at the time of the filing of the Statement of Concern: a. Pembina, who is a legal person because it is a non-profit environmental research and policy analysis organization founded in Al- berta in 1985. It has 62 employees, many of whom work in Al- berta but no evidence was supplied to the Director that any of these employees live closer than Edmonton to the proposed STP plant expansion. 86 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

b. FMEA, who is a legal person because it is a society consisting of residents living in and around Fort McMurray. The majority live in Fort McMurray but there were also members in Fort McKay and Anzac. Fort McKay is downstream of the MacKay River from where the proposed plant expansion might have an effect on groundwater and on the MacKay River. Both Anzac and Fort MacKay are on the Athabasca River which the MacKay River flows into at Fort McKay. Presumably what affects water levels, water quality and fish habitat in the MacKay River could affect the Athabasca River downstream of the confluence of the MacKay River and the Athabasca River. c. Alberta Wilderness Association, who I assume to be a legal person but they are not party to the application and determination of whether they are directly affected by STP’s proposed plant expansion is irrelevant to the application. d. Toxics Watch Society of Alberta. It is not clear that this society was a member of the coalition at the time of the submission of the Statement of Concern. They are not applicants before me and determination of whether they are directly affected by STP’s proposed plant expansion is irrelevant to this application.

B. The Respondents 6 The Regional Approvals Manager, Northern Region (the “Director”), is a professional engineer and is the designated authority pursuant to section 25(1) of the EPEA for the purposes of making decisions and issuing approvals under Part 2 of the EPEA: Environmental Assessment Process, Approvals and Registrations, and the designated authority pursuant to section 163(1) of the Water Act for making regulatory decisions under the Water Act. 7 Southern Pacific Resource Corp. (‘STP’) submitted applications to the Director for approvals under the Acts for an oil sands extraction project, for which the Applicants submitted a Statement of Concern to the Director on March 28, 2012.

C. STP’s Application for Approval 8 In November 2011, STP applied to the Director for approval under the Acts. Specifically STP applied: Pembina v. Director, Northern Region, Alberta (ESRD) R.P. Marceau J. 87

a. to amend its existing EPEA Approval No. 255245-00-00 in order to expand an existing oil sands extraction scheme called the STP McKay Thermal Project — Phase 2; and b. for a water licence to divert 1 424 000 m3/annum of fresh groundwater to be used as the water source for steam generation in the extraction of bitumen. 9 The Project is located 40 km southwest of Fort McKay with a processing plant and multiple deep well steam injection and oil sands extraction wells on the MacKay River and is designed to produce an additional 3,816 m3/day of bitumen, for a total of 5,724 m3/day of bitumen, for approximately 25 years. The well pads are located on both sides of the MacKay River and its tributaries. The Project expects to use up to 1705 m3/day of groundwater for the life of the Project and 4,000 m3/day of groundwater for the first two years of operation. The west portion of the Project is proposed to be located within the Wabasca-Dunkirk Cari- bou Management Zone, which provides habitat for a broad range of mammals, birds and amphibians. 10 As required by EPEA, STP submitted an Environmental Impact As- sessment (EIA) in support of its EPEA and Water Act applications. The EIA concluded the Project could result in: a. a decrease in groundwater entering the river as a result of the Pro- ject and other expected oil sands developments in the area; and b. a shift in the hydraulic relationship between the MacKay River and underlying groundwater units such that MacKay River would be supplying recharge to the groundwater units instead of the other way around. 11 However, the EIA also concluded that: c. the expected loss from the MacKay River is a negligible quantity in comparison to the mean seasonal flow of the MacKay River. 12 On January 25, 2012, the Director issued a public notice of STP’s applications. The public notice provided opportunities for public participation in reviewing STP’s applications stating: a. any person who may be directly affected by the applications may submit a written Statement of Concern under the EPEA and the Water Act; b. if no Statements of Concern are received, the applications may be approved without further notice; and 88 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

c. failing to submit a Statement of Concern may affect the right to file an appeal with the Environmental Appeals Board. The right to file an appeal within the Environmental Appeals Board is decided by the Environmental Appeals Board but a person who has been denied the right to file a Statement of Concern has no right to file an appeal with the Environmental Appeals Board.

D. The Statement of Concern 13 On March 28, 2012, OSEC submitted its Statement of Concern with respect to STP’s applications to the Director. The Statement of Concern provided as follows: a. OSEC is a coalition composed of FMEA, Pembina, the Alberta Wilderness Association and the Toxics Watch Society of Alberta. b. OSEC “holds a recreational lease” on lands directly downstream of the Project which are used for camping, hiking, fishing, wildlife, viewing and swimming. (A subsequent letter to the Director dated May 31 2012 clarified that the Applicants, Pembina and FMEA, hold the licence to occupy the Lands on behalf of the members.) c. The Project would directly impact OSEC’s use and enjoyment of the Lands due to the loss of wildlife populations, increased air emissions, reduced flow rates on the MacKay River, increased fishing pressure due to increased traffic, and the risk of spills and damage to the MacKay River. For clarification the document referred to as “a recreational lease” is better described as a contract with Fort McKay Métis Local No. 63, who holds a lease on Crown land in two areas along and abutting the MacKay River near Fort McKay. By that contract certain portions of the Métis leased lands may be occupied by Pembina and FMEA for recreational purposes. Those purposes include fishing, hiking, camping, kayaking, canoeing and like activities. The benefit of this contract is available to all members of Pembina and FMEA. As a matter of law it appears the general public may not without permission of the Métis Local No. 6 occupy the Métis lease land. However, the rest of the MacKay River, excluding the Métis Local No. 6 lease and the hamlet of Fort McKay, appears from the maps provided in evidence as part of the record to be unoccupied Crown land on both banks of the MacKay River so members of the public can access Crown land including the river and its banks for purposes Pembina v. Director, Northern Region, Alberta (ESRD) R.P. Marceau J. 89

of recreation including hunting, fishing, camping, canoeing, kayaking and the like. From the map it is obvious that the average Albertan’s access to the MacKay River is restricted by the lack of road access including access by off-highway vehicles. 14 On May 2, 2012, the Director received a Statement of Concern from Fort McKay First Nation and the Fort McKay M´etis Community which included a technical review of STP’s EIA that concluded the Project could cause the MacKay River to be drained of all water during low flow periods: a. STP’s assessment of its Project effects on the flow of the MacKay River flow is based on an average of March to October flow rates; b. The Project could have a significant impact on the MacKay River in low flow winters; c. In the Application case (the Project plus approved projects), the predicted reduction in groundwater interaction with surface water would create a 59% decrease in water levels during low flow conditions; and d. In the Planned Development Case (the Project in addition to approved and planned projects), 100% of the water would be elimi- nated during the lowest flow conditions recorded for the River. The River could be dry in places and the established ice cover could settle onto the river bed. Approving an application that could lead to the elimination of all flow in a river the size of the Mackay River would be precedent setting. 15 On May 8, 2012, the Director wrote OSEC in response to its March 28, 2012 Statement of Concern requiring further information from OSEC to determine whether the March 28, 2012 “submission constitutes a Statement of Concern,” including: a. number of OSEC members “that are directly affected by the proposed project” with details of their “individual activities”; b. number of “people” that are members of OSEC with documenta- tion of “persons officially belonging to” OSEC; c. how “one” becomes a member of OSEC; d. a breakdown of OSEC membership in terms of the communities in which the members live; and 90 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

e. a description of the “recreational lease land” and how the land “is directly affected by the proposed project.” 16 On May 31, 2012, OSEC responded to the Director’s letter of May 8, 2012 on behalf of its members stating: a. the members of OSEC are FMEA, Pembina, and Alberta Wilder- ness Association; b. all OSEC members are directly affected by the proposed project; all OSEC members have access to the Lands; FMEA and Pembina on behalf of all members of OSEC have an interest in land by way of the licence to occupy where members can access the Lands; c. OSEC has participated in over 14 Energy Resources Conservation Board hearings for oil sands projects; and d. any individual or organization sharing OSEC’s objectives can become a member. 17 Attached to this May 31, 2012 letter was Pembina and FMEA’s licence to occupy the Lands and a description of how the Lands could be directly affected by STP’s applications including impacts on water quantity and quality, wildlife, air quality and land access including: a. the Project requires significant amounts of groundwater with steady-state make-up water at 1,708m3/d and approximately 4,000m3/day of make-up water in the first two years; b. decreases in groundwater entering the MacKay River are likely given the proximity of the well pads to the MacKay River and the underground aquifer/channel that parallels the River under the Project; c. there is risk the River could run dry in the winter which will impact recreational activities such as fishing; and d. STP’s application predicts elevated arsenic concentrations to occur in non-saline aquifers that could contaminate the River and restrict the recreational use of the Lands. 18 On June 15, 2012, STP wrote the Director with respect to OSEC’s Statement of Concern of March 28, 2012 and its responding letter of May 31, 2012, arguing that OSEC’s Statement should not be accepted as an “official statement of concern.” 19 By letter dated June 26, 2012, the Director responded to OSEC’s May 31, 2012 letter and advised that OSEC’s “submission will not be consid- Pembina v. Director, Northern Region, Alberta (ESRD) R.P. Marceau J. 91

ered a Statement of Concern pursuant to section 73 of [EPEA] and section 109 of the Water Act” because: a. the information provided by OSEC “does not sufficiently demonstrate that a majority of OSEC or its members are directly affected by the subject applications;” and b. the licence to occupy “does not demonstrate that OSEC or its members are directly affected” by STP’s applications. 20 On July 6, 2012, OSEC’s legal counsel wrote the Director requesting him to review and reconsider his decision of June 26, 2012 stating that: a. there is no statutory requirement or legal principle that a majority of OSEC’s members or a majority of the members’ individual membership must be directly affected by STP’s application; b. OSEC is not a legal entity but short hand for the combined efforts of its organization members; c. Pembina and FMEA are “persons” as legally defined that have legal rights directly affected by STP’s applications; and d. Pembina and FMEA’s rights to the use and enjoyment of their licence of occupation may be reduced in value and utility by STP’s applications. 21 On July 17, 2012, the Director responded to the July 6, 2012 letter re- affirming his decision that the Applicants did not file a “valid statement of concern stating: a. he applied the most recent decisions of the Environmental Ap- peals Board to determine if “OSEC was directly affected”; b. he asked for information about OSEC’s membership to “determine if there were individuals who could be directly affected”; and c. he considered whether the “project could possibly have any effect” on the licence to occupy; OSEC did not identify “individuals who could be reasonably affected by the project.”

E. Briefing Note 22 On March 11, 2013, the Director filed the record in these proceedings. It contains a Briefing Note to the Deputy Minister of Alberta Envi- ronment dated August 12, 2009 on the subject “Statement of Concern Rejection of Oil Sands Environmental Coalition” in connection to OSEC’s statement of concern submitted for another oil sands project. 92 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

The Briefing Note described the reasons for “Alberta Environment rejecting the coalition as a statement of concern filer” including OSEC’s withdrawal from CEMA. The significance of this document is so pivotal to this decision that I reproduce it in full: ❏ Minister [×] Deputy Minister BRIEFING NOTE ❏ For Decision [×] For Information AR 37229 SUBJECT: Statement of Concern Rejection of Oil Sands Environ- mental Coalition DATE: August 12, 2009 ISSUE: Alberta Environment is rejecting the Oil Sands Environmental Coali- tion as a Statement of Concern filer for the Syncrude Southwest Sand Storage Conversion Project Environmental Protection and Enhance- ment Act and Water Act applications. BACKGROUND: The application for the Syncrude Southwest Sand Storage Conver- sion Project was advertised on January 14, 2009 with Statements of Concern due to Alberta Environment by March 20, 2009. The department received 21 submissions, only four met the Statement of Con- cern requirements. There was an obvious coordination amongst the environmental community to respond to the notice, with specific reference to the Energy Resources Conservation Board tailings Directive. The Oil Sands Environmental Coalition has traditionally been accepted as a Statement of Concern filer for oil sands mine project applications. The Oil Sands Environmental Coalition is composed of three environmental groups: The Fort McMurray Environmental As- sociation (with 40 members from Fort McMurray and Anzac); The Pembina Institute (with 56 staff & 31 members from across Alberta); and the Toxics Watch Society (with 3 staff & 15 members from across Alberta). The Pembina Institute has published documents about the oil sands for several years. The Oil Sands Environmental Coalition has been a consistent State- ment of Concern filer over the past decade, for most major mineable oil sands projects. There had at one point been an internal decision to Pembina v. Director, Northern Region, Alberta (ESRD) R.P. Marceau J. 93

accept them, setting some precedence for continued acceptance. Con- siderations for accepting them in the past included: the Fort McMur- ray Environmental Association was quite active in local multi-stake- holder groups like the Cumulative Environmental Management Association for the Wood Buffalo Region and the Wood Buffalo En- vironmental Association; many of the members of the Fort McMur- ray Environmental Association live in and around Fort McMurray; they have been relatively simple to work with as Statement of Con- cern filers (they’ve never appealed a decision); the Oil Sands Envi- ronmental Coalition has engaged in the Statement of Concern process since its early stages, when the “directly affected” test had not yet been fully established; and they were given the benefit of the doubt. The Oil Sands Environmental Coalition and its member organizations have since withdrawn completely from the Cumulative En- vironmental Management Association, and as reflected in the Pem- bina Institute’s recent publications about the oil sands, are now less inclined to work cooperatively. After consulting with Alberta Environment’s legal team it has been concluded that information provided is insufficient for the Oil Sands Environmental Coalition to meet the test of directly affected. Alberta Environment is rejecting the coalition as a Statement of Concern filer. It has been decided that we should continue to ask the Oil Sands Environmental Coalition to prove how they are directly affected on future applications. We have been more consistently applying the directly affected test to the groups or individuals who submit Statements of Concern. With more parties providing submissions, there is a need to identify the groups or individuals who are truly directly affected, and this test needs to be fairly applied between the stakeholders. The Oil Sands Environmental Coalition may criticize this decision. Given their withdrawal from the Cumulative Environmental Manage- ment Association, and the Pembina Institute’s publication of negative media on the oil sands, the following actions may result from this decision: the Oil Sands Environmental Coalition could make statements that Alberta Environment is pushing the public out of the Statement of Concern process; they could do a membership drive to gain more members in Fort McMurray and area who could then claim to be directly affected; it could trigger statements from groups such as Greenpeace or Sierra Club or it could trigger the Oil Sands Environmental Coalition to take a more legalistic approach where opportunities arise, including asking the Environmental Appeals Board to review its directly affected status. 94 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

Alberta Environment Executive, Communications, and other relevant staff need to be aware of the decision to reject the Oil Sands Environ- mental Coalition as a Statement of Concern filer on this application and why it was made, so that we are able to defend our position clearly. The Fort McMurray Environmental Association may be able to meet the directly affected test on its own (outside of the Oil Sands Envi- ronmental Coalition banner) for some future projects. RECOMMENDATIONS: Executive and Communications should be prepared for any question raised by the Oil Sands Environmental Coalition and its member organizations by this decision. For Minister’s Use: ❏ Agree with recommendations ❏ Disagree with recommendations MINISTER AND/OR DEPUTY MINISTER’S COMMENTS/DECISION: CONTACT: Tanya Richens TELEPHONE: (780) 415-9630 SUBMITTED BY: Environmental Management ❏ Requires legislative/regulatory change 23 Concerning this document I note: a. Until the record was filed in this matter the present applicants were unaware of the “Briefing Note.” b. As the “Briefing Note” indicates, the decision had been made (but not yet published) to disallow OSEC as a Statement of Concern filer in the matter of the application by the Syncrude Southwest Sand Storage Conversion Project. The Director also rejected OSEC as a Statement of Concern Filer in the matter of CNRL Kirby Expansion Project (Letter of Concern April 19, 2012; rejection September 25, 2012) and in the matter of Tech Resources Limited Frontier Oil Sands Mine Project (Letter of Concern June 4, 2012; rejection September 21, 2012). The present rejection of OSEC as a Statement Concern filer is the fourth consecutive decision of the Director consistent with the “Briefing Note.” c. There is, in fact, no reference in the Director’s reasons on any of the four rejections to any of the reasons stated to be the “reasons for rejecting OSEC as a Statement of Concern filer” in the “Brief- Pembina v. Director, Northern Region, Alberta (ESRD) R.P. Marceau J. 95

ing Note.” The reasons provided are so close to being identical they seem to have been cast from the same template. d. Finally, I note that only a party who has been accepted as a State- ment of Concern filer by the Director may appeal the decision of the Director concerning the application for an environmental and water permit to the EAB. The EAB may decide not to allow a Statement of Concern filer to appeal by deciding, for instance, that the Statement of Concern filer, while allowed that status before the Director during the decision making process, is not sufficiently “directly affected” by the Director’s actual decision to be allowed to appeal it. The significance of this is that by denying OSEC, or perhaps more correctly Pembina and FMEA, status as a Statement of Concern filer, the Director has foreclosed the possibility that these two organizations could be allowed status as an appellant of the Director’s decision.

III. Analysis 24 In my view the entire process in this case is so tainted by the “Brief- ing Note” that in arriving at my decision, I need only refer to the applicants’ contention that the Director breached the principles of natural justice by taking into account improper and irrelevant considerations.

A. Standard of Review 25 Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.) states the fundamental principles of the duty of procedural fairness are: 1. a fair and open procedure 2. the right to be heard 3. consideration by the decision maker tasked with the duty to decide and 4. decisions are to be free from the reasonable apprehension of bias. 26 Procedural fairness is reviewed on a correctness standard. N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.) at paras. 19-22, [2011] 3 S.C.R. 708 (S.C.C.); Edmonton Police Assn. v. Edmonton (City), 2007 ABCA 184 (Alta. C.A.) at para 3; New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at paras 19 and 22. 96 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

B. Purpose of the EPEA and Water Act 27 The purpose of the EPEA, as set out in section 2 of the Act, is “to support and promote the protection, enhancement and wise use of the environment” while recognizing a set of principles set out in subparagraphs (a) to (j): (a) the protection of the environment is essential to the integrity of ecosystems and human health and to the well-being of society; (b) the need for Alberta’s economic growth and prosperity in an environmentally responsible manner and the need to integrate environmental protection and economic decisions in the earliest stages of planning; (c) the principle of sustainable development, which ensures that the use of resources and the environment today does not impair prospects for their use by future generations; (d) the importance of preventing and mitigating the environmental impact of development and of government policies, programs and decisions; (e) the need for Government leadership in areas of environmental research, technology and protection standards; (f) the shared responsibility of all Alberta citizens for ensuring the protection, enhancement and wise use of the environment through individual actions; (g) the opportunities made available through this Act for citizens to provide advice on decisions affecting the environment; (h) the responsibility to work co-operatively with governments of other jurisdictions to prevent and minimize transboundary environmental impacts; (i) the responsibility of polluters to pay for the costs of their actions; (j) the important role of comprehensive and responsive action in ad- ministering this Act. 28 The appellants placed considerable emphasis on subparagraphs (a), (f) and (g). The respondent Director highlighted subparagraph (b) with an emphasis on the balancing act the Director must perform to arbitrate between the need for Alberta’s economic growth and prosperity and doing so in an environmentally responsible manner. Nowhere in the EPEA and the Water Act is there a suggestion that promoting Alberta’s economic growth in an environmentally responsible manner permits the Di- Pembina v. Director, Northern Region, Alberta (ESRD) R.P. Marceau J. 97

rector to reject Statements of Concern from those persons or groups who voice negative statements about proposed oil sands development. The applicants cited from Hansard what was said by the Minister of the Envi- ronment at the time EPA was enacted: The seventh principle is the opportunities made available through this Act for citizens to provide advice on decisions affecting the environment. In other words, Mr. Speaker, this Act, Bill 23, is not just a set of laws; it really is an environmental agenda. It’s an environmental agenda that will be amended and probably changed through the course of time but only through the input of the citizens of Alberta. Basically this principle allows the facilitation of public access and service by providing a single-window approach to Alberta Environ- ment making for more streamlined administrative procedures. It includes an access to information section, a requirement for state-of- the-environment reporting, increased public consultation and participation in all aspects of environmental protection and enhancement activities, provisions supporting studies on the environment, a library, educational materials, public consultation in the development of guidelines, objectives, and regulations, public consultation in the environmental impact assessment process and the approvals process, opportunities for appeals for parties directly affected by decisions through the creation of an environmental appeal board. This board will provide an independent review of the decisions made by directors and other people within the department to provide a system of checks and balances on those decisions. This principle also provides for allowing for requests by citizens for investigations and contraventions. Alberta, Legislative Assembly, Hansard 22nd Leg., 4th Sess. (4 June 1992) at 1184 29 The emphasis is on public consultation, setting up administrative procedures to promote “access to information” and increase public consultation and participation in all aspects of environmental reporting and enhancement activities. 30 I also make reference to the approvals program policy APPC-2008-01 Environmental Division dated September 22, 2008. This is the policy in force when OSEC filed its Statement of Concern. I refer under the head- ing of Policy 2(i): (i) Directly affected — Anyone living in the geographic vicinity of the activity will be considered directly affected. (Note: For small fa- cilities with minimum potential for offsite impact, geographic vicinity may be considered as encompassing an area of only a few kms in 98 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

radius from the site whereas for larger activities the area may be much larger — this will have to be assessed on a case-specific basis.) Any organization that has a portion of its members living in the geographic vicinity of the activity will also be considered directly affected, e.g., a community league. In general, associations representing the general public or people who just periodically visit in the geographic vicinity of any activity will not be considered directly affected. 31 I refer also to 2(v), which emphasizes that where there is a doubt, the concern should be accepted as a Statement of Concern; and 2(vi): (vi) Rejection/Acceptance of Statements of Concern from Organiza- tions — When organizations file a Statement of Concern and it is un- clear whether they are directly affected, a letter should go to them requesting information on how the organization is directly affected.

C. Fundamental Principles of the Duty of Procedural Fairness 32 I will now deal with the four aspects of the fundamental principles of the duty cited in Baker v. Canada (Minister of Citizenship & Immigration).

1. Fair and Open Procedure 33 Obviously a fair and open procedure does not allow the Department of the Environment to ignore the purposes of the Act as published, the statements of principles enunciated in the legislature by its Minister or consideration of his public policy document, while apparently operating under an undisclosed policy (the Briefing Note). That Briefing Note con- tradicts the publicly stated policies of the EPEA encouraging public participation in the regulatory process by using as criteria for acceptance of the “Statement of Concern” whether the filer: a. has been “relatively simple to work with,” i.e., whether they have appealed a decision”; b. is perceived as being cooperative by gauging whether their publications are supportive of oil sands — participation in Cumulative Environment Management Association (I can only assume from the language used in the Briefing Note that members of this association are regarded as supportive of oil sands development, i.e., “cooperative”); and c. has published negative media on the oil sands. Pembina v. Director, Northern Region, Alberta (ESRD) R.P. Marceau J. 99

2. The Right to be Heard 34 Pembina and FMEA cannot complain they were not allowed to make submissions as to why they should be allowed to be a Statement of Con- cern filer. However, they were not told about the “Briefing Note” and consequently could not have answered the allegation that Pembina was regarded as uncooperative because it had withdrawn from CEMA and had published negative comments about oil sands development. This clearly violated the principle that one has the right to be heard and, in this case, to answer allegations made against it in secret.

3. Consideration by the Decision Maker Tasked with the Duty to Decide 35 The reasons given are sparse. They reference decisions of the Alberta Environmental Appeals Board which certainly can be referred to by the Director for guidance. The reasons are fatally flawed, however, because the entire process was tainted by the Briefing Note which I interpret as a formula for rejection of future submissions of Statements of Concern from Pembina and OSEC. The principles of natural justice clearly require the decision maker to not consider irrelevant and improper reasons. Since as a matter of policy the Director was told to consider whether the Statement of Concern filer was cooperative and whether it had published negative media about the oil sands in coming to the Director’s conclusion, the reasons are fatally flawed.

4. Decisions are to be Free from Reasonable Apprehension of Bias 36 The test for reasonable apprehension of bias is set out at paragraph 46 of Baker from the judgment of L’Heureux-Dub´e J. I quote only part of the paragraph: The test for reasonable apprehension of bias was set out by de Grand- pr´e J., writing in dissent, in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394. ... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information ... [T]hat test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” 100 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

This expression of the test has often been endorsed by this Court, most recently in R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 11, per Major J.; at para 31, per L’Heureux-Dub´e and McLachlin JJ.; and at para 111, per Cory J. 37 In my opinion a well-informed member of the public, reading the purposes of the EPEA as set out in section 2 of the Act, reading the comments of the Minister of Environment as cited by me from Hansard and reading the approval policy cited by me from the record in these proceedings, would perceive that the valid object of the EPEA to give the citizens of Alberta as much input as reasonable into the environmental concerns that arise from proposed industrial development is hijacked by the Briefing Note. That note basically says that the interpretation of “directly affected” will be changed in such a way that OSEC will no longer qual- ify as a Statement of Concern filer for oil sands projects. The reasons given for the change — lack of cooperation by Pembina because they withdrew from CEMA and have been publishing negative media about the oil sands — clearly indicate Pembina in particular and OSEC generally were targeted. It is difficult to envision a more direct apprehension of bias unless it is the Premier of Quebec telling the Quebec Liquor Commission to revoke a restauranteur’s liquor licence because the pro- prietor of the restaurant is a Jehovah’s Witness as happened in Roncarelli v. Duplessis, [1959] S.C.R. 121 (S.C.C.).

IV. Decision 38 Accordingly the Director’s decision breaches all four of the principles of natural justice and must be quashed. 39 I have been asked by the applicants to make further comments to guide the Director in deciding this and future applications by OSEC or its member groups to be granted status as the Statement of Concern filer. I will comment on several areas which were argued before me. I specifically decline to make any further rulings on the arguments so these comments are to be considered obiter dicta.

A. Who are the Applicants to be Recognized as Statement of Concern Filers? 40 This question arises in this case because OSEC stated it was a coalition consisting of Pembina, FMEA, Alberta Wilderness Association and another member who had withdrawn from the organization before the Director’s decision. Mainly it relied for the “directly affected” status on the licences of occupation held only by Pembina and FMEA. OSEC, as a Pembina v. Director, Northern Region, Alberta (ESRD) R.P. Marceau J. 101

coalition, did not seek judicial review of the Director’s decision; only Pembina and FMEA did. As I indicated in argument, I see no reason why “persons” with like interests and concerns should not coalesce to make one Statement of Concern. This tends to minimize the proliferation of like submissions before the Director. I do not find it unreasonable for the Director to obtain details of the interests of the individual members of the coalition including the residences of those members who are individuals and to ask how they are impacted by the proposed development. It would not necessarily be unreasonable for the Director to decide some members of the coalition are directly affected while others are not. Nor is it necessarily unreasonable for some members of a coalition to seek judicial review while others do not since a coalition such as OSEC has not created a separate entity known to law, and it is its members who enjoy the status of being “legal persons.”

B. Directly Affected 41 I believe this Court is bound by the decision in Castle-Crown Wilderness Coalition v. Flett, 2005 ABCA 283 (Alta. C.A.) in which Jus- tice Ritter with whose reasons the other two members of the panel con- curred wrote at page 31: 31 The Supreme Court wrote in Dr. Q that, as a general principle, increased deference is called for where legislation is intended to resolve and balance competing quality objectives or the interests of various constituencies: 30 As the reviewing judge noted at para 22 of her decision, the EPEA and the environmental assessment process mandates policy considerations and the weighing of competing interests. This factor suggests a high degree of deference. 42 The fact that the Director, when deciding whether a person is directly affected, is interpreting his own statute, indicates the decision is to be reviewed on a standard of reasonableness. As I wrote above, the Direc- tor’s reasons should indicate application of the principles set out in paragraph 2 of the EPEA and its own statements of policy such as the approvals program policy, APPC-2008-01, Environmental Division. Furthermore, I think the process of identifying who is “directly affected” should not be decided by the application of rigid rules at the level of Statements of Concern. I agree with paragraphs 24 and 25 of the EAB’s decision cited as Ouimet et al v Director, Regional Support Northeast Boreal Region, Regional Services, Alberta Environment, re: Ouimet, Re 102 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

[2002 CarswellAlta 464 (Alta. Environmental App. Bd.)] (January 28, 2002), Appeal No. 01-076-D (footnotes omitted): 24 The Board notes that the decision-making function of the Director and the appellate function of the Board are different and that in keeping with this, it is appropriate for the Director to apply a more inclusive test with respect to directly affected than is applied by the Board. The purpose of the directly affected test with respect to the Statement of Concern process, and the Director’s decision, is to promote good decision-making taking into account a broad range of interests. The process that the Director is engaged in is non-adversarial information collection — he is collecting information regarding the views and concerns of a broad range of parties to assist him in making a decision. This purpose is properly reflected in the “Policy on Acceptance of Statement of Concern (1997).” This policy, established by then Assistant Deputy Minister Al Schulz, states: ... considerable judgement will have to be exercised in determining what constitutes a valid Statement of Concern and where there is any doubt the concern should be considered a Statement of Concern. 25 The purpose of the directly affected test vis-`a-vis the Board is somewhat different. While still promoting good decision-making, the Board’s decision respecting directly affected determines whether the person (or in this case, a person and an organization) has a right to appeal. The Board is more strictly focused on the burden of proof and involves a more adversarial process. As a result, the board’s determination respecting an appellant’s standing must, by its very nature be more specific. 43 The EAB interprets the words “directly affected” for the purpose of standing on appeal as a higher standard to meet than the persons assert- ing they are directly affected for the purpose of being allowed to be a Statement of Concern filer. 44 The Respondents cited my decision in Kostuch v. Alberta (Director, Air & Water Approvals Division, Environmental Protection) (1996), 182 A.R. 384 (Alta. Q.B.). In that case the Director (who performed the same role as the Director in the case at bar) amended a permit granted to the Alberta Cement Corporation by extending the deadline for construction of a cement plant from November 1, 1994 to November 1, 1995 and provided for additional soil and groundwater monitoring. The applicant, Martha Kostuch, objected to the Director’s decision by filing a notice of objection with the Environmental Appeal Board, the Board similar to the Environmental Appeals Board constituted under the present EPEA. The Pembina v. Director, Northern Region, Alberta (ESRD) R.P. Marceau J. 103

Board ruled that Ms. Kostuch was not directly affected by the Director’s decision and denied her status as an objector. I note that under section 84(1)(a)(iv) of the Environmental Protection and Enhancement Act in force at that time a notice of objection could only be submitted “by the approval holder or by any person who had previously submitted a statement of concern in accordance with section 70...”; legislation almost identical to the present legislation. At para 12 of my decision I stated “[t]he applicant had filed a statement of concern.” Since the test of who is “directly affected” is less stringent before the Director than at the level of the EAB, my decision approving the EAB’s decision is not directly applicable in this case. It simply shows that status may be granted as a Statement of Concern filer but that same person may not meet the definition of “directly affected” for the purpose of an appeal to the EAB. Al- though I agreed with the EAB’s decision, I stated they were entitled to deference in interpreting their statute. 45 I voiced at the hearing of this matter and reiterate here my concern that the only persons who gained status of Statement of Concern filers were an Aboriginal band, Fort McKay First Nation, and a M´etis association, the Fort McKay M´etis Association (both of whose close ties to the land are indisputable), but that OSEC, self-described as “a coalition of Alberta-based environmental organizations with a longstanding interest in environmental and socioeconomic issues associated with oil sands development” should not be granted status as a Statement of Concern filer. The applicant STP is heard; the Aboriginal interests are well represented; but those who voice environmental concerns including Fort McMurray, Fort McKay and Anzac residents and a major environmental organization, Pembina, are not allowed a voice. Apparently no one else applied to be heard so I wonder how real the concern expressed on page 2 of the “Briefing Note” is: “with more parties providing submissions, there is a need to identify the groups or individuals who are truly directly affected, and this test needs to be fairly applied between the stakeholders.” Keep- ing in mind that repetition of identical concerns by those generally and similarly impacted is to be discouraged, there is room for flexibility in the definition of “directly affected.”

C. Conclusion and Decision 46 For the reasons given above, the decision of the Director is quashed as being in violation of the rules of natural justice. 104 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

47 The parties may speak to costs by appointment if necessary. Application granted; tribunal decision quashed. R. v. Adamo 105

[Indexed as: R. v. Adamo] Her Majesty the Queen and Mario Phillip Adamo, accused Manitoba Court of Queen’s Bench Docket: Winnipeg Centre CR 10-01-30375 2013 MBQB 225 Suche J. Judgment: September 23, 2013 Criminal law –––– Offences — Firearms and other weapons — Possession offences — Possession of prohibited or restricted firearm with ammunition — Sentencing –––– Mandatory minimum sentence — Declared invalid as cruel or unusual treatment or punishment, contrary to rules of fundamental justice and equality rights of seriously mentally compromised accused — Accused, 39-year-old male with no previous record of offences, was convicted on charge, inter alia, of possession of loaded prohibited firearm — Accused was found with unsecured loaded handgun and accessible ammunition, together with bulletproof vest and list of known or suspected “gang” members — Unbeknownst to Crown at time accused was indicted, accused suffered from serious cognitive and behavioural deficits resulting from traumatic brain injury which had resulted, inter alia, in paranoid delusions that accused was under constant threat from “gangs” — In good faith, Crown proceeded by indictment, so by operation of s. 95(2) of Criminal Code, offence charged carried mandatory minimum sentence of three-year term of imprisonment for first offence — Accused brought application for, inter alia, declaration that mandatory minimum sentence was unconstitutional and of no force or effect as impairing accused’s rights not to be subjected to cruel or unusual treatment or punishment; to life, liberty and security of person; and to equality before law — Application granted and accused sentenced without reference to unconstitutional mandatory minimum — First stage of analysis in present case was to determine fit and proper sentence for accused bringing application absent consideration of mandatory minimum — Having regard to very significant mitigating factor of accused’s bona fide disability, causing paranoia and inhibited judgment and essentially resulting in commission of offence charged, fit sentence was six-month term of imprisonment — Three- year mandatory minimum was grossly excessive in comparison to fit sentence, constituting violations of accused’s rights as guaranteed by ss. 12, 7 and 15(1) of Canadian Charter of Rights and Freedoms — Objective of impugned provision, protection of society from handgun violence, was pressing and substantial for purposes of s. 1 Charter analysis — However, with respect to severely mentally compromised accused, mandatory minimum was not rationally connected to provisions’s valid legislative objective, and did not minimally impair accused’s 106 WESTERN WEEKLY REPORTS [2013] 12 W.W.R. rights — Accordingly, impugned provision could not be “saved” by operation of s. 1 of Charter and application was properly granted — Appropriate remedy in circumstances was reading down sentencing provision and sentencing accused without reference to unconstitutional minimum — Accused sentenced to time served, being six-month term of imprisonment less credit for time spent in pre- trial custody, together with three-year period of probation — Accused further made subject to lifetime firearms and explosives prohibition, ordered to provide samples of DNA for analysis and to firearms forfeiture order. Criminal law –––– Sentencing — Validity of sentence — Statutory minimum –––– Possession of loaded prohibited firearm — Declared invalid as cruel or unusual treatment or punishment, contrary to rules of fundamental justice and equality rights of seriously mentally compromised accused — Accused, 39-year- old male with no previous record of offences, was convicted on charge, inter alia, of possession of loaded prohibited firearm — Accused was found with unsecured loaded handgun and accessible ammunition, together with bulletproof vest and list of known or suspected “gang” members — Unbeknownst to Crown at time accused was indicted, accused suffered from serious cognitive and behavioural deficits resulting from traumatic brain injury which had resulted, inter alia, in paranoid delusions that accused was under constant threat from “gangs” — In good faith, Crown proceeded by indictment, so by operation of s. 95(2) of Criminal Code, offence charged carried mandatory minimum sentence of three-year term of imprisonment for first offence — Accused brought application for, inter alia, declaration that mandatory minimum sentence was unconstitutional and of no force or effect as impairing accused’s rights not to be subjected to cruel or unusual treatment or punishment; to life, liberty and security of person; and to equality before law — Application granted and accused sentenced without reference to unconstitutional mandatory minimum — First stage of analysis in present case was to determine fit and proper sentence for accused bringing application absent consideration of mandatory minimum — Having regard to very significant mitigating factor of accused’s bona fide disability, causing paranoia and inhibited judgment and essentially resulting in commission of offence charged, fit sentence was six-month term of imprisonment — Three- year mandatory minimum was grossly excessive in comparison to fit sentence, constituting violations of accused’s rights as guaranteed by ss. 12, 7 and 15(1) of Canadian Charter of Rights and Freedoms — Objective of impugned provision, protection of society from handgun violence, was pressing and substantial for purposes of s. 1 Charter analysis — However, with respect to severely mentally compromised accused, mandatory minimum was not rationally connected to provisions’s valid legislative objective, and did not minimally impair accused’s rights — Accordingly, impugned provision could not be “saved” by operation of s. 1 of Charter and application was properly granted — Appropriate remedy in circumstances was reading down sentencing provision and sentencing accused without reference to unconstitutional minimum — Accused sentenced to time R. v. Adamo 107 served, being six-month term of imprisonment less credit for time spent in pre- trial custody, together with three-year period of probation — Accused further made subject to lifetime firearms and explosives prohibition, ordered to provide samples of DNA for analysis and to firearms forfeiture order. Criminal law –––– Charter of Rights and Freedoms — Cruel and unusual punishment [s. 12] –––– Accused, 39-year-old male with no previous record of offences, was convicted on charge, inter alia, of possession of loaded prohibited firearm — Accused was found with unsecured loaded handgun and accessible ammunition, together with bulletproof vest and list of known or suspected “gang” members — Unbeknownst to Crown at time accused was indicted, accused suffered from serious cognitive and behavioural deficits resulting from traumatic brain injury which had resulted, inter alia, in paranoid delusions that accused was under constant threat from “gangs” — In good faith, Crown proceeded by indictment, so by operation of s. 95(2) of Criminal Code, offence charged carried mandatory minimum sentence of three-year term of imprisonment for first offence — Accused brought application for, inter alia, declaration that mandatory minimum sentence was unconstitutional and of no force or effect as impairing accused’s rights not to be subjected to cruel or unusual treatment or punishment; to life, liberty and security of person; and to equality before law — Application granted and accused sentenced without reference to unconstitutional mandatory minimum — First stage of analysis in present case was to determine fit and proper sentence for accused bringing application absent consideration of mandatory minimum — Having regard to very significant mitigating factor of accused’s bona fide disability, causing paranoia and inhibited judgment and essentially resulting in commission of offence charged, fit sentence was six-month term of imprisonment — Three-year mandatory minimum was grossly excessive in comparison to fit sentence, constituting violations of accused’s rights as guaranteed by ss. 12, 7 and 15(1) of Canadian Charter of Rights and Freedoms — Objective of impugned provision, protection of society from handgun violence, was pressing and substantial for purposes of s. 1 Charter analysis — However, with respect to severely mentally compromised accused, mandatory minimum was not rationally connected to provisions’s valid legislative objective, and did not minimally impair accused’s rights — Accordingly, impugned provision could not be “saved” by operation of s. 1 of Charter and application was properly granted — Appropriate remedy in circumstances was reading down sentencing provision and sentencing accused without reference to unconstitutional minimum — Accused sentenced to time served, being six-month term of imprisonment less credit for time spent in pre-trial custody, together with three-year period of probation — Accused further made subject to lifetime firearms and explosives prohibition, ordered to provide samples of DNA for analysis and to firearms forfeiture order. 108 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

Criminal law –––– Charter of Rights and Freedoms — Life, liberty and security of person [s. 7] — Principles of fundamental justice — Fault –––– Mandatory minimum sentences — Seriously mentally compromised accused. Criminal law –––– Charter of Rights and Freedoms — Right to equality before and under law [s. 15] –––– Mandatory minimum sentences — Seriously mentally compromised accused. Cases considered by Suche J.: Andrews v. Law Society (British Columbia) (1989), 10 C.H.R.R. D/5719, [1989] 2 W.W.R. 289, 56 D.L.R. (4th) 1, 91 N.R. 255, 34 B.C.L.R. (2d) 273, 25 C.C.E.L. 255, 36 C.R.R. 193, [1989] 1 S.C.R. 143, 1989 CarswellBC 16, 1989 CarswellBC 701, EYB 1989-66977, [1989] S.C.J. No. 6 (S.C.C.) — considered Droit de la famille - 091768 (2013), 2013 CarswellQue 113, 2013 CarswellQue 114, 2013 SCC 5, (sub nom. A. v. B.) 439 N.R. 1, 21 R.F.L. (7th) 1, 354 D.L.R. (4th) 191, (sub nom. Quebec (Attorney General) v. A.) 273 C.R.R. (2d) 1, [2013] S.C.J. No. 5 (S.C.C.) — considered Eldridge v. British Columbia (Attorney General) (1997), 151 D.L.R. (4th) 577, 1997 CarswellBC 1939, 1997 CarswellBC 1940, [1998] 1 W.W.R. 50, 218 N.R. 161, 96 B.C.A.C. 81, 155 W.A.C. 81, 46 C.R.R. (2d) 189, 3 B.H.R.C. 137, [1997] 3 S.C.R. 624, 38 B.C.L.R. (3d) 1, [1997] S.C.J. No. 86 (S.C.C.) — considered R. v. Ayorech (2012), 522 A.R. 306, 544 W.A.C. 306, 2012 ABCA 82, 2012 CarswellAlta 384, [2012] A.J. No. 236 (Alta. C.A.) — followed R. v. Canepa (2011), 2011 CarswellOnt 1350, 2011 ONSC 1406, [2011] O.J. No. 924 (Ont. S.C.J.) — considered R. v. Chaulk (1990), 2 C.R. (4th) 1, 62 C.C.C. (3d) 193, 69 Man. R. (2d) 161, [1991] 2 W.W.R. 385, 1 C.R.R. (2d) 1, 119 N.R. 161, [1990] 3 S.C.R. 1303, 1990 CarswellMan 385, 1990 CarswellMan 239, EYB 1990-67195, [1990] S.C.J. No. 139 (S.C.C.) — referred to R. v. Cross (2012), 1019 A.P.R. 41, 328 Nfld. & P.E.I.R. 41, 2012 CarswellNfld 370, [2012] N.J. No. 356 (N.L. Prov. Ct.) — considered R. c. Demers (2004), 20 C.R. (6th) 241, (sub nom. R. v. Demers) 240 D.L.R. (4th) 629, (sub nom. R. v. Demers) 185 C.C.C. (3d) 257, 2004 SCC 46, 2004 CarswellQue 1547, 2004 CarswellQue 1548, (sub nom. R. v. Demers) 323 N.R. 201, [2004] 2 S.C.R. 489, 120 C.R.R. (2d) 327, [2004] S.C.J. No. 43, REJB 2004-66512 (S.C.C.) — considered R. v. Dickson (2007), 2007 BCCA 561, 2007 CarswellBC 2765, 228 C.C.C. (3d) 450, 412 W.A.C. 217, 248 B.C.A.C. 217, [2007] B.C.J. No. 2472 (B.C. C.A.) — referred to R. v. Ferguson (2008), [2008] 5 W.W.R. 387, 290 D.L.R. (4th) 17, 371 N.R. 231, 87 Alta. L.R. (4th) 203, [2008] 1 S.C.R. 96, 2008 SCC 6, 418 W.A.C. 79, 2008 CarswellAlta 228, 2008 CarswellAlta 229, 54 C.R. (6th) 197, 228 R. v. Adamo 109

C.C.C. (3d) 385, 425 A.R. 79, 168 C.R.R. (2d) 34, [2008] S.C.J. No. 6 (S.C.C.) — followed R. v. Ferrigon (2007), 2007 CarswellOnt 3072, [2007] O.J. No. 1883 (Ont. S.C.J.) — considered R. v. Goltz (1991), 8 C.R. (4th) 82, 5 B.C.A.C. 161, 11 W.A.C. 161, [1991] 3 S.C.R. 485, 7 C.R.R. (2d) 1, 67 C.C.C. (3d) 481, 61 B.C.L.R. (2d) 145, 131 N.R. 1, 31 M.V.R. (2d) 137, 1991 CarswellBC 280, 1991 CarswellBC 924, [1991] S.C.J. No. 90, EYB 1991-67055 (S.C.C.) — followed R. v. Heywood (1994), 34 C.R. (4th) 133, 174 N.R. 81, 50 B.C.A.C. 161, 82 W.A.C. 161, 24 C.R.R. (2d) 189, 120 D.L.R. (4th) 348, 94 C.C.C. (3d) 481, 1994 CarswellBC 592, 1994 CarswellBC 1247, [1994] 3 S.C.R. 761, EYB 1994-67091, [1994] S.C.J. No. 101 (S.C.C.) — considered R. v. Ipeelee (2012), 428 N.R. 1, [2012] 2 C.N.L.R. 218, 280 C.C.C. (3d) 265, 2012 SCC 13, 2012 CarswellOnt 4376, 2012 CarswellOnt 4375, 91 C.R. (6th) 1, 288 O.A.C. 224, [2012] 1 S.C.R. 433, 318 B.C.A.C. 1, 541 W.A.C. 1, 113 O.R. (3d) 320 (note), [2012] S.C.J. No. 13 (S.C.C.) — considered R. v. Irvine (2008), 2008 MBCA 34, 2008 CarswellMan 112, 225 Man. R. (2d) 281, 419 W.A.C. 281, [2008] 6 W.W.R. 438, 231 C.C.C. (3d) 69, [2008] M.J. No. 79 (Man. C.A.) — referred to R. v. Jacob (2002), 2002 CarswellYukon 54, 2002 YKTC 15, (sub nom. R. v. M.N.J.) [2002] Y.J. No. 49 (Y.T. Terr. Ct.) — considered R. v. Kapp (2008), 2008 SCC 41, [2008] 8 W.W.R. 1, 79 B.C.L.R. (4th) 201, 37 C.E.L.R. (3d) 1, 256 B.C.A.C. 75, 431 W.A.C. 75, 175 C.R.R. (2d) 185, 376 N.R. 1, 58 C.R. (6th) 1, 232 C.C.C. (3d) 349, [2008] 3 C.N.L.R. 346, 294 D.L.R. (4th) 1, [2008] 2 S.C.R. 483, 2008 CarswellBC 1312, 2008 Car- swellBC 1313, [2008] S.C.J. No. 42 (S.C.C.) — referred to R. v. Khawaja (2012), 97 C.R. (6th) 223, 356 D.L.R. (4th) 1, [2012] 3 S.C.R. 555, 2012 CarswellOnt 15515, 2012 CarswellOnt 15516, 2012 SCC 69, 290 C.C.C. (3d) 361, 437 N.R. 42, 301 O.A.C. 200, [2012] S.C.J. No. 69 (S.C.C.) — considered R. v. Kienapple (1974), 1974 CarswellOnt 238F, [1975] 1 S.C.R. 729, 26 C.R.N.S. 1, 1974 CarswellOnt 8, 15 C.C.C. (2d) 524, 44 D.L.R. (3d) 351, 1 N.R. 322, [1974] S.C.J. No. 76 (S.C.C.) — followed R. v. Kinnear (2005), 2005 CarswellOnt 2423, 199 O.A.C. 323, 198 C.C.C. (3d) 232, 30 C.R. (6th) 1, [2005] O.J. No. 2434 (Ont. C.A.) — followed R. v. Los (2008), 2008 CarswellOnt 4881, [2008] O.J. No. 3248 (Ont. S.C.J.) — considered R. v. Malmo-Levine (2003), [2004] 4 W.W.R. 407, 191 B.C.A.C. 1, 314 W.A.C. 1, 16 C.R. (6th) 1, [2003] 3 S.C.R. 571, 114 C.R.R. (2d) 189, 2003 Car- swellBC 3133, 2003 CarswellBC 3134, 2003 SCC 74, 179 C.C.C. (3d) 417, 314 N.R. 1, 233 D.L.R. (4th) 415, 23 B.C.L.R. (4th) 1, [2003] S.C.J. No. 79, REJB 2003-51751 (S.C.C.) — considered 110 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

R. v. Messervey (1991), 35 M.V.R. (2d) 50, (sub nom. R. v. Messervey (No. 2)) 96 Nfld. & P.E.I.R. 314, (sub nom. R. v. Messervey (No. 2)) 305 A.P.R. 314, 1991 CarswellNfld 16, [1991] N.J. No. 380 (Nfld. Prov. Ct.) — referred to R. v. Morrisey (1998), 124 C.C.C. (3d) 38, 14 C.R. (5th) 365, 1998 CarswellNS 125, (sub nom. R. v. Morrisey (No. 2)) 167 N.S.R. (2d) 43, (sub nom. R. v. Morrisey (No. 2)) 502 A.P.R. 43, 53 C.R.R. (2d) 39, [1998] N.S.J. No. 116 (N.S. C.A.) — followed R. v. Muldoon (2006), 2006 CarswellAlta 1852 (Alta. Prov. Ct.) — considered R. v. Muldoon (2006), 401 A.R. 42, 391 W.A.C. 42, 2006 CarswellAlta 1455, 2006 ABCA 321, 213 C.C.C. (3d) 468 (Alta. C.A.) — referred to R. v. Newby (1991), 84 Alta. L.R. (2d) 127, 120 A.R. 68, 8 W.A.C. 68, 1991 CarswellAlta 220, [1991] A.J. No. 1040 (Alta. C.A.) — referred to R. v. Nur (2011), 2011 ONSC 4874, 2011 CarswellOnt 8821, 241 C.R.R. (2d) 306, 275 C.C.C. (3d) 330, [2011] O.J. No. 3878 (Ont. S.C.J.) — followed R. v. Oakes (1986), [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 19 C.R.R. 308, 53 O.R. (2d) 719, 1986 CarswellOnt 95, 1986 CarswellOnt 1001, [1986] S.C.J. No. 7, EYB 1986-67556 (S.C.C.) — followed R. v. Perdue (2013), (sub nom. R. v. P. (T.A.)) 277 C.R.R. (2d) 243, 2013 Cars- wellOnt 2424, 2013 ONSC 797, [2013] O.J. No. 968 (Ont. S.C.J.) — considered R. v. Peterkin (2003), 2003 CarswellOnt 6434, [2003] O.J. No. 4403 (Ont. S.C.J.) — considered R. v. Rhyno (2009), 283 N.S.R. (2d) 246, 2009 CarswellNS 555, 2009 NSCA 108, [2009] N.S.J. No. 474 (N.S. C.A.) — referred to R. v. Robinson (1974), 1974 CarswellOnt 1073, 19 C.C.C. (2d) 193, [1974] O.J. No. 545 (Ont. C.A.) — considered R. v. Ruzic (2001), 2001 SCC 24, 2001 CarswellOnt 1238, 2001 CarswellOnt 1239, 268 N.R. 1, 145 O.A.C. 235, [2001] 1 S.C.R. 687, 82 C.R.R. (2d) 1, 41 C.R. (5th) 1, 153 C.C.C. (3d) 1, 197 D.L.R. (4th) 577, [2001] S.C.J. No. 25, REJB 2001-23602 (S.C.C.) — considered R. v. Shahnawaz (2000), 2000 CarswellOnt 4094, 40 C.R. (5th) 195, 149 C.C.C. (3d) 97, 51 O.R. (3d) 29, 137 O.A.C. 363, [2000] O.J. No. 4151 (Ont. C.A.) — considered R. v. Sheck (2013), 2013 CarswellBC 1196, 2013 BCPC 105, [2013] B.C.J. No. 999 (B.C. Prov. Ct.) — considered R. v. Smickle (2012), 280 C.C.C. (3d) 365, 253 C.R.R. (2d) 35, 2012 ONSC 602, 2012 CarswellOnt 1484, 91 C.R. (6th) 132, 110 O.R. (3d) 25, [2012] O.J. No. 612 (Ont. S.C.J.) — followed R. v. Smith (1987), 1987 CarswellBC 198, 1987 CarswellBC 704, [1987] 5 W.W.R. 1, [1987] 1 S.C.R. 1045, (sub nom. Smith v. R.) 40 D.L.R. (4th) 435, 75 N.R. 321, 15 B.C.L.R. (2d) 273, (sub nom. Smith v. R.) 34 C.C.C. R. v. Adamo 111

(3d) 97, 58 C.R. (3d) 193, (sub nom. Smith v. R.) 31 C.R.R. 193, EYB 1987- 80054, [1987] S.C.J. No. 36 (S.C.C.) — followed R. v. Snobelen (April 25, 2008), S. D. Brown J., [2008] O.J. No. 6021 (Ont. C.J.) — considered R. v. Swain (1991), 63 C.C.C. (3d) 481, 125 N.R. 1, 3 C.R.R. (2d) 1, 47 O.A.C. 81, [1991] 1 S.C.R. 933, 5 C.R. (4th) 253, 1991 CarswellOnt 1016, 1991 CarswellOnt 93, 4 O.R. (3d) 383, 83 D.L.R. (4th) 193, EYB 1991-67605, [1991] S.C.J. No. 32 (S.C.C.) — referred to R. v. Vaillancourt (1987), 1987 CarswellQue 18, 1987 CarswellQue 98, 81 N.R. 115, [1987] 2 S.C.R. 636, 47 D.L.R. (4th) 399, 68 Nfld. & P.E.I.R. 281, 10 Q.A.C. 161, 39 C.C.C. (3d) 118, 60 C.R. (3d) 289, (sub nom. Vallaincourt v. R.) 32 C.R.R. 18, 209 A.P.R. 281, [1987] S.C.J. No. 83 (S.C.C.) — considered R. v. Valiquette (1990), 1990 CarswellQue 27, 78 C.R. (3d) 368, 37 Q.A.C. 8, 60 C.C.C. (3d) 325 (Que. C.A.) — followed R. v. W. (L.W.) (1998), 17 C.R. (5th) 45, 125 C.C.C. (3d) 43, 1998 CarswellBC 1075, 107 B.C.A.C. 130, 174 W.A.C. 130, 53 C.R.R. (2d) 306, [1998] B.C.J. No. 1076 (B.C. C.A.) — considered R. v. W. (L.W.) (2000), 134 B.C.A.C. 236, 219 W.A.C. 236, 2000 SCC 18, 32 C.R. (5th) 58, 2000 CarswellBC 749, 2000 CarswellBC 750, 143 C.C.C. (3d) 129, 252 N.R. 332, [2000] 1 S.C.R. 455, 184 D.L.R. (4th) 385, [2000] S.C.J. No. 19 (S.C.C.) — referred to R. v. Wallace (1973), 1973 CarswellOnt 1079, 11 C.C.C. (2d) 95, [1973] O.J. No. 201 (Ont. C.A.) — considered Reference re s. 94(2) of Motor Vehicle Act (British Columbia) (1985), 1985 Car- swellBC 398, [1986] D.L.Q. 90, 1985 CarswellBC 816, [1985] 2 S.C.R. 486, 24 D.L.R. (4th) 536, 63 N.R. 266, 69 B.C.L.R. 145, 23 C.C.C. (3d) 289, 18 C.R.R. 30, 36 M.V.R. 240, [1986] 1 W.W.R. 481, 48 C.R. (3d) 289, [1985] S.C.J. No. 73 (S.C.C.) — followed Rodriguez v. British Columbia (Attorney General) (1993), 1993 CarswellBC 1267, 82 B.C.L.R. (2d) 273, 85 C.C.C. (3d) 15, 107 D.L.R. (4th) 342, [1993] 3 S.C.R. 519, 17 C.R.R. (2d) 193, 24 C.R. (4th) 281, 158 N.R. 1, 34 B.C.A.C. 1, 56 W.A.C. 1, [1993] 7 W.W.R. 641, 1993 CarswellBC 228, EYB 1993-67109, [1993] S.C.J. No. 94 (S.C.C.) — considered Suresh v. Canada (Minister of Citizenship & Immigration) (2002), 2002 SCC 1, 37 Admin. L.R. (3d) 159, [2002] 1 S.C.R. 3, 2002 CarswellNat 7, 2002 Car- swellNat 8, 18 Imm. L.R. (3d) 1, 208 D.L.R. (4th) 1, 281 N.R. 1, 90 C.R.R. (2d) 1, [2002] S.C.J. No. 3, REJB 2002-27423 (S.C.C.) — followed United States v. Burns (2001), 39 C.R. (5th) 205, 265 N.R. 212, [2001] 3 W.W.R. 193, [2001] 1 S.C.R. 283, 85 B.C.L.R. (3d) 1, 2001 SCC 7, 2001 CarswellBC 272, 2001 CarswellBC 273, 151 C.C.C. (3d) 97, 195 D.L.R. (4th) 1, 81 C.R.R. (2d) 1, 148 B.C.A.C. 1, 243 W.A.C. 1, REJB 2001-22580, [2001] S.C.J. No. 8 (S.C.C.) — considered 112 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

Winko v. Forensic Psychiatric Institute (1999), (sub nom. Winko v. British Columbia (Forensic Psychiatric Institute)) [1999] 2 S.C.R. 625, (sub nom. Winko v. Forensic Psychiatric Institute (B.C.)) 241 N.R. 1, (sub nom. Winko v. British Columbia (Forensic Psychiatric Institute)) 63 C.R.R. (2d) 189, 1999 CarswellBC 1266, 1999 CarswellBC 1267, (sub nom. Winko v. British Columbia (Forensic Psychiatric Institute)) 135 C.C.C. (3d) 129, (sub nom. Winko v. Forensic Psychiatric Institute (B.C.)) 124 B.C.A.C. 1, (sub nom. Winko v. Forensic Psychiatric Institute (B.C.)) 203 W.A.C. 1, 25 C.R. (5th) 1, (sub nom. Winko v. British Columbia (Forensic Psychiatric Institute)) 175 D.L.R. (4th) 193, [1999] S.C.J. No. 31 (S.C.C.) — considered Withler v. Canada (Attorney General) (2011), [2011] 4 W.W.R. 383, 87 C.C.P.B. 161, 300 B.C.A.C. 120, 509 W.A.C. 120, [2011] 1 S.C.R. 396, 2011 SCC 12, 15 B.C.L.R. (5th) 1, 329 D.L.R. (4th) 193, D.T.E. 2011T-181, 412 N.R. 149, 2011 CarswellBC 379, 2011 CarswellBC 380, [2011] S.C.J. No. 12 (S.C.C.) — referred to Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 1 — referred to s. 7 — considered s. 12 — considered s. 15 — considered s. 15(1) — considered Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), c. 11, reprinted R.S.C. 1985, App. II, No. 44 s. 52 — referred to Controlled Drugs and Substances Act, S.C. 1996, c. 19 s. 5(2) — referred to Corrections and Conditional Release Act, S.C. 1992, c. 20 Generally — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 17 — considered s. 91(2) — considered s. 95 — considered s. 95(1) — pursuant to s. 95(2) — considered s. 95(2)(a)(i) — considered s. 109 — referred to s. 117.01(1) [en. 1995, c. 39, s. 139] — considered s. 179(1)(b) — considered s. 487.051(2) [en. 1998, c. 37, s. 17] — referred to R. v. Adamo Suche J. 113

s. 491(1) — referred to s. 672.54 [en. 1991, c. 43, s. 4] — considered s. 742.1 [en. 1992, c. 11, s. 16] — considered

APPLICATION by accused for declaration that mandatory minimum sentencing provision was unconstitutional as impairing accused’s rights not to be subjected to cruel or unusual treatment or punishment; to life, liberty and security of person; and to equality before law; SENTENCING HEARING following conviction of accused on charge of possession of loaded prohibited firearm.

Deborah L. Carlson, Carla J. Dewar, for Crown Gregory A. Gudelot, Daniel V. Gunn, for Accused

Suche J.: Introduction 1 The question raised in this case is whether a mandatory minimum sentence that precludes consideration of the reduced moral blameworthiness of a mentally disabled offender violates the Canadian Charter of Rights and Freedoms (the “Charter”). For the reasons below, I conclude it does.

Background 2 On May 5, 2011, I convicted Mr. Adamo of a series of firearms related offences that arose as a result of police discovering a handgun and some ammunition inside a garden shed on his property. This included one count of possession of an unloaded prohibited firearm with readily accessible ammunition in breach of s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46, as amended (the “Code”), and one count of possession of a firearm while prohibited from doing so, s. 117.01(1) of the Code. A judicial stay of proceedings on the basis of R. v. Kienapple (1974), [1975] 1 S.C.R. 729 (S.C.C.), is being entered on the other charges by agreement of counsel. 3 Mr. Adamo is now before me for sentencing. Section 95(2) provides that the punishment for a conviction under s. 95(1) is, in the case of an indictment, three years’ imprisonment for a first offence. 4 Mr. Adamo asserts that s. 95(2)(a)(i) violates ss. 7, 12 and 15 of the Charter and he seeks a declaration of invalidity pursuant to s. 52 of the Constitution Act, 1982, as the infringement(s) cannot be justified under s. 1 of the Charter. 114 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

5 The analytical framework assessing for the constitutionality of s. 95(2) utilized in R. v. Kinnear (2005), 198 C.C.C. (3d) 232 (Ont. C.A.), and followed in R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330 (Ont. S.C.J.), and R. v. Smickle, 2012 ONSC 602, 280 C.C.C. (3d) 365 (Ont. S.C.J.), applies. That is, where considering whether a punishment is grossly disproportionate, the first issue to be determined is an appropriate sentence absent the three year minimum. If it is the same or greater than the mandatory minimum, the application is only of academic interest and should be summarily dismissed. If not, the question of whether s. 95(2)(a)(i) violates s. 12 must be decided. If the answer is yes, then the appropriate sentence should be imposed.

Circumstances of the Offence 6 On April 6, 2009, the Winnipeg Police Service executed a search warrant at a residence in Winnipeg where Mr. Adamo lives with his elderly mother. The object of the warrant was a .32 calibre gun and ammunition and Mr. Adamo was identified as the person believed to be in possession of these items. 7 Police searched the house and a garden shed located in the backyard. The gun, ammunition, and a number of other items were located in the shed, which had a latch on the door but was not locked. The yard was enclosed by a wooden fence between five and a half and six feet in height, and was accessible by a gate adjacent to the side of the house. The items were located behind a plywood panel on the inside wall, which was secured with screws. Once removed, the gun and bullets were found. Among other items resting on part of the framing was a piece of paper containing a list of names of members of different gangs. In one of the bedrooms of the house a bulletproof vest was located in a closet. 8 Mr. Adamo was interviewed by police. The videotape of the interview, which was filed at the trial, reveals him to be agitated, somewhat rambling, and frequently off topic. Much of what he had to say to the officers was at best tangential to their questions. He made vague references to Asian gangs being a problem and that police and government were corrupt. He said the list was a joke and that a friend gave him the bulletproof vest. He eventually acknowledged that the gun was his, suggesting someone put it in the shed but would not say who, and that he should have gotten rid of it. R. v. Adamo Suche J. 115

Circumstances of the Offender 9 Mr. Adamo is 39 years of age. He is unemployed and essentially un- employable and resides with his elderly mother. He suffered a severe brain trauma in 2000, when he was beaten with a baseball bat by two members of the Hells Angels. The injury caused extensive damage to his left temporal lobe, resulting in significant impairment in function, memory, impulse control, and judgment. He was hospitalized for a lengthy period, during which time an occupational therapy assessment was be- gun, which identified that he had significant cognitive impairment and would be at great risk in the community due to decreased insight and judgment. However, for reasons unknown, he was discharged without the assessment being completed or receiving any rehabilitation. 10 In 2011, Dr. Jeffrey Waldman, a psychiatrist, was retained by the defence to provide a report to the court for the purposes of this sentencing. It turns out that until then, Mr. Adamo had never been seen by a psychiatrist nor undergone a neuropsychological assessment. The only treatment he had received in the intervening years was for a seizure disorder, which has been well managed by medication that is prescribed by a neurologist he sees regularly. 11 Dr. Waldman was able to review all of Mr. Adamo’s medical records, and spoke to his brother, who is quite involved in Mr. Adamo’s life. He also interviewed Mr. Adamo, who was of very little assistance in explaining his history or events. Dr. Waldman described Mr. Adamo’s in- teractions as rather inappropriate, intrusive and disorganized. He became so agitated during their first meeting that he began to have difficulty breathing and exhibited symptoms of a panic attack. After he was able to settle down and continue the interview, he focused on several conspiracy theories regarding gangs, the police, and the government. He told Dr. Waldman that when trying to sleep he would hear footsteps outside his room, which he believed to be police officers checking on him; that he thought he was being monitored through Google; that the courts and the medical system were corrupt; that gangs had infiltrated the police; that the beating he received was proof that gangs were out to get him; and the reason Aboriginal and Asian gangs were after him was because he was Italian. 12 Dr. Waldman was of the view that Mr. Adamo suffers from significant permanent intellectual impairment, memory problems and impaired impulse control and judgment, consistent with a personality disorder secondary to a traumatic brain injury. In addition, he concluded Mr. Adamo 116 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

had developed paranoid ideas and was experiencing illusions (misinter- preting events or facts), all of which were consistent with a psychosis. He recommended Mr. Adamo undergo a trial of antipsychotic medication to treat the psychosis. He strongly recommended that Mr. Adamo have a neuropsychological assessment to properly identify the extent of his deficits and his resulting needs, and concluded that Mr. Adamo required support in the community as it would be unreasonable to expect his aging mother to care for him, given the extent of his disability. 13 Dr. Waldman subsequently began treating Mr. Adamo, and in a follow-up report dated March 27, 2012 he noted that Mr. Adamo had been responsive to antipsychotic medication and his paranoid thinking had lessened, although he still maintained the belief that gangs were out to get him. Dr. Waldman reported that this was no longer a daily fear, however, and Mr. Adamo did not consider that he had to protect himself. 14 At the sentencing hearing, Dr. Waldman, who works extensively with high risk offenders, was firmly of the view that Mr. Adamo was suitable for a community placement. While only a neuropsychological assessment could identify Mr. Adamo’s precise needs, Mr. Adamo apparently is not that different from many patients he works with, and, in fact, Dr. Waldman saw him as being lower risk than many who live in the community successfully. Typically, such individuals have support from programs such as the Provincial Special Needs or the Supported Living Pro- gram, which help them function and maintain a pro-social lifestyle. 15 In cross-examination, Dr. Waldman acknowledged that Mr. Adamo had missed an appointment, had admitted that on one occasion he had used cocaine, had not cooperated with the mental health community worker who had tried to work with him, and for some period was not taking his prescribed medications. Dr. Waldman maintained, however, that Mr. Adamo is very responsive to the threat of going to jail and if mandated to do something by the court he would do it, provided he had the appropriate supports in the community. 16 As to his previous involvement with the justice system, Mr. Adamo has the following criminal record: DATE CHARGE(S) DISPOSITION 1995-05-07 1) Mischief Under 1) $500 Fine 2) Pro- $1000 2) Theft Under bation 1 year $1000 1996-06-04 Possess Property Ob- $500 Fine tained By Crime R. v. Adamo Suche J. 117

DATE CHARGE(S) DISPOSITION 2001-02-14 Uttering Threats 1 year SS/sup prob 2002-02-06 1) CDSA 5(2) 2) Ut- (1-3) 6 mths (time ter threats 3) Fail served) & 14 mths Comp Cond Recog conc Mandatory weap prohibition 2002-06-25 Aggravated Assault 28 months consec to sentence serving & Mandatory weap prohibition 2007-05-15 Utter threats Time served (equivalent of 8 months) & 2 years probation and 10 years discretionary weap proh 2009-05-25 Mischief under $5000 $100 Fine & 1 year supervised probation 17 I was not provided with any information about any of these offences, except that the events which gave rise to the charges in 2002 actually occurred in 1999, prior to his head injury.

An Appropriate Sentence Absent the Mandatory Minimum 18 As discussed in Nur, in deciding what a fit and proper sentence would have been but for the mandatory minimum three year imprisonment in s. 95(2), the case law in the years prior to its enactment provide the best guide. In reviewing a series of cases between 1998 and 2008, Code J. observed that the proliferation of guns, particularly in the streets of To- ronto, had caused courts to conclude that exemplary and denunciatory sentences were needed to address the concern in the community over this issue. He found that the range for cases involving possession of a loaded handgun, absent any other offences, such as drug trafficking, was between two years less a day and three years, with this caveat: [45] I should note that the “range” of two years less a day to three years imprisonment, suggested by the above line of cases, is pre- cisely that, a “range”. The effect of a “range” of appropriate sentences for a particular offence is not the same as a mandatory minimum sentence or a maximum sentence. A “range” is simply a flexible guideline for the normal case. It assists in achieving “parity”, but without sacrificing “proportionality”. Departures from the 118 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

“range” can be justified, by particularly strong aggravating or mitigating circumstances. ... 19 Similarly, in R. v. Sheck, 2013 BCPC 105, [2013] B.C.J. No. 999 (B.C. Prov. Ct.), Bahen Prov. Ct. J. found that the range for an offence under s. 95(1) was between 18 months and two and a half years in British Columbia. No Manitoba cases were cited to me, so I conclude the range would have been within the combined parameters. 20 In Smickle, Molloy J. agreed with Code J.’s view regarding the range, but she concluded that Mr. Smickle fell into the category of rare and exceptional circumstances. She referred to several other cases decided during this period with more or less similar situations which resulted in lower sentences, including R. v. Los, [2008] O.J. No. 3248 (Ont. S.C.J.), R. v. Canepa, 2011 ONSC 1406, [2011] O.J. No. 924 (Ont. S.C.J.), and R. v. Snobelen, [2008] O.J. No. 6021 (Ont. C.J.). 21 In Los, the offender, who was 30 years old with a minor but dated record, was convicted of possession of a loaded restricted firearm, being a sawed-off shotgun. He had the gun for protection because he and his family lived in a violent area. The charges arose from a disturbance in the neighbourhood and Mr. Los, believing some children were in danger of getting injured, grabbed the shotgun, loaded it, ran outside and fired it into the air with the idea of stopping the fight and dispersing the crowd. He was apprehended by police while running through the courtyard of the building. The trial judge found that while he was well-intentioned, taking that gun into a public area was dangerous and firing the gun was an aggravating factor. He was sentenced to 18 months. 22 In Canepa, the offender was 18 years old at the time of the offence. He had no prior criminal record. Police went to his apartment as someone had complained about the smell of marihuana. Mr. Canepa allowed them to enter, where they saw marihuana on a table and arrested him. In response to their questions, he told them that he had a gun under a nearby table. He pleaded guilty to simple possession of a firearm without legal authorization, which does not have a mandatory minimum. The court concluded that there were aggravating circumstances, including that the gun was loaded and was possessed in conjunction with drugs. However, in light of extenuating circumstances regarding his personal life and his efforts to turn himself around, a one-year conditional sentence was imposed. 23 In Snobelen, the offender was found to be in possession of a semi- automatic handgun together with accessible ammunition. He had pur- R. v. Adamo Suche J. 119

chased a ranch in Oklahoma many years previously and the gun was left as part of its contents. Unbeknownst to him, the gun was included with some furniture and other items from the ranch that were later shipped to his home in Ontario. It was only on unpacking the boxes that he realized the gun was there. He said he intended to turn it in but neglected to do so, leaving it stored in a bedside table for some time. His wife later hid the gun in a vent in the house and when he noticed it missing, he thought she had disposed of it. Subsequently, when the parties’ marriage broke up, his wife contacted the police and told them the gun was in his possession and identified exactly where it was. Mr. Snobelen was 53 years old, a successful businessman, and a public figure who had previously been a member of the Legislature. The Crown proceeded summarily and he was given an absolute discharge. 24 In Smickle, the offender was 27 years old and had no prior record. He was sitting on a sofa in his cousin’s apartment, in his underwear and sunglasses, taking pictures of himself with a handgun, apparently for posting on his Facebook page. The police arrived with a warrant to search the apartment as his cousin, who was not home, was believed to be involved in selling drugs from the apartment. 25 Molloy J. concluded the facts of the case were exceptional and, but for the mandatory minimum, the proper sentence for Mr. Smickle would be one year imprisonment, which she ordered to be served in the community. 26 Finally, in R. v. Perdue, 2013 ONSC 797, [2013] O.J. No. 968 (Ont. S.C.J.), the offender was found with a loaded handgun hidden in a chair in the bedroom of her apartment. She had obtained the gun from a neighbourhood drug dealer for protection as she felt threatened by a former partner, drug dealers, and other people she considered to be very dangerous who lived in her neighbourhood. She told police she had been intending to surrender the gun but never did. 27 She had no prior record, no history of employment, and admitted to a long history of drug and alcohol abuse, for which she was being successfully treated. There were a number of extenuating circumstances, including the fact that she had five children, several of whom had developmen- tal or other issues and needed her support. 28 Given that a conditional sentence was not available because of s. 742.1 of the Code, Croll J. concluded that a sentence of 90 days’ imprisonment served intermittently would meet the principles of denunciation 120 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

and deterrence along with rehabilitation and promotion of sense of responsibility.

Mental health as a sentencing consideration 29 Mr. Adamo’s mental health issues are a very significant consideration in this case. Mental illness and disability, regardless of whether caused by disease, injury or otherwise, can be either an aggravating or mitigating factor in sentencing. As observed in R. v. Cross, [2012] N.J. No. 356 (N.L. Prov. Ct.): [1] Imposing sentence upon an offender who suffers from a mental illness presents difficulties not found in other areas of sentencing and involves a careful judicial balancing of conflicting interests. The public must be protected, particularly from violent offenders, but an offender’s mental illness must play an important role in assessing his or [her] moral blameworthiness. If the offender poses a risk to the public, then resort to separating the offender from society may be called for despite the existence of a mental illness (see R. v. Desjardins- Paquette, 2012 ONCA 674and R. v. Virani, [2012] A.J. No. 507 (C.A.), at paragraph 16), otherwise restraint should normally domi- nate the sentencing process for such offenders. A concentration on treatment through community intervention should normally prevail over incarceration (see R. v. Lundrigan, [2012] N.J. No. 231 (C.A.), at paragraph 20), though less so when serious offences are committed (see R. v. J.M., [2008] N.J. No. 262 (P.C.) and R. v. Taylor, [2012] N.J. No. 251 (P.C.)). 30 In R. v. Robinson (1974), 19 C.C.C. (2d) 193 (Ont. C.A.), Brooke J.A. explained (p. 197): ... The important purposes of the sentence are the protection of the public so long as this man remains in this dangerous state and his early return to the community when he is cured or, to put it another way, rehabilitated. The emphasis must be on the protection of the public, and of course this may be first achieved by his cure, and so the sentence must be of sufficient length to ensure full treatment but of course conversely, if that is not successful, that the public must be protected as best as can be accomplished. 31 Absent public safety concerns, then, mental illness is usually a mitigating factor. Punishment and specific and general deterrence are of little use when dealing with a person who has offended, at least in part, because of mental illness. As described by Clayton C. Ruby et al., Sentenc- ing, 7th ed. (LexisNexis Canada Inc., 2008), a consensus has developed that “general deterrence should be given very little, if any, weight in a R. v. Adamo Suche J. 121

case where an offender is suffering from a mental disorder because such an offender is not an appropriate medium for making an example to others” (§5.251, pp. 293-94). 32 Examples of courts minimizing the role of deterrence in cases involving the mentally ill are common (see R. v. Newby (1991), 84 Alta. L.R. (2d) 127 (Alta. C.A.); R. v. Rhyno, 2009 NSCA 108, [2009] N.S.J. No. 474 (N.S. C.A.); R. v. Dickson, 2007 BCCA 561, 228 C.C.C. (3d) 450 (B.C. C.A.); R. v. Muldoon, 2006 ABCA 321, 213 C.C.C. (3d) 468 (Alta. C.A.)). The comments of Rothman J.A. in R. v. Valiquette (1990), 60 C.C.C. (3d) 325 (Que. C.A.), at 331, which involved a woman suffering from severe depression who killed her three-year-old child, illustrate the rationale underlying this principle: Persons suffering from severe mental illness of this kind do not, in my respectful opinion, require exemplary sentences to deter them from repeating the offence. Nor is a severe sentence imposed on a mentally ill person of much value for purposes of general deterrence. Mothers, generally, do not need exemplary sentences to deter them from killing their young children. And most people understand that the mentally ill require treatment and supervision, not punishment. 33 Again, the reasoning of Brooke J.A. in Robinson is apt (p. 197): ... This is a case where it is not really accurate to say that the sentence should be a deterrent because others like him lose touch with reality and as such the deterrence of this sentence is of course meaningless to them. Further, the sentence should not proceed on the basis of punishment because the Court should not punish people who commit crimes because of mental illness. ... 34 Hand-in-hand with the mitigating aspect of mental illness in sentencing is the reduced moral culpability of offenders who are mentally ill. Since 1996, proportionality has been the primary sentencing objective in the Code, and was part of the law in Canada prior thereto. Punishment must be proportionate to the moral blameworthiness of the offender. An offender impelled to commit a crime by mental illness is not a free actor; his or her moral blameworthiness is necessarily lesser than that of a person who freely chooses to commit a crime. 35 This principle was recently applied by the Alberta Court of Appeal in R. v. Ayorech, 2012 ABCA 82, [2012] A.J. No. 236 (Alta. C.A.). Mr. Ayorech was diagnosed as having a well-established psychiatric develop- mental disorder and schizophrenia, together with a severe substance 122 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

abuse problem. In upholding the one-year sentence for a number of rob- beries with a weapon, the court stated: 7 The sentencing judge observed that ordinarily an appropriate global sentence for these offences would be within the range suggested by the Crown, and stated that were it not for the exceptional circumstances of the respondent, he would have given a 4-year sentence of imprisonment. He noted that although Ayorech had a record showing violence as a youth, his record disclosed no convictions for a substantial period (approximately 10 years) prior to the incidents in question. The sentencing judge further took into account that Ayorech has no memory of committing these offences, is limited in- tellectually, and has serious mental illness as well as severe substance abuse problems, which the judge commented could not be cured overnight. ... 36 In reviewing the sentence, the Alberta Court of Appeal affirmed the correctness of the approach on the basis of reduced moral culpability: 12 The gravity of the offence is not, of course, lessened by the personal circumstances of the offender. However, the mental disorder diminishes the degree of responsibility of the offender. Impaired reasoning, delusional disorders, and like mental conditions distinguish those afflicted from the ordinary offender who is fully accountable for his or her conduct: ... 37 It is important to note that the mental illness does not have to have caused the offender to commit the crime, although it must be linked to it. In Ayorech, the Alberta Court of Appeal commented that: 10 ... mental disorders, particularly schizophrenia, can significantly mitigate a sentence, even if the evidence does not disclose that the mental illness was the direct cause of the offence or that it was carried out during a period of delusions, hallucinations, or such: R v Resler, 2011 ABCA 167, 505 AR 330. It is sufficient that the mental illness contributed to the commission of the offence: R v Belcourt, 2010 ABCA 319, 490 AR 224. ... [Emphasis added] 38 However, as the Crown points out, if an offender’s actions are uncon- nected to their mental illness, the result is usually quite different. In R. v. Peterkin, [2003] O.J. No. 4403 (Ont. S.C.J.), the offender, subsequent to committing a robbery with an imitation firearm, suffered a serious brain injury. He had to re-learn many basic skills and suffered fragile health. Durno J. found there was no basis to reduce the sentence on account of Mr. Peterkin’s special needs, or to conclude they were less likely to be R. v. Adamo Suche J. 123

met while in prison than in the community. He observed that correctional authorities are obliged under the Corrections and Conditional Release Act to provide essential healthcare. 39 In R. v. Shahnawaz (2000), 149 C.C.C. (3d) 97 (Ont. C.A.), the majority of the Ontario Court of Appeal refused to take into account psychiatric evidence that the offender was suffering from post-traumatic stress disorder because of the lack of connection between his mental health and his offending behaviour. It concluded that his health needs while in custody, for the most part, were the responsibility of corrections authorities. A similar view was also expressed in R. v. W. (L.W.) (1998), 125 C.C.C. (3d) 43 (B.C. C.A.) (rev’d on other grounds 2000 SCC 18, [2000] 1 S.C.R. 455 (S.C.C.)). 40 Here, Mr. Adamo’s deficits and impairments resulting from the brain injury, combined with a psychosis secondary to the injury, left him in a highly vulnerable state. Certainly, the deficits and impairments are permanent and immutable. Dr. Waldman was uncertain of how long Mr. Adamo had been suffering from the psychosis. However, both his comments to police and his behaviour while in pre-trial custody in the Winni- peg Remand Centre, described later herein, suggest he was suffering from the psychosis at those times. 41 It is difficult to understand from Mr. Adamo himself exactly what led to him having the gun. On this, Dr. Waldman says in his September 2011 report (p. 7): ... based on my assessment, that Mr. Adamo lacks judgment as a result of his significant cognitive impairment, that he has very poor impulse control, and his paranoia, along with those difficulties, puts him at risk for either engaging in the behaviour that he did (i.e., writing lists of people that he believes pose a risk to him, and keeping a gun and bulletproof vest for protection) or making a poor decision to hold the items identified for somebody else, whom he will not identify, which he continues to maintain as the events leading up to his charges in our assessment. 42 Overall, the evidence satisfies me that Mr. Adamo’s mental illness and disability were directly connected to his committing these offences.

Systemic failures 43 A failure by the justice system to treat mental health issues has also been considered a mitigating factor in sentencing. In R. v. Muldoon, 2006 CarswellAlta 1852 (Alta. Prov. Ct.), the offender robbed a convenience 124 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

store with an axe, and remained on the scene with the intention of pro- voking a confrontation with the police where he had hoped to be shot dead. Wilkins A.C.J. Prov. Ct., the sentencing judge, gave substantial weight to the systemic failure in failing to treat Mr. Muldoon’s mental health problems. He stated: 6 The other aspect of this that makes me consider this as an extremely mitigating factor is that — the deficiency in the FAOS report. And I want to make it clear again that I am not pointing fingers at anybody in this, but I find it interesting that in the FAOS report, when they talk about the incident that I have just referred to, they indicate that: When hospitalized on unit 27 in January, 2005 he was diagnosed with major depressive disorder in remission, alcohol dependence, poly substance abuse disorder, promi- nent traits of antisocial personality disorder. It does not give us any more insight as to why there was - follow-up was not done. I have heard from the father here today who indicates that, in fact, the anticipated result would be that he would be referred to I believe you said Ponoka for follow-up treatment. This was not done. So I think it is a mitigating factor, an extremely important mitigating factor. 44 An even more dramatic example is R. v. Jacob, 2002 YKTC 15, [2002] Y.J. No. 49 (Y.T. Terr. Ct.), where Stuart C.J. made the following comments: 93 The evidence overwhelming reveals that the state had ample notice of the need to intervene in M.N.J.’s life, ample opportunity to do so, and failed to do so. M.N.J.’s defiant, rebellious and stubborn refusal to appear to treatment opportunities made it exceedingly difficult to find and keep M.N.J. in treatment. Given the high risks he posed to society, more effort, and certainly more effort after 16, before and after being terminated as a state ward was required. 94 While impossible to apportion responsibility to any one person or agency, collectively the state must carry some of the responsibility for M.N.J.’s circumstances — circumstances that contributed directly to his behaviour in committing this hideous crime. The state now seeks to punish M.N.J. for behaviour that, in part, the state’s failures have caused. The state’s failures make M.N.J. less accountable to the state for violating its laws, but he is no less accountable to himself or to the survivor for the harm he has caused. 45 In this case, it is not clear why Mr. Adamo was discharged from hospital without the assessment being completed or receiving any rehabilita- R. v. Adamo Suche J. 125

tion. I was also not provided with any information as to what transpired while he was incarcerated from 2002 to 2004. Dr. Waldman determined that on his release, Mr. Adamo was referred to a psychologist by his parole officer. The psychologist saw him intermittently for some time but no assessment was undertaken or recommended, nor was a referral to a psychiatrist or to programming made. 46 It is also of note that Mr. Adamo was on supervised probation from approximately six months after his leaving hospital up to and including the date of these offences. Again, no information was provided to me about this. 47 What is known is that despite Mr. Adamo’s almost continuous involvement in the justice system after he left hospital until Dr. Waldman saw him, he had never been assessed, treated or referred to programming of any kind.

Impact of imprisonment 48 Quite apart from the role of mental illness in determining moral culpability, the fact that an offender would be particularly affected by imprisonment because of physical or mental disabilities is often treated as a mitigating factor (see Sentencing, at 231-234). It is also recognized that in such cases, less weight need be given to the principle of general deterrence (see R. v. Messervey (1991), 96 Nfld. & P.E.I.R. 314 (Nfld. Prov. Ct.), at para. 23). In R. v. Wallace (1973), 11 C.C.C. (2d) 95 (Ont. C.A.), a sentence of 10 years for armed robbery was reduced to four years by the Court of Appeal on the grounds that the trial judge failed to properly consider information provided by the accused’s psychiatrist. The psychiatrist had reported that the accused was severely depressed, paranoid, “living in a state of fear amounting to terror of attack or imminent death at the hands of other inmates or even of the staff”, and was of the view that the length of the sentence had a demoralizing effect on the accused and a negative impact on the prospects of his treatment and rehabilitation. The court stated (p. 100): ... It is plain that a sentence the length of that imposed was very much more severe punishment for this man [than] for a normal person, because of the terror that he experiences, the danger of self-de- struction and the loss of amenability to treatment as well as the fact it is unlikely he can achieve an early release because that treatment which he is in need of must be deferred because of the sentence he must serve. 126 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

If the primary object of the criminal law is the protection of society, how apt is this sentence? Perhaps such a sentence as this one offers immediate protection to society but clearly it does little to protect it for the future. The best future protection for society lies in imposing a sentence which will make the appellant’s rehabilitation probable through the provision of medical treatment that can be made available to him. It seems then that if a moderate term of imprisonment had been imposed, the medical treatment which he needed would have been available during such term and the sentence must be altered so that we can accomplish his cure and protect the community. 49 In Newby, the Alberta Court of Appeal agreed that the fact that the offender was at risk of committing suicide if incarcerated was an important mitigating factor that contributed to its conclusion that a suspended sentence was in order. 50 As noted previously, no evidence was presented regarding how Mr. Adamo fared during his imprisonment between 2002 and 2004. I do know he spent some time in pre-trial custody. On November 1, 2010, he was arrested and charged with breaching the term of his recognizance requiring him to remain in his home 24 hours a day except when he was attending medical appointments. Mr. Adamo was located by the police somewhere other than his residence and claimed he was going to or coming from a doctor’s appointment. Nonetheless, he was arrested and held at the Winnipeg Remand Centre from then until January 11, 2011, at which point it was demonstrated his explanation to police was true. The charge was then stayed. 51 A letter from the assistant superintendant-operations of Headingley Correctional Centre was filed as an exhibit at the sentencing hearing, out- lining Mr. Adamo’s difficulties while in custody: • November 1, 2010 -On arrival to WRC he was assessed as uncooperative, sober. • December 20, 2010 — He was charged for threatening to shoot and kill a CO if he sees him on the outside. He faced an institu- tional discipline board and plead guilty. Awarded 10 days punitive segregation and placed on special handling status. • January 8, 2011 — He was involved in a physical altercation with another inmate believed to be a gang member. Was internally relocated as a result. • January 10, 2011 — He was internally relocated due to threatening another inmate, a known gang member. R. v. Adamo Suche J. 127

52 This illustrates how Mr. Adamo’s impulsive, easily agitated demeanour, lack of judgment, insight, and self-control, combined with his fixa- tion on gangs, affects his behaviour. 53 While a remand facility is by nature ill-equipped to deal with inmates with special needs, the evidence before me reveals that there would also be little assistance available to Mr. Adamo at Stony Mountain Institution, the only federal penitentiary in Manitoba. 54 The Crown filed a report authored by Kevin Orr and Kailee Watts, project officers with the Correctional Service of Canada. It contains an overview of programming available at Stony Mountain Institution. This begins with an assessment and development of a correctional plan, including referral to programming for individual inmates. Of specific significance to Mr. Adamo is the Supportive Living Range (“SLR”), the primary purpose of which is described as providing: ... a protective and positive environment in which the mentally and/or behaviorally disordered and/or low functioning inmate can be assessed, and individualized plans developed to assist the inmate to reach his maximum potential. The SLR’s primary purpose is the maintenance and promotion of mental health. Individuals appropriate for the SLR cannot be accommodated within the general population of the institution due to their vulnerability to exploitation and manipulation by other inmates, their risk of self-harm and their general in- ability to function independently. ... The complexity and diversity of the SLR inmates’ problems demands an integrated approach to treatment and care. A partnership between correctional personnel and mental health professionals has contributed directly to achieving a holistic approach within a correctional setting. The maintenance and promotion of mental health is achieved through a variety of approaches including education, counseling, life skill development, and vocational training. The goal of the SLR is to provide these inmates with daily living and coping skills that will assist them in their reintegration into the population and also prepare them for safe release into the community at the earliest possible time. 55 During cross-examination by the Crown, Dr. Waldman was referred to this report and asked whether this programming was appropriate for Mr. Adamo. Dr. Waldman agreed that if such programming were available, it would be helpful. He added, however, that based on his personal experience in working with inmates on day parole and those recently released from Stony Mountain Institution, he was aware that there are no staff or therapists involved in providing such programming. At the con- 128 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

clusion of Dr. Waldman’s testimony, the Crown indicated it would be calling rebuttal evidence to respond to these comments. The next day, however, Ms. Dewar indicated that she would not be doing this, and, in fact, after speaking with a representative of Stony Mountain Institution, advised that the Crown would not take issue with what Dr. Waldman had to say.

Pre-trial conditions 56 It is accepted that time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor in sentencing (see R. v. Irvine, 2008 MBCA 34, 225 Man. R. (2d) 281 (Man. C.A.)). 57 Mr. Adamo was arrested on April 9, 2009. He was released on bail on September 1, 2009 on house arrest, except to attend medical appointments. At the preliminary inquiry on June 10, 2010, the conditions were modified to require him to be at his residence between 11:00 p.m. and 6:00 a.m.

Conclusion 58 The evidence satisfies me that Mr. Adamo suffers from a significant mental disability brought on by the assault he suffered in 2000. Although his condition does not preclude him from being found criminally responsible, it changed his personality and behaviour dramatically. It left him severely cognitively impaired, with a propensity to misinterpret his environment, a lack of insight into his deficits and needs, severely diminished impulse control, and very poor judgment. As Dr. Waldman stated in his testimony, all in all, Mr. Adamo is very childlike in many ways. 59 Added to this, Mr. Adamo was suffering from a psychosis secondary to his brain trauma at the time of his offence. I accept that both his underlying mental disability and the psychosis were contributing factors in his committing the offences before the court. 60 The Crown argues that Mr. Adamo is a danger to the public. It says his history of violence and involvement with drugs offers an explanation as to why he had a gun and a bulletproof vest, both of which are tools of the drug trade, according to Detective Robert Duttchen, an expert in illegal firearms use, called by the Crown. Given Mr. Adamo’s mental disability, he is the last person who should have a gun. A period of five years’ imprisonment is therefore necessary for the protection of the public. His mental health needs will be the responsibility of Corrections Canada. R. v. Adamo Suche J. 129

61 I disagree. Mr. Adamo does have a drug conviction and another for violence. He also rather unwisely volunteered to the police during his interview that he had been a member of the “Spines” for a year. I understand from his comments that this is a gang of some kind, albeit not one with any notoriety in this community. However, all of this was almost 15 years ago. I see nothing in the evidence that supports the Crown’s theory. 62 Treatment (which I include to mean life skills and other programming, as well as medication) has and, once Mr. Adamo’s specific needs are better known, will likely increasingly improve Mr. Adamo’s condition and his ability to manage his life. I am satisfied that despite his many issues, including a history of substance abuse, Mr. Adamo is and can be successfully treated and managed in the community without any significant risk to public safety. The necessary resources in the form of public programs are available to assist him. 63 Mr. Adamo had never been assessed nor treated for his mental illness prior to this offence, despite the fact that there was ample opportunity for this to happen. At best, he can be said to have fallen through the cracks; and at worst, he is the victim of systemic failures. Whatever label is attached, this circumstance is to some extent a mitigating factor. I agree with Stuart C.J. in M.N.J. that where the state plays some part in the circumstances that contribute to the offending behaviour, its failure makes an offender somewhat less accountable to the state for violating its laws. 64 Mr. Adamo has demonstrated that he is able to reliably comply with court orders by virtue of his more than four years on bail. While it is true that he was on probation and was subject to a lifetime prohibition from possessing a weapon at the time of these offences, I conclude that the extent of his mental health issues at that point, and the lack of supports to help him meet his obligations, contributed to his failure to comply with these orders. 65 It is also safe to say that imprisonment would be much harsher punishment for Mr. Adamo than for others. As demonstrated by his time in the Winnipeg Remand Centre, his tendency to misinterpret his environment, his underlying anxiety and fear about gangs, and lack of impulse control and insight put him at risk. No doubt he is his own worst enemy. While his condition today is much better than it was then as a result of being treated, nonetheless, he still suffers from the same deficits. Com- pounding the situation, of course, is the fact that the programming he requires would not be available in federal penitentiary. 130 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

66 Mr. Adamo’s criminal record is an aggravating factor and must be taken into account, but I do not consider it to be of great significance. As noted above, the only convictions for serious offences — possession for the purposes of trafficking (what substance I was not told) and aggravated assault — arise from events that occurred almost 15 years ago. His only other convictions since his head injury are minor. The nature of these offences — uttering threats and mischief — suggest that the behaviours involved were likely associated with his mental health issues, which were then untreated. 67 In addition, without diminishing the dangerous nature of the gun in issue, this situation is at the low end of the wide range of circumstances that fall within s. 95(1). The gun was not loaded, it was not on Mr. Adamo’s person, nor was he in possession of it in a public place. It was behind a wall, in a shed, inside a fenced yard. While someone could have accessed it, they would have to be equipped with a screwdriver and know to look behind the plywood panel. 68 I conclude that rehabilitation is the primary sentencing objective in this case. Of course it must be balanced with the other sentencing objectives. Mr. Adamo’s mental health issues do not make him an appropriate medium to achieve general deterrence or denunciation; protection of the public can be achieved through appropriate conditions. 69 The nature of Mr. Adamo’s disability makes it essential that he have a very clear concept of the consequences of his failure to comply with court ordered conditions. I am satisfied that his time in pre-trial custody provided exactly that. This, combined with court imposed limitations on his freedom in the community, appropriate programming, and the knowledge that he will return to jail if he fails to abide by the court’s order, will effectively deter Mr. Adamo from re-involvement. 70 In all of the circumstances, then, I conclude that, but for the provisions of s. 95(2)(a)(i), a sentence of six months’ imprisonment followed by a period of probation would be a fit and proper sentence.

Section 95 of the Code 71 Before examining the question of whether the mandatory minimum sentence of three years’ imprisonment violates the Charter, it is helpful to put s. 95(2)(a)(i) in context. 72 Section 95 is a relatively recent addition to the Code. It prohibits possession of a restricted or prohibited firearm that is loaded or unloaded with readily accessible ammunition, without a licence and registration R. v. Adamo Suche J. 131

certificate. It is a hybrid offence with a maximum sentence of 10 years’ imprisonment on indictment and one-year imprisonment on summary conviction. It came into force in December 1998. 73 The section is concerned, essentially, with handguns or automatic or semi-automatic guns. Previously, possession of these would have fallen into s. 91(2), which prohibits possession of firearms or restricted/prohibited weapons, and which carries a five year maximum on indictment and six months on summary conviction. 74 Initially, s. 95(1) had a minimum sentence of one year imprisonment for a first offence (on indictment). The current version, providing the three year mandatory minimum for a first offence on indictment, came into force on May 1, 2008. 75 As noted by the Crown, the concern over firearm offences is nothing new, but has increasingly become a matter of grave public concern. As stated by Molloy J. in R. v. Ferrigon, [2007] O.J. No. 1883 (Ont. S.C.J.): 25 Guns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. A person who loads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person. Handguns are used to shoot people. A person who carries a loaded handgun in public has demonstrated his willingness to shoot another human being with it. Otherwise there would be no need to have loaded it. That person is dangerous. He is dangerous to those with whom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of his community; he is dangerous to innocent bystanders, including children, who may be killed or maimed by stray bullets. And equally importantly, he is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled - a way of life that respects the rule of law to ensure the peace and safety of those who live here. 26 It is because of the extreme danger of handguns and the senseless carnage and loss of life occasioned by their use that our courts have repeatedly emphasized the importance of denunciation and deterrence in sentencing for weapons offences. In R. v. Danvers, [2005] O.J. No. 3532 (C.A.), Armstrong J.A. stated (at para. 78): There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a 132 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

cause of major concern in the community and must be addressed. 76 Every trial judge sitting in an urban centre in this country knows all too well the devastating consequences of guns, and handguns in particular. None would suggest that this is not a grave public concern that must be addressed. 77 As is revealed by excerpts from the House of Commons Debates which were filed by the Crown as part of its materials on this application, public concern over the proliferation of guns and the same reasons cited in Ferrigon led Parliament to bring about the mandatory minimum in s. 95(2)(a)(i), as well as other mandatory minimum sentences. When introducing Bill C-10, the Minister of Justice told the House that the Bill was intended to tackle gun violence, particularly gang related violence occur- ring in the major urban centres of Canada. Minister Toews reminded the House that it is Parliament’s role to set the range of penalties that it deems appropriate for offences, but acknowledged that it is the responsibility of Parliamentarians in doing so to “ensure that our response is founded on recognized sentencing principles”. He also made reference to the fundamental principle of sentencing that a sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender, as well as the sentencing objectives found in s. 718 (39th Parl., 1st Sess., No. 033 (5 June 2006) at 1941 (Hon. Vic Toews).

Section 12 of the Charter — Cruel and Unusual Punishment 78 Section 12 of the Charter provides: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. 79 Mandatory minimum sentences have been the subject of s. 12 challenges from the early days of the Charter, although few have been successful. As observed by Arbour J. in R. v. W. (L.W.), 2000 SCC 18, [2000] 1 S.C.R. 455 (S.C.C.): 18 Mandatory minimum sentences are not the norm in this country, and they depart from the general principles of sentencing expressed in the Code, in the case law, and in the literature on sentencing. In particular, they often detract from what Parliament has expressed as the fundamental principle of sentencing in s. 718.1 of the Code: the principle of proportionality. Several mandatory minimum sentences have been challenged under s. 12 of the Charter, as constituting cruel and unusual punishment: see, for example, R. v. Smith [1987] 1 S.C.R. 1045, R. v. Goltz [1991] 3 S.C.R. 485, and Morrisey, supra. R. v. Adamo Suche J. 133

80 The four cases that have established the jurisprudence in this area include R. v. Smith, [1987] 1 S.C.R. 1045 (S.C.C.), R. v. Goltz, [1991] 3 S.C.R. 485 (S.C.C.), R. v. Morrisey (1998), 124 C.C.C. (3d) 38 (N.S. C.A.), and R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 (S.C.C.). 81 As McLachlin C.J. summarized in Ferguson: [14] The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate: R. v. Smith, [1987] 1 S.C.R. 1045. As this Court has repeatedly held, to be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence must be “so excessive as to outrage standards of decency” and disproportionate to the extent that Canadians “would find the punishment abhorrent or intolerable”: R. v. Wiles, [2005] 3 S.C.R. 895, 2005 SCC 84, at para. 4, citing Smith, at p. 1072, and Morrisey, at para. 26. ... 82 The analysis under s. 12 proceeds in two stages. First, the court must determine whether the mandatory minimum sentence results in a grossly disproportionate sentence for the offence and the individual offender being sentenced; if not, the court must then consider whether a reasonable hypothetical case exists in which the mandatory minimum sentence would have this result. 83 As for the analysis to be used in a s. 12 challenge, in Smith, the court identified four factors to be considered: • the gravity of the offence; • the personal characteristics of the offender; • the particular circumstances of the case; and • the actual effect of the punishment on the offender. 84 In Goltz, the following additional factors were also noted as relevant (p. 500): • whether the punishment is necessary to achieve a valid penal purpose; • whether it is founded on recognized sentencing principles; • whether valid alternatives to the punishment exist; and • whether comparison with punishments imposed for other crimes in the same jurisdiction reveals great disproportion. 85 In Nur, Code J. found an appropriate sentence in the circumstances to be just under three years’ imprisonment, but concluded the difference did not make the punishment grossly disproportionate. He also held that any 134 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

reasonable hypothetical could be appropriately dealt with by virtue of the hybrid nature of s. 95. That is to say, the least blameworthy circumstances would result in a summary proceeding. As a result, he dismissed the application. 86 In Smickle, Molloy J. struck down the mandatory three years and imposed a one-year conditional sentence. She concluded that three years’ imprisonment would be grossly disproportionate; the effect of incarceration in a federal penitentiary filled with seasoned criminals would be extremely harsh for Mr. Smickle and was unnecessary for either rehabilitation or individual deterrence. The only sentencing objective that she found would “arguably” be met by such a sentence was general deterrence and denunciation, but added: [83] ... However, the case law is clear that general deterrence alone cannot justify the imposition of a sentence that is otherwise grossly disproportionate to what an offender deserves. [Footnote omitted] To take that principle to the extreme, a mandatory sentence of life imprisonment for shoplifting would no doubt act as a general deterrent, but it would shock the public conscience to impose such an onerous punishment, for example, on a young single mother with no criminal record who steals a loaf of bread from Walmart. 87 I agree with both Molloy J.’s analysis and conclusions, and observe that here the situation is more extreme. A sentence of three years is much more disproportionate to what is appropriate for Mr. Adamo. 88 Such punishment would also be extremely harsh for Mr. Adamo given his mental health issues. Three years in a federal penitentiary, where many of the inmates are gang members (the object of his anxieties and fears), without appropriate programming, would be very severe. I am of the view that such punishment is not only unnecessary for Mr. Adamo’s rehabilitation but clearly detrimental to it. 89 In addition, of course, Mr. Adamo’s mental health issues make him an inappropriate means to communicate general deterrence. 90 Further, when the mandatory minimum sentence of three years’ imprisonment for a first offence is considered in light of some other firearms offences, such punishment is arguably, in itself, disproportionate. For example, a person who points a loaded firearm at someone faces no minimum sentence; a person who uses a firearm in committing an indict- able offence faces only a minimum sentence of one year; a person who uses a prohibited or restricted weapon carelessly is only subject to a mandatory minimum term of two years. R. v. Adamo Suche J. 135

91 In Smickle, Molloy J. concluded the test for “grossly disproportionate” was objective, but was also of the view that on a subjective test, a three year sentence for Mr. Smickle would shock the public conscience: [89] ... In my opinion, a reasonable person knowing the circumstances of this case, and the principles underlying both the Charter and the general sentencing provisions of the Criminal Code, would consider a three year sentence to be fundamentally unfair, outrageous, abhorrent and intolerable. 92 I am of the view that the same would be said in relation to Mr. Adamo’s situation, and find that the mandatory minimum sentence in s. 95(2)(a)(i) violates s. 12.

Section 7 of the Charter 93 Section 7 states: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 94 In order to succeed under s. 7, an applicant must prove that there has or will be a deprivation of the right to life, liberty and security of the person, and that such deprivation was not in accordance with the principles of fundamental justice. Of course, imprisonment affects Mr. Adamo’s liberty, and s. 7 is thus engaged in this case. 95 As to “the principles of fundamental justice” referred to in s. 7, in Reference re s. 94(2) of Motor Vehicle Act (British Columbia), [1985] 2 S.C.R. 486 (S.C.C.), the Supreme Court of Canada determined that s. 7 provides substantive, not just procedural rights. Lamer J. (as he then was) stated (p. 502-3): Sections 8 to 14 are illustrative of deprivations of those rights to life, liberty and security of the person in breach of the principles of fundamental justice. For they, in effect, illustrate some of the parameters of the “right” to life, liberty and security of the person; they are examples of instances in which the “right” to life, liberty and security of the person would be violated in a manner which is not in accordance with the principles of fundamental justice. To put matters in a different way, ss. 7 to 14 could have been fused into one section, with inserted between the words of s. 7 and the rest of those sections the oft utilised provision in our statutes, “and, without limiting the gener- ality of the foregoing (s. 7) the following shall be deemed to be in violation of a person’s rights under this section”. Clearly, some of 136 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

those sections embody principles that are beyond what could be characterized as “procedural”. Thus, ss. 8 to 14 provide an invaluable key to the meaning of “principles of fundamental justice”. Many have been developed over time as presumptions of the common law, others have found expression in the international conventions on human rights. All have been recognized as essential elements of a system for the administration of justice which is founded upon a belief in “the dignity and worth of the human person” (preamble to the Canadian Bill of Rights, R.S.C. 1970, App. III) and on “the rule of law” (preamble to the Canadian Charter of Rights and Freedoms). It is this common thread which, in my view, must guide us in determining the scope and content of “principles of fundamental justice”. In other words, the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system. Such an approach to the interpretation of “principles of fundamental justice” is consistent with the wording and structure of s. 7, the context of the section, i.e., ss. 8 to 14, and the character and larger objects of the Charter itself. It provides meaningful content for the s. 7 guarantee all the while avoiding adjudication of policy matters. 96 Mr. Adamo, relying on the decision in Smickle, argues that s. 95(2) violates s. 7, as it violates the principle against arbitrariness. 97 As noted above, s. 95(1) is a dual procedure offence with different punishments if proceeding by summary conviction or by indictment. The minimum penalty is three years’ imprisonment for a first offence on indictment and a maximum punishment of one year imprisonment for a summary conviction. The net result is that it is not open to a court to impose a sentence between one and three years. Thus, there is a “gap” in the available sentences. 98 In Smickle, Molloy J. determined an appropriate sentence was one year imprisonment, so Mr. Smickle fell into this gap. She agreed with the view expressed by Code J. in Nur that the structure of s. 95(2) violated the rule against arbitrariness, in that the lack of availability of a sentence of between one and three years’ imprisonment severely restricted the flexibility of the hybrid procedures, and had no connection to the legislative goals of the Bill C-10 reforms. She held that s. 95(2) therefore violated s. 7. R. v. Adamo Suche J. 137

99 In light of my conclusion that a fit and proper sentence for Mr. Adamo is less than one year, this issue does not affect him, or the outcome of this case. However, I conclude that s. 95(2)(a)(i) violates s. 7 for other reasons.

Proportionality and moral blameworthiness 100 The consequence — in fact, the objective — of a mandatory minimum sentence is to remove judicial discretion from the sentencing process for those offenders who would otherwise have received less than the minimum. It is a ‘one size fits all’ punishment, and precludes any consideration of the moral blameworthiness of the offender. 101 Proportionality, the idea that the state’s ability to interfere with an individual’s liberty should take into account their degree of moral blameworthiness, has long been recognized as a cornerstone of our criminal justice system, and as a principle of fundamental justice protected by s. 7. 102 In Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 (S.C.C.), the Supreme Court of Canada recognized the principle of proportionality in considering the validity of legislation that allowed an individual to be deported to face possible torture: 47 Determining whether deportation to torture violates the principles of fundamental justice requires us to balance [under s. 7] Canada’s interest in combatting terrorism and the Convention refugee’s interest in not being deported to torture. Canada has a legitimate and compelling interest in combatting terrorism. But it is also committed to fundamental justice. The notion of proportionality is fundamental to our constitutional system. Thus we must ask whether the government’s proposed response is reasonable in relation to the threat. In the past, we have held that some responses are so extreme that they are per se disproportionate to any legitimate government interest: see Burns, supra. We must ask whether deporting a refugee to torture would be such a response. [Emphasis added] 103 The notion that criminal liability must take into account moral culpability has been recognized by the Supreme Court of Canada in considering the validity of substantive offences as well as defences in the Code. 104 In R. v. Vaillancourt, [1987] 2 S.C.R. 636 (S.C.C.), the Supreme Court of Canada struck down the section of the Code dealing with con- 138 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

structive murder because the mens rea provision did not reflect the nature of the crime. 105 In R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687 (S.C.C.), the court held that s. 17 of the Code, providing the defence of duress, violated s. 7 because it allowed persons who acted involuntarily to be found criminally liable: 47 Although moral involuntariness does not negate the actus reus or mens rea of an offence, it is a principle which, similarly to physical involuntariness, deserves protection under s. 7 of the Charter. It is a principle of fundamental justice that only voluntary conduct — behaviour that is the product of a free will and controlled body, un- hindered by external constraints — should attract the penalty and stigma of criminal liability. Depriving a person of liberty and brand- ing her with the stigma of criminal liability would infringe the principles of fundamental justice if the accused did not have any realistic choice. The ensuing deprivation of liberty and stigma would have been imposed in violation of the tenets of fundamental justice and would thus infringe s. 7 of the Charter. 106 Proportionality in sentencing — imposing a sanction that takes into account the moral blameworthiness of an offender as well as the nature of the offence — is equally accepted as fundamental to our penal system. Recently, LeBel J., writing on behalf of the Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 (S.C.C.), had this to say: [35] In 1996, Parliament amended the Criminal Code to specifically codify the objectives and principles of sentencing (An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (Bill C-41)). According to s. 718, the fundamental purpose of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society”. This is accomplished by imposing “just sanctions” that reflect one or more of the traditional sentencing objectives: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [36] The Criminal Code goes on to list a number of principles to guide sentencing judges. The fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. As this Court has previously indicated, this principle was not borne out of the 1996 amendments to the Code but, instead, has long been a central tenet of R. v. Adamo Suche J. 139

the sentencing process (see, e.g., R. v. Wilmott (1966), 58 D.L.R. (2d) 33 (Ont. C.A.), and, more recently, R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 12, and R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-42). It also has a constitutional di- mension, in that s. 12 of the Canadian Charter of Rights and Free- doms forbids the imposition of a grossly disproportionate sentence that would outrage society’s standards of decency. In a similar vein, proportionality in sentencing could aptly be described as a principle of fundamental justice under s. 7 of the Charter. [37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or re- straining function and ensures justice for the offender. In the Cana- dian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [Emphasis added] 107 In R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571 (S.C.C.), Arbour J. (albeit writing in dissent) held that the possibility of imprisonment for simple possession of marihuana violated s. 7 of the Charter. She said: 260 The argument of the majority that the availability of imprisonment as a fit sentence in this case is more appropriately approached under s. 12 than under s. 7 is unconvincing. Section 12 of the Charter 140 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

protects against “cruel and unusual treatment or punishment”. Al- though imprisonment is undoubtedly very serious, it is not inherently “cruel and unusual”. Section 7 provides the proper scope for considering whether the availability of imprisonment for an offence and the consequent engagement of the liberty interest in s. 7 are in accordance with the principles of fundamental justice...... It is inappropriate to restrict the consideration of the constitutionality of a person’s liberty interest to s. 12. Such a stance is counter to the notion that ss. 8 to 14 of the Charter are specific illustrations of the principles of fundamental justice in s. 7, as explained by Lamer J. in Reference re s. 94(2) of Motor Vehicle Act (British Columbia), supra, at p. 502. Where, as here, a principle of fundamental justice that is not specifically named in ss. 8 to 12 — the harm principle — is invoked, the analysis is appropriately conducted pursuant to s. 7. 108 The majority of the court rejected this approach, finding that the proportionality of a sentence is more properly considered under s. 12 of the Charter. 109 Malmo-Levine did not involve a direct challenge to a provision dealing with punishment. It was a challenge to the underlying offence. The appellants had argued that the possibility of imprisonment made the criminalization of simple possession unconstitutional. While the majority of the court rejected that argument, they did so after recognizing that the provision did not invoke a mandatory penalty of incarceration and that the possibility of incarceration of vulnerable people under this provision was remote. Gonthier and Binnie JJ. said: 148 We disagree with our colleague’s view that it is unconstitutional for the state to attempt to deter vulnerable people from self-harm by criminalization of the harmful conduct backed up, where appropriate, by the “threat” of imprisonment. We disagree with the premise that vulnerable people of the sort she describes are in fact threatened with jail, or that imposition of a jail term in the circumstances she envis- ages would be upheld as a fit sentence or a constitutional sentence. 110 In fact, the majority recognized the principle of proportionality in sentencing: 163 At this point, we turn from the Charter to the Criminal Code, in which Parliament has made the idea of proportionality central to the principles of sentencing. Section 718.1 of the Criminal Code provides that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” The importance of proportionality in punishment has been discussed on several R. v. Adamo Suche J. 141

occasions by this Court. See, for instance, R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, at para. 82, where Lamer C.J., writing for the Court, referred to “the fundamental principle of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender”. See also R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, at para. 18; R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 40; and Re B.C. Motor Vehicle Act, supra, per Wilson J. (concurring), at p. 533. 164 The requirement of proportionality in sentencing undermines rather than advances the appellants’ argument. There is no need to turn to the Charter for relief against an unfit sentence. If imprisonment is not a fit sentence in a particular case it will not be imposed, and if imposed, it will be reversed on appeal. 165 There is no plausible threat, express or implied, to imprison accused persons — including vulnerable ones — for whom imprisonment is not a fit sentence. 111 Moreover, in its earlier decision in United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283 (S.C.C.), the court assessed the validity of a penalty, the death penalty, in the context of s. 7: 89 This evidence does not establish an international law norm against the death penalty, or against extradition to face the death penalty. It does show, however, significant movement towards acceptance inter- nationally of a principle of fundamental justice that Canada has already adopted internally, namely the abolition of capital punishment. 112 The notion of proportionality in sentencing as a principle of fundamental justice protected by s. 7 appears to have been clearly decided in Reference re s. 94(2) of Motor Vehicle Act (British Columbia). The issue (which came before the court by way of a question referred by the Lieu- tenant-Governor in Council of British Columbia) was whether the mandatory minimum sentence of seven days’ imprisonment for driving while prohibited violated the Charter. In a concurring judgment finding a violation of s. 7, Wilson J. explains (pp. 532-34): It is now generally accepted among penologists that there are five main objectives of a penal system: see Nigel Walker, Sentencing in a Rational Society (1969). They are: (1) to protect offenders and suspected offenders against unofficial retaliation; (2) to reduce the incidence of crime; (3) to ensure that offenders atone for their offences; 142 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

(4) to keep punishment to the minimum necessary to achieve the objectives of the system; and (5) to express society’s abhorrence of crime. Apart from death, imprisonment is the most severe sentence imposed by the law and is generally viewed as a last resort, i.e., as appropriate only when it can be shown that no other sanction can achieve the objectives of the system. The Law Reform Commission of Canada in its Working Paper 11, “Imprisonment and Release”, in Studies on Imprisonment (1976), states at p. 10: Justice requires that the sanction of imprisonment not be disproportionate to the offence, and humanity dictates that it must not be heavier than necessary to achieve its objective. Because of the absolute liability nature of the offence created by s. 94(2) of the Motor Vehicle Act a person can be convicted under the section even although he was unaware at the time he was driving that his licence was suspended and was unable to find this out despite the exercise of due diligence. While the legislature may as a matter of government policy make this an offence, and we cannot question its wisdom in this regard, the question is whether it can make it mandatory for the courts to deprive a person convicted of it of his liberty without violating s. 7. This, in turn, depends on whether attaching a mandatory term of imprisonment to an absolute liability offence such as this violates the principles of fundamental justice. I believe that it does. I think the conscience of the court would be shocked and the administration of justice brought into disrepute by such an unreasonable and extravagant penalty. It is totally disproportionate to the offence and quite incompatible with the objective of a penal system referred to in para. (4) above. It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system. This is not to say that there is an inherently appropriate relationship between a particular offence and its punishment but rather that there is a scale of offences and punishments into which the particular offence and punishment must fit. Obviously this cannot be done with mathematical precision and many different factors will go into the assessment of the seriousness of a particular offence for purposes of determining the appropriate punishment but it does provide R. v. Adamo Suche J. 143

a workable conventional framework for sentencing. Indeed, judges in the exercise of their sentencing discretion have been employing such a scale for over a hundred years. I believe that a mandatory term of imprisonment for an offence committed unknowingly and unwittingly and after the exercise of due diligence is grossly excessive and inhumane. It is not required to reduce the incidence of the offence. It is beyond anything required to satisfy the need for “atonement”. And society, in my opinion, would not be abhorred by an unintentional and unknowing violation of the section. believe, therefore, that such a sanction offends the principles of fundamental justice embodied in our penal system. Section 94(2) is accordingly inconsistent with s. 7 of the Charter and must, to the extent of the inconsistency, be declared of no force and effect under s. 52. ... [Emphasis added] 113 I conclude from all of the above that proportionality, whereby the moral blameworthiness of an individual is taken into account, is equally a principle of fundamental justice protected by s. 7 both in criminalizing conduct and in determining punishment for an offence. 114 So, turning to the case at hand, for different reasons than those persons referred to in Malmo-Levine, Mr. Adamo is also a vulnerable member of our society. A consideration of his reduced moral blameworthiness resulting from his mental disability has led me to conclude earlier in these reasons that the punishment demanded by s. 95(2)(a)(i) is grossly disproportionate. As Gonthier and Binnie JJ. concluded in Malmo-Levine (at para. 161), when considering disproportionality as a violation of the Charter, the standard is gross disproportionality, whether under s. 12 or s. 7. 115 For these reasons, I conclude that a mandatory minimum sentence which precludes consideration of the reduced moral blameworthiness of a mentally disabled offender, and imposes a grossly disproportionate sentence, violates s. 7. 116 As the words of the then Minister of Justice reveal, it was not Parlia- ment’s intention when introducing this legislation to create penalties that were disproportionate. Quite the opposite. The government expressly wished to create penalties that would comply with proportionality, the fundamental principle of sentencing, proportionality, as well as the other sentencing objectives found in s. 718. That objective was not achieved. 144 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

Overbreadth 117 In R. v. Heywood, [1994] 3 S.C.R. 761 (S.C.C.), the Supreme Court of Canada established the doctrine of “overbreadth” whereby a law affecting the life, liberty or security of the person that is broader than necessary to accomplish its purpose will violate the principles of fundamental justice in s. 7. 118 There, the law under consideration, s. 179(1)(b) of the Code, prohibited a person previously convicted of sexual assault from loitering in or near a public park and similar places. Cory J., writing on behalf of the court, held that the purpose of the law was to protect the safety of children and a law that restricted liberty for this purpose would not be a breach of the principles of fundamental justice. However, s. 179(1)(b) did so to a far greater extent than was necessary, to reasonably achieve that objective. It applied to places where children were not likely to be found; the prohibition lasted for life without any possibility of review; and it applied to a class of persons who would not be a risk to children. The court concluded the law violated s. 7 because these applications were not essential to achieve the objectives of the provision. 119 In R. c. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489 (S.C.C.), sections of the Code setting out a regime for dealing with accused persons unfit to stand trial on account of permanent mental disability were struck for being overbroad. The court concluded that the legislation resulted in persons who were permanently unfit, and who posed no significant risk of threat to public safety, would continue to be subjected to the criminal process. 120 Recently, some uncertainty has arisen as to whether gross disproportionality and overbreadth are distinct doctrines. In R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555 (S.C.C.), McLachlin C.J. observed: [38] ... Some confusion arises from the fact that Malmo-Levine’s companion case R. v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735, could be read as suggesting that gross disproportionality is simply the standard by which overbreadth is measured. Indeed, this Court wrote in Clay that “[o]verbreadth ... addresses the potential infringement of fundamental justice where the adverse effect of a legislative measure on the individuals subject to its strictures is grossly disproportionate to the state interest the legislation seeks to protect” (para. 38 (emphasis in original)). R. v. Adamo Suche J. 145

121 Noting that both the court and academics to that point continued to treat the concepts as distinct, she determined this issue need not be resolved: [40] For the purposes of this appeal, I need not decide whether overbreadth and gross disproportionality are distinct constitutional doctrines. Certainly, these concepts are interrelated, although they may simply offer different lenses through which to consider a single breach of the principles of fundamental justice. Overbreadth occurs when the means selected by the legislator are broader than necessary to achieve the state objective, and gross disproportionality occurs when state actions or legislative responses to a problem are “so extreme as to be disproportionate to any legitimate government interest”: PHS Community Services Society [2011 SCC 44], at para. 133; see also Malmo-Levine, at para. 143. ... 122 The question here is whether Parliament, in deciding to imprison everyone who commits this offence (and is prosecuted by indictment) for a minimum of three years, has gone further than necessary to achieve its objective of combatting gun violence and possessing prohibited and restricted weapons. 123 I will assume that overbreadth remains a separate doctrine. Given my conclusion that s. 95(2)(a)(i) has a grossly disproportionate impact on Mr. Adamo’s liberty interest and serves no general deterrent purpose, I am of the view that the provision is also overbroad and violates s. 7 for that reason.

Section 15(1) of the Charter 124 Section 15(1) provides: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 125 The Supreme Court of Canada recently considered s. 15(1) in Droit de la famille - 091768, 2013 SCC 5, [2013] S.C.J. No. 5 (S.C.C.). As noted by Abella J., s. 15 introduces a concept of substantive equality: 138 As this Court has pointed out on several occasions, this value of substantive equality at the heart of s. 15 is closely tied to the concept of human dignity: Miron, at paras. 145-46; Law, at paras. 52 and 54; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 77; Gosselin v. Quebec (Attorney 146 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

General), 2002 SCC 84, [2002] 4 S.C.R. 429, at para. 20. The innate and equal dignity of every individual is invariably an “essential value underlying the s. 15 equality guarantee”: Kapp, at para. 21. Indeed, the Court has said that “the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom” (Law, at para. 51) and to eliminate any possibility of a person being treated in substance as “less worthy” than others: Gosselin, at para. 22. In other words: This principle recognizes the dignity of each human being and each person’s freedom to develop his body and spirit as he or she desires, subject to such limitations as may be justified by the interests of the community as a whole. It recognizes that society is based on individuals who are different from each other, and that a free and democratic society must accommodate and respect these differences. (Miron, at para. 145) 126 To prove that the law is discriminatory within the meaning of s. 15(1), a party must prove the following: (i) the law creates a distinction on the basis of an enumerated or analogous ground; and (ii) the distinction creates a disadvantage by perpetuating a prejudice or stereotyping. (See R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 (S.C.C.), and Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 (S.C.C.)). 127 In Quebec, the majority clarified that the disadvantage does not necessarily need to flow from the prejudice or stereotyping, but may arise from the unintended effects of legislation or government practice (see paras. 196 to 198). 128 Legislation that is neutral on its face may well have a discriminatory effect. In Withler, the court explained: [64] ... In other cases, establishing the distinction will be more difficult, because what is alleged is indirect discrimination: that although the law purports to treat everyone the same, it has a disproportion- ately negative impact on a group or individual that can be identified by factors relating to enumerated or analogous grounds. Thus in Gra- novsky, the Court noted that “[t]he CPP contribution requirements, which on their face applied the same set of rules to all contributors, operated unequally in their effect on persons who want to work but whose disabilities prevent them from working” (para. 43). In that kind of case, the claimant will have more work to do at the first step. R. v. Adamo Suche J. 147

Historical or sociological disadvantage may assist in demonstrating that the law imposes a burden or denies a benefit to the claimant that is not imposed on or denied to others. The focus will be on the effect of the law and the situation of the claimant group. (See also Quebec, at para. 198) 129 Indirect or adverse effect discrimination is especially relevant in cases of disability. Governments rarely single out disabled persons for discriminatory treatment. More commonly, laws of general application will have a disparate impact on the disabled. 130 In Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 (S.C.C.), Lamer C.J. concluded that the law criminalizing assisted suicide violated s. 15(1) of the Charter by discriminating on the basis of physical disability. The majority of the court determined that the law was saved by s. 1 of the Charter, assuming, without deciding, that it infringed s. 15(1). 131 He says, in part (p. 549): Not only does s. 15(1) require the government to exercise greater caution in making express or direct distinctions based on personal characteristics, but legislation equally applicable to everyone is also capable of infringing the right to equality enshrined in that provision, and so of having to be justified in terms of s. 1. Even in imposing generally applicable provisions, the government must take into account differences which in fact exist between individuals and so far as possible ensure that the provisions adopted will not have a greater impact on certain classes of persons due to irrelevant personal characteristics than on the public as a whole. In other words, to promote the objective of the more equal society, s. 15(1) acts as a bar to the executive enacting provisions without taking into account their possible impact on already disadvantaged classes of persons. 132 In Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 (S.C.C.), the unanimous court framed the issue before it in the same way: 60 The only question in this case, then, is whether the appellants have been afforded “equal benefit of the law without discrimination” within the meaning of s. 15(1) of the Charter. On its face, the medi- care system in British Columbia applies equally to the deaf and hearing populations. It does not make an explicit “distinction” based on disability by singling out deaf persons for different treatment. Both deaf and hearing persons are entitled to receive certain medical services free of charge. The appellants nevertheless contend that the 148 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

lack of funding for sign language interpreters renders them unable to benefit from this legislation to the same extent as hearing persons. Their claim, in other words, is one of “adverse effects” discrimination. 61 This Court has consistently held that s. 15(1) of the Charter protects against this type of discrimination. In Andrews, supra, McIntyre J. found that facially neutral laws may be discriminatory. “It must be recognized at once”, he commented, at p. 164, “... that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality”; see also Big M Drug Mart Ltd., supra, at p. 347. Section 15(1), the Court held, was intended to ensure a measure of substantive, and not merely formal equality. 133 Here, it is not disputed that Mr. Adamo suffers from a mental disability within the meaning of s. 15(1). For a claim to come within s. 15(1) a party must demonstrate that the distinction in issue is based on — that is, closely related to or directly connected to — the personal characteristic. I have already found a direct connection between Mr. Adamo’s offending behaviour — which makes him subject to s. 95(2)(a)(i) — and his mental disability. 134 In Rodriguez, Lamer C.J. found it unnecessary to question the s. 15 — the elimination of discrimination against groups who are victims of connection between persons with physical disabilities and the general purpose of stereotypes, disadvantages or prejudices — by virtue of the fact this group is included in s. 15(1). He recalled the comments of Mc- Intyre J. in Andrews v. Law Society (British Columbia), [1989] 1 S.C.R. 143 (S.C.C.) (at p. 175): ... The enumerated grounds do ... reflect the most common and probably the most socially destructive and historically practised bases of discrimination and must, in the words of s. 15(1), receive particular attention. ... 135 That said, the fact that mentally ill and disabled persons have been subjected to prejudice and negative stereotyping has been recognized and recounted by courts in Canada on many occasions. See for example R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.); R. v. Chaulk, [1990] 3 S.C.R. 1303 (S.C.C.); Winko v. Forensic Psychiatric Institute, [1999] 2 S.C.R. 625 (S.C.C.). 136 In Winko, the issue before the court was whether s. 15(1) was violated by s. 672.54 of the Code, requiring an accused found not guilty by reason of mental disorder to be discharged absolutely if a court or review board R. v. Adamo Suche J. 149 finds the accused not to be a significant threat to public safety. McLach- lin J. (as she then was), writing on behalf of the court, stated: 35 ... The mentally ill have long been subject to negative stereotyping and social prejudice in our society based on an assumption of dangerousness: Swain, supra, at p. 994; Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, at p. 586. As Dr. Paul Mullen writes: There is a widely held belief in our culture that the mentally ill are predisposed to act in a violent and dangerous manner. ... This prejudice has deep roots. In Greek and Roman writings, the defining characteristics of madness were violence in combination with being out of touch with reality and having a tendency to wander. ... The ori- gins of such beliefs probably lie in the unease which acutely mentally disturbed individuals produce in those around them. Their unpredictable, strange and often inap- propriately intrusive behaviours easily produce a reaction of fear. When we experience fear, we all too readily attri- bute that fear to dangerousness in the exciting object, rather than considering whether our reactions may not be excessive or misplaced. The more frightened we become, the more dangerous we assume that which excites the fear is. (“The Dangerousness of the Mentally Ill and the Clinical Assessment of Risk”, Chapter 4 in Psychiatry and the Law: Clinical and Legal Issues, W. Brookbanks, ed. (1996), 93, at p. 93.) 36 In 1975, the Law Reform Commission of Canada recognized that these negative stereotypes of the mentally ill had found their way into the criminal justice system: This widely held fear of the mad criminal makes acceptable the confinement and lengthy detention of mentally disordered accused or offenders in circumstances which their “sane” counterpart would be either less severely sanctioned or released outright. These attitudes are reflected in the element of preventive detention implicit in the remand and dispositional provisions of the Criminal Code and in the choice of procedures of the personnel dealing with the mentally ill in the criminal process. (Working Paper 14, The Criminal Process and Mental Disorder, at p. 14.) 150 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

137 The question here, then, is whether s. 95(2)(a)(i) has the effect of perpetuating and worsening the disadvantage of mentally disabled persons, who, while criminally responsible for their actions, have a lesser degree of moral blameworthiness due to their mental disability. 138 Of course, it is important to recognize that not all mentally ill persons would fit into this description. In Rodriguez, Lamer C.J. considered whether it mattered that not all physically disabled persons would be ad- versely impacted by the prohibition against assisted suicide. He states (pp. 556-57): It is moreover clear that the class of persons with physical disabilities is broader than that of persons unable to end their lives unassisted. In other words, some persons with physical disabilities are treated unequally by the effect of s. 241(b) of the Criminal Code, but not all persons, nor undoubtedly the majority of persons with disabilities, are so treated. The fact that this is not a bar to a remedy under s. 15(1) seems to me to have been clearly decided by Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, and Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252. In Brooks, the question was whether unfavourable treatment on account of pregnancy could be regarded as sex discrimination. Responding to the argument that this was not so because all women were not affected by this discriminatory provision, Dickson C.J. said (at p. 1247): I am not persuaded by the argument that discrimination on the basis of pregnancy cannot amount to sex discrimination because not all women are pregnant at any one time. While pregnancy-based discrimination only affects part of an identifiable group, it does not affect anyone who is not a member of the group. Many, if not most, claims of partial discrimination fit this pattern. As numerous decisions and authors have made clear, this fact does not make the impugned distinction any less discriminating. In Janzen this Court had to determine whether sexual harassment was a form of sex discrimination. The Court of Appeal had accepted the argument that since all women were not affected by this type of behaviour, no discrimination had resulted. Dickson C.J. rejected this argument as follows (at pp. 1288-89): If a finding of discrimination required that every individual in the affected group be treated identically, legislative protection against discrimination would be of little or R. v. Adamo Suche J. 151

no value. It is rare that a discriminatory action is so bluntly expressed as to treat all members of the relevant group identically. 139 I conclude that the mandatory minimum sentence in s. 95(2)(a)(i) has a much greater impact on mentally disabled persons because it does not take into account their reduced moral blameworthiness. Persons, such as Mr. Adamo, whose mental illness has contributed to their committing an offence, are not free actors. Their moral blameworthiness is necessarily less than that of persons who freely choose to engage in the criminal behaviour. 140 I turn to the comments of the Alberta Court of Appeal in Ayorech, quoted previously in these reasons: 12 ... the mental disorder diminishes the degree of responsibility of the offender. Impaired reasoning, delusional disorders, and like mental conditions distinguish those afflicted from the ordinary offender who is fully accountable for his or her conduct: ... 141 Thus, punishment that is applied equally to all offenders, without regard to the reduced accountability of the mentally disabled, fails to provide for their actual circumstances. 142 It is fundamental to substantive equality that different groups may have to be treated differently in order to be treated equally. No better discussion of this in the context of the mentally disabled can be found than in Winko, where McLachlin J. said: 83 As this Court recently recognized in Law, it has long been held that s. 15(1) guarantees more than the formal equality of like treatment; it guarantees substantive equality. See also Andrews, supra; Vriend, supra; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624. To this end, the jurisprudence recognizes that discrimination may arise either from treating an individual differently from others on the basis of group affiliation, or from failing to treat the individual differently from others on the basis of group affiliation. And further: 87 As Iacobucci J. pointed out in Law, supra, “[t]here is a variety of factors which may be referred to by a s. 15(1) claimant in order to demonstrate that legislation has the effect of demeaning his or her dignity, as dignity is understood for the purpose of the Charter equality guarantee” (para. 62). Although Iacobucci J. considered four factors in Law, he was careful to note that each case may raise different considerations (at para. 62). However, a key factor is the operation of 152 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

stereotypical assumptions and the impact of those assumptions on the dignity of the individual, particularly where the claimant is a member of a group that could, in a general sense, be said to suffer from pre- existing disadvantages. The sad history of our society’s treatment of vulnerable mentally disordered offenders makes this a particularly important consideration in the context of this case. 143 The court concluded that Part XX.1 promotes, rather than denies, NCR accused the “right to be considered as an individual, equally entitled to the concern, respect and consideration of the law” (at para. 97). 144 Persons who are found not criminally responsible suffer from “a particular type of mental disability” (Winko, at para. 80), which is different in degree than that which affects Mr. Adamo and many others who are mentally disabled. Nonetheless, s. 15(1) guarantees all mentally disabled persons the right, described by the Chief Justice, to be considered as an individual equally entitled to the concern, respect and consideration of the law. 145 How to provide appropriately for the circumstances of mentally disabled persons in the criminal justice system may be one of its greatest challenges in the years to come. As Professor Kent Roach and Andrea Bailey observe about fetal alcohol spectrum disorder (FASD), a mental disability they describe as including similar impairments to those Mr. Adamo suffers: ... Canadian criminal law is premised on assumptions about free will and individual responsibility. Any departures from that norm are as- sumed to be temporary and treatable. These assumptions unfortu- nately do not fit well with what is known about FASD as a permanent form of brain damage that can often leave people with the basic ability to function but subject to memory loss, impulsivity, and easily led by suggestions from others. ... Although some important preliminary work has been done with respect to the interaction of FASD and the criminal law [footnote omitted] and Canada may be ahead of other jurisdictions in recognizing the problem, there is a need to better understand the growing jurisprudence in Canada that deals with FASD. Even more importantly, there is a need to evaluate how the criminal law can respond to the challenges of dealing with significant numbers of people with FASD who come into and may remain in the criminal justice system. Ignor- ing FASD may only make the problem worse and contribute to the increasing number of mentally disabled and Aboriginal people who are incarcerated [footnote omitted]. ... R. v. Adamo Suche J. 153

[“The Relevance of Fetal Alcohol Spectrum Disorder in Canadian Criminal Law from Investigation to Sentencing”, 2009, U.B.C. Law Review, Vol. 42:1, at p. 4] 146 Parenthetically, I note that the unique situation of both mentally ill and mentally disabled offenders is recognized by the establishment of mental health courts across the country. Had the Winnipeg Mental Health Court been in existence in 2009, and had those involved in this case known about Mr. Adamo’s condition, he may have been a candidate for that court. 147 Regardless, s. 95(2)(a)(i) does not permit Mr. Adamo to be sentenced in a manner that recognizes his mental disability and its role in the commission of these offences. It does not take into account the impact on this already disadvantaged class of persons. For this reason, I find that s. 95(2)(a)(i) violates s. 15(1).

Section 1 of the Charter 148 Having found that Mr. Adamo has established that s. 95(2)(a)(i) violates his rights under ss. 12, 7 and 15 of the Charter, the onus now shifts to the Crown to prove that the violation is demonstrably justifiable in a free and democratic society, as provided for in s. 1 of the Charter. 149 The test established in R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.), requires the Crown to demonstrate that: the offending provision addresses a pressing and substantial legislative objective; is rationally connected to that objective; minimally impairs the right in question; and finally, proportionality exists between the effects of the measures that cause the violation and the objective of the legislation. 150 I conclude that the Crown has not met this test. 151 It is impossible to dispute that the proliferation of gun violence is a pressing concern and that persons who possess prohibited firearms should be punished severely. The question is whether the Crown can justify three years’ imprisonment for persons whose moral blameworthiness is diminished by their mental illness or disability. The answer, in my view, is no. 152 To begin with, as observed by Lamer J. in Reference re s. 94(2) of Motor Vehicle Act (British Columbia) (p. 518), and the case law since, violations of s. 7 are not easily saved. Exceptional circumstances, such as the outbreak of war or a national emergency, are necessary before such an infringement may be justified. 154 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

153 The Crown has also not demonstrated that there is a rational connection between mandatory minimum sentences and general deterrence. Neither side presented any evidence to assist in the s. 1 analysis. In addition, the law is clear that persons who commit crimes due to their mental illness are not a proper medium for addressing general deterrence. 154 On the issue of minimal impairment, the discussion in Smickle bears repeating. Molloy J. states: [104] Mandatory sentences are not per se unconstitutional. That is well-established in the case law. However, a difficulty arises when a mandatory sentence is imposed on an offence that can be committed in a wide variety of circumstances with significantly varying degrees of moral blameworthiness. One of the reasons the Supreme Court of Canada upheld the mandatory sentence for criminal negligence causing death with a firearm in Morrisey was that the offence itself is strictly defined, including the nature of the conduct and its consequences. Gonthier J. stated, at para. 1: ... The offence of criminal negligence causing death requires proof of wanton and reckless disregard for the lives and safety of other people — a high threshold to pass. This offence does not punish accidents. Nor does it punish the merely unfortunate. It punishes those who use firearms in a manner that represents a marked departure from the standard of care employed by a reasonable person, resulting in death. It is no trivial matter, and Parliament has treated it accordingly. [105] The offence of simple possession of a loaded restricted firearm is not like that. Possession can be established in a myriad of ways and can arise in a myriad of circumstances, some of them deeply sin- ister, and others relatively innocuous, or even laudable (for example, a person who takes possession of a loaded weapon in order to prevent its use by someone else to commit a crime). Parliament recognized the need for some flexibility in sentencing by making this a hybrid offence with no minimum sentence if the Crown proceeds summarily. This is an implicit acknowledgment that there will be situations in which the full panoply of sentencing options should be available, including absolute and conditional discharges and conditional sentences. 155 Molloy J. rejected the Crown’s argument that prosecutorial discretion to proceed summarily offered a safety valve for the least blameworthy. I agree. Like Mr. Smickle, Mr. Adamo is a good example of the Crown exercising its discretion to proceed by indictment in good faith. It simply R. v. Adamo Suche J. 155

did not have all the information about Mr. Adamo when it made that decision. The truth is, that until Dr. Waldman provided his report, no one involved in this case, including defence counsel, had any idea of the extent of Mr. Adamo’s mental health issues. 156 In any event, as discussed in Smith, delegation of avoidance of a violation of the Charter is not an appropriate solution in these situations as it simply ignores the court’s obligation under s. 52 of the Constitution Act, 1982 to declare an offending law invalid. 157 The other important conclusion reached by Molloy J. is that jurisdictions such as England, Wales and South Africa demonstrate it is possible to meet the objectives of this legislation, without violating the Charter. In those jurisdictions, minimum sentences for firearms offences leave the courts discretion not to impose the sentence in exceptional circumstances. 158 Finally, I also conclude that the section does not meet the proportionality test. The severity of the deleterious effects on Mr. Adamo, imposing this very harsh punishment on him, far outweighs the salutary effect of the provision. As asked by Molloy J. in Smickle: [120] ... Clearly, making possession of a handgun a crime and subject to the criminal justice system creates a deterrent effect. But what does the three year mandatory minimum sentence do to enhance that effect?

Conclusion 159 I find that s. 95(2)(a)(i) of the Code breaches ss. 7, 12 and 15 of the Charter and that the infringements are not saved by s. 1. 160 In Ferguson, the court concluded that the proper remedy where legislation violates the Charter and cannot be saved by s. 1 is a declaration of invalidity, pursuant to s. 52 of the Constitution Act, 1982. 161 Here, the offending aspect of the legislation can easily be severed from the balance of the section. I therefore declare that the reference to “a minimum punishment of imprisonment for a term of ... in the case of a first offence, three years” as set out in s. 95(2)(a)(i) of the Code is of no force or effect. This shall take effect immediately.

Sentence 162 I will sentence Mr. Adamo for this offence based on a maximum punishment of 10 years and no minimum sentence. As stated above, I con- 156 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

sider a sentence of six months’ imprisonment to be appropriate in all of the circumstances. 163 Having made this decision, I turn to the question of credit for pre-trial custody. 164 Mr. Adamo was in custody from April 9, 2009 to September 1, 2009, and again from November 10, 2010 to January 1, 2011, for a total period of just under seven months. Accordingly, his entire sentence will have been served by time in pre-trial custody. While unnecessary to address this, I can say that had the outcome in this case been different, I would have given Mr. Adamo a credit of 3:1 for his pre-trial custody, given the harshness of conditions he experienced. 165 In addition, I am imposing a period of three years’ supervised probation. Because the specific terms of probation were not addressed at the sentencing hearing, I will give counsel an opportunity to make submissions on this. 166 There will also be a mandatory lifetime weapons prohibition pursuant to s. 109 of the Code; a DNA order pursuant to s. 487.051(2) of the Code; and an order forfeiting the firearm and ammunition pursuant to s. 491(1) of the Code. Given that Mr. Adamo is neither employed nor employable, the victim fine surcharge is waived. Order accordingly. University of Saskatchewan v. Peng 157

[Indexed as: University of Saskatchewan v. Peng] In the Matter of an Application for Judicial Review Pursuant to Part 52 of the Queen’s Bench Rules With Respect to a Decision of the Chief Commissioner of the Saskatchewan Human Rights Commission Dated October 31, 2012 The University of Saskatchewan, Applicant and Bonny Jui-Yao Peng, Respondent and Saskatchewan Human Rights Commission, Respondent Saskatchewan Court of Queen’s Bench Docket: Saskatoon Q.B.G. 1755/12 2013 SKQB 188 G.M. Currie J. Judgment: May 16, 2013 Labour and employment law –––– Miscellaneous –––– Application for judicial review — Applicant was term employee of university — Applicant made human rights complaint with commission and under university’s harassment prevention policy that university harassed and discriminated against applicant on basis of applicant’s race, creed, religion and colour — External investigator under university’s policy concluded applicant was not harassed or discriminated against — Union decided not to pursue grievance — Applicant filed duty of fair representation application to board and board concluded union did not breach duty and dismissed application — University asked commissioner to dismiss complaint — Commissioner dismissed application — Commissioner concluded applicant’s complaint was not appropriately dealt with in investigation by external investigator under university’s harassment prevention policy or in proceedings before board — University made application for judicial review of decision — University’s application for judicial review dismissed — Application was not premature — Outcome of decision of non-dismissal of complaint was contemplated in The Saskatchewan Human Rights Code — Reasoning was not fundamentally inconsistent with facts or with applicable law — There was reasonable basis for decision — Decision met reasonableness standard. Human rights –––– Practice and procedure — Judicial review — General principles –––– Application for judicial review — Applicant was term employee of university — Applicant made human rights complaint with commission and under university’s harassment prevention policy that university harassed and discriminated against applicant on basis of applicant’s race, creed, religion and colour — External investigator under university’s policy concluded applicant was not harassed or discriminated against — Union decided not to pursue griev- 158 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

ance — Applicant filed duty of fair representation application to board and board concluded union did not breach duty and dismissed application — Univer- sity asked commissioner to dismiss complaint — Commissioner dismissed application — Commissioner concluded applicant’s complaint was not appropriately dealt with in investigation by external investigator under university’s harassment prevention policy or in proceedings before board — University made application for judicial review of decision — University’s application for judicial review dismissed — Application was not premature — Outcome of decision of non-dismissal of complaint was contemplated in The Saskatchewan Human Rights Code — Reasoning was not fundamentally inconsistent with facts or with applicable law — There was reasonable basis for decision — Deci- sion met reasonableness standard. Cases considered by G.M. Currie J.: British Columbia (Workers’ Compensation Board) v. British Columbia (Human Rights Tribunal) (2011), 25 Admin. L.R. (5th) 173, [2011] 12 W.W.R. 1, 23 B.C.L.R. (5th) 1, 337 D.L.R. (4th) 413, (sub nom. British Columbia (Workers’ Compensation Board) v. Figliola) 73 C.H.R.R. D/1, 421 N.R. 338, 2011 SCC 52, 2011 CarswellBC 2702, 2011 CarswellBC 2703, (sub nom. B.C. (W.C.B.) v. Figiola) 2012 C.L.L.C. 230-001, 95 C.C.E.L. (3d) 169, (sub nom. British Columbia (Workers’ Compensation Board) v. Fig- liola) [2011] 3 S.C.R. 422, 311 B.C.A.C. 1, 529 W.A.C. 1, [2011] A.C.S. No. 52, [2011] S.C.J. No. 52 (S.C.C.) — followed Canada (Human Rights Commission) v. Canada (Attorney General) (2013), 2013 CAF 75, 444 N.R. 120, 2013 CarswellNat 518, 2013 FCA 75, [2013] F.C.J. No. 249 (F.C.A.) — followed Irvine v. Canada (Restrictive Trade Practices Commission) (1987), 1987 Car- swellNat 816, 1987 CarswellNat 903, (sub nom. Irvine v. Restrictive Trade Practices Comm.) 24 Admin. L.R. 91, [1987] 1 S.C.R. 181, (sub nom. Irvine v. Restrictive Trade Practices Comm.) 41 D.L.R. (4th) 429, (sub nom. Restrictive Trade Practices Comm. v. Irvine) 74 N.R. 33, 15 C.P.R. (3d) 289, (sub nom. Irvine v. Restrictive Trade Practices Comm.) 34 C.C.C. (3d) 481, [1987] S.C.J. No. 7, EYB 1987-67277 (S.C.C.) — considered Klotz v. Sabo (2006), 2006 CarswellSask 862, 59 C.H.R.R. D/33 (Sask. Human Rights Trib.) — considered N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. University of Saskatchewan v. Peng G.M. Currie J. 159

Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — followed New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Statutes considered: Human Rights Code, R.S.B.C. 1996, c. 210 s. 27(1)(f) — considered Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 Generally — referred to s. 27.1 [en. 2000, c. 26, s. 22] — considered s. 27.1(2)(d) [en. 2000, c. 26, s. 22] — considered s. 27.1(2)(e) [en. 2000, c. 26, s. 22] — considered s. 27.1(2)(f) [en. 2000, c. 26, s. 22] — considered Trade Union Act, R.S.S. 1978, c. T-17 Generally — referred to Regulations considered: Occupational Health and Safety Act, 1993, S.S. 1993, c. O-1.1 Occupational Health and Safety Regulations, 1996, R.R.S., c. O-1.1, Reg. 1 Generally — referred to s. 36(1)(h) — considered s. 36(1)(j) — considered

APPLICATION by university for judicial review of decision of commissioner which dismissed application to dismiss complaint against university.

David M.A. Stack, Paul L. Clemens, for University of Saskatchewan Gordon D. Hamilton, for Bonny Jui-Yao Peng Scott A. Newell, for Saskatchewan Human Rights Commission

G.M. Currie J.:

1 The University of Saskatchewan applies for judicial review of a decision made by the Chief Commissioner under The Saskatchewan Human 160 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

Rights Code, S.S. 1979, c. S-24.1. The decision relates to a complaint made by Bonny Jui-Yao Peng under the Code. 2 Ms. Peng was a term employee of the University. In July 2010 she filed a complaint with the University under the University’s Discrimina- tion and Harassment Prevention Policy. The essence of her complaint was that the University had harassed and discriminated against her on the basis of her race, creed, religion and colour, contrary to the provisions of The Saskatchewan Human Rights Code. 3 Ms. Peng also had filed a complaint with the Saskatchewan Human Rights Commission. She filed that complaint in April 2010, but the Uni- versity did not learn about it until the fall of 2011. The subject of Ms. Peng’s complaint to the Human Rights Commission is the same as the subject of the complaint that she filed under the University’s harassment prevention policy. 4 As provided for in that policy, upon Ms. Peng filing her complaint under the policy an investigation followed. For this purpose the Univer- sity retained an experienced external investigator, Andrew Robertson. In October 2010 he issued a report in which he concluded that, while errors had resulted in Ms. Peng having been treated harshly, no incidents were related to Ms. Peng’s race, creed, religion or colour. He thus concluded that the University had not harassed or discriminated against Ms. Peng. 5 After receiving Mr. Robertson’s report, Ms. Peng asked her union to grieve on her behalf with respect to her allegations of harassment and discrimination. In early 2011 the union decided not to pursue a grievance on her behalf. Ms. Peng then brought a “duty of fair representation” application to the Saskatchewan Labour Relations Board under The Trade Union Act, R.S.S. 1978, c. T-17. By her April 2011 application she asked the Board for an order compelling the union to pursue a grievance on her behalf. The Board scheduled a hearing. 6 Meanwhile, in the fall of 2011 the Human Rights Commission provided Ms. Peng’s April 2010 complaint to the University, requiring the University to provide a response to the complaint. The University did so, denying harassment and discrimination and citing Mr. Robertson’s investigation and conclusions. 7 In December 2011 and January 2012 the Labour Relations Board heard evidence from, among others, Ms. Peng on the issue of whether the union had breached its duty of fair representation by not pursuing a grievance on her behalf. In February 2012 the Board issued a decision in University of Saskatchewan v. Peng G.M. Currie J. 161

which it concluded that the union had not breached its duty, and the Board dismissed Ms. Peng’s application. 8 In April 2012 the University applied to the Chief Commissioner with respect to Ms. Peng’s complaint under The Saskatchewan Human Rights Code. The University asked the Chief Commissioner to dismiss her complaint under s. 27.1(2)(d), (e) and (f) of the Code. Section 27.1 provides: 27.1(1) In this section, “proceeding” includes a proceeding authorized by another Act, a civil proceeding or a grievance under a collec- tive agreement. (2) At any time after a complaint is filed or initiated pursuant to section 27, the Chief Commissioner may dismiss the complaint where he or she is of the opinion that: (a) the best interests of the person or class of persons on whose behalf the complaint was made will not be served by continuing with the complaint; (b) the complaint is without merit; (c) the complaint raises no significant issue of discrimination; (d) the substance of the complaint has been appropriately dealt with pursuant to another Act or proceeding; (e) the complaint is made in bad faith or for improper motives or is frivolous or vexatious; (f) there is no reasonable likelihood that an investigation or further investigation will reveal evidence of a contravention of this Act; or (g) having regard to all of the circumstances of the complaint, a hearing of the complaint is not warranted. (3) The Chief Commissioner may, at any time after a complaint is filed or initiated, defer further action if another proceeding, in the opinion of the Chief Commissioner, is more appropriate having regard to the nature of the allegations and the remedies available in the other proceeding. 9 On this judicial review the University relies on only s. 27.1(2)(d) and (f). On its application to the Chief Commissioner the University argued, with respect to ss. (d), that Ms. Peng’s complaint had been dealt with fully and appropriately, both in Mr. Robertson’s investigation under the harassment prevention policy and in the proceedings before the Sas- katchewan Labour Relations Board. The University thus argued that s. 27.1(2)(d) precluded further proceedings before the Human Rights Com- mission. On this point the University relied in particular on the decision 162 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

of the Supreme Court of Canada in British Columbia (Workers’ Compensation Board) v. British Columbia (Human Rights Tribunal), 2011 SCC 52, [2011] 3 S.C.R. 422 (S.C.C.). 10 With respect to ss. (f) the University argued that, in light of the thor- oughness of Mr. Robertson’s investigation under the harassment prevention policy, there was no reasonable likelihood that an investigation under the Code would reveal evidence of a contravention of the Code. 11 In October 2012 the Chief Commissioner issued a written decision. He concluded that the substance of Ms. Peng’s complaint had not been appropriately dealt with in Mr. Robertson’s investigation under the harassment prevention policy or in the proceedings before the Board. He further concluded that s. 27.1(2)(d) did not preclude proceedings under the Code. As well, he did not reach the conclusion that there was no reasonable likelihood that an investigation or further investigation would reveal evidence of a contravention of the Code. Accordingly, the Chief Commissioner was not of the opinion that dismissing Ms. Peng’s complaint would be appropriate, and so he dismissed the University’s application. 12 The University applies for judicial review of that decision.

A. Objection as to prematurity of the application 13 Ms. Peng objects that the University has brought this application pre- maturely, before an investigation by the Commission has even had a chance to begin. Relying on common law addressing the timing of an application for judicial review, she asks me to dismiss the application on this basis. 14 The common law decisions recognize the value of deferring a review of a tribunal’s decision until the tribunal has had an opportunity to complete its task. The benefits of such a deferral include the avoidance of a multiplicity of judicial reviews. Ms. Peng cites the decision of the Su- preme Court in Irvine v. Canada (Restrictive Trade Practices Commis- sion), [1987] 1 S.C.R. 181, 41 D.L.R. (4th) 429 (S.C.C.), in which Jus- tice Estey wrote at page 235: ... Courts must, in the exercise of this discretion, remain alert to the danger of unduly burdening and complicating the law enforcement investigative process. Where that process is in embryonic form engaged in the gathering of the raw material for further consideration, the inclination of the courts is away from intervention. Where, on the other hand, the investigation is conducted by a body seized of powers University of Saskatchewan v. Peng G.M. Currie J. 163

to determine, in a final sense or in the sense that detrimental impact may be suffered by the individual, the courts are more inclined to intervene. ... 15 In this case, the discrete matter that was before the Chief Commis- sioner has been completed. His task was to determine whether an investigation under The Saskatchewan Human Rights Code will take place at all. That matter is not in its embryonic state. No further information will be gathered to permit the Chief Commissioner to make that decision. The Chief Commissioner’s decision was a final determination in the sense of determining whether the parties will be required to devote resources and time to an investigation under the Code and, possibly thereafter, a hearing and appeals. 16 The University’s application is not premature.

B. Standard of review 17 The parties are agreed that the standard of review is reasonableness. In light of the circumstances of this matter and the discussion in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), I reach the same conclusion. The standard of review is reasonableness. 18 With respect to the reasonableness standard, Justices Bastarache and LeBel said in Dunsmuir at para. 47: [47] ... A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

C. Substance of the complaint having been dealt with: s. 27.1(2)(d) 1. Investigation under the University’s harassment prevention policy 19 In Figliola the Supreme Court addressed the prospect of multiplicity of proceedings in relation to the same complaint. The relevant law in that case was s. 27(1)(f) of the British Columbia Human Rights Code, 164 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

R.S.B.C. 1996, c. 210, which is similar to s. 27.1(2)(d) of the Saskatche- wan Code. That British Columbia provision is: 27(1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply: ... (f) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding; ... 20 In interpreting this provision Justice Abella found that it was aimed at reducing the prospect of multiplicity of proceedings, and she said at paras. 34-38: [34] At their heart, the foregoing doctrines exist to prevent unfairness by preventing “abuse of the decision-making process” (Danyluk, at para. 20; see also Garland, at para. 72, and Toronto (City), at para. 37). Their common underlying principles can be summarized as follows: • It is in the interests of the public and the parties that the finality of a decision can be relied on (Danyluk, at para. 18; Boucher, at para. 35). • Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and un- necessarily duplicative proceedings (Toronto (City), at paras. 38 and 51). • The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature (Boucher, at para. 35; Danyluk, at para. 74). • Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision (TeleZone, at para. 61; Boucher, at para. 35; Garland, at para. 72). • Avoiding unnecessary relitigation avoids an unnecessary ex- penditure of resources (Toronto (City), at paras. 37 and 51). [35] These are the principles which underlie s. 27(1)(f). Singly and together, they are a rebuke to the theory that access to justice means University of Saskatchewan v. Peng G.M. Currie J. 165

serial access to multiple forums, or that more adjudication necessarily means more justice. [36] Read as a whole, s. 27(1)(f) does not codify the actual doctrines or their technical explications, it embraces their underlying principles in pursuit of finality, fairness, and the integrity of the justice system by preventing unnecessary inconsistency, multiplicity and delay. That means the Tribunal should be guided less by precise doctrinal catechisms and more by the goals of the fairness of finality in decision-making and the avoidance of the relitigation of issues already decided by a decision-maker with the authority to resolve them. Jus- tice is enhanced by protecting the expectation that parties will not be subjected to the relitigation in a different forum of matters they thought had been conclusively resolved. Forum shopping for a different and better result can be dressed up in many attractive adjectives, but fairness is not among them. [37] Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their priv- ies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute. [38] What I do not see s. 27(1)(f) as representing is a statutory invita- tion either to “judicially review” another tribunal’s decision, or to reconsider a legitimately decided issue in order to explore whether it might yield a different outcome. The section is oriented instead towards creating territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching. When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies. The procedural or substantive correctness of the previous proceeding is not meant to be bait for another tribunal with a concurrent mandate. 21 The Chief Commissioner considered the Figliola decision, and he asked himself the three questions referred to by Justice Abella at para. 166 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

37. He recognized her description of the goal of s. 27(1)(f) of the British Columbia human rights legislation, broadly described as an avoidance of multiplicity of proceedings. He also recognized, though, that he had before him a different set of laws than was before the British Columbia tribunal and the Supreme Court. 22 The investigation of Ms. Peng’s complaint was conducted pursuant to the harassment prevention policy that the University had implemented in compliance with The Occupational Health and Safety Regulations, 1996, R.R.S. c. O-1.1, Reg 1. As required by the regulations, the policy included a provision alerting a worker to the worker’s right to pursue a remedy under The Saskatchewan Human Rights Code, and a provision telling a worker that the harassment prevention policy was not intended to preclude the worker from exercising other legal rights under other laws. Those provisions of the regulations are s. 36(1)(h) and (j): 36(1) An employer, in consultation with the committee, shall develop a policy in writing to prevent harassment that includes: ... (h) a reference to the provisions of The Saskatchewan Human Rights Code respecting discriminatory practices and the worker’s right to file a complaint with the Sas- katchewan Human Rights Commission; ... (j) a statement that the employer’s harassment policy is not intended to discourage or prevent the complainant from exercising any other legal rights pursuant to any other law. 23 The British Columbia law that was before the Supreme Court in Fig- liola did not include a provision equivalent to s. 36(1)(j). 24 The Chief Commissioner concluded that the effect of s. 36(1)(j) was that Saskatchewan law, in contrast to the British Columbia law that was considered in Figliola, specifically contemplated a multiplicity of proceedings. He said at page 6 of his decision: I find that the legislature specifically contemplated that an employee could file a harassment complaint under the OHSA [The Occupa- tional Health and Safety Act] and a human rights complaint under the Code simultaneously. The legislature has effectively endorsed the multiplicity of proceedings being challenged by the Respondent. The principles of collateral attack, res judicata and abuse of process, University of Saskatchewan v. Peng G.M. Currie J. 167

which motivated the majority in Figliola, supra, are not applicable in this case. 25 The Chief Commissioner’s analysis of the effect of s. 36(1)(j) was that the provision must permit another proceeding on the same subject - otherwise, s. 36(1)(j) would be meaningless. If a full investigation and resolution under the occupational health and safety regime could preclude a second investigation under the human rights legislation, then the employer’s harassment prevention policy would prevent the complainant from exercising legal rights pursuant to the human rights legislation, an effect entirely contrary to the sense of s. 36(1)(j). 26 The Chief Commissioner went on, at page 7 of his decision, to state his conclusion with respect to the University’s application under s. 27.1(2)(d): As discussed above, the legislature has encouraged complainants to file internal harassment complaints and human rights complaints simultaneously. Furthermore, many of the traditional elements of procedural fairness are absent from employers’ internal harassment investigations under the Regulations. I find that the legislature did not intend the findings of internal harassment investigators under s. 36 of the Regulations to be legally binding on the Saskatchewan Human Rights Commission. The legislature specifically contemplated that the Saskatchewan Human Rights Commission could conduct a parallel proceeding. The Saskatchewan Human Rights Commission would be abdicating its duties under s. 25(a) and (b) of the Code if it chose to defer human rights decisions to investigators carrying out internal investigations under employers’ harassment policies. 27 The University says that this conclusion is contrary to the law described in the Figliola decision. The University argues that, in Figliola, the Supreme Court has provided guidance to tribunals and courts as to the approach to be taken when faced with possible parallel adjudicative processes relating to the same issue. That guidance, says the University, should have been applied by the Chief Commissioner when he considered the prospect of the Human Rights Commission embarking on an investigative and adjudicative process parallel to that already completed under the occupational health and safety regime. His failure to do so was unreasonable, the University says, just as the failure of the tribunal to do so in Figliola was unreasonable. 28 The Chief Commissioner concluded that one can apply the guidance in Figliola only if one determines that the case at hand is the kind of case being talked about in Figliola, and he concluded that this is not such a 168 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

case. By his analysis, the guidance provided by the Supreme Court in Figliola may have applied by virtue of s. 27.1(2)(d) if Saskatchewan law did not also include s. 36(1)(j) of The Occupational Health and Safety Regulations, 1996. The inclusion of that regulatory provision in Sas- katchewan law led the Chief Commissioner to conclude that the Figliola approach to potential multiplicity of proceedings did not apply in this case. 29 In reaching this conclusion, the Chief Commissioner articulated his reasons, exhibiting the justification, transparency and intelligibility required to meet the test of reasonableness. As to whether his decision fell within a range of possible, acceptable outcomes, two outcomes were contemplated in s. 27.1(2)(d). The Chief Commissioner either would dismiss Ms. Peng’s complaint or he would allow the Commission investigation to proceed. The Chief Commissioner’s decision led to the latter outcome. There remains the matter of whether that outcome was “defensible in respect of the facts and law”. 30 In turning my attention to the defensibility of an outcome, I note that whether the Chief Commissioner’s decision meets the reasonableness standard of review is a single, comprehensive decision. It is not a matter of separate evaluations of his decision and of the outcome of his decision. Justice Abella made this point in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.) at para. 14: [14] Read as a whole, I do not see Dunsmuir as ... advocating that a reviewing court undertake two discrete analyses S one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose- leaf), at §§ 12:5330 and 12:5510). It is a more organic exercise S the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. ... 31 On the other hand, the determination as to reasonableness includes reference to whether the tribunal’s decision is defensible with regard to both the facts and the law. This element of the determination is the basis on which the University seeks to have the Chief Commissioner’s decision ruled unreasonable, and so it requires some attention. 32 In considering the sense of “defensible in respect of the facts and law”, it is worth remembering that the reasonableness standard recognizes the tribunal’s entitlement to judicial deference. The Supreme Court, University of Saskatchewan v. Peng G.M. Currie J. 169

in Dunsmuir, retained the distinction between correctness and reasonableness with the intention of there being a real difference between them. Reasonableness, and the defensibility included in it, does not require correctness. On the other hand, reasonableness and defensibility of the outcome require more than just a judicial rubber stamping of the tribunal’s articulated reasons, as discussed by Justices Bastarache and LeBel in Dunsmuir at para. 48: [48] ... Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are sub- servient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. ... 33 As observed by Matthew Lewans in Deference and Reasonableness Since Dunsmuir (2012), 38 Queen’s L.J. 59, in some decisions such as N.L.N.U. the Supreme Court has readily concluded that the tribunal’s decision met the test of reasonableness, a test that included a consideration of whether the decision led to an outcome that was defensible in respect of the facts and law. In other decisions such as Dunsmuir the court has concluded, sometimes readily and sometimes after detailed analysis, that the outcome was not defensible. 34 In seeking to draw guidance from what Professor Lewans referred to, at page 94, as “two approaches to reasonableness review that are at opposite extremes”, I turn again to the principles relating to judicial deference, and I find assistance in the remarks of Justice Abella in N.L.N.U.. After a concise summary of the tribunal’s analysis, she accepted the reasonableness of the tribunal’s decision -an acceptance that included a consideration of whether the outcome of the decision was defensible in respect of the facts and the law S saying at para. 7: [7] These points, it seems to me, provided a reasonable basis for the arbitrator’s conclusion, based on a plain reading of the agreement itself. 35 At para. 12 Justice Abella quoted with approval from Professor Dyzenhaus’s article, which had been cited in Dunsmuir: “Reasonable” means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them. 170 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal’s proximity to the dispute, its expertise, etc, then it is also the case that its decision should be presumed to be correct even if its reasons are in some respect defective. [emphasis added in the Su- preme Court decision] 36 I find further assistance in the remarks of the Federal Court of Appeal in Canada (Human Rights Commission) v. Canada (Attorney General), 2013 FCA 75, [2013] F.C.J. No. 249 (F.C.A.). Justice Stratas said at paras. 13-15: [13] As the Attorney General accepted in argument before us, one must remember that the range of acceptability and defensibility “takes its colour from the context,” widening or narrowing depending on the nature of the question and other circumstances: Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5 at paragraphs 17-18 and 23; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 59; and see also Canada (Attorney General) v. Abraham, 2012 FCA 266 at paragraphs 37-50. [14] In this case, the range is relatively narrow. The Tribunal’s decision primarily involves statutory interpretation S a matter constrained by the text, context and purpose of the statute. It also involves equality law S a matter constrained by judicial pronouncements. In this case, the Tribunal had less room to manoeuvre than in a case turning upon one or more of factual appreciation, fact-based discretions, administrative policies, or specialized experience and expertise not shared by the reviewing court on the particular point in issue. [15] The Supreme Court’s decision in Mowat, supra S also involving a review of the Tribunal’s interpretation of the Act S illustrates this well. There, the Supreme Court reviewed the Tribunal on the basis of the deferential standard of reasonableness. However, acting under that standard, the Supreme Court engaged in an exacting review of the Tribunal’s decision, a review more exacting than that of the Fed- eral Court in this case. Some might describe what the Supreme Court did in Mowat as disguised correctness review. I disagree. Mowat is reasonableness review, still deferential, conducted in recognition that, as far as the Supreme Court was concerned, the Tribunal had only a narrow range of acceptability and defensibility open to it, given the constrained nature of the matter before it. Within that range, the Tribunal was entitled to deference. ... 37 In Canada (Human Rights Commission) v. Canada (Attorney Gen- eral), the Federal Court of Appeal upheld the Federal Court’s conclusion University of Saskatchewan v. Peng G.M. Currie J. 171

that the tribunal’s decision had not met the reasonableness standard, because the decision was inconsistent with the applicable law. Similarly, in Dunsmuir at para. 74 the Supreme Court concluded that the tribunal had used reasoning that was “fundamentally inconsistent” with the evidence and so was “fatally flawed”. Too, in Figliola at paras. 46-54 the court concluded that the tribunal had engaged in a legal analysis that was so egregiously inapplicable to the facts and to the governing statutory provision that the tribunal’s decision was patently unreasonable (the standard of review established in the governing statute). 38 The courts’ approaches suggest that, in the case of a narrower range of acceptability and defensibility, a decision fails to meet the reasonableness standard of review where the reasoning is fundamentally inconsistent with the facts or with the applicable law. 39 Here, the range of acceptability and defensibility is narrower because the Chief Commissioner’s decision was driven largely by his interpretation of the law. The Chief Commissioner explained his decision in a transparent and intelligible manner. The outcome arising from his decision, being the non-dismissal of Ms. Peng’s complaint, was contemplated in The Saskatchewan Human Rights Code. His reasoning was not fundamentally inconsistent with the facts or with the applicable law, particularly given the provisions of s. 36(1)(j) of The Occupational Health and Safety Regulations, 1996. Those provisions provided a reasonable basis for his decision. For these reasons, the decision meets the reasonableness standard of review. 40 The University points, though, to certain elements of the Chief Com- missioner’s analysis, saying that he wrongly decided these elements, thereby causing his decision to be unreasonable. These elements include the following: (a) The Chief Commissioner concluded that, for reasons of procedural safeguards, Mr. Robertson’s investigation had not appropriately dealt with Ms. Peng’s complaint. Specifically, the Chief Commissioner observed that evidence had not been taken under oath, and that Ms. Peng did not have an opportunity to cross-examine witnesses or to make argument. The University says that these concerns are inconsistent with the Commission’s own practice of deciding whether to proceed with a complaint on the basis of its own investigator’s investigation, which is conducted without evidence under oath, cross-examination and argument. 172 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

(b) The Chief Commissioner concluded that, in the face of his concerns about procedural safeguards, the investigation under the Code should not be precluded by Mr. Robertson’s investigation. The University says that in so concluding the Chief Commissioner gave weight to those concerns in a manner entirely contrary to the decision of another Chief Commissioner, as related in Klotz v. Sabo (2006), 59 C.H.R.R. D/33, 2006 CarswellSask 862 (Sask. Human Rights Trib.). (c) The Chief Commissioner concluded that Mr. Robertson’s investigation actually had been conducted only pursuant to the Univer- sity’s internal harassment prevention policy, as opposed to having been conducted pursuant to the province’s occupational health and safety regime. The University says that this conclusion was clearly wrong, particularly since the policy had been developed in compliance with the Act and regulations that constitute the regime. 41 It is not appropriate for me to examine the Chief Commissioner’s analysis of each of these elements of his decision. The reasonableness standard of review does not invite the reviewing judge to subject each element of the decision to the reasonableness test of transparency and outcome. It is the decision itself that is subject to review as to transparency and outcome. This approach is inherent in the deference that un- derlies the reasonableness standard. 42 With respect to the investigation under the University’s harassment prevention policy, then, the Chief Commissioner decided not to dismiss Ms. Peng’s complaint on the basis that the substance of the complaint had been dealt with. In so deciding the Chief Commissioner communi- cated his decision transparently and intelligibly, and his decision led to an outcome that fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. His decision meets the reasonableness standard of review.

2. Saskatchewan Labour Relations Board decision 43 The Chief Commissioner applied the Figliola three-step analysis also to the proceedings before the Saskatchewan Labour Relations Board. He concluded, at page 7 of his decision, that the Board determined whether the union had fulfilled its duty to represent Ms. Peng fairly. Specifically, he observed that the Board “did not decide the propriety of the underlying grievance.” As he said at page 8, “The Board’s decision does not University of Saskatchewan v. Peng G.M. Currie J. 173

address whether the Complainant was harassed or discriminated against during her employment with the Respondent.” 44 In short, using the questions posed in Figliola, the Chief Commis- sioner concluded that the circumstances involving Ms. Peng’s application to the Board did not trigger a need to avoid multiplicity of proceedings. The issue to be decided by the Board, notwithstanding the fact that the Board commented on whether there had been harassment or discrimination, was whether her union had treated her unfairly. The issue before the Human Rights Commission is whether the University had harassed or discriminated against Ms. Peng. Thus, concluded the Chief Commis- sioner, the concern about avoidance of multiplicity of proceedings in connection with the same issue did not arise. 45 In explaining his decision the Chief Commissioner articulated his analysis. The decision itself fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. The decision meets the reasonableness standard of review.

3. Substance of the complaint having been dealt with: conclusion 46 The Chief Commissioner’s decision, not to dismiss Mr. Peng’s complaint under s. 27.1(2)(d) of The Saskatchewan Human Rights Code, meets the reasonableness standard of review. Accordingly, there is no basis for interfering with the decision on this ground.

D. No reasonable likelihood investigation will reveal evidence: s. 27.1(2)(f) 47 On its application to the Chief Commissioner, the University pointed to the investigation report issued by Mr. Robertson, arguing that no investigation under the Code was appropriate because Mr. Robertson already had conducted a thorough and complete investigation. With reference to s. 27.1(2)(f), the University argued that there is no reasonable likelihood than an investigation or further investigation will reveal evidence of a contravention of the Code. 48 The University pointed, too, to the decision of the Saskatchewan La- bour Relations Board, in which the Board expressed the view that it was unlikely that an adjudicator other than Mr. Robertson “could have weighed the evidence differently or could come to a different conclusion”. The University said that this statement supports the conclusion that there is no reasonable likelihood that any investigation or further investigation will reveal evidence of a contravention of the Code. 174 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

49 In fact, the Board’s comment was directed to the weighing of the evidence that had been collected by Mr. Robertson, not to whether another investigation might reveal evidence of a contravention. That is, ss. (2)(f) raises the possibility of new evidence coming to light in a further investigation, but the comment relied on by the University does not address that prospect. 50 In any event, at page 10 of his decision the Chief Commissioner considered the University’s argument that Mr. Robertson’s investigation, and the Labour Relations Board’s endorsement of it, precluded an investigation under the Code. He rejected the argument, saying that the argument would require the Human Rights Commission to adopt the findings of Mr. Robertson “on a comprehensive basis.” Such an adoption, he said, would not be appropriate because of his concerns about evidence not having been taken under oath and Ms. Peng having had no opportunity to cross-examine witnesses or to make argument. The Chief Commissioner said that Mr. Robertson’s report may be of some assistance to the Human Rights Commission investigator, but it would be up to the Commission investigator to decide whether to make use of any parts of the report. 51 Again, the Chief Commissioner explained his decision in a transparent and intelligible manner. The outcome arising from his decision, being the non-dismissal of Ms. Peng’s complaint, was contemplated in The Saskatchewan Human Rights Code. His reasoning was not fundamentally inconsistent with the facts or with the applicable law. [52] The Chief Commissioner’s decision, not to dismiss Mr. Peng’s complaint under s. 27.1(2)(f) of The Saskatchewan Human Rights Code, meets the reasonableness standard of review. Accordingly, there is no basis for interfering with the decision on this ground.

E. Conclusion 53 The Chief Commissioner’s decision, in which he declined to dismiss Ms. Peng’s complaint, meets the reasonableness standard of review. The Chief Commissioner articulated his analysis of the issues in a transparent, intelligible manner. His decision not to dismiss Ms. Peng’s complaint fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. Accordingly, there is no basis for interfering with the decision. The application is dismissed. 54 Ms. Peng was successful in resisting this application for judicial review. I am conscious, though, of the unique legislative and regulatory provisions that, when combined with the decisions of the Supreme Court, University of Saskatchewan v. Peng G.M. Currie J. 175 left a legitimate question for judicial determination. In these circumstances, even though Ms. Peng was successful and the University was not, I do not find it appropriate to require the University to contribute to Ms. Peng’s costs in this matter. Each party will bear her or its own costs of this application. Application dismissed. 176 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

[Indexed as: Lemare Lake Logging Ltd. v. 3L Cattle Co.] Lemare Lake Logging Ltd., Applicant and 3 L Cattle Company Ltd., Respondent Saskatchewan Court of Queen’s Bench Docket: Saskatoon Q.B. 674/13 2013 SKQB 278 A.R. Rothery J. Judgment: July 19, 2013 Bankruptcy and insolvency –––– Receivers — Appointment –––– Secured creditor brought application for court appointment of receiver and manager of assets, excluding livestock, of debtor, pursuant to s. 243(1) of Bankruptcy and Insolvency Act (BIA) — Debtor was farmer as defined by Saskatchewan Farm Security Act (SFSA) and took position that secured creditor had to comply with provisions of Part II of SFSA before it could apply to court for appointment of receiver under s. 243(1) of BIA — Secured creditor served notice questioning constitutional operability of ss. 9 and 11 of SFSA to extent those provisions may be interpreted to require person to obtain leave of court prior to making application for appointment of receiver pursuant to s. 243(1) of BIA — Secured creditor took position that doctrine of federal paramountcy rendered ss. 9 and 11 of SFSA inoperable to extent of conflict between them — Application seeking declaration that Part II of SFSA was constitutionally inoperative under doctrine of paramountcy dismissed, and application for court appointed receiver dismissed — Dual compliance was possible, and there was no operational conflict between SFSA and BIA — Secured creditor failed to prove that purpose of s. 243(1) of BIA had been frustrated by secured creditor’s compliance with Part II of SFSA — Secured creditor had to comply with provisions of Part II of SFSA prior to making application pursuant to s. 243(1) of BIA — At any rate, this was not application where court would find it just or convenient to appoint receiver under s. 243(1) of BIA. Cases considered by A.R. Rothery J.: Bank of Montreal v. Hall (1990), 1990 CarswellSask 405, 1990 CarswellSask 25, 9 P.P.S.A.C. 177, 46 B.L.R. 161, [1990] 1 S.C.R. 121, 65 D.L.R. (4th) 361, 104 N.R. 110, [1990] 2 W.W.R. 193, 82 Sask. R. 120, [1990] S.C.J. No. 9, EYB 1990-67925 (S.C.C.) — considered Clarkson Co. v. Credit foncier franco canadien (1984), 37 Sask. R. 295, 55 C.B.R. (N.S.) 206, 1984 CarswellSask 42 (Sask. Q.B.) — considered Clarkson Co. v. Credit foncier franco canadien (1985), 57 C.B.R. (N.S.) 283, 44 Sask. R. 151, 1985 CarswellSask 61 (Sask. C.A.) — referred to Lemare Lake Logging Ltd. v. 3L Cattle Co. 177

Laferrière c. Québec (Juge de la Cour du Québec) (2010), (sub nom. Laferrière v. Québec (Procureur Général)) 324 D.L.R. (4th) 692, 2010 CarswellQue 10212, 2010 CarswellQue 10213, 2010 SCC 39, (sub nom. Quebec (Attorney General) v. Canadian Owners and Pilots Association) 407 N.R. 102, (sub nom. Québec (Procureur général) c. C.O.P.A.) [2010] 2 S.C.R. 536, 75 M.P.L.R. (4th) 113, [2010] S.C.J. No. 39 (S.C.C.) — followed Railside Developments Ltd., Re (2010), 95 C.L.R. (3d) 54, 62 C.B.R. (5th) 193, 2010 CarswellNS 8, 2010 NSSC 13, (sub nom. Railside Developments Ltd. (Receivership), Re) 286 N.S.R. (2d) 285, (sub nom. Railside Developments Ltd. (Receivership), Re) 909 A.P.R. 285 (N.S. S.C.) — referred to Royal Bank of Canada v. Klassen Park Farms Inc., Ronald Klassen and Darlene Klassen (December 21, 2012), Doc. 1304/2012 (Sask. Q.B.) — considered Statutes considered: Bank Act, S.C. 1991, c. 46 Generally — referred to s. 427 — considered Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 Generally — referred to s. 2 “insolvent person” — considered s. 243 — considered s. 243(1) — considered s. 243(1.1) [en. 2007, c. 36, s. 58(1)] — considered s. 243(5) — considered s. 244 — considered s. 244(1) — considered s. 244(2) — considered Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 Generally — referred to Forest Act, R.S.B.C. 1996, c. 157 Pt. 11.1 [en. 2006, c. 13, s. 17] — referred to Land Titles Act, R.S.S. 1978, c. L-5 s. 87 — considered Land Titles Act, 2000, S.S. 2000, c. L-5.1 s. 109(3) — considered Limitation of Civil Rights Act, R.S.S. 1978, c. L-16 Generally — referred to Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01 s. 12 — considered s. 65 — referred to Saskatchewan Farm Security Act, S.S. 1988-89, c. S-17.1 Generally — referred to Pt. II — considered s. 3(a) “action” — considered 178 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

s. 3(a) “action” (i) — considered s. 3(a) “action” (ii) — considered s. 3(a) “action” (iii) — considered s. 3(a) “action” (iv) — considered s. 3(a) “action” (v) — considered s. 3(c) “farmer” — referred to s. 4 — considered s. 9 — considered s. 9(1)(d) — considered s. 11 — considered s. 12 — referred to s. 12(1) — considered s. 13 — referred to s. 18 — referred to s. 19 — referred to

APPLICATION by secured creditor for court appointment of receiver and manager of assets, excluding livestock, of debtor, pursuant to s. 243(1) of Bank- ruptcy and Insolvency Act; APPLICATION by secured creditor concerning constitutional operability of provisions of Part II of Saskatchewan Farm Security Act.

J.M. Lee, Q.C., M.J. Russell, for Applicant J.A. Hesje, Q.C., R.J. Wood, for Respondent D.K. Lee, for Concentra Financial Services Association G.A. Meschishnick, Q.C., for Farm Credit Canada K.M. Roy, for Attorney General, for Saskatchewan C.N. Ohashi, for Minister of the Environment, for Saskatchewan

A.R. Rothery J.: The Issues 1 The applicant, Lemare Lake Logging Ltd. (the “Secured Creditor”) applies for the court appointment of Alvarez & Marsal Canada Inc. as receiver and manager of the assets (excluding livestock) of 3L Cattle Company Ltd. (the “Debtor”), pursuant to s. 243(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c.B-3 (the “BIA”). The Secured Credi- tor holds a mortgage over approximately 19,100 acres of land in Sas- katchewan owned by the Debtor, and a security agreement over all goods and equipment (excluding inventory), to secure the repayment of $10 million. The Debtor is a farmer as defined by The Saskatchewan Farm Security Act, S.S. 1988-89, c.S-17.1(the “SFSA”), and takes the position that the Secured Creditor must comply with the provisions of Part II of Lemare Lake Logging Ltd. v. 3L Cattle Co. A.R. Rothery J. 179

the SFSA before it may apply to the court for an appointment of a receiver under s. 243(1) of the BIA. 2 The Secured Creditor served a notice questioning the constitutional operability of s.9 and s. 11 of the SFSA to the extent those provisions may be interpreted to require a person to obtain leave of the court prior to making an application for the appointment of a receiver pursuant to s. 243(1) of the BIA. The Secured Creditor argues that the doctrine of federal paramountcy renders s. 9 and s. 11 of the SFSA inoperable to the extent of the conflict between them. The Secured Creditor submits that this is a situation where the court may immediately appoint a receiver over the Debtor’s assets and permit the receiver to sell the land and provide the purchaser with clear title by way of a vesting order. Both counsel for the Debtor and for the Attorney General for Saskatchewan submit that there is no operational conflict between the SFSA and the BIA.

The Factual Background 3 This is not the usual factual situation where a debtor defaults on payments to his financial institution, requiring the financial institution to invoke its remedies and realize on its security. Although both parties are corporations, the principals behind them are family members. The father, David Dutcyvich, established Lemare Lake Logging Ltd. in 1984. He brought his two sons, Eric and Chris, into this British Columbia business. David also established 3L Cattle Company Ltd., which is a ranching operation near Naicam, Saskatchewan. While the affidavit evidence is contradictory as to the underlying reasons, David and his two sons were unable to continue doing business together. By January, 2011, they had restructured their business affairs such that David now is the shareholder and director of the Debtor and Eric and Chris are the two trustees of the shareholder of the Secured Creditor, being the Dutcyvich Family Trust. Eric and Chris are the sole directors of the Secured Creditor. 4 There are two events that led the Secured Creditor to make this application. They stem from the restructuring of the business between the father and sons, wherein the Secured Creditor remains contingently liable for David’s loan of $10 million with Concentra Financial Services Asso- ciation (“Concentra”) taken in 2003 to establish a Retirement Compensa- tion Allowance Trust (“RCA Trust”). Concentra demanded repayment of that loan on January 29, 2013. Neither David nor the Debtor repaid the $10 million. Concentra now demands repayment from the Secured Credi- tor. In turn, the Secured Creditor proposes to realize on its security over 180 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

the Debtor’s assets taken to secure its contingent liability on the $10 million Concentra loan. That is, the Secured Creditor seeks its remedies under the $15 million mortgage registered against the lands of the Debtor granted January 21, 2011 and the security agreement of January 19, 2011 over goods and equipment. 5 The second event that has precipitated the Secured Creditor’s application for the appointment of a receiver to realize on its security is the Secured Creditor’s own financial problems. Beginning in February, 2009, the Secured Creditor found itself in an ongoing dispute with the Government of British Columbia (the “Crown”) over unpaid stumpage fees in its timber business. The Crown issued a proposal to assess stumpage fees in the Secured Creditor’s timber business under Part 11.1 of The Forest Act, R.S.B.C. 1996, c. 157, for an amount in excess of $9.6 million. This indebtedness, along with other financial difficulties, led the Se- cured Creditor to file for protection from its own creditors under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c.C-36 (“CCAA”). It obtained its CCAA Initial Order from the Supreme Court of British Columbia on June 21, 2012. The stay of proceedings has been extended, with the next extension to expire August 31, 2013. At the date of the CCAA Initial Order, the Secured Creditor owed about $34.8 million to its creditors, of which $10 million was owed to Concentra for the RCA Trust Loan. 6 The Secured Creditor has successfully negotiated a settlement with the Crown. It has negotiated a plan of repayment with its other creditors. However, Concentra expects its $10 million from the Secured Creditor, and the Secured Creditor cannot exit CCAA protection until the Concen- tra loan is dealt with. That means incurring ongoing costs of the CCAA proceedings. There is no certainty that the Supreme Court of British Co- lumbia will extend the stay of proceedings beyond August 31, 2013. To ensure its own survival as a business entity, and to not be placed in receivership itself, the Secured Creditor seeks a prompt resolution to the $10 million debt that the Debtor owes it. It proposes to do this by way of a court-appointed receivership under s. 243(1) of the BIA. 7 Concentra could retire half of the $10 million owed to it by way of collapsing David’s life insurance policy and applying the proceeds of approximately $5.276 million to the loan. Concentra could access a refundable tax account held by Canada Revenue Agency (“CRA”). While it is valued at over $5.9 million, Concentra states that this recovery is an un- clear and complex process as it is subject to review by CRA. Further- Lemare Lake Logging Ltd. v. 3L Cattle Co. A.R. Rothery J. 181

more, CRA requires Concentra to take steps to collect on its loan prior to accessing the refundable tax account. Concentra is prevented from suing the Secured Creditor because it is in CCAA protection. Therefore, Con- centra supports the Secured Creditor in its application for a court-appointed receiver.

The Constitutional Question 8 The preliminary issue is whether the provisions of Part II of the SFSA that require a court order before any action may be commenced with respect to a mortgage on farm land in Saskatchewan is in conflict with s. 243(1) of the BIA that provides for the court appointed receiver. 9 The relevant provisions of Part II of the SFSA are: 3 (a) “action” means an action in court with respect to farm land by a mortgagee for: (i) foreclosure of the equity of redemption; (ii) sale or possession of the mortgaged farm land; (iii) recovery of any money payable under a mortgage; (iv) specific performance or cancellation of an agreement forsale; (v) sale or possession of the farm land sold under the agreement for sale; or ... 9(1) Notwithstanding any other Act or law or any agreement entered into before, on or after the coming into force of this Act: ... (d) subject to sections 11 to 21, no person shall commence an action with respect to farm land; 11(1) Where a mortgagee makes an application with respect to a mortgage on farm land, the court may, on any terms and conditions that it considers just and equitable: (a) order that clause 9(1)(d) or section 10 does not apply; or (b) make an order for the purposes of clause 9(1)(f). (2) Where an order is made pursuant to subsection (1), the mortgagee may commence or continue an action with respect to that mortgage. (3) Any action that is commenced without an order pursuant to this section is a nullity, and any order made with respect to an action ora proposed action without an order pursuant to this section is void. 182 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

12(1) Subject to subsection (14), a mortgagee may apply to the court for an order pursuant to section 11 but only after the expiry of 150 days from the date of service of a notice of intention on: (a) the board; and (b) the farmer. 10 As articulated by counsel for the Secured Creditor, the net effect of sections 9 and 11 of the SFSA is that no person shall commence an action with respect to mortgaged farm land without first obtaining leave of the court. Prior to making an application for such leave, a mortgagee must serve a statutory notice of intention and await the expiry of the 150 day notice period, during which notice period the parties must participate in a mandatory mediation process (section 12). To succeed on the application that the SFSA does not apply to the farm land in question, the mortgagee must overcome certain statutory presumptions (section 13) and must satisfy the statutory burdens of proof (sections 18 and 19). 11 The relevant provisions of Part XI -Secured Creditors and Receivers of the BIA are: 243. (1) Subject to subsection (1.1), on application by a secured creditor, a court may appoint a receiver to do any or all of the following if it considers it to be just or convenient to do so: (a) take possession of all or substantially all of the inventory, accounts receivable or other property of an insolvent person or bankrupt that was acquired for or used in relation to a business carried on by the insolvent person or bankrupt; (b) exercise any control that the court considers advisable over that property and over the insolvent person’s or bankrupt’s business; or (c) take any other action that the court considers advisable. (1.1) In the case of an insolvent person in respect of whose property a notice is to be sent under subsection 244(1), the court may not appoint a receiver under subsection (1) before the expiry of 10 days after the day on which the secured creditor sends the notice unless (a) the insolvent person consents to an earlier enforcement under subsection 244(2); or (b) the court considers it appropriate to appoint a receiver before then. ... 244. (1) A secured creditor who intends to enforce a security on all or substantially all of Lemare Lake Logging Ltd. v. 3L Cattle Co. A.R. Rothery J. 183

(a) the inventory, (b) the accounts receivable, or (c) the other property of an insolvent person that was acquired for, or is used in relation to, a business carried on by the insolvent person shall send to that insolvent person, in the prescribed form and manner, a notice of that intention. (2) Where a notice is required to be sent under subsection (1), the secured creditor shall not enforce the security in respect of which the notice is required until the expiry of ten days after sending that notice, unless the insolvent person consents to an earlier enforcement of the security. 12 The only time restriction on the appointment of the receiver under the BIA is the ten-day notice requirement. Counsel for the Secured Creditor submits that it is this conflict between the time restraints and statutory presumptions under the SFSA that create the conflict between the federal and provincial laws. To the extent that there is a conflict, counsel argues that the doctrine of federal paramountcy renders s. 9 and s. 11 of the SFSA inoperative. 13 The legal principles to be utilized in determining federal paramountcy of conflicting legislation are succinctly outlined in the recent decision of the Supreme Court of Canada, Laferrière c. Québec (Juge de la Cour du Québec), 2010 SCC 39, [2010] 2 S.C.R. 536 (S.C.C.). McLachlin C.J.C. summarizes the legal principles at para. 62 - 64: 62 Unlike interjurisdictional immunity, which is concerned with the scope of the federal power, paramountcy deals with the way in which that power is exercised. Paramountcy is relevant where there is conflicting federal and provincial legislation. As Major J. explained in Rothmans, at para. 11, “[t]he doctrine of federal legislative paramountcy dictates that where there is an inconsistency between validly enacted but overlapping provincial and federal legislation, the provincial legislation is inoperative to the extent of the inconsistency.” 63 The effect of the doctrine of interjurisdictional immunity is to negate the potential inconsistency between federal and provincial legislation by rendering the provincial legislation inapplicable to the extent it impairs the core of a federal power. Because I have concluded that interjurisdictional immunity resolves the dispute in this case, it is unnecessary to consider federal paramountcy. However, in light of 184 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

the submissions of the parties, it may be useful to explore the appli- cability of this doctrine. 64 Claims in paramountcy may arise from two different forms of conflict. The first is operational conflict between federal and provincial laws, where one enactment says “yes” and the other says “no”, such that “compliance with one is defiance of the other”: Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, at p. 191, per Dick- son J. In Bank of Montreal v. Hall, [1990] 1 S.C.R. 121, at p. 155, La Forest J. identified a second branch of paramountcy, in which dual compliance is possible, but the provincial law is incompatible with the purpose of federal legislation: see also Law Society of British Co- lumbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113, at para. 72; Lafarge Canada, at para. 84. Federal paramountcy may thus arise from either the impossibility of dual compliance or the frustration of a federal purpose: Rothmans, at para. 14. 14 In this application, it is conceded that the SFSA is valid provincial legislation. The only issue is whether Part II of the SFSA conflicts with s. 243(1) of the BIA such that “compliance with one is defiance of the other”, or whether the SFSA frustrates the purpose of s. 243(1) of the BIA. 15 Section 4 of the SFSA states: The purpose of this Part is to afford protection to farmers against loss of their farm land. 16 The provincial legislation is clear that unless a person obtains an order under s.11 of the SFSA that s. 9(1)(d) of the SFSA does not apply to the mortgage on farm land, the action by a mortgagee is a nullity. The Secured Creditor’s application for the court appointment of a receiver pursuant to its mortgage registered on the Debtor’s farm land is an “action” as defined by s. 3 of the SFSA. Thus, the Secured Creditor is required to comply with the statutory notice provisions and to obtain the court order under s. 11 of the SFSA prior to realizing on its security. 17 Counsel for the Secured Creditor submits that, on proving that the Debtor is insolvent (as defined in the BIA), it is entitled to apply for a national receiver of the Debtor’s property. The Secured Creditor is only required to serve the ten-day notice pursuant to s. 244 of the BIA prior to applying for a receiver. It is this inconsistency that prevents the Secured Creditor from complying with both the BIA and SFSA. The Secured Creditor is “told to do inconsistent things”. 18 I must conclude that the Secured Creditor is not in the position of having to comply with the BIA and having, at the same time, to defy the Lemare Lake Logging Ltd. v. 3L Cattle Co. A.R. Rothery J. 185

SFSA. In the first branch of the test articulated in Qu´ebec (Juge de la Cour du Qu´ebec), supra, the Secured Creditor is not required to make an application under s. 243(1) of the BIA. The BIA is characterized as permissive legislation. However, if the Secured Creditor does so, the court may appoint a receiver. This discretionary remedy available to the Se- cured Creditor does not place it in a position of operational conflict. It is possible for the Secured Creditor to comply with the prohibitive legislation of the SFSA, and once it has obtained the requisite court order, to apply for the appointment of a receiver under s. 243(1) of the BIA. In other words, compliance with the SFSA is not in defiance of the BIA. 19 The second branch of the test for paramountcy must now be considered. Because dual compliance is possible, and there is no operational conflict between the SFSA and the BIA, the next question is whether Part II of the SFSA is incompatible with the purpose of s. 243(1) of the BIA. Counsel for the Secured Creditor submits that this case is analogous to issues before the Supreme Court of Canada in Bank of Montreal v. Hall, [1990] 1 S.C.R. 121 (S.C.C.). The Bank of Montreal held Bank Act, S.C. 1991, c-46 security on the implements of a Saskatchewan farmer. When Mr. Hall defaulted on his loans, the Bank seized the farmer’s swather without first serving a Notice of Intention to seize as required by The Limitation of Civil Rights Act, R.S.S. 1978, c.L-16 (“LCRA”). The parties applied for a determination whether a chartered bank was required to comply with the LCRA in enforcing its s. 427 (formerly s. 178) security under the Bank Act. 20 The Supreme Court of Canada concluded in Hall, supra, that the notice requirement under the LCRA was not compatible with the federal legislative purpose of the scheme for realization of Bank Act security. At p. 152 - 155, Laforest J. defined the problem with LCRA in this way: The most salient feature of the procedure set out in ss. 21 to 35 of the Act, as I understand it, is that it is designed to ensure that a judge determine the terms and conditions under which a creditor may re- possess and seize articles. Section 33 makes this clear. It is a judge who is to decide if, when, and under what circumstances the pledged article is to be returned to the secured party. The contrast with the comprehensive regime provided for in ss. 178 and 179 of the Bank Act could not be more striking. The essence of that regime, it hardly needs repeating, is to assign to the bank, on the taking out of the security, right and title to the goods in question, and to confer, on default of the debtor, an immediate right to seize and 186 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

sell those goods, subject only to the conditions and requirements set out in the Bank Act. On a comparison of the two enactments, can it be said that there is an “actual conflict in operation” between them, giving that phrase the meaning above described? I am led inescapably to the conclusion that there is. The Bank Act provides that a lender may, on the default of his borrower, seize his security, whereas The Limitation of Civil Rights Act forbids a creditor from immediately repossessing the secured article on pain of determination of the security interest. There could be no clearer instance of a case where compliance with the federal statute necessarily entails defiance of its provincial counterpart. ... I can only conclude that it was Parliament’s manifest legislative purpose that the sole realization scheme applicable to the s. 178 security interest be that contained in the Bank Act itself. Again, as I pointed out earlier, I am firmly of the view that the security interest and realization procedure must, in essence, be viewed as a single whole in that both components of the legislation are fully integral to Parlia- ment’s legislative purpose in creating this form of financing. In other words, a s. 178 security interest would no longer be cognizable as such the moment provincial legislation might operate to superadd conditions governing realization over and above those found within the confines of the Bank Act. To allow this would be to set at naught the very purpose behind the creation of the s. 178 security interest. Accordingly, the determination that there is no repugnancy cannot be made to rest on the sole consideration that, at the end of the day, the bank might very well be able to realize on its security if it defers to the provisions of the provincial legislation. A showing that conflict can be avoided if a provincial Act is followed to the exclusion of a federal Act can hardly be determinative of the question whether the provincial and federal acts are in conflict, and, hence, repugnant. That conclusion, in my view, would simply beg the question. The focus of the inquiry, rather, must be on the broader question whether operation of the provincial Act is compatible with the federal legislative purpose. Absent this compatibility, dual compliance is impossible. Such is the case here. The two statutes differ to such a degree in the approach taken to the problem of realization that the provincial cannot substitute for the federal. I have dealt with this case on the basis of paramountcy to meet the arguments put forward by counsel. But the issue can, I think, be answered more directly. At the end of the day, I agree with counsel for Lemare Lake Logging Ltd. v. 3L Cattle Co. A.R. Rothery J. 187

the Attorney General of Canada that this is simply a case where Par- liament, under its power to regulate banking, has enacted a complete code that at once defines and provides for the realization of a security interest. There is no room left for the operation of the provincial legislation and that legislation should, accordingly, be construed as inapplicable to the extent that it trenches on valid federal banking legislation. [emphasis added] 21 Counsel for the Secured Creditor characterizes s. 243(1) of the BIA as providing an unqualified right to a secured creditor to apply to the court for the appointment of a receiver, just as the Bank Act provides a chartered bank the unqualified right to seize assets without being required to comply with the LCRA notice. Counsel argues that the SFSA must yield to the provisions of s. 243(1) of the BIA because it frustrates the purpose of s. 243(1) of the BIA. 22 McLachlin C.J.C. stated at para. 66 of Québec (Juge de la Cour du Québec), supra: ...The party seeking to invoke the doctrine of federal paramountcy bears the burden of proof: Lafarge Canada, at para. 77. That party must prove that the impugned legislation frustrates the purpose of a federal enactment. To do so, it must first establish the purpose of the relevant federal statute, and then prove that the provincial legislation is incompatible with this purpose. The standard for invalidating provincial legislation on the basis of frustration of federal purpose is high; permissive federal legislation, without more, will not establish that a federal purpose is frustrated when provincial legislation re- stricts the scope of the federal permission: see 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241. 23 In the commentary to s. 243(1) of the BIA of The 2012 -2013 Anno- tated Bankruptcy and Insolvency Act (Toronto: Thomson Reuters, 2012), the authors, Lloyd W. Houlden, Geoffrey B. Morawetz & Janis P. Sarra, explain that the effect of s. 243 of the BIA is to authorize the court to appoint a national receiver, if required. At p. 985, the authors comment as follows: Section 243 grants authority to the court, defined in s. 2 to include a judge exercising jurisdiction under the BIA, to appoint a receiver with the power to act nationally, thereby eliminating the need to apply to the courts in multiple jurisdictions for the appointment of a receiver (2007, c.36 in force September 18, 2009). The national receiver under the BIA is entitled to act across the country, increasing 188 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

efficiency by removing the need to have a receiver appointed in each jurisdiction in which the debtor’s assets are located. Creditors are still entitled to have a provincially appointed receiver act on their behalf under the Act. The subsection was further amended by providing specific powers that may be exercised by the court appointed receiver. And see: Railside Developments Ltd., Re, 2010 NSSC 13, 286 N.S.R. (2d) 285 (N.S. S.C.) at para. 58 - 65. 24 If it is necessary for the secured creditor to realize on the insolvent debtor’s assets that are in more than one jurisdiction, the purpose of s. 243 of the BIA is to permit a secured creditor to apply for a court appointed receiver that is recognized nationally. It allows the secured creditor to obtain its receivership order in one jurisdiction, with the comfort of knowing that other courts in other jurisdictions will recognize the authority of that receivership order. At the application for receiver stage, a secured creditor need only be subjected to the legislative scheme of the province in which it makes the application. That is clear from the wording of s. 243(5) of the BIA. The secured creditor must apply in the court having jurisdiction in the locality of the debtor. Once the secured creditor has complied with the legislative requirements of that province, and that court has exercised its discretion to appoint a receiver, the purpose of s. 243(1) of the BIA has been met. That receiver may now act nationally. That is not to say that the receiver would also be subjected to the laws of another provincial jurisdiction in which the receivership order may need to be recognized. But, the purpose of s. 243 of the BIA is not restricted, that being, the appointment of a national receiver. 25 There is no analogy between this case and the legislation sought to be impugned in Hall, supra. Hall dealt with the paramountcy of the realization provisions of the s.427 of the Bank Act security which the Supreme Court of Canada described as a “complete code that at once defines and provides for the realization of a security interest.” Oppositely, the appointment of a receiver is a discretionary remedy available to the court to assist creditors in the realization of their security if it is just or convenient to do so. The appointment of a receiver pursuant to s. 243 of the BIA is simply a mechanism to have that receiver appointed so that it may be recognized nationally. It does not create a “complete code” for the realization of security as set out in the Bank Act. 26 In short, counsel for the Secured Creditor has failed to prove that the purpose of s. 243(1) of the BIA has been frustrated by the Secured Credi- tor’s compliance with Part II of the SFSA. The application seeking a dec- Lemare Lake Logging Ltd. v. 3L Cattle Co. A.R. Rothery J. 189

laration that Part II of the SFSA is constitutionally inoperative under the doctrine of paramountcy is dismissed. The Secured Creditor must comply with the provisions of Part II of the SFSA prior to making an application pursuant to s. 243(1) of the BIA.

The Merits of the Application 27 Had I concluded that the Secured Creditor need not comply with the provisions of Part II of the SFSA prior to the application pursuant to s. 243 of the BIA, the Secured Creditor’s application for a court appointed receiver must be dismissed at any rate. The Secured Creditor has failed to prove the Debtor is insolvent. Furthermore, the mortgage only permits a receiver to be appointed over the rents and profits. Even if a receiver could be appointed to sell the farm land, the court would not grant a vesting order in these circumstances. I elaborate. 28 The Secured Creditor alleges that the Debtor is insolvent as defined by s. 2 of BIA which states: “insolvent person” means a person who is not bankrupt and who resides, carries on business or has property in Canada, whose liabilities to creditors provable as claims under this Act amount to one thou- sand dollars, and (a) who is for any reason unable to meet his obligations as they generally become due, (b) who has ceased paying his current obligations in the ordinary course of business as they generally become due, or (c) the aggregate of whose property is not, at a fair valuation, sufficient, or, if disposed of at a fairly conducted sale under legal process, would not be sufficient to enable payment of all his obligations, due and accruing due; 29 Counsel for the Secured Creditor refers to the Debtor’s financial statements for the last three years. They show steady and increasing losses. In summary, as shown in the financial statements, the Debtor has $14 million in assets and $17 million in liabilities. 30 Counsel for the Debtor submits the test for insolvency under s. 2 of the BIA does not include a test of profitability. I must agree. The court must determine if the Debtor meets any of the definitions of insolvency in the three following tests, considering the facts before it: 1. The Debtor is unable to meet its obligation as they generally become due: 190 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

The evidence is that the Debtor has defaulted on the $10 million loan to Concentra and $1.69 million owed to the Secured Creditor. How- ever, the Debtor is meeting its other obligations as they generally become due. The $1.69 million owed to the Secured Creditor is part of the restructuring between the corporations for the father and sons. The Secured Creditor was to pay the Debtor for certain obligations by way of set-off, but those payments have ceased to be made since March, 2013. The $1.6 million obligation cannot be considered an example of the Debtor not meeting its obligations. 2. The Debtor has ceased paying its current obligations in the ordinary course of business as they generally become due: The debts to the Secured Creditor and to Concentra are not obligations in the Debtor’s ordinary course of business. Oppositely, the obligation to Farm Credit Canada is current. No other creditors have alleged that the Debtor has ceased paying its current obligations. 3. The Debtor’s property is not sufficient to pay all its obligations: The Debtor states the farm land is worth about $30 million, and the equipment is worth about $2 million. Farm Credit Canada is the first mortgagee and it is owed about $7 million. The Secured Creditor is owed $10 million. The Secured Creditor has provided no evidence of the value of the farm land. There is no evidence that the Debtor does not have sufficient assets to meet other obligations, such as inventory financing. 31 In conclusion, the Secured Creditor has failed to prove that the Debtor’s property is not sufficient to pay all its obligations. The test of insolvency has not been met. The Secured Creditor has not satisfied the pre-condition required to apply for an order appointing a receiver under s. 243(1) of the BIA. 32 If the test for insolvency had been met, it is neither just nor convenient to appoint a receiver. The Secured Creditor applies for the receivership order under s. 243(1) of the BIA on the basis of its security interest derived from both a mortgage dated January 21, 2011, on the Debtor’s 120 parcels of farm land and a security agreement dated January 19, 2011, on the Debtor’s goods and equipment. The terms of the mortgage include the Secured Creditor’s right to appoint a receiver-manger of the lands upon default and to apply to the court for the appointment of a receiver. Clause 13 of the mortgage states in part: 13. APPOINTMENT OF RECEIVER OR RECEIVER-MANAGER (a) At any time when there is default under paragraph 9 of this mortgage the Mortgagee may, with or without entering into Lemare Lake Logging Ltd. v. 3L Cattle Co. A.R. Rothery J. 191

possession of the Lands, appoint in writing a receiver or receiver-manger (the “Receiver”) of the Lands and of the rents and revenues therefrom with or without security. The Mortga- gee may from time to time by similar writing remove any Re- ceiver and appoint another in its place. In making any such appointment or removal the Mortgagee will be deemed to be acting as agent or attorney for the Mortgagor. The statutory declaration of an officer of the Mortgagee as to the existence of such default will be conclusive evidence of such default. Every Receiver will be the irrevocable assignee or attorney of the Mortgagor for the collection of all rents falling due in respect of the Lands... (b) Notwithstanding the provisions of subparagraph 13(a) above and in addition to the right of private appointment contained therein, the Mortgagee will have the right to apply to a court of competent jurisdiction for the appointment of a receiver or a receiver-manager, whether such application is made prior to or after the appointment of a Receiver pursuant to subparagraph 13(a). The right to apply to a court for the appointment of a receiver or receiver-manager may be exercised at any time by the Mortgagee in its sole discretion. 33 Certainly, this mortgage allows for the Secured Creditor to apply to the courts for the appointment of a receiver or a receiver-manager. How- ever, the power that the court may confer upon the receiver pertains to obtaining rents and revenues and managing the Debtor’s business. As stated by Frank Bennett, Bennett on Receiverships (2nd ed.), (Toronto: Carswell, 1999) at p. 648: A court-appointed receiver is neither the agent of the mortgagee who initiated the appointment nor the agent of the mortgagor. The receiver is an officer of the court who only takes directions from the court and cannot be interfered with by any creditor without leave of the court. This would include even a prior mortgagee or debenture holder who was not made party to the proceedings. The receiver derives its powers and duties from the court and any statutory provision such as the duty to report under Part XI of the Bankruptcy and Insol- vency Act, if it is applicable. Therefore, the order appointing the receiver should specify the powers that are needed in the particular case. In a mortgage receivership, the receiver requires powers to take possession of the property, to collect the rent, to enter into leases and to cause tenants to attorn to the receiver and generally to manage the business. If the debtor held guarantees to secure payment of rent in 192 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

the event of default, then the receiver can only sue a defaulting tenant where the mortgagee holds an assignment of the guarantee. [emphasis added] 34 On the facts before the court in this application, there is no evidence that a receiver is required to collect the Debtor’s rents. There is no basis for the court to exercise its discretion, either under s. 243(1) of the BIA, or under s. 65 of The Queen’s Bench Act, 1998, S.S. 1998, c.Q-1.01. 35 Finally, the Secured Creditor applies under s. 243(1) of the BIA for a court-appointed receiver so that the receiver would be permitted to sell the Debtor’s farmland and vest the title in the purchaser. In the circumstances of this case, the court would not find the requisite pre-conditions to grant a vesting order. Certainly, s. 12 of The Queen’s Bench Act, 1998 confers authority on the court to vest real or personal property in any person. Section 109(3) of The Land Titles Act, 2000, S.S. 2000, c.L-5.1 (the “LTA”) confers authority on the court to vest title to the land in any person if the court considers it appropriate. 36 Case authority establishes that the court will only grant a vesting order in exceptional circumstances. This was outlined in Clarkson Co. v. Credit foncier franco canadien (1984), 37 Sask. R. 295, 55 C.B.R. (N.S.) 206 (Sask. Q.B.) and upheld at (1985), 44 Sask. R. 151, 57 C.B.R. (N.S.) 283 (Sask. C.A.) Matheson J. considered the provisions of s. 87 of The Land Titles Act, R.S.S. 1978, c.L-5, which are the same as the provisions of s. 109(3) of the LTA. Although the court was dealing with an application by the secured creditor as a debenture holder, the principles articulated are equally applicable to a mortgagee. After summarizing appellate authority, Matheson J. stated at para. 15: No real issue can be taken with the foregoing remarks of Tallis J.A. and Hall J.A. When a creditor has commenced an action to realize upon its security, and in that action a receiver-manager has been appointed and granted authority to realize upon the security, it would not be reasonably convenient to insist that formal foreclosure proceedings be commenced merely to complete a sale, arranged by the receiver-manager to which the debtors do not object. 37 Matheson J. also articulated the reasons that the court requires a mortgagee to proceed by way of foreclosure, unless exceptional circumstances exist. At para. 21 -22 the court stated: 21 One of the purposes of the foreclosure procedure prescribed by the Queen’s Bench Rules is to permit a defaulting mortgagor to redeem the real property. A real property mortgage apparently cannot Lemare Lake Logging Ltd. v. 3L Cattle Co. A.R. Rothery J. 193

be irredeemable: Falconbridge on Mortgages, 4th ed. (1977), pp. 43- 49. Although a body corporate may very well waive a right of redemption, as suggested in Roynat Ltd. v. Denis and Roynat Ltd. v. Canawa, which may permit the granting of a vesting order if there are no other interested parties who also have a right to redeem, neither Properties nor Pharmacy is before this court. 22 No serious argument was advanced that exceptional circumstances existed which would cause an injustice if the bank had complied with the regular and recognized procedure to enforce its security, whether that procedure be the prescribed foreclosure procedure or the procedure which was utilized in Roynat Ltd. v. Canada. Con- sequently, all three applications must be dismissed. 38 Certainly, this court has granted a receiver an order vesting title in a purchaser, even where the title pertains to farm land. However, that has only been granted in exceptional circumstances. By way of example, a receiver was granted authorization to sell the home quarter of farmers with the resulting vesting order being made in my unreported decision in Royal Bank of Canada v. Klassen Park Farms Inc., Ronald Klassen and Darlene Klassen (December 21, 2012), Doc. 1304/2012 (Sask. Q.B.) (unreported). The reasons stated in the fiat are as follows: The Receiver applies for an order authorizing him to sell the home quarter of Ronald and Darlene Klassen. This application was served on the debtors personally and upon their counsel of record. The RBC has served all preliminary notices under the FDRA and SFSA prior to applying for the Receivership Order. The Receivership Order was granted Sept. 10/12 with the consent of the debtors. The order allowed for the Receiver to sell the property, including the home quarter. The RBC has a Home Quarter Exclusion Order regarding the property, so the Receiver does not have to deal with a right of 1st refusal issue. I find that the debtors have voluntarily surrendered the home quarter to the Receiver, and they do not claim the protection of the SFSA or FDRA. This is analogous to the situation in Gardiner v. Chrysler Credit Canada Ltd. (1989) 77 Sask.R. 182 (Q.B.). Therefore, the order will issue in the draft filed, authorizing the Re- ceiver to list the home quarter for sale. 39 None of the exceptional circumstances are present in this application to grant a vesting order to a receiver. The foreclosure procedure is the appropriate legal remedy available to the Secured Creditor. That way, the Debtor is able to redeem the mortgage, and the lands may be sold by 194 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

judicial sale under supervision of the court. It is neither just nor convenient to appoint a receiver, and I decline to do so.

Conclusion 40 This is a sad story about one family’s financial and personal difficulties for a father and his two sons. However, none of that affects the court’s analysis of the relevant legal principles. 41 The Secured Creditor’s application to find Part II of the SFSA inoperative under the doctrine of paramountcy is dismissed. This is not an application where the court would find it just or convenient to appoint a receiver under s. 243(1) of the BIA, at any rate. The application for a court appointed receiver is dismissed in its entirety. Order accordingly. Azam v. Jan 195

[Indexed as: Azam v. Jan] Saiqa Azam, Plaintiff and Saadullah Jan, Defendant Alberta Court of Queen’s Bench Docket: Calgary 4801-146354 2013 ABQB 301 M.C. Erb J. Heard: April 2-3, 2013 Judgment: May 16, 2013 Family law –––– Annulment — Jurisdiction of courts –––– Polygamous marriage — Husband moved from Pakistan to Calgary where he worked as lawyer — On April 29, 2000, husband married first wife in Pakistan and sponsored her immigration to Canada — First wife arrived in Calgary one year later and was granted permanent resident status — Husband and first wife lived together, presented themselves as couple to community, filed annual taxes together and had three children — On November 24, 2007, husband married additional wife in Pakistan — Additional wife said she believed husband was divorced, although husband made it clear to her in emails that he had wife and family in Canada — Additional wife was granted student visa to come to Canada, and lived in apartment near university — Relationship between husband and additional wife broke down shortly after July 2008 — Additional wife brought application for divorce and husband brought cross-application to declare marriage void and order annulment — Application dismissed; cross-application for annulment granted — In interests of public policy, court took jurisdiction over valid and invalid foreign polygamous marriages — Failing to take jurisdiction over such marriages had effect of leaving parties without recourse and excluded immigrant families from rights accorded other Canadians. Conflict of laws –––– Family law — Marriage — Polygamous marriage –––– Husband moved from Pakistan to Calgary where he worked as lawyer — On April 29, 2000, husband married first wife in Pakistan and sponsored her immigration to Canada — First wife arrived in Calgary one year later and was granted permanent resident status — Husband and first wife lived together, presented themselves as couple to community, filed annual taxes together and had three children — On November 24, 2007, husband married additional wife in Pakistan — Additional wife said she believed husband was divorced, although husband made it clear to her in emails that he had wife and family in Canada — Additional wife was granted student visa to come to Canada, and lived in apartment near university — Relationship between husband and additional wife broke down shortly after July 2008 — Additional wife brought application for 196 WESTERN WEEKLY REPORTS [2013] 12 W.W.R. divorce and husband brought cross-application to declare marriage void and order annulment — Application dismissed; cross-application granted — Under Canadian conflict of law rules, “essential validity” was determining factor whether polygamist marriage was valid — Under dual domicile doctrine, and presuming Canadian law to be same as Pakistani law, additional wife had capacity to enter marriage — However, since husband was clearly resident in Calgary and intended to remain in Calgary, his pre-nuptial domicile was clearly Canada, not Pakistan — Husband lacked capacity for second marriage by virtue of his previous subsisting marriage since polygamy is illegal in Canada — Since second marriage was not recognized under Canadian conflict of laws rules, marriage declared void and annulment ordered. Cases considered by M.C. Erb J.: Azam v. Jan (2012), 2012 ABCA 197, 2012 CarswellAlta 1099, 351 D.L.R. (4th) 553, [2012] 12 W.W.R. 684, 533 A.R. 173, 557 W.A.C. 173, 69 Alta. L.R. (5th) 75 (Alta. C.A.) — considered Bolentiru v. Radulescu (2004), 10 R.F.L. (6th) 258, [2004] O.T.C. 698, 2004 CarswellOnt 3292, [2004] O.J. No. 3325 (Ont. S.C.J.) — considered Canada (Minister of Employment & Immigration) v. Narwal (1990), 10 Imm. L.R. (2d) 183, [1990] 2 F.C. 385, 111 N.R. 316, 1990 CarswellNat 27, 1990 CarswellNat 681, 26 R.F.L. (3d) 95 (Fed. C.A.) — referred to Feiner v. Demkowicz (1973), 14 R.F.L. 27, 42 D.L.R. (3d) 165, 1973 Carswell- Ont 191, 2 O.R. (2d) 121 (Ont. H.C.) — considered Grewal v. Kaur (2011), 2011 CarswellOnt 2113, 2011 ONSC 1812, 96 Imm. L.R. (3d) 116, 94 R.F.L. (6th) 322 (Ont. S.C.J.) — considered Hassan, Re (1976), 12 O.R. (2d) 432, 28 R.F.L. 121, 69 D.L.R. (3d) 224, 1976 CarswellOnt 189 (Ont. H.C.) — considered Hincks v. Gallardo (2013), 113 O.R. (3d) 654, 2013 ONSC 129, 2013 Carswell- Ont 109, [2013] O.J. No. 69 (Ont. S.C.J.) — considered Hyde v. Hyde (1866), [1861-73] All E.R. 175, L.R. 1 P.D. 130, 35 L.J. P. & M. 57 (Eng. P.D.A.) — considered Lim v. Lim (1948), [1948] 1 W.W.R. 298, [1948] 2 D.L.R. 353, 1948 Car- swellBC 13, 1 R.F.L. Rep. 23 (B.C. S.C.) — considered Peters v. Murray (2006), 2006 CarswellOnt 7724, [2006] O.J. No. 4871 (Ont. C.A.) — considered Radwan v. Radwan (No. 2) (1972), [1972] 3 All E.R. 1026, [1973] Fam. 35 (Eng. Fam. Div.) — considered Reference re Same-Sex Marriage (2004), 246 D.L.R. (4th) 193, [2004] 3 S.C.R. 698, 2004 CarswellNat 4422, 2004 CarswellNat 4423, 2004 SCC 79, 12 R.F.L. (6th) 153, 328 N.R. 1, 125 C.R.R. (2d) 122, [2003] S.C.C.A. No. 325, REJB 2004-81254, [2004] S.C.J. No. 75 (S.C.C.) — considered Sara v. Sara (1962), 31 D.L.R. (2d) 566, 1962 CarswellBC 39, 38 W.W.R. 143 (B.C. S.C.) — considered Azam v. Jan M.C. Erb J. 197

Sara v. Sara (1962), 36 D.L.R. (2d) 499, 1962 CarswellBC 136, 1 R.F.L. Rep. 61, 40 W.W.R. 257 (B.C. C.A.) — referred to Yew v. British Columbia (Attorney General) (1923), [1924] 1 W.W.R. 753, 33 B.C.R. 109, [1924] 1 D.L.R. 1166, 1 R.F.L. Rep. 29, 1923 CarswellBC 122 (B.C. C.A.) — referred to Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Generally — referred to s. 2(1) “spouse” — referred to

APPLICATION by additional wife for divorce; CROSS-APPLICATION by husband for declaration of additional marriage as void and order for annulment.

Ruellen Forsyth-Nicholson, for Plaintiff Khatera Haidery, for Defendant

M.C. Erb J.:

1 Acknowledging that polygamy is legally recognized in her native Pa- kistan but not in Canada, Saiqa Azam seeks a judgment for divorce from Saadullah Jan to whom she was married as an additional wife in Novem- ber, 2007. Mr. Jan seeks two things: a declaration that the marriage to Ms. Azam is void ab initio in Canada and an annulment. He relies on his own polygamy and pre-nuptial domicile in support of such declaration. 2 Last year, the Alberta Court of Appeal directed this matter for re-trial citing conflicts in the evidence proffered by the parties, irreconcilable pleadings and procedural issues, all of which needed to be resolved: Azam v. Jan, 2012 ABCA 197, 533 A.R. 173 (Alta. C.A.). The pleadings have since been amended and the parties both testified and provided doc- umentary evidence in this new proceeding. 3 The issue here is not only how this union can be legally dissolved, but whether an Alberta court has the jurisdiction to do anything at all. 4 One of the reasons the Court of Appeal directed this matter to trial was because certain key facts, Mr. Jan’s pre- nuptial domicile and marital status on November 24, 2007, were in dispute. Ms. Azam has held Mr. Jan to his burden of proving he was previously married by pleading Mr. Jan’s marital status as “unknown”. She argues that he was divorced when he married her and produced a Pakistani national identity card to the officiant at the time. Mr. Jan says otherwise and points to his ongoing 198 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

marriage to Nazeera Naz in 2000, the mother of his three children, who apparently has little, if any, knowledge of this dispute. 5 Central to resolving the factual issues is Mr. Jan’s history with both Nazeera Naz and Saiza Azam and the circumstances which led to the present dispute.

Marital Status and Domicile of the Parties 6 The parties met on-line in 2002 after Ms. Azam spotted Mr. Jan’s posting on a marriage website which he says he had set up some time in 1999. Mr. Jan asserts that by 2002 he was already married to Nazeera Naz and was residing in Canada. Ms. Azam was living in Pakistan. 7 Mr. Jan was born in Pakistan but left there in his early 20s to pursue educational opportunities elsewhere. He acquired a law degree in the United Kingdom and ultimately settled in Calgary where he was admitted to the Law Society of Alberta on June 1, 2000. He asserts that he was married to Ms. Naz on April 29, 2000, and sponsored her immigration to Canada as his wife. She arrived in Calgary about one year later and was granted permanent resident status. There is no evidence that either Mr. Jan or Ms. Naz were ineligible to marry in April 2000. 8 Mr. Jan produced a certificate of marriage between himself and Ms. Naz, issued by the government of Pakistan and it was entered in evidence. The document records those present, the name of the officiant, the place and the date of the union. This certificate of marriage was not disputed. 9 There is evidence that Mr. Jan and Ms. Naz held themselves out in the community as a married couple. They resided in a home together in Calgary and by the time Mr. Jan was communicating with Ms. Azam about their relationship, his first child, a daughter, had been born. There is no evidence that Mr. Jan and Ms. Naz were ever divorced. They have since had two more children and continue to reside in Calgary together. 10 In further support of his position that he was and remains married to Ms. Naz, Mr. Jan produced his Canadian tax returns filed annually each year since the tax year following his marriage to Ms. Naz, in which he declared his marital status as “married”. 11 Ms. Azam is a PhD candidate in the University of Calgary’s Faculty of Education and a part-timer lecturer. Ms. Azam went through a form of marriage to Mr. Jan in Pakistan on November 24, 2007. This marriage was also registered with the Pakistani government. Azam v. Jan M.C. Erb J. 199

12 Mr. Jan also sponsored Ms. Azam’s immigration to Canada but not as a spouse, presumably because he was already on record sponsoring Ms. Naz in that capacity. Ms. Azam was granted a student visa for her attend- ance at the University of Calgary. 13 Although she was visiting her family in Pakistan when Mr. Jan and Ms. Azam had their wedding, there was no evidence that Ms. Naz was aware of this ceremony either at the time it took place or since. In fact, Mr. Jan testified that he did not tell Ms. Naz about it. She was not called to testify in these proceedings. It is not disputed that Ms. Naz remained in Pakistan for several weeks beyond her annual family visit, due to the health status of one of her parents. 14 While Ms. Naz remained in Pakistan, Ms. Azam and Mr. Jan trav- elled to Calgary on November 27, three days after their wedding. Ini- tially they stayed in the home which Mr. Jan shared and continues to share with Ms. Naz. However, Ms. Azam moved to an apartment shortly before Ms. Naz’s return in the spring of 2008. By that time, Ms. Azam was pregnant with Mr. Jan’s child but sadly the baby died shortly after birth in July, 2008. The relationship between Ms. Azam and Mr. Jan had broken down by that time and Ms. Azam severed the relationship thereafter. 15 Ms. Azam’s own evidence suggests that she was aware an apartment was to be found for her near the university and this may have been the plan when she arrived in Calgary. She came into Canada on a student visa sponsored by Mr. Jan. There was no evidence that she inquired into why she was not being sponsored as Mr. Jan’s wife for immigration purposes. 16 Ms. Azam testified that she believed Mr. Jan to have been divorced prior to their wedding and that he had made this representation to her on a number of prior occasions. At the time of the wedding, family members handled the details of the ceremony and Mr. Jan concedes that nothing was said to the officiant, as far as he was aware, of the existence of his prior marriage. He stated that he did not volunteer the information either. Ms. Azam asserts her belief that Mr. Jan was divorced at the time of their marriage. If this was so, Mr. Jan’s email in October 2007, should have appeared puzzling to her to the extent of prompting a follow up of some sort: “U know that I already have a wife and a daughter so your decision must be of compromise”. Previous emails between the two also raised the issue of Mr. Jan’s marriage to Ms. Naz and the issue of divorce. 200 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

There were discussions about Mr. Jan stating he did not want to leave his wife and daughter. 17 I do not accept Ms. Azam’s evidence that she thought she was mar- rying a divorced man in 2007. She is an educated, well-spoken, confident woman having spent time in western countries such as the United States and Australia where she took a master’s degree in education. In any event, Ms. Azam has acknowledged that her marriage to Mr. Jan was at the very least, a legal polygamist marriage under Pakistani law. 18 Three days after his marriage to Ms. Azam, Mr. Jan returned to Cal- gary taking Ms. Azam with him. I find that he was returning to Calgary because he had a home, law practise and a life here. 19 It is clear from the evidence that Calgary was and continues to be Mr. Jan’s place of residence on November 24, 2007, the day of the wedding between the parties. I also find that at that time, Mr. Jan was married to and continues to be married to Ms. Naz. 20 On the issue of domicile, Mr. Jan presented his Pakistani national identity card to the officiant at the time of his marriage to Ms. Azam. However, although he visited Pakistan regularly over the years since he left in 2000, at the time of his marriage to Ms. Azam he resided in Cal- gary, owned property here, was living with his wife here, raising his daughter and working in a profession which has specific licensing requirements. After his union with Ms. Azam, he left Pakistan for Calgary taking Ms. Azam with him which is also evidence that he intended to maintain his Canadian place of residence. There was no evidence that he has personal and professional ties to anywhere in Pakistan. 21 I am satisfied on the evidence, that Mr. Jan transferred his residence to Canada during or before 2000 and brought his wife here after he acquired permanent residency status for her. After she arrived in May 2001, Mr. Jan and Ms. Naz set up a monogamous household in Calgary which has continued up to and including the present. That marriage has never been dissolved. 22 These findings resolve the factual question of Mr. Jan’s previous marital status when he married Ms. Azam as required by the Court of Appeal in Azam at paragraph 13 as well as the issue about his residence at the relevant time, that is — November 24, 2007. Mr. Jan resided in Calgary, Alberta, Canada and he intended to continue living here. 23 These findings also preclude Ms. Azam from arguing that her marriage to Mr. Jan in 2007 was a valid potentially polygamous but actually Azam v. Jan M.C. Erb J. 201

monogamous marriage. This places Ms. Azam’s marriage to Mr. Jan in the category of an actual polygamous marriage. 24 The next consideration for this Court is where these findings of fact take the issue of dissolution of the marriage between the parties.

Jurisdiction over Foreign Polygamous Marriages 25 The first question is whether this court has jurisdiction or, alternatively, can take jurisdiction over a foreign polygamous marriage for the purpose of dissolution. 26 The template for Canadian law on jurisdiction in such circumstances is a decision of the English courts in Hyde v. Hyde (1866), L.R. 1 P.D. 130, [1861-73] All E.R. 175 (Eng. P.D.A.). In Hyde, the Court denied an application for an annulment because the polygamous marriage in question was fundamentally incompatible with English law and its understanding of marriage based on Christian principles, concluding it was not open to the Court to acknowledge it by taking jurisdiction. Hyde has been applied in Canada as authority for declining jurisdiction over all foreign polygamous marriages for the purpose of annulment and divorce: Lim v. Lim, [1948] 2 D.L.R. 353, [1948] 1 W.W.R. 298 (B.C. S.C.); Yew v. British Columbia (Attorney General) (1923), 33 B.C.R. 109, [1924] 1 D.L.R. 1166 (B.C. C.A.). If followed strictly, Hyde means that any marriage conducted in Pakistan, even one that remains actually monogamous, is potentially polygamous in Canadian law, and a Court is therefore barred from granting any relief. 27 However, in Hassan, Re (1976), 12 O.R. (2d) 432, 28 R.F.L. 121 (Ont. H.C.), the court held that a potentially polygamous marriage could be converted into a recognized monogamous marriage if the parties actually lived monogamously and changed their domicile to a country where polygamy is outlawed. As support for this principle, the Court in Hassan cited Sara v. Sara (1962), 31 D.L.R. (2d) 566, 38 W.W.R. 143 (B.C. S.C.) (varied on other grounds by (1962), 36 D.L.R. (2d) 499, 40 W.W.R. 257 (B.C. C.A.)), in which a potentially polygamous marriage between nationals of India was converted to a monogamous one either by virtue of having changed their domicile to Canada or the subsequent ban- ning of polygamy under local Indian law. 28 The evidence in this case does not support this option. There is no evidence that Mr. Jan and Ms. Azam lived in a monogamous relationship once they arrived in Calgary. Mr. Jan remained in his marriage to Ms. Naz and continued to reside there with her and his child as a family upon 202 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

her return from her trip to Pakistan. Ms. Azam was relegated to a small apartment near the university and there is no evidence that Mr. Jan resided with her there. 29 There are few other helpful decisions from Canadian courts on this issue. However, it is useful to review the cases which at least touch on the issues. 30 In Peters v. Murray, [2006] O.J. No. 4871, 153 A.C.W.S. (3d) 913 (Ont. C.A.), the Court declared a marriage invalid and annulled it on the basis that the husband lacked capacity because he was already married. Although the Court stated that the second marriage had been entered into for immigration purposes little else is addressed in this brief decision. Little information on the facts was provided and it is not clear where the marriage was performed and whether it was a valid union on some basis. 31 In Feiner v. Demkowicz (1973), 2 O.R. (2d) 121, 42 D.L.R. (3d) 165 (Ont. H.C.), the Court granted an annulment of a marriage effected in Poland but the issue involved capacity for a first marriage from a jurisdiction where polygamy was illegal. 32 In Grewal v. Kaur, 2011 ONSC 1812, 94 R.F.L. (6th) 322 (Ont. S.C.J.), the Court took jurisdiction over a marriage made in India based on one party’s current Canadian domicile. However, the issues were not incompatible with Canadian law as described in Hyde. 33 In Bolentiru v. Radulescu, [2004] O.T.C. 698, 10 R.F.L. (6th) 258 (Ont. S.C.J.), the Court found it had the jurisdiction to annul a Romanian marriage and did so. The grounds for annulment were that Romanian law required evidence of the termination of husband’s prior marriage. The husband had not and could not provide such evidence because on the day of the Romanian marriage the divorce of his first wife had not yet been finalized. However, this case involved a question of formal validity under a jurisdiction where polygamy was illegal. In this case and in Grewal, the question of taking jurisdiction over a form of marriage fundamentally incompatible with Canadian law was not at issue. 34 Urging this court to take jurisdiction, counsel for Ms. Azam cites a very recent decision of the Ontario Superior Court: Hincks v. Gallardo, 2013 ONSC 129, 113 O.R. (3d) 654 (Ont. S.C.J.). In Hincks, the Court considered the status of a British same-sex civil union under Canadian law in which same-sex marriage is permitted. In accepting the Attorney General of Ontario’s reciprocity approach, the court stressed that British same-sex civil unions were the functional equivalent to Canadian same- sex marriages: Hincks at para 41. The Attorney General of Canada ar- Azam v. Jan M.C. Erb J. 203

gued that since a British same-sex civil union is not a marriage in Britain, it cannot be treated as a marriage in Canada. At paragraph 40 of Hincks, the court considered the inverse logic of Canada’s position and concluded it would mean Britain should recognize Canadian same-sex marriages as full British marriages. If applied here, Canada’s position would mean that valid foreign polygamous marriages should be recognized in Canada as valid Canadian polygamous marriages. 35 However, both arguments fail their usefulness here because unlike the British same sex marriage situation, there is no functional equivalent to a polygamous marriage in Canada — such marriages are not legal. The emphasis is on what is legally acceptable in Canada. The list does not include polygamy. 36 Support contrary to the strict approach of Hyde appears elsewhere. In Martha Bailey et al, “Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada”, in Polygamy in Canada: Le- gal and Social Implications for Women and Children: A Collection of Policy and Research Reports (Ottawa: Status of Women Canada, 2005) at 11-12, the authors suggest that the women of foreign polygamous marriages are likely to suffer if the remedies of divorce and annulment are not available to them. In the opinion of the authors the definition of “spouse” under the Divorce Act, RSC 1985, c 3 (2d Supp), precludes its application to valid foreign polygamous marriages (“spouse” means either of two persons who are married to each other: Divorce Act, s 2(1)). Amy Kaufman agrees with this restrictive interpretation of “spouse” in the Divorce Act: “Polygamous Marriages in Canada” (2005) 21 Can J Fam L 315 at 333. 37 The Alberta Court of Appeal (per Bielby J.A.) had this to say in Azam at paragraph 18: [...] Although not directly relevant to the issues in this case, I note that, if the parties were both domiciled and married in the foreign jurisdiction, the conflict of law rules would seem to recognize the marriage for some purposes. If such a marriage is recognized as being valid in this fashion under the conflicts of laws rules, and the parties subsequently become resident of Alberta for over one year, why should the Alberta courts not divorce the parties? The Alberta courts clearly have jurisdiction to terminate foreign (monogamous) marriages, so why should they not be able to terminate all valid foreign marriages if the parties otherwise meet the Canadian residential and other prerequisites to divorce? 204 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

38 Additionally, Bielby J.A. disagreed with both Bailey et al and Kauf- man on their interpretation of the Divorce Act, at paragraph 20 of Azam: [...] The definition of “spouse” in s. 2(1) of the Divorce Act [...] arguably does not compel the conclusion that polygamous marriages are not recognized. It may merely indicate that the two (and only two) parties to this litigation must be the parties to this marriage, even though one of them may also be a party to another marriage. The Civil Marriage Act, SC 2005, c 33, s 2 defines “marriage” for the purposes of Canadian law but that definition arguably does not foreclose polygamous marriages celebrated in a jurisdiction where polygamy is legal. 39 Although obiter, paragraphs 18-24 of Azam constitute a compelling argument that the state of the law in relation to actually polygamous marriage has evolved since Hyde, through adaptations in family law legislation and such decisions as Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698 (S.C.C.). In fact, I take the Alberta Court of Appeal’s obiter statements as an indication that the law needs to continue to evolve. 40 It is worthy of note that a foreign polygamous marriage was recognized as valid in Radwan v. Radwan (No. 2) (1972), [1973] Fam. 35, [1972] 3 All E.R. 1026 (Eng. Fam. Div.). In this English decision, the Court applied the intended matrimonial home doctrine and found that a woman, domiciled in England at the time of her marriage, had capacity to enter into a polygamous marriage under the laws of Egypt because the intended matrimonial home was in Egypt. When the couple later moved back to England and filed for divorce, the Court pronounced the foreign polygamous marriage valid. The English court did not hold itself bound by the Hyde precedent: Radwan at 48. There is no indication that the Court took jurisdiction in granting the divorce beyond this simple declaration of validity. 41 Kaufman sets out the traditional arguments against taking jurisdiction to grant a divorce or an annulment of a valid foreign polygamous marriage on public policy grounds, notably the “demeaning” impact polygamous marriages have on women’s equality: at 331-333. One would have thought that denying any remedy for such marriages found to have been legally made in a foreign jurisdiction would be equally problematic from a public policy perspective and just as demeaning to women’s equality. 42 Lim remains the Canadian precedent for application of Hyde. In the absence of any compelling contrary precedent, the question is whether or Azam v. Jan M.C. Erb J. 205

not to apply Hyde. Bielby J.A.’s comments in Azam, at paragraph 24, offer additional support for moving away from the Hyde approach: [...] even if the courts cannot terminate (i.e. by divorce) such a marriage, it is difficult to understand why a Canadian court should not be able to grant a declaration that an actively polygamous marriage is not recognized under Canadian law, including a declaration that it is a nullity here (if that were the law). There is no apparent reason why the Alberta court’s wide jurisdiction to grant declarations does not extend to this topic: see discussion in Sara. Whether cases like Hyde and Risk (otherwise Yerburgh) v Risk, [1950] 2 All ER 973 should continue to reflect the law of Canada is very much an open issue. 43 Beilby J.A. appears to take the view that if this marriage is a valid foreign polygamous marriage, it could be dissolved by divorce and if it is not, it could be dissolved by a declaration that it is void ab inito and annulled. 44 I find that in all the circumstances, and in the interests of public policy, this Court should take jurisdiction over valid and invalid foreign polygamous marriages. The Hyde decision of 1866, is outdated and no longer reflects Canadian realities. In the 147 years since Hyde, Canada has become a very different place. At the time Hyde was decided, Can- ada had not yet even reached nationhood. Today’s Canada is a proud cultural mosaic and the law should provide remedies where possible to meet the needs of all Canadians including both citizen and permanent resident. To fail to do so would leave parties without recourse and it would invariably exclude immigrant families from rights accorded other Canadians when marriages, however forged, break down.

Recognition of Foreign Marriages 45 The parties in these proceedings do not dispute that the Azam/Jan union is legally recognized in Pakistan as a polygamist marriage. Ms. Azam asks this Court to dissolve her marriage to Mr. Jan by granting a judgment for divorce. To do so, the marriage must be recognized as valid in accordance with Canadian conflict of law rules. A general overview of the treatment of foreign law in Canada follows. 46 Until proven otherwise, foreign law is presumed to be the same as the lex fori, or law of the forum; in this case Canadian law. This was confirmed in the context of marriage laws in Feiner (p. 125) in which it was held that in the absence of evidence as to the marriage laws of Poland, they were presumed to be the same as Canadian marriage laws. 206 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

47 If a party seeks to prove that foreign law is different from Canadian it must be “specifically pleaded by the party relying upon it, and [...] must be proved to the satisfaction of the court”: Castel and Walker, Canadian Conflict of Laws, 6th ed (Markham, ON: LexisNexis, 2005), ch 7 at 7-1. In Grewal, the party seeking to rely on fraud as grounds for annulment under Indian law proffered experts in the law of India to assist the court: at para 65. 48 Neither party to these proceedings called expert evidence and counsel agreed on the Court record that this marriage, even if polygamist, was legal under Pakistani law. To grant a judgment for divorce, the marriage must be proven here, that is, it must be proven valid under Canadian law conflict of law rules. However, formal proof may not always be required: Castel and Walker at 7-6: A Canadian court may dispense with the formal requirement for proof of foreign law where the parties consent, particularly where the time and expense in providing expert evidence are not warranted in assisting the court to interpret the foreign statutes or authorities proffered. However, the court’s willingness to dispense with formal proof will be diminished with the extent to which the determination of the effect of the foreign law requires it to speculate on the application of the foreign statutes and principles to the particular facts in question. 49 In Azam at para. 18, Justice Bielby cites with approval Kaufman’s summary of Canada’s conflict of law rules governing the recognition of foreign marriages (pp. 320-321): [...] The traditional conflict of laws approach to recognition of foreign marriages in Canada has two distinct aspects: the marriage must be both formally and essentially valid. To be formally valid, the for- malities of the marriage must have conformed to the lex loci celebra- tionis, the law of the place of the marriage. To be essentially valid, each party must have had the capacity to marry under the law of his or her pre-nuptial domicile. (emphasis added) 50 To assess the capacity of parties to marry as required for “essential validity”, the Court must consider the “dual domicile doctrine” and the “intended matrimonial home doctrine”. 51 The dual domicile doctrine requires each party to have capacity to marry in the country in which they were domiciled at the point of marriage. Domicile is generally either a “domicile of origin” or a “domicile of choice”. A domicile of origin is determined at birth based on the domicile of those upon whom a child is legally dependent: Castel and Walker Azam v. Jan M.C. Erb J. 207

at 4-4. A domicile of origin may be altered by a domicile of choice if the conditions of taking up residence in another country (propositus) and intending to reside there indefinitely (animus manendi) are met: Castel and Walker at 4-4. However, only one domicile can exist at a time: Castel and Walker at 4-3. 52 The “intended matrimonial home doctrine” recognizes the community in which the parties plan to live together as husband and wife as the one primarily interested in the validity of their marriage: Castel and Walker at 16-8. All that is required is proof of an intention to make a certain country the matrimonial home; the frustration of this intended residency is not necessarily an impediment: Canada (Minister of Employment & Immigration) v. Narwal, [1990] 2 F.C. 385, at 390-391, 26 R.F.L. (3d) 95 (Fed. C.A.). 53 It is clear from the caselaw, that the preferred approach in Canada is the “dual domicile doctrine”: Grewal at para. 12; Feiner at pp. 126-127. Accordingly, I find that the dual domicile test is the appropriate test to apply in this case. Further, under Canadian conflict of law rules, “formal validity” in this case need not be considered because the issue of recognizing this foreign marriage as valid in Canada is appropriately resolved by the application of “essential validity”, including the question of Mr. Jan’s capacity.

Conclusion 54 Under Canadian conflict of law rules, “essential validity” is the determining factor in determining whether this polygamist marriage is valid. 55 No issue has been raised about Ms. Azam’s domicile at the time she married Mr. Jan; it was clearly Pakistan. Under the dual domicile doctrine and presuming Canadian law to be the same as Pakistani law, as a never previously married woman, Ms. Azam had capacity to enter her marriage to Mr. Jan on November 24, 2007. 56 However, since Mr. Jan was clearly resident in Calgary and intended to remain here on November 24, 2007, his pre-nuptial domicile was certainly Canada, not Pakistan. Accordingly, Mr. Jan lacked the legal capacity for his 2007 marriage by virtue of his previous subsisting marriage. Polygamy is illegal in Canada. 57 I add the following speculative comments on the status of the marriage under Pakistani law only as obiter. If his first wife’s consent was required for the second marriage to take place, as was obliquely refer- enced during the trial, it is possible that both formal and essential validity 208 WESTERN WEEKLY REPORTS [2013] 12 W.W.R.

fail under the requirements of Pakistani law. There is no evidence that Ms. Naz was aware of the ceremony and most certainly was not asked for her consent. With testimony casting doubt on the legality of the marriage in Pakistan, this Court is not satisfied as to the effect of foreign law on the proceedings. Under Canadian conflict of law rules this would require expert evidence proving the effect of Pakistani law. No such evidence was called. The concurrence of counsel that this marriage is a legal Pakistani marriage is not sufficient. 58 The only thing known with any certainty is that the Azam/Jan marriage is not recognized as valid under Canadian conflict of law rules because polygamy is not legal in Canada. Recognition of this foreign marriage cannot be forthcoming because Ms. Azam cannot prove the “essential validity” of it. She seeks a divorce judgment and since the marriage cannot be proven to the satisfaction of this Court, her application must fail. However, there is one other certainty in these proceedings; this marriage is also a nullity under Canadian law. 59 Accordingly, in consideration of all of the foregoing, I take jurisdiction on public policy grounds. I acknowledge this marriage for the limited purpose of providing an adequate remedy having been satisfied that whatever its foreign legality, it is invalid in Canada. The fact that this union has broken down leaving the parties in legal limbo, is not in dispute. 60 Accordingly, Ms. Azam’s request for a judgment for divorce is dismissed. I declare the marriage been Ms. Azam and Mr. Jan to be void ab initio and grant an order of annulment. Application dismissed; cross-application granted.