Source: http://scc.lexum.umontreal.ca/en/2010/2010scc62/2010scc62.html
2010 SCC 62
Date: 20101223
Docket: 33041
Between:
Attorney General of Canada
Appellant
and
TeleZone Inc.
Respondent
Coram: Binnie, LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 81)
Binnie J. (LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
canada (attorney general) v. telezone inc.
Attorney General of Canada Appellant
v.
TeleZone Inc. Respondent
Indexed as: Canada (Attorney General) v. TeleZone Inc.
2010 SCC 62
File No.: 33041.
2010: January 20, 21; 2010: December 23.
Present: Binnie, LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for ontario
Courts — Jurisdiction — Provincial superior courts — Action brought against federal Crown in Ontario Superior Court of Justice seeking damages for breach of contract, negligence and unjust enrichment arising from decision rejecting application for telecommunications licence — Whether plaintiff entitled to proceed by way of action in Ontario Superior Court of Justice without first proceeding by way of judicial review in Federal Court — Federal Courts Act, R.S.C. 1985, c. F-7, ss. 17, 18; Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 21.
In 1995, Industry Canada issued a call for personal communication services licence applications, and released the policy statement within which potential service providers could shape their applications. The statement provided that Industry Canada would grant up to six licences on the basis of criteria it set out. T submitted an application, but when Industry Canada announced its decision, there were only four successful applicants and T was not among them. T filed an action against the Federal Crown in the Ontario Superior Court of Justice for breach of contract, negligence and unjust enrichment, and sought compensation for claimed losses of $250 million. It claimed that it was an express or implied term of the policy statement that Industry Canada would only issue fewer than six licences if fewer than six applications met the criteria. Since its application satisfied all the criteria, it says, Industry Canada must have considered other undisclosed factors when it rejected T’s application. The Attorney General of Canada, relying on Canada v. Grenier, 2005 FCA 348, [2006] 2 F.C.R. 287, challenged the jurisdiction of the Superior Court on the ground that the claim constituted a collateral attack on the decision, which is barred by the grant to the Federal Court, by s. 18 of the Federal Courts Act, of exclusive judicial review jurisdiction in relation to decisions of all federal boards, commissions or other tribunals. The Superior Court dismissed the objection on the ground that it was not plain and obvious that the claim would fail. The Court of Appeal upheld the decision, holding that Grenier was wrongly decided. In that court’s view s. 17 of the Federal Courts Act and s. 21 of the Crown Liability and Proceedings Act conferred concurrent jurisdiction on the superior courts and the Federal Court for claims against the Crown, and s. 18 of the Federal Courts Act did not remove relief by way of an award of damages from the jurisdiction of superior courts.
Held: The appeal should be dismissed.
This appeal is fundamentally about access to justice. People who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary costs and complexity. The Court’s approach should be practical and pragmatic with that objective in mind. Acceptance of Grenier would tend to undermine the effectiveness of the Federal Courts Act reforms of the early 1990s by retaining in the Federal Court exclusive jurisdiction over a key element of many causes of action proceeding in the provincial courts despite Parliament’s promise to give plaintiffs a choice of forum and to make provincial superior courts available to litigants “in all cases in which relief is claimed against the [federal] Crown” except as otherwise provided.
Apart from constitutional limitations, none of which are relevant here, Parliament may by statute transfer jurisdiction from the superior courts to other adjudicative bodies including the Federal Court. However, any derogation from the jurisdiction of the provincial superior courts (in favour of the Federal Court or otherwise) requires clear and explicit statutory language. Nothing in the Federal Courts Act satisfies this test. The explicit grant to the provincial superior courts of concurrent jurisdiction in claims against the Crown in s. 17 of that Act (as well as s. 21 of the Crown Liability and Proceedings Act) directly refutes the Attorney General’s argument. The grant of exclusive jurisdiction to judicially review federal decision makers in s. 18 is best understood as a reservation or subtraction from the more comprehensive grant of concurrent jurisdiction in s. 17 “in all cases in which relief is claimed against the [federal] Crown”. This reservation or subtraction is expressed in s. 18 of the Federal Courts Act in terms of particular remedies. All the remedies listed are traditional administrative law remedies and do not include awards of damages. If a claimant seeks compensation, he or she cannot get it on judicial review, but must file an action.
The Federal Courts Act contains other internal evidence that Parliament could not have intended judicial review to have the gatekeeper function envisaged by Grenier. Section 18.1(2) imposes a 30-day limitation for judicial review applications. A 30-day cut off for a damages claimant would be unrealistic, as the facts necessary to ground a civil cause of action may not emerge until after 30 days have passed, and the claimant may not be in a position to apply for judicial review within the limitation period. While the 30‑day limit can be extended, the extension is discretionary and would subordinate the fate of a civil suit brought in a superior court to the discretion of a Federal Court judge ruling upon a request for an extension of time for reasons that have to do with public law concerns, not civil damages. Moreover, the grant of judicial review is itself discretionary and may be denied even if the applicant establishes valid grounds for the court’s intervention. This does not align well with the paradigm of a common law action for damages where, if the elements of the claim are established, compensation ought generally to follow as a matter of course. Further, s. 8 of the Crown Liability and Proceedings Act, which codifies the defence of statutory authority, is evidence that Parliament envisaged that the lawfulness of administrative decisions could be assessed by the provincial superior court in the course of adjudicating a claim for damages.
The Grenier approach cannot be justified by the rule against collateral attacks. T’s claim is not an attempt to invalidate or render inoperative the Minister’s decision; rather, the decision and the financial losses allegedly consequent to it constitute the very foundation of the damages claim. In any event, given the statutory grant of concurrent jurisdiction in s. 17 of the Federal Courts Act, Parliament has stated that provincial superior courts possess the concurrent necessary jurisdiction to dispose of the whole of a claim and this includes any attack on the validity of the Minister’s decision where this issue is essential to the cause of action and where adjudicating the matter is a necessary step in disposing of the claim. While the doctrine of collateral attack may be raised by the Crown in the provincial superior court as a defence, the possible availability of the defence is not an argument against provincial superior court jurisdiction. Similarly, while it may be open to the Crown, by way of defence, to argue that the government decision maker was acting under statutory authority which precludes compensation for consequent losses, this is not a matter of jurisdiction and can be dealt with as well by the provincial superior court as by the Federal Court.
It is true that the provincial superior courts and the Federal Court have a residual discretion to stay a damages claim if, in its essential character, it is a claim for judicial review with only a thin pretence to a private wrong. However, where a plaintiff’s pleading alleges the elements of a private cause of action, the provincial superior court should not in general decline jurisdiction on the basis that the claim looks like a case that could be pursued on judicial review. If the plaintiff has pleaded a valid cause of action for damages, he or she should generally be allowed to pursue it.
Here, T’s claim as pleaded is dominated by private law considerations. It is not attempting to nullify or set aside the decision to issue licences. Nor does it seek to deprive the decision of any legal effect. T’s causes of action in contract, tort and equity are predicated on the finality of that decision excluding it from participation in the telecommunications market. The Ontario Superior Court of Justice has jurisdiction over the parties and the subject matter, and has the power to grant the remedy of damages. There is nothing in the Federal Courts Act to prevent the Ontario Superior Court from adjudicating T’s claim.
Cases Cited
Overruled: Canada v. Grenier, 2005 FCA 348, [2006] 2 F.C.R. 287; referred to: Canada (Attorney General) v. McArthur, 2010 SCC 63; Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38; The Queen in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; Agricultural Research Institute of Ontario v. Campbell‑High (2002), 58 O.R. (3d) 321, leave to appeal refused, [2003] 1 S.C.R. vii; Ryan v. Victoria (City), [1999] 1 S.C.R. 201; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; Holland v. Saskatchewan, 2008 SCC 42, [2008] 2 S.C.R. 551; R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706; Hinton v. Canada (Minister of Citizenship and Immigration), 2008 FCA 215, [2009] 1 F.C.R. 476; Parrish & Heimbecker Ltd. v. Canada (Minister of Agriculture and Agri-Food), 2008 FCA 362, [2009] 3 F.C.R. 568; Donovan v. Canada (Attorney General), 2008 NLCA 8, 273 Nfld. & P.E.I.R. 116; Lidstone v. Canada (Minister of Canadian Heritage), 2008 PESCTD 6, 286 Nfld. & P.E.I.R. 244; River Valley Poultry Farm Ltd. v. Canada (Attorney General), 2009 ONCA 326, 95 O.R. (3d) 1; Los Angeles Salad Co. v. Canadian Food Inspection Agency, 2009 BCSC 109, 92 B.C.L.R. (4th) 379; Leroux v. Canada Revenue Agency, 2010 BCSC 865, 2010 D.T.C. 5123; Fantasy Construction Ltd., Re, 2007 ABCA 335, 89 Alta. L.R. (4th) 93; Genge v. Canada (Attorney General), 2007 NLCA 60, 270 Nfld. & P.E.I.R. 182; Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services), [1995] 2 F.C. 694; Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, 314 D.L.R. (4th) 340, leave to appeal refused, [2009] 3 S.C.R. vii; Martel Building Ltd. v. Canada, 2000 SCC 60, [2000] 2 S.C.R. 860; R. v. Al Klippert Ltd., [1998] 1 S.C.R. 737; Ordon Estate v. Grail, [1998] 3 S.C.R. 437; Pringle v. Fraser, [1972] S.C.R. 821; Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626; Peacock v. Bell (1667), 1 Wms. Saund. 73, 85 E.R. 84; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Morgentaler (1984), 41 C.R. (3d) 262; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Canada Labour Relations Board v. Paul L’Anglais Inc., [1983] 1 S.C.R. 147; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326; Wilson v. The Queen, [1983] 2 S.C.R. 594; Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629; R. v. Litchfield, [1993] 4 S.C.R. 333; Toronto (City) v. C. U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Tock v. St. John’s Metropolitan Area Board, [1989] 2 S.C.R. 1181; City of Manchester v. Farnworth, [1930] A.C. 171; Sutherland v. Canada (Attorney General), 2002 BCCA 416, [2002] 10 W.W.R. 1, leave to appeal refused, [2003] 1 S.C.R. xi (sub nom. Jones v. Attorney General of Canada); Lake v. St. John’s City, 2000 NFCA 48, 192 Nfld. & P.E.I.R. 84; Neuman v. Parkland (County), 2004 ABPC 58, 30 Alta. L.R. (4th) 161; Danco v. Thunder Bay (City) (2000), 13 M.P.L.R. (3d) 130; Landry v. Moncton (City), 2008 NBCA 32, 329 N.B.R. (2d) 212; Roy v. Kensington and Chelsea and Westminster Family Practitioner Committee, [1992] 1 A.C. 624.
Statutes and Regulations Cited
Civil Code of Québec, R.S.Q., c. C-1991.
Constitution Act, 1867, ss. 96, 101.
Corrections and Conditional Release Act, S.C. 1992, c. 20.
Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, ss. 3, 8, 21.
Federal Court Act, S.C. 1970-71-72, c. 1.
Federal Courts Act, R.S.C. 1985, c. F-7, ss. 2(1) “federal board, commission or other tribunal”, 17, 18, 18.1, 18.4, 39, 50(1).
Radiocommunication Act, R.S.C. 1985, c. R-2.
Authors Cited.
Brown, Donald J. M., and John M. Evans. Judicial Review of Administrative Action in Canada. Toronto: Canvasback, 1998 (loose-leaf updated July 2010).
Canada. House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-38, No. 1, 2nd Sess., 34th Parl., November 23, 1989, pp. 14-15.
Canada. House of Commons Debates, 2nd Sess., 28th Parl., March 25, 1970, pp. 5470-71.
Canada. House of Commons Debates, 2nd Sess., 34th Parl., November 1, 1989, p. 5414.
Craig, Paul P. Administrative Law, 6th ed. London: Sweet & Maxwell, 2008.
Hogg, Peter W., and Patrick J. Monahan. Liability of the Crown, 3rd ed. Scarborough, Ont.: Carswell, 2000.
Horsman, Karen, and Gareth Morley, eds. Government Liability: Law and Practice. Aurora, Ont.: Cartwright Law Group, 2007 (loose‑leaf updated 2010).
Mullan, David J. “Administrative Law Update — 2008-2009”, Continuing Legal Education Conference, Administrative Law Conference 2009. Vancouver: Continuing Legal Education Society of British Columbia, 2009.
Woolf, Harry, Jeffrey Jowell and Andrew Le Sueur. De Smith’s Judicial Review, 6th ed. London: Sweet & Maxwell, 2007.
APPEAL from a judgment of the Ontario Court of Appeal (Laskin, Borins and Feldman JJ.A.), 2008 ONCA 892, 94 O.R. (3d) 19, 303 D.L.R. (4th) 626, 245 O.A.C. 91, 86 Admin L.R. (4th) 163, 40 C.E.L.R. (3d) 183, [2008] O.J. No. 5291 (QL), 2008 CarswellOnt 7826, affirming a decision of Morawetz J. (2007), 88 O.R. (3d) 173, [2007] O.J. No. 4766 (QL), 2007 CarswellOnt 7847. Appeal dismissed.
Christopher M. Rupar, Alain Préfontaine and Bernard Letarte, for the appellant.
Peter F. C. Howard, Patrick J. Monahan, Eliot N. Kolers and Nicholas McHaffie, for the respondent.
The judgment of the Court was delivered by
Binnie J. —
[1] TeleZone Inc. claims it was wronged by the decision of the Minister of Industry Canada that rejected its application for a licence to provide telecommunications services. It seeks compensation in the Ontario Superior Court of Justice against the Federal Crown for its claimed losses of $250 million. It pleads breach of contract, negligence, and, in the alternative, unjust enrichment arising out of monies it had thrown away on the application.
[2] The Attorney General challenges the jurisdiction of the Superior Court to proceed with the claim for compensation unless and until TeleZone obtains from the Federal Court of Canada an order quashing the Minister’s decision. TeleZone’s claim, he says, constitutes an impermissible collateral attack on the Minister’s order. Such a collateral attack is barred, he argues, by the grant to the Federal Court of exclusive judicial review jurisdiction in relation to decisions of all federal boards, commissions or other tribunals — Federal Courts Act, R.S.C. 1985, c. F-7, s. 18. The Attorney General relies on a line of cases in the Federal Court of Appeal to this effect, giving particular prominence to Canada v. Grenier, 2005 FCA 348, [2006] 2 F.C.R. 287, hence the “Grenier principle”.
[3] The definition of “federal board, commission or other tribunal” in the Act is sweeping. It means “any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown” (s. 2), with certain exceptions, not relevant here, e.g., decisions of Tax Court judges. The federal decision makers that are included run the gamut from the Prime Minister and major boards and agencies to the local border guard and customs official and everybody in between. The Grenier principle would shield the Crown from private law damages involving any of these people or entities in respect of losses caused by unlawful government decision making without first passing through the Federal Court. Such a bottleneck was manifestly not the intention of Parliament when it enacted the judicial review provisions of the Federal Courts Act.
[4] The Grenier principle would undermine s. 17 of the same Act granting concurrent jurisdiction to the provincial superior courts “in all cases in which relief is claimed against the Crown” as well as the grant of concurrent jurisdiction to the superior courts in s. 21 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, to deal with tort claims. A central issue in some (but not all) damages claims against the federal Crown will be the “lawfulness” of the government decision said to have caused the loss. Grenier would deny the provincial superior courts the jurisdiction to deal with that central issue in a damages claim pending before them. Adoption of the Grenier principle would relegate the provincial superior courts in such matters to a subordinate and contingent jurisdiction — not concurrent, i.e., subordinate to the Federal Court’s decision on judicial review and contingent on the Federal Court being willing to grant a discretionary order on judicial review in favour of the plaintiff.
[5] The Ontario Court of Appeal rejected the Attorney General’s position, and in my respectful opinion, it was correct to do so. Grenier is based on what, in my respectful view, is an exaggerated view of the legal effect of the grant of judicial review jurisdiction to the Federal Court in s. 18 of the Federal Courts Act, which is best understood as a reservation or subtraction from the more comprehensive grant of concurrent jurisdiction in s. 17 “in all cases in which relief is claimed against the [federal] Crown”. The arguments of the Attorney General, lacking any support in the express statutory language of s. 18, are necessarily based on suggested inferences and implications, but it is well established that inferences and implications are not enough to oust the jurisdiction of the provincial superior courts.
[6] In the present case, the Ontario Superior Court has jurisdiction over the parties, the subject matter and the remedies sought by TeleZone. That jurisdiction includes the authority to determine every legal and factual element necessary for the granting or withholding of the remedies sought unless such authority is taken away by statute. The Federal Courts Act does not, by clear and direct statutory language, oust the jurisdiction of the provincial superior courts to deal with these common law and equitable claims, including the potential “unlawfulness” of government orders. That being the case, the Superior Court has jurisdiction to proceed. The Ontario Superior Court ((2007), 88 O.R. (3d) 173) and the Ontario Court of Appeal (2008 ONCA 892, 94 O.R. (3d) 19) so held. I agree. I would dismiss the appeal.
I. Facts
[7] The alleged faults of the Minister of Industry Canada in dealing with the application under the Radiocommunication Act, R.S.C. 1985, c. R-2, are detailed in the amended Statement of Claim. For present purposes, we must take TeleZone’s allegations as capable of proof.
[8] TeleZone was created in 1992 with the ultimate goal of obtaining a licence to provide personal communication services (“PCS”) — essentially a cell phone network. In December 1992, as a preliminary step toward this goal, TeleZone obtained a licence to provide personal cordless telephone service (“PCTS”). Between 1993 and 1995, TeleZone alleges that it kept Industry Canada appraised of its efforts to raise capital and acquire the necessary expertise to provide PCS services. TeleZone says that Industry Canada encouraged it to continue these efforts.
[9] In June 1995, Industry Canada issued a call for PCS licence applications (“the Call”), and released a document setting out the policy and procedural framework within which potential service providers could shape their applications (the “Policy Statement”). The Policy Statement provided that Industry Canada would grant up to six PCS licences on the basis of criteria it set out. TeleZone alleges that Industry Canada promoted a general policy in favour of awarding more rather than fewer licences to encourage competition and consumer choice. TeleZone governed itself accordingly.
[10] Article 9.1 of the Call created a three-step application process: (1) expressions of interest by potential service providers; (2) detailed applications by potential service providers; and (3) the announcement and awarding of PCS licences by Industry Canada. Articles 9.4 to 9.5.6 set out the criteria that would be used to evaluate the applications. The Call did not explicitly reserve to Industry Canada the right to consider additional factors. TeleZone alleges that Industry Canada was prohibited from considering any criteria beyond the factors set out in the Call.
[11] In September 1995 TeleZone submitted its detailed application for a PCS licence to Industry Canada, which was prepared, it says, at a cost of approximately $20 million. In December 1995, Industry Canada announced its decision regarding the PCS licence applications. There were only four successful applicants. TeleZone was not among them.
[12] The amended statement of claim pleads that it was either an express or implied term of the Policy Statement that Industry Canada would only issue fewer than six licences if fewer than six applications met the criteria (para. 12). TeleZone says that its application satisfied all the criteria in the Call. Accordingly, it says, the Minister must have considered factors other than those in the Call when it rejected TeleZone’s application (para. 17). These other factors were not disclosed to TeleZone.
[13] On the contractual branch of its case, TeleZone argues that the tendering process gave rise to a tendering contract (Contract A) which imposed an obligation on Industry Canada to act in accordance with the Call and the Policy Statement and to treat all applicants fairly and in good faith in awarding the PCS licences (R.F., at para. 133). TeleZone submits that the Crown breached “Contract A” by (1) granting fewer licences than it represented would be awarded; (2) not adhering to the requirements of the Call including the listed criteria (para. 134); and (3) failing to conform to a duty of care and a duty to act in good faith (para. 135).
[14] In its amended statement of claim, TeleZone does not seek to impugn the Minister’s decision to award the licences. TeleZone does not seek a licence for itself or to remove licences from the successful applicants; it simply seeks damages. Accordingly, TeleZone submits that whether or not the licences were validly issued to the other applicants is irrelevant because under the Call and Policy Statement, there was still room for two more PCS licences and TeleZone only takes issue with the conduct of the Crown vis-à-vis TeleZone itself (para.136).
II. Judicial History
A. Ontario Superior Court of Justice (Morawetz J.), (2007), 88 O.R. (3d) 173
[15] On a preliminary motion to dismiss TeleZone’s action for want of jurisdiction, the Attorney General argued that TeleZone must first have the Minister’s order quashed on judicial review in the Federal Court as a condition precedent to a civil suit against the Crown. TeleZone countered that its claim is based on causes of action that are distinct from an application for judicial review. It does not seek to set aside the licences. It seeks damages for negligence, breach of contract, or unjust enrichment. Morawetz J. dismissed the objection because, in his view, it was not plain and obvious that TeleZone’s claim in the Superior Court would fail.
B. The Ontario Court of Appeal (Laskin, Borins and Feldman JJ.A.), 2008 ONCA 892, 94 O.R. (3d) 19
[16] Borins J.A., writing for a unanimous court, held that s. 17 of the Federal Courts Act and s. 21 of the Crown Liability and Proceedings Act conferred concurrent jurisdiction on the superior courts and the Federal Court for claims against the Crown. The Ontario Superior Court, as a court of general and inherent jurisdiction, may entertain any cause of action in the absence of legislation or an arbitration agreement to the contrary. Section 18 of the Federal Courts Act removed from the superior courts’ jurisdiction the prerogative writs and extraordinary remedies listed (para. 94). Since the relief sought by TeleZone (damages) is not listed in s. 18, he concluded that the Superior Court continues to have jurisdiction. The appeal was dismissed.
III. Relevant Enactments
[17] Constitution Act, 1867
101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.
Federal Courts Act, R.S.C. 1985, c. F-7
2. (1) . . .
“federal board, commission or other tribunal” means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;
17. [Relief Against the Crown] (1) Except as otherwise provided in this Act or any other Act of Parliament, the Federal Court has concurrent original jurisdiction in all cases in which relief is claimed against the Crown.
[Cases] (2) Without restricting the generality of subsection (1), the Federal Court has concurrent original jurisdiction, except as otherwise provided, in all cases in which
. . .
(b) the claim arises out of a contract entered into by or on behalf of the Crown;
. . .
(d) the claim is for damages under the Crown Liability and Proceedings Act.
[Relief in favour of Crown or against officer] (5) The Federal Court has concurrent original jurisdiction
. . .
(b) in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of the duties of that person as an officer, servant or agent of the Crown.
18. [Extraordinary remedies, federal tribunals] (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
. . .
[Remedies to be obtained on application] (3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.
18.1 [Application for judicial review] (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
[Time limitation] (2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.
[Powers of Federal Court] (3) On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
18.4 [Hearings in summary way] (1) Subject to subsection (2), an application or reference to the Federal Court under any of sections 18.1 to 18.3 shall be heard and determined without delay and in a summary way.
[Exception] (2) The Federal Court may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.
Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50
3. [Liability] The Crown is liable for the damages for which, if it were a person, it would be liable
(a) in the Province of Quebec, in respect of
(i) the damage caused by the fault of a servant of the Crown, or
(ii) the damage resulting from the act of a thing in the custody of or owned by the Crown or by the fault of the Crown as custodian or owner; and
(b) in any other province, in respect of
(i) a tort committed by a servant of the Crown, or
(ii) a breach of duty attaching to the ownership, occupation, possession or control of property.
8. [Saving in respect of prerogative and statutory powers] Nothing in sections 3 to 7 makes the Crown liable in respect of anything done or omitted in the exercise of any power or authority that, if those sections had not been passed, would have been exercisable by virtue of the prerogative of the Crown, or any power or authority conferred on the Crown by any statute, and, in particular, but without restricting the generality of the foregoing, nothing in those sections makes the Crown liable in respect of anything done or omitted in the exercise of any power or authority exercisable by the Crown, whether in time of peace or of war, for the purpose of the defence of Canada or of training, or maintaining the efficiency of, the Canadian Forces.
21. [Concurrent jurisdiction of provincial court] (1) In all cases where a claim is made against the Crown, except where the Federal Court has exclusive jurisdiction with respect to it, the superior court of the province in which the claim arises has concurrent jurisdiction with respect to the subject-matter of the claim.
IV. Analysis
[18] This appeal is fundamentally about access to justice. People who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary cost and complexity. The Court’s approach should be practical and pragmatic with that objective in mind.
[19] If a claimant seeks to set aside the order of a federal decision maker, it will have to proceed by judicial review, as the Grenier court held. However, if the claimant is content to let the order stand and instead seeks compensation for alleged losses (as here), there is no principled reason why it should be forced to detour to the Federal Court for the extra step of a judicial review application (itself sometimes a costly undertaking) when that is not the relief it seeks. Access to justice requires that the claimant be permitted to pursue its chosen remedy directly and, to the greatest extent possible, without procedural detours.
[20] The Attorney General argues that a detour to the Federal Court is necessary because the damages action represents a “collateral attack” prohibited by “inferences” derived from s. 18 of the Federal Courts Act. His argument, in a nutshell, is:
Simply pleading damages, or some other remedy that is not available by way of judicial review in the Federal Court, should not be accepted as a means to bypass the intention of Parliament that review of federal administrative decisions must take place in the Federal Court.
(Attorney General factum[1], at para. 4)
[21] The Attorney General accepts that judicial review is not required “for all proceedings that in any manner involve a decision or conduct of a federal board, commission or tribunal” (para. 29). However, the detour is required for claims that engage, directly or indirectly, the “validity and unlawfulness” of such decisions (para. 2). “Lawfulness” is a broad term. The Attorney General uses “invalid” and “unlawful” conjunctively (e.g., at para. 49). He seems to use the term “unlawful” to cover virtually any government order that could lay the basis for a finding of fault in the private law sense although he excludes such bureaucratic actions as providing erroneous information, performing a “physical task or activity” negligently, or breaching a duty to warn (Factum, at para. 50).
[22] The Attorney General’s concern is that permitting different damages claims to proceed in different provinces before a variety of superior court judges arising out of the same or related federal government decisions would re-introduce the spectre of inconsistency and uncertainty across Canada which the enactment of the Federal Courts Act was designed to alleviate. However, this concern must have been considered by Parliament when it granted concurrent jurisdiction in all cases in which relief is claimed against the federal Crown to the superior courts. Undoubtedly, the juxtaposition of ss. 17 and 18 of the Federal Courts Act creates a certain amount of subject matter overlap with respect to holding the federal government to account for its decision making. This degree of overlap is inherent in the legislative scheme designed to provide claimants with “convenience” and “a choice of forum” in the provincial courts (see statement of the Minister of Justice in Parliament, House of Commons Debates, 2nd Sess., 34th Parl., November 1, 1989, at p. 5414), reproduced below, at para. 58).
[23] I do not interpret Parliament’s intent, as expressed in the text, context and purposes of the Federal Courts Act, to require an awkward and duplicative two-court procedure with respect to all damages claims that directly or indirectly challenge the validity or lawfulness of federal decisions. Such an outcome would have to be compelled by clear and explicit statutory language. Neither the Federal Courts Act nor the Crown Liability and Proceedings Act do so, in my opinion. With respect, not only is such language absent, but the reasonable inferences from both statutes, especially the concurrent jurisdiction in all cases where relief is claimed against the Crown granted to the provincial superior courts, leads to the opposite conclusion.
A. The Nature of Judicial Review
[24] The Attorney General correctly points to “the substantive differences between public law and private law principles” (Factum, at para. 6). Judicial review is directed at the legality, reasonableness, and fairness of the procedures employed and actions taken by government decision makers. It is designed to enforce the rule of law and adherence to the Constitution. Its overall objective is good governance. These public purposes are fundamentally different from those underlying contract and tort cases or causes of action under the Civil Code of Québec, R.S.Q., c. C-1991, and their adjunct remedies, which are primarily designed to right private wrongs with compensation or other relief.
[25] Not all invalid government decisions result in financial losses to private persons or entities. Not all financial losses that do occur will lay the basis for a private cause of action. Subordinate legislative and adjudicative functions do not in general attract potential government liability for damages. For practical purposes, the real concern here is with executive decisions by Ministers and civil servants causing losses that may or may not be excused by statutory authority.
[26] The focus of judicial review is to quash invalid government decisions — or require government to act or prohibit it from acting — by a speedy process. A bookstore, for example, will have a greater interest in getting its foreign books through Canada Customs — despite ill-founded allegations of obscenity — than in collecting compensation for the trifling profit lost on each book denied entry (Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 2 S.C.R. 38). Thus s. 18.1 of the Federal Courts Act establishes a summary procedure with a 30-day time limit. There is no pre-hearing discovery, apart from what can be learned through affidavits and cross-examination. The applications judge hears no viva voce evidence. Damages are not available. Judicial review suits the litigant who wishes to strike quickly and directly at the action (or inaction) it complains about. A damages claimant, on the other hand, will often be unaware of the nature or extent of its losses in a 30-day time frame, and may need pre-trial discovery to either make its case or find out it has none.
[27] The question must therefore be asked: What is the practical benefit to a litigant who wants compensation rather than a reversal of a government decision, to undergo the Grenier two-court procedure? TeleZone, for example, would acquire no practical benefit from a judicial review application. Its primary complaint is for damages arising from the breach of an alleged tendering contract. It no longer seeks the benefit of the contract (or the PCS licence). It seeks compensation for substantial costs thrown away and lost profits. The Crown does not argue that the tendering contract (if it was made) was ultra vires, or that the alleged breach (if it occurred) was mandated by statutory authority. The argument, instead, is that TeleZone’s claim constitutes a collateral attack on the ministerial order under the Radiocommunication Act that failed to award it a PCS licence. But in TeleZone’s circumstances, judicial review of the Minister’s decision would not address the claimed harm and would seem to offer little except added cost and delay.
[28] Negligence is also alleged by TeleZone. Tort liability, of course, is based on fault, not invalidity. As the Court made clear many years ago in The Queen in Right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205, at pp. 222-25, breach of a statute is neither necessary nor is it sufficient to ground a private cause of action. It is not necessary because a government decision that is perfectly valid may nevertheless give rise to liability in contract. Agricultural Research Institute of Ontario v. Campbell-High (2002), 58 O.R. (3d) 321 (C.A.), leave to appeal refused, [2003] 1 S.C.R. vii) or tort (Ryan v. Victoria (City), [1999] 1 S.C.R. 201).
[29] Nor is a breach of statutory power necessarily sufficient. Many losses caused by government decision making do not give rise to any cause of action known to the law. As the Attorney General correctly points out, “[e]ven if a discretionary decision of a federal board, commission or tribunal has been declared invalid or unlawful, that in itself does not create a cause of action in tort or under the Quebec regime of civil liability” (Factum, at para. 28).
[30] In Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, Charron J. wrote that “[a] person accused of a criminal offence enjoys a private right of action when a prosecutor acts maliciously in fraud of his or other prosecutorial duties with the result that the accused suffers damage. However, the civil tort of malicious prosecution is not an after-the-fact judicial review of a Crown’s exercise of prosecutorial discretion” (para. 7 (emphasis added)). H. Woolf, J. Jowell and A. Le Sueur point out in De Smith’s Judicial Review (6th ed. 2007), that “[u]nlawfulness (in the judicial review sense) and negligence are conceptually distinct” (pp. 924-25). Put another way, while Crown liability in tort and the validity of an underlying administrative decision may generate some overlapping considerations, they present distinct and separate justiciable issues.
[31] The main difficulty in suing government for losses arising out of statutory decisions is often not the public law aspects of the decision but the need to identify a viable private cause of action, and thereafter to meet such special defences as statutory authority. In Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, for example, it was alleged that the conduct of the Registrar of mortgage brokers contributed significantly to the loss of some claimant investors, but it was held that there was insufficient proximity between the Registrar and the claimants to give rise to a duty of care. See also Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; Holland v. Saskatchewan, 2008 SCC 42, [2008] 2 S.C.R. 551, at para. 8.
[32] The enactment of the Federal Court Act, S.C. 1970-71-72, c. 1, and the subsequent amendments in 1990 were designed to enhance government accountability as well as to promote access to justice. The legislation should be interpreted in such a way as to promote those objectives. The Grenier approach does not do so, in my respectful opinion, as will now be discussed.
B. The Grenier Case
[33] The shadow of the Grenier case perhaps extends beyond what was intended by the Grenier court itself.
[34] Grenier did not concern a conflict between the Federal Court and a provincial superior court. It concerned which of two alternative Federal Court modes of procedure should be pursued by an inmate of a federal penitentiary. He complained of the adverse effects of administrative segregation for 14 days pursuant to the Corrections and Conditional Release Act, S.C. 1992, c. 20. The inmate did not seek judicial review of the decision of the head of the institution to place him in administrative segregation. Instead, after waiting three years, he brought an action for damages against the federal Crown under s. 17 of the Federal Courts Act. At trial, the administrative segregation was found to be arbitrary. He was awarded $5,000 in compensatory and exemplary damages.
[35] On appeal, the Attorney General objected that the inmate should have sought judicial review of his administrative segregation under s. 18 of the Act before bringing his action for damages under s. 17 of the Act. The argument, in essence, was that the Federal Courts Act has several procedural doors and the inmate had tried to enter the wrong one. He knocked on s. 17 whereas he should have gone through s. 18. The Federal Court of Appeal agreed, taking the view that “Parliament assigned the exercise of reviewing the lawfulness of the decisions of federal agencies to a single court, the Federal Court. This review must be exercised under section 18, and only by filing an application for judicial review” (para. 24 (emphasis added)). The court reasoned that even within the same court, the s. 17 action for damages constituted an impermissible collateral attack on the decision of the prison authority (at paras. 32-33) because the trial court “had to review the lawfulness of the institutional head’s decision ... and set it aside” (at para. 34), which could only be done under s. 18 of the same Act. It was thought that the judicial review jurisdiction of the Federal Court, with its unique statutory procedure, must be protected from erosion. Such a conclusion, in the Grenier court’s view, was consistent with R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706.
[36] Moreover, according to the Grenier court, it made no difference that the administrative segregation Mr. Grenier complained of had long since been served. “[A] decision of a federal agency, such as the one by the institutional head in this case”, the court reasoned, “retains its legal force and authority, and remains juridically operative and legally effective so long as it has not been invalidated” (para. 19). Accordingly, the prison order, even in its afterlife, was still a complete answer to the s. 17 damages action.
[37] More recently, the Federal Court of Appeal itself seems to be losing some enthusiasm for Grenier’s “separate silos” approach. In Hinton v. Canada (Minister of Citizenship and Immigration), 2008 FCA 215, [2009] 1 F.C.R. 476, the court allowed an application for judicial review to be converted into an action for damages which was also certified as a class action, Sexton J.A. commenting that “[s]ometimes, such as the case at bar, it may prove too cumbersome to initiate a separate action for damages either concurrently with, or subsequent to, an application for judicial review” (para. 50).
[38] More recently in Parrish & Heimbecker Ltd. v. Canada (Minister of Agriculture and Agri-Food), 2008 FCA 362, [2009] 3 F.C.R. 568 (which, on appeal, was heard concurrently in this Court with the present appeal), Sharlow J.A., dissenting, took the view that “the Grenier principle was developed without taking into account certain aspects of the statutory scheme governing federal Crown litigation [including the Crown Liability and Proceedings Act] that in my view cast doubt on the Grenier analysis” (para. 41).
[39] At the same time, some provincial courts have accepted the Grenier approach; see, e.g., Donovan v. Canada (Attorney General), 2008 NLCA 8, 273 Nfld. & P.E.I.R. 116, Lidstone v. Canada (Minister of Canadian Heritage), 2008 PESCTD 6, 286 Nfld. & P.E.I.R. 244. Most provincial courts, however, have either not followed Grenier or distinguished it: see, e.g., River Valley Poultry Farm Ltd. v. Canada (Attorney General), 2009 ONCA 326, 95 O.R. (3d) 1, at para. 30; Los Angeles Salad Co. v. Canadian Food Inspection Agency, 2009 BCSC 109, 92 B.C.L.R. (4th) 379, at para. 24; Leroux v. Canada Revenue Agency, 2010 BCSC 865, 2010 D.T.C. 5123, at para. 54; see also Fantasy Construction Ltd., Re, 2007 ABCA 335, 89 Alta. L.R. (4th) 93, at para. 43; Genge v. Canada (Attorney General), 2007 NLCA 60, 270 Nfld. & P.E.I.R. 182, at para. 34.
C. The Attorney General’s Expansive View of the Grenier Decision
[40] According to the Attorney General, Grenier denied the jurisdiction of either the Federal Court or a provincial superior court to proceed to adjudicate a damage claim without first passing through the “unique” judicial review procedure set out in s. 18 of the Federal Courts Act if the “lawfulness” of an administrative decision or order is in issue. The Attorney General uses the expression “invalidity or lawfulness” which, he points out, may extend even to contract claims. He cites Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services), [1995] 2 F.C. 694, at pp. 703-706, where the Federal Court of Appeal concluded that the exercise by a Minister of a statutory power to seek tenders and to enter into contracts for the lease of land by the Crown could be subject to judicial review. See also Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, 314 D.L.R. (4th) 340, at paras. 21-25, leave to appeal refused, [2009] 3 S.C.R. vii. However, in this Court’s decision in Martel Building Ltd. v. Canada, 2000 SCC 60, [2000] 2 S.C.R. 860, a tendering case, although in the end the claim was dismissed, there was no suggestion in the judgment that judicial review was a necessary preliminary step to the recovery of contract damages against the Crown.
[41] Moreover, I do not think the Attorney General’s position is supported by Consolidated Maybrun or its companion case of R. v. Al Klippert Ltd., [1998] 1 S.C.R. 737. Those cases dealt with the narrow issue of whether a person facing penal charges for failing to comply with an administrative order can challenge the validity of the order by way of defence despite failure to take advantage of the appeal process provided for by the law under which the order was issued. In both cases, the Court paid close attention to the regulatory statute under which an order is made and concluded that to permit such a defence “would encourage conduct contrary to the [regulatory] Act’s objectives and would tend to undermine its effectiveness” (Consolidated Maybrun, at para. 60). These cases thus stand for a rather nuanced view of where collateral attack is (or is not) permissible. The outcome largely depends on the court’s view of the statute under which an order is made “and must be answered in light of the legislature’s intention as to the appropriate forum” for resolving the dispute (Consolidated Maybrun, at para. 52). In my respectful view, having regard to these policy considerations, it would be adherence to the Grenier approach that “would tend to undermine [the] effectiveness” of the Federal Courts Act reforms which had as one of their objectives making the provincial superior courts an equally “appropriate forum” for resolving in an efficient way financial claims against the federal Crown.
D. The Jurisdiction of the Provincial Superior Courts
[42] What is required, at this point of the discussion, is to remind ourselves of the rule that any derogation from the jurisdiction of the provincial superior courts (in favour of the Federal Court or otherwise) requires clear and explicit statutory language: “[The] ouster of jurisdiction from the provincial superior courts in favour of vesting exclusive jurisdiction in a statutory court ... requires clear and explicit statutory wording to this effect”: Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 46; see also Pringle v. Fraser, [1972] S.C.R. 821, at p. 826; Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, at para. 38. The Attorney General’s argument rests too heavily on what he sees as the negative implications to be read into s. 18.
[43] The oft-repeated incantation of the common law is that “nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged”: Peacock v. Bell (1667), 1 Wms. Saund. 73, 85 E.R. 84, at pp. 87-88. In contrast, the jurisdiction of the Federal Court is purely statutory.
[44] The term “jurisdiction” simply is shorthand for the collection of attributes that enables a court or tribunal to issue an enforceable order or judgment. A court has jurisdiction if its authority extends to “the person and the subject matter in question and, in addition, has authority to make the order sought”: Mills v. The Queen, [1986] 1 S.C.R. 863, per McIntyre J., at p. 960, quoting Brooke J.A. in R. v. Morgentaler (1984), 41 C.R. (3d) 262, at p. 271, and per Lamer J., dissenting, at p. 890; see also R. v. Rahey, [1987] 1 S.C.R. 588, at p. 603; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 15; R.v.Conway, 2010 SCC 22, [2010] 1 S.C.R. 765. The Attorney General does not deny that the Superior Court possesses in personam jurisdiction over the parties, or dispute the superior court’s authority to award damages. The dispute centres on subject matter jurisdiction.
[45] It is true that apart from constitutional limitations (see, e.g., Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, and cases under s. 96 of the Constitution Act, 1867, which are not relevant here), Parliament may by statute transfer jurisdiction from the superior courts to other adjudicative bodies including the Federal Court. It did so, for example, with respect to the judicial review of federal decision makers: Canada Labour Relations Board v. Paul L’Anglais Inc., [1983] 1 S.C.R. 147, at p. 154. However, the onus lies here on the Attorney General to establish the existence and extent of such a transfer of jurisdiction in statutory terms that are clear, explicit and unambiguous.
[46] Nothing in the Federal Courts Act satisfies this test. Indeed, as mentioned, the explicit grant to the provincial superior courts of concurrent jurisdiction in claims against the Crown in s. 17 of that Act (as well as s. 21 of the Crown Liability and Proceedings Act) directly refutes it. As Sharlow J.A., dissenting, pointed out in Parrish & Heimbecker Ltd. (appeal allowed and judgment released concurrently herewith, 2010 SCC 64), s. 8 of the Crown Liability and Proceedings Act, which codifies the defence of statutory authority, is evidence that Parliament envisaged that the assessment of lawfulness would be made by the provincial superior court in the course of adjudicating a claim for damages (para. 39).
E. Claimed “Inferences” from Section 18 of the Federal Courts Act
[47] An application for judicial review under the Federal Courts Act combines an allegation that a federal authority has acted contrary to the substantive principles of public law, along with a claim for one of the kinds of relief listed in s. 18(1). It is only this procedure that is in the exclusive jurisdiction of the Federal Court. As the Court recently observed in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, “[t]he genesis of the Federal Courts Act lies in Parliament’s decision in 1971 to remove from the superior courts of the provinces the jurisdiction over prerogative writs, declarations, and injunctions against federal boards, commissions and other tribunals” (para. 34). Section 18 does not say that a dispute over the lawfulness of exercise of statutory authority cannot be assessed in the course of a trial governed by the Crown Liability and Proceedings Act brought in the provincial superior court or pursuant to s. 17 of the Federal Courts Act itself.
[48] The Attorney General argues that a “remedies” oriented approach, similar to the view adopted by the Ontario Court of Appeal in this case, results in “a rigid, formalistic and literal interpretation” of s. 18 (Factum, at para. 66) and gives insufficient weight to context and, in particular, to the intention of Parliament. I agree that the context and Parliamentary purpose are essential to a proper interpretation of s. 18, but I do not think a broad and contextual approach assists the Attorney General’s argument.
(i) The Parliamentary Context
[49] The Parliamentary debates in 1971 took place in the context of the enormous growth of federal regulatory regimes, the perceived need for a “national perspective” on judicial review, and a concern about inconsistent supervision of federal public bodies by various provincial superior courts across the country (see D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at para. 2:4100). Thus, Parliament radically transformed the old Exchequer Court into a new Federal Court and crafted a new procedure which resulted in the Federal Court’s supervisory jurisdiction over federal decision makers.
[50] The Minister of Justice in 1970 emphasized that Parliament’s concern was supervision (not compensation) and in particular its concern was about fragmented judicial review of federal adjudicative tribunals. One provincial superior court might uphold as valid an important decision, e.g., by the National Energy Board, which a superior court in a different province might decide to quash. Thus:
This multiple supervision [by the provincial courts], with a lack of consistent jurisprudence and application, can work serious hardship not only on the boards and commissions but on those who appear before them. . . . It is for this reason . . . that the conclusion was reached that this superintending jurisdiction should be vested in a single court that enjoyed the same nation wide jurisdiction as the federal boards, commissions and tribunals themselves. The bill is therefore designed to create a single and uniform basis of superintending jurisdiction in relation to federal boards and commissions and to place them on the same footing in this regard as provincial boards and commissions.
(House of Commons Debates, 2nd Sess., 28th Parl. March 25, 1970, at pp. 5470-71; see also Factum, at para. 79; Khosa, at para. 34.)
However, the very broad statutory definition in s. 2 of “federal board, commission or other tribunal” goes well beyond what are usually thought of as “boards and commissions” and its very breadth belatedly (and perhaps unintentionally) precipitated the Grenier controversy about how to prioritize the overlapping subject matter shared by judicial review and the trial of common law claims for compensation based on fault. The grant of concurrent jurisdiction in s. 17 does not negate the possibility of inconsistency, but Parliament has agreed to live with the possibility in the interest of easier access to justice.
(ii) The Statutory Text
[51] The grant of exclusive jurisdiction to judicially review federal decision makers is found in s. 18 of the Federal Courts Act and is expressed in terms of particular remedies:
18. (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
. . .
(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.
[52] All of the remedies listed in s. 18(1)(a) are traditional administrative law remedies, including the four prerogative writs — certiorari, prohibition, mandamus and quo warranto — and declaratory and injunctive relief in the administrative law context. Section 18 does not include an award of damages. If a claimant seeks compensation, he or she cannot get it on judicial review. By the same token, the plaintiff in a damages action is not entitled to add a supplementary claim for a declaration or injunction to prevent the government from acting on a decision said to be tainted by illegality. That is the domain of the Federal Court.
(iii) Reading the Act as a Whole
[53] There is much internal evidence in s. 18 and s. 18.1 of the Federal Courts Act to indicate that Parliament could not have intended judicial review to have the gatekeeper function envisaged by Grenier.
[54] As mentioned, the 30-day limitation period for judicial review applications under s. 18.1(2) of the Federal Courts Act is one such indication. Such a short limitation is consistent with a quick and summary judicial review procedure — but not a damages action. TeleZone’s action in Ontario would have a six-year limitation. A 30-day cut off for a damages claimant would be unrealistic. The claimant may not be in a position to apply for judicial review within the limitation period. The facts necessary to ground a civil cause of action may not emerge until after 30 days have passed.
[55] The 30-day limit can be extended by order of a Federal Court judge (s. 18.1(2)) but the extension is discretionary, and would subordinate the fate of a civil suit brought in a superior court to the discretion of a Federal Court judge ruling upon a request for an extension of time for reasons that have to do with public law concerns, not civil damages. In practical terms, the effect of the Grenier argument would be to impose a discretionary limitation period (determined by the Federal Court) on actions for damages against the Crown in a provincial superior court, an outcome which, in my opinion, Parliament cannot have intended. Apart from anything else, it undermines s. 39 of the Federal Courts Act, which provides that, ordinarily, claims against the Crown in the Federal Court are subject to the limitation period applicable “between subject and subject” in the province where the claim arose, or six years in respect of a “cause of action arising otherwise than in a province”.
[56] As recently affirmed in Khosa, the grant of relief on judicial review is in its nature discretionary and may be denied even if the applicant establishes valid grounds for the court’s intervention:
... the language of s. 18.1 generally sets out threshold grounds which permit but do not require the court to grant relief. Whether or not the court should exercise its discretion in favour of the application will depend on the court’s appreciation of the respective roles of the courts and the administration as well as the “circumstances of each case”. [para. 36]
See also Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at pp. 592-93; Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326, at p. 372. Such an approach does not align well with the paradigm of a common law action for damages where, if the elements of the claim are established, compensation ought generally to follow as a matter of course. In judicial review, “the discretionary nature of the courts’ supervisory jurisdiction reflects the fact that unlike private law, its orientation is not, and never has been, directed exclusively to vindicating the rights of individual” (Brown and Evans, at para. 3:1100).
(iv) The 1990 Amendments to the Federal Courts Act
[57] The current version of s. 17 of the Federal Courts Act, which only came into force on February 1, 1992, allows parties to institute civil claims against the Federal Crown in the superior courts of the provinces. For ease of reference, I repeat the operative language:
17. (1) Except as otherwise provided in this Act or any other Act of Parliament, the Federal Court has concurrent original jurisdiction in all cases in which relief is claimed against the Crown.
The grant of jurisdiction is thus framed in terms of relief, i.e.,“all cases in which relief is claimed” except as otherwise provided. Section 18(1) otherwise provides in relation to the specific forms of relief listed therein. Section 18(3) of the Act expressly provides that remedies in the nature of judicial review “may be obtained only on an application for judicial review made under section 18.1”. The Federal Courts Act lists no other relevant exclusions from s. 17, and we have not been referred to any other Act of Parliament having a bearing on this subject.
[58] As the Minister of Justice stated in 1989 before the Legislation Committee examining Bill C-38, which resulted in, among other changes, today’s version of s. 17:
[W]e have made provision in the bill whereby ordinary common law and civil law actions for relief against the federal Crown, which are presently the exclusive jurisdiction of the Federal Court, may also be heard by provincial courts. Such provision acknowledges the fact that the Federal Court possesses no unique expertise in areas of ordinary contract and tort law. [The Minister here went on to describe the practical jurisdictional and procedural problems created by the Federal Court’s prior exclusive jurisdiction over federal authorities.]
(Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-38, No. 1, 2nd Sess., 34th Parl., November 23, 1989, at pp. 14-15)
On second reading of the Bill, the Minister again emphasized that the purpose of the amendments was to allow the plaintiffs to sue the federal Crown in either the provincial superior courts or the Federal Court:
For example, a person should be able to sue the Crown in a suitably convenient court for breach of contract to purchase goods or for negligent driving by a Crown employee that causes injuries to another motorist. At the moment, such actions can only be brought in the Federal Court. However, it is not as available as provincial courts.
. . .
Moreover, for both citizen and lawyer alike, provincial courts, including their procedures and personnel, are much more familiar.
Therefore, the Federal Court is often not the most convenient one for the private litigant. With this in mind, the government has proposed that both the provincial courts and the Federal Court share jurisdiction with respect to such actions, thereby generally giving a plaintiff a choice of forum. [Emphasis added.]
(House of Commons Debates, 2nd Sess., 34th Parl., November 1, 1989, at p. 5414)
[59] The effect of the argument of the Attorney General, if accepted, would be to undermine the purpose and intended effect of the 1990 amendment by retaining in the Federal Court exclusive jurisdiction over a key element of many causes of action proceeding in the provincial courts despite the promise to give plaintiffs a “choice of forum” and to make available relief in the provincial superior courts that may be more “familiar” to litigants.
F. The Doctrine of Collateral Attack
[60] The Attorney General contends that to permit TeleZone to proceed with its claim in the provincial superior court in the absence of prior judicial review would be to allow an impermissible “collateral attack” on the Minister’s decision. The Court has described a collateral attack as
an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.
(Wilson v. The Queen, [1983] 2 S.C.R. 594, at p. 599)
[61] The rule is a judicial creation (which must therefore yield to a contrary legislative enactment) based on general considerations related to the administration of justice, as explained in Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at para. 72:
The fundamental policy behind the rule against collateral attack is to “maintain the rule of law and to preserve the repute of the administration of justice” (R. v. Litchfield, [1993] 4 S.C.R. 333, at p. 349). The idea is that if a party could avoid the consequences of an order issued against it by going to another forum, this would undermine the integrity of the justice system. Consequently, the doctrine is intended to prevent a party from circumventing the effect of a decision rendered against it. [Emphasis added.]
[62] In R. v. Litchfield, [1993] 4 S.C.R. 333, the criminal case referred to in Garland, the Court declined to apply the rule against collateral attack. In Garland itself, class action plaintiffs brought a claim against a gas company seeking restitution on the grounds of unjust enrichment of late payment penalties previously approved by the Ontario Energy Board. In its defence, the gas company argued that the claim for restitution was a collateral attack on the Board’s order. The defence failed.
[63] I do not think the Attorney General’s collateral attack argument can succeed on this appeal for three reasons. Firstly, as Borins J.A. pointed out in his scholarly judgment, the doctrine of collateral attack may be raised by the Attorney General in the provincial superior court as a defence if he or she believes that, in the particular circumstances, to do so is appropriate. However, the possible availability of the defence is not an argument against provincial superior court jurisdiction. Nor does it justify inserting the Federal Court into every claim for damages predicated on an allegation that the government’s decision that caused the loss was “invalid or unlawful”.
[64] Secondly, TeleZone is not seeking to “avoid the consequences of [the ministerial] order issued against it” (Garland, at para. 72). On the contrary, the ministerial order and the financial losses allegedly consequent on that order constitute the foundation of the damages claim. This was the result in Garland itself, where Iacobucci J. held for the Court:
Based on a plain reading of this rule, the doctrine of collateral attack does not apply in this case because here the specific object of the appellant’s action is not to invalidate or render inoperative the Board’s orders, but rather to recover money that was illegally collected by the respondent as a result of Board orders. Consequently, the collateral attack doctrine does not apply. [Emphasis added; para. 71.]
[65] Similarly in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, Arbour J. declined to apply the collateral attack doctrine in a case arising out of a grievance arbitration where CUPE sought to challenge the underlying facts of a conviction of one of its members for sexual assault. Arbour J. reasoned that the Union’s argument was “an implicit attack on the correctness of the factual basis of the decision, not a contest about whether that decision has legal force, as clearly it does” (para. 34).
[66] Thirdly, the Attorney General’s argument fails even if one takes a more expansive view of the doctrine of collateral attack, as does Professor David Mullan:
The cause of action [in Garland] depended necessarily on establishing the invalidity of the Board’s order on which the utility was relying in collecting interest. If the order had been valid, there would have been no cause of action. This was in every sense a collateral attack on the Board’s orders. Collateral attack is not and never has been confined to situations where the challenge is by way of resistance to the enforcement of an order. It is also implicated in situations where someone, in asserting a civil claim for monetary or other relief, needs to attack a law or order that the defendant is advancing as justification for the actions on which the plaintiff’s claim is based. . . . [Emphasis added.]
(D. J. Mullan, “Administrative Law Update — 2008-2009”, Continuing Legal Education Conference, Administrative Law Conference 2009, October 2009, at p. 1.1.22)
In Professor Mullan’s view, the Court in Garland should have taken what he sees as the more principled route of applying the factors in Consolidated Maybrun to determine whether the collateral attack was of a permissible variety. In that case, as set out in the judgment of L’Heureux-Dubé J., the appropriate factors to apply in determining whether the Court is confronted with an impermissible collateral attack on an administrative order are (1) the wording of the statute from which the power to issue the order derives; (2) the purpose of the legislation; (3) the availability of an appeal; (4) the nature of the collateral attack in light of the tribunal’s expertise and raison d’être, (including whether “the legislature intended to confer jurisdiction to hear and determine the question raised”), and (5) the penalty on a conviction for failing to comply with the order (paras. 45, 50-51 and 62). These factors have also been applied in the civil context; see, generally, K. Horsman and G. Morley, eds., Government Liability: Law and Practice (loose-leaf), at p. 11-9.
[67] Judicial doctrine necessarily yields to a contrary statutory enactment. Accepting, as Professor Mullan puts it, at p. 1.1.22, that the rule against collateral attack may be “implicated in situations where someone, in asserting a civil claim for monetary or other relief, needs to attack a law or order that the defendant is advancing as justification for the actions on which the plaintiff’s claim is based”, the s. 17 statutory grant of concurrent jurisdiction again defeats the Attorney General’s submission. This is because the claimant’s “need to attack a law or order” is essential to its cause of action, and adjudication of that allegation (even if raised by way of reply) is a necessary step in disposing of the claim. Parliament has stated that provincial superior courts possess the concurrent necessary jurisdiction to dispose of the whole of such a claim, not just part of it.
[68] In summary, I agree with Borins J.A. that the Grenier approach cannot be justified by the rule against collateral attack.
G. The Defence of Statutory Authority
[69] It would also be open to the Crown, by way of defence to a damages action, to argue that the government decision maker was acting under a statutory authority which precludes compensation for consequent losses. This, again, is a matter of defence, not jurisdiction. It is a hurdle facing any claimant. Governments make discretionary decisions all the time which will inflict losses on people or businesses without conferring any cause of action known to the law.
[70] In a case of nuisance, for example, the claimant property owner may have all the elements of a good common law action in nuisance yet be defeated by the defence that the government was authorized to do what it did and that collateral damage to the claimant was an inevitable result of the authority so provided. See, e.g., P. W. Hogg and P. J. Monahan, Liability of the Crown (3rd ed. 2000), at p. 139, and Horsman and Morley, at p. 6-41.
[71] However, as stated earlier, the defence of “statutory authority” will not always provide a complete answer to a damages claim. In some cases, the outcome may depend on whether the statute either explicitly or implicitly authorized the act that caused the harm. In Tock v. St. John’s Metropolitan Area Board, [1989] 2 S.C.R. 1181, Sopinka J. pointed out, referring to the dictum of Viscount Dunedin in City of Manchester v. Farnworth, [1930] A.C. 171 (H.L.), that there may be “alternate methods of carrying out the work [that would have avoided the loss]. The mere fact that one is considerably less expensive will not avail. If only one method is practically feasible, it must be established that it was practically impossible to avoid the nuisance” (p. 1226). Reference should also be made to the qualifying observation of what is “practically impossible” made by Viscount Dunedin and quoted by Sopinka J., at p. 1224:
The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense. [Emphasis added.]
This caveat, also quoted by Wilson J., at p. 1213 of Tock, was the subject of some disagreement on the Court, an issue that need not detain us. The issue of statutory authority does not go to the jurisdiction of the provincial superior courts. That is all that needs to be decided here.
[72] It is sufficient to say that it is always open to the Crown to argue the defence of statutory authority; see, e.g., in s. 8 of the Crown Liability and Proceedings Act:
Nothing in sections 3 to 7 makes the Crown liable in respect of anything done or omitted in the exercise of any power or authority that, if those sections had not been passed, would have been exercisable by virtue of the prerogative of the Crown, or any power or authority conferred on the Crown by any statute.
The defence of statutory authority is regularly interpreted and applied by the provincial superior courts, see, e.g., Sutherland v. Canada (Attorney General), 2002 BCCA 416, [2002] 10 W.W.R. 1, leave to appeal refused, [2003] 1 S.C.R. xi (sub nom. Jones v. Attorney General of Canada); Lake v. St. John’s City, 2000 NFCA 48, 192 Nfld. & P.E.I.R. 84; Neuman v. Parkland (County), 2004 ABPC 58, 30 Alta. L.R. (4th) 161; Danco v. Thunder Bay (City) (2000), 13 M.P.L.R. (3d) 130 (Ont. S.C.J.); Landry v. Moncton (City), 2008 NBCA 32, 329 N.B.R. (2d) 212.
[73] I give an example. In Ryan v. Victoria (City), the “inevitable result” defence was tested in a claim for damages arising out of road works. Mr. Ryan, a motorcyclist, sued the municipality and a railway for negligence and nuisance after he was injured while crossing tracks in an urban area. The front wheel of the plaintiff's motorcycle got caught in the flangeway gap of the rail whose width was at the upper end of the allowed range set by the applicable regulation. The defence argued statutory authority. Writing for a unanimous Court, Major J. noted that “[s]tatutory authority provides, at best, a narrow defence to nuisance” (at para. 54), and rejected it on the facts of the case.
[74] For present purposes, we need go no further than to repeat that “statutory authority” is an argument that goes to defence, not jurisdiction. If the provincial superior court (or the Federal Court under s. 17) finds that the government has a good defence based on statutory authority, it will simply dismiss the claimant’s action.
H. The Concern About “Artful Pleading”
[75] The Crown contends that TeleZone’s argument would risk putting judicial review of federal decision makers back in the provincial superior courts dressed up as damage claims. On this view the “artful pleader” will forum-shop by the way the case is framed. Of course, “artful pleaders” exist and they will formulate a claim in a way that best suits their clients’ interests. However, no amount of artful pleading in a damages case will succeed in setting aside the order said to have harmed the claimant or enjoin its enforcement. Such relief is not available in the provincial superior court. The claimant must, as here, be content to take its money (if successful) and walk away leaving the order standing.
[76] Where a plaintiff’s pleading alleges the elements of a private cause of action, I think the provincial superior court should not in general decline jurisdiction on the basis that the claim looks like a case that should be pursued on judicial review. If the plaintiff has a valid cause of action for damages, he or she is normally entitled to pursue it.
[77] In the U.K., a similar position has been expressed by the House of Lords in Roy v. Kensington and Chelsea and Westminster Family Practitioner Committee, [1992] 1 A.C. 624, per Lord Bridge, at pp. 628-29:
[W]here a litigant asserts his entitlement to a subsisting right in private law, whether by way of claim or defence, the circumstance that the existence and extent of the private right asserted may incidentally involve the examination of a public law issue cannot prevent the litigant from seeking to establish his right by action commenced by writ or originating summons, any more than it can prevent him from setting up his private law right in proceedings brought against him.
It is generally true here, as it is in the U.K., that a plaintiff is not required to bring an application for judicial review so long as private rights are legitimately engaged by the action. Under the English authorities, as in Canada, there is a special concern where the availability of judicial review depends on special leave, or is restricted by an abbreviated limitation period, or where the relief available on judicial review is discretionary (Roy, per Lord Lowry, at p. 654). See also P. P. Craig, Administrative Law (6th ed. 2008), at p. 869. These considerations echo the concerns already canvassed in rejecting the Grenier approach.
[78] To this discussion, I would add a minor caveat. There is always a residual discretion in the inherent jurisdiction of the provincial superior court (as well as in the Federal Court under s. 50(1) of its Act), to stay the damages claim because in its essential character, it is a claim for judicial review with only a thin pretence to a private wrong. Generally speaking the fundamental issue will always be whether the claimant has pleaded a reasonable private cause of action for damages. If so, he or she should generally be allowed to get on with it.
I. Application to the Facts
[79] TeleZone is not attempting to nullify or set aside the Minister’s order. Its case is that the Minister, in deciding not to issue a licence to TeleZone, acted in breach of his contractual and equitable duties or in breach of a duty of care. TeleZone does not say that the Minister’s decision should be quashed. On the contrary, TeleZone’s causes of action in contract, tort and equity are predicated on the finality of that decision excluding TeleZone from participation in the telecommunications market, thereby (it says) causing it financial loss. Nor does TeleZone seek to deprive the Minister’s decision of any legal effect. It does not challenge the licences issued to its competitors. It does not seek to undo what was done. It complains about what was not done, namely fulfilment by Industry Canada of its alleged contractual and equitable duties and its duty of care towards TeleZone itself.
[80] To the extent that TeleZone’s claim can be characterized as a collateral attack on the Minister’s order (i.e., because the order failed to include TeleZone), I conclude, for the reasons discussed, that the grant of concurrent jurisdiction to determine claims against the Crown to the provincial superior courts negates any inference the Crown seeks to draw that Parliament intended the detour to the Federal Court advocated by Grenier. The TeleZone claim as pleaded is dominated by private law considerations. In a different case, on different facts, the Attorney General is free to raise “collateral attack” as a defence and the superior court will consider and deal with it.
V. Disposition
[81] The Superior Court of Ontario has jurisdiction over the parties and the subject matter, and has the power to grant the remedy of damages. There is nothing in the Federal Courts Act to prevent the Ontario Superior Court from adjudicating this claim. I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitor for the appellant: Attorney General of Canada, Ottawa.
Solicitors for the respondent: Stikeman Elliott, Toronto.
--------------------------------------------------------------------------------
[1] The Attorney General’s principal argument was filed in the companion case of Canada (Attorney General) v. McArthur, 2010 SCC 63, and references herein are to that factum unless otherwise noted.
Tuesday, January 18, 2011
Monday, January 17, 2011
Predictions about the upcoming year in technology law and policy in Canada are particularly challenging given the prospect of a possible election
Predictions about the upcoming year in technology law and policy in Canada are particularly challenging given the prospect of a possible election. While there is no shortage of potential new laws – bills on privacy, copyright and lawful access are all before the House of Commons – an election call before the fall would likely mean that those bills would die on the order paper.
With political uncertainty clouding even the best crystal ball, the Supreme Court of Canada is set to emerge this year as the place where much of the action will take place. Canada’s highest court has lined up a tech-heavy docket that will have a major impact Canadian law.
First up is a series of decisions arising from hearings last fall. These include Masterpiece Inc. v. Alavida Lifestyles Inc., a trademark law case that raises questions about the standard for likelihood of confusion between two competing trademarks.
There are also several cases involving access to government information under the Access to Information Act. With the mounting interest in open government and access to public documents, the cases will help identify how far the current legislation extends.
The most anticipated Internet law decision is Crookes v. Newton, a case that will determine the potential liability for hyperlinking. Given the widespread use of links in emails, webpages, Facebook updates and Twitter postings, the prospect of being held legally responsible for the content on the page being linked to could have a chilling effect on Internet speech.
The court has already agreed to address at least two additional cases this year with major implications for the Internet. In March, it will be asked to consider the limits of Internet jurisdiction in an appeal of Black v. Breeden, Conrad Black’s lawsuit over postings such as press releases and reports on the Hollinger International Inc. website that he claims were defamatory.
When Black sued the company’s directors, advisers and one company employee for defamation in Ontario, the defendants in the case brought a motion to dismiss on jurisdictional grounds, arguing that the province was not the appropriate venue for the case since both Hollinger and Black are located in the U.S.
In a unanimous decision issued last summer, the Ontario Court of Appeal sided with Black, noting that the press releases posted on the Internet specifically provided contact information for Canadian media and that the company “clearly anticipated that the statements would be read by a Canadian audience and invited Canadian media to respond.”
Later this year, the court will hear at least one case that examines the scope of the Copyright Act’s fair dealing provision. At issue is whether “research” within fair dealing can be extended to song previews that are made available on sites like iTunes where a consumer can freely listen to roughly 30 seconds of a song.
The Copyright Board of Canada ruled in 2007 that a broad and liberal interpretation of fair dealing meant that it could be included since the preview was effectively consumer research on whether to purchase the song. The Federal Court of Appeal affirmed the Copyright Board’s interpretation last May, opening the door to many other consumer research possibilities under the current fair dealing provision.
With a second fair dealing case involving copying in schools also a distinct possibility for a high court hearing, the Supreme Court is set to play a lead role in technology law in 2011 regardless of what transpires on the political front.
With political uncertainty clouding even the best crystal ball, the Supreme Court of Canada is set to emerge this year as the place where much of the action will take place. Canada’s highest court has lined up a tech-heavy docket that will have a major impact Canadian law.
First up is a series of decisions arising from hearings last fall. These include Masterpiece Inc. v. Alavida Lifestyles Inc., a trademark law case that raises questions about the standard for likelihood of confusion between two competing trademarks.
There are also several cases involving access to government information under the Access to Information Act. With the mounting interest in open government and access to public documents, the cases will help identify how far the current legislation extends.
The most anticipated Internet law decision is Crookes v. Newton, a case that will determine the potential liability for hyperlinking. Given the widespread use of links in emails, webpages, Facebook updates and Twitter postings, the prospect of being held legally responsible for the content on the page being linked to could have a chilling effect on Internet speech.
The court has already agreed to address at least two additional cases this year with major implications for the Internet. In March, it will be asked to consider the limits of Internet jurisdiction in an appeal of Black v. Breeden, Conrad Black’s lawsuit over postings such as press releases and reports on the Hollinger International Inc. website that he claims were defamatory.
When Black sued the company’s directors, advisers and one company employee for defamation in Ontario, the defendants in the case brought a motion to dismiss on jurisdictional grounds, arguing that the province was not the appropriate venue for the case since both Hollinger and Black are located in the U.S.
In a unanimous decision issued last summer, the Ontario Court of Appeal sided with Black, noting that the press releases posted on the Internet specifically provided contact information for Canadian media and that the company “clearly anticipated that the statements would be read by a Canadian audience and invited Canadian media to respond.”
Later this year, the court will hear at least one case that examines the scope of the Copyright Act’s fair dealing provision. At issue is whether “research” within fair dealing can be extended to song previews that are made available on sites like iTunes where a consumer can freely listen to roughly 30 seconds of a song.
The Copyright Board of Canada ruled in 2007 that a broad and liberal interpretation of fair dealing meant that it could be included since the preview was effectively consumer research on whether to purchase the song. The Federal Court of Appeal affirmed the Copyright Board’s interpretation last May, opening the door to many other consumer research possibilities under the current fair dealing provision.
With a second fair dealing case involving copying in schools also a distinct possibility for a high court hearing, the Supreme Court is set to play a lead role in technology law in 2011 regardless of what transpires on the political front.
Sunday, January 16, 2011
Breakaway members of Anglican churches in B.C. opposed to same-sex blessings want to take their battle over church buildings and bank accounts to the Supreme Court of Canada.
Breakaway members of Anglican churches in B.C. opposed to same-sex blessings want to take their battle over church buildings and bank accounts to the Supreme Court of Canada.
Earlier this week, the group filed an application for leave to appeal to the high court.
The group has lost at the two lower court levels in British Columbia, but its lawyer, Cheryl Chang, said there remain many questions for the Supreme Court to answer.
"If any congregation splits over theological differences, the question that we're raising for the Supreme Court of Canada is, what do you do in this post-modern, secularized environment?" Chang said.
"Does the court say always that you have to pick a winner or loser? Or does the court have the ability to … go in and basically divide the assets as you would in any divorce situation?"
Chang represents four Vancouver-area churches that split with the mainstream church mainly over the issue of same-sex blessings.
The clergy in the four churches in court — three in Vancouver and one in suburban Abbotsford — resigned from the Anglican Church of Canada, but have remained in their parishes ministering to their congregations.
Battle forces church to cut back
In a ruling last November, the B.C. Court of Appeal agreed with a lower court that the dissidents couldn't take over ownership of their buildings and bank accounts.
After the ruling, the Diocese of New Westminster indicated the clergy would have to vacate the buildings, though Bishop Michael Ingham has been careful to note that no parishioners have been asked to leave.
In a statement released Friday, Ingham said he was "saddened" by the decision to appeal.
He said the "unnecessary dispute" has forced the church to cut back its work with patients at Vancouver hospitals and in the North.
Ingham urged the church trustees and leaders of the four congregations to meet with him.
Chang said her group is not prepared to discuss the replacement of their clergy, and accused Ingham of wanting to "appoint clergy that will be loyal to him."
However, the diocese hasn't moved to get an injunction to kick the dissidents out and the dissidents haven't asked for a court injunction to prevent the diocese from doing so.
Chang said that if the Supreme Court refuses to hear the dissidents' appeal or if the group loses its appeal, then the fight is over and the clergy will vacate the buildings.
Read more:
http://www.cbc.ca/canada/british-columbia/story/2011/01/15/bc-anglican-supreme-court.html
Earlier this week, the group filed an application for leave to appeal to the high court.
The group has lost at the two lower court levels in British Columbia, but its lawyer, Cheryl Chang, said there remain many questions for the Supreme Court to answer.
"If any congregation splits over theological differences, the question that we're raising for the Supreme Court of Canada is, what do you do in this post-modern, secularized environment?" Chang said.
"Does the court say always that you have to pick a winner or loser? Or does the court have the ability to … go in and basically divide the assets as you would in any divorce situation?"
Chang represents four Vancouver-area churches that split with the mainstream church mainly over the issue of same-sex blessings.
The clergy in the four churches in court — three in Vancouver and one in suburban Abbotsford — resigned from the Anglican Church of Canada, but have remained in their parishes ministering to their congregations.
Battle forces church to cut back
In a ruling last November, the B.C. Court of Appeal agreed with a lower court that the dissidents couldn't take over ownership of their buildings and bank accounts.
After the ruling, the Diocese of New Westminster indicated the clergy would have to vacate the buildings, though Bishop Michael Ingham has been careful to note that no parishioners have been asked to leave.
In a statement released Friday, Ingham said he was "saddened" by the decision to appeal.
He said the "unnecessary dispute" has forced the church to cut back its work with patients at Vancouver hospitals and in the North.
Ingham urged the church trustees and leaders of the four congregations to meet with him.
Chang said her group is not prepared to discuss the replacement of their clergy, and accused Ingham of wanting to "appoint clergy that will be loyal to him."
However, the diocese hasn't moved to get an injunction to kick the dissidents out and the dissidents haven't asked for a court injunction to prevent the diocese from doing so.
Chang said that if the Supreme Court refuses to hear the dissidents' appeal or if the group loses its appeal, then the fight is over and the clergy will vacate the buildings.
Read more:
http://www.cbc.ca/canada/british-columbia/story/2011/01/15/bc-anglican-supreme-court.html
Saturday, January 15, 2011
Get the flu shot ASAP!.
The lacklustre response from Canadians to this year's flu shot may be connected to the H1N1 vaccine blitz, but it's increasing concerns about the impact the flu season will have on the country's health systems.
Southern Ontario has been hard hit by the flu in recent weeks.
Toronto-area emergency rooms are already coping with patient loads as much as 40% higher than normal, prompting the province's health minister to urge residents to get the flu shot.
Final tallies for this year's flu shots won't be available until spring, but so far anecdotal evidence suggests attendance at free vaccine clinics is down to about 20-24%, said David Jensen, spokesman for the Ontario health ministry. Usual uptake in Ontario is 30-35%.
Many health officials say the lagging response to this season's vaccine is likely partially related to the frenzy around the swine flu, which prompted a massive H1N1 vaccine program in the fall of 2009.
“I'm not surprised that people feel a little bit cynical,” said Ontario's former chief medical officer Dr. Richard Schabas. “There were some people who oversold the H1N1 vaccine. When you cry wolf, the danger is the next time you cry wolf people aren't going to listen."
While some people may have "vaccine fatigue," others mistakenly think the H1N1 shot is still protecting them for this flu season, said Dr. Jessica
Hopkins, associate medical officer of health in Ontario's Niagara region.
This year's vaccine inoculates against H3N2, which will put most infected people out of commission for 5-10 days, and two other strains. Older people don't have an immunity to this year's flu strain, as they did with H1N1.
The Public Health Agency of Canada estimates an average of 20,000 people are hospitalized and 2,000 to 8,000 die as a result of flu-related complications annually.
But the actual impact of this year's season could be much more significant, said Dr. Anil Chopra, medical director of emergency medicine at University Health Network.
ER staff are dealing with overcrowded conditions, struggling to get patients timely treatment and beds if needed, Chopra said.
A low-level of flu activity was recorded in the fall but it has begun to spike over the past couple weeks — hitting earlier and spiking by up to 40% compared to previous years, according to health officials.
"This is no time to be complacent," said Dr. David Williams, Ontario’s associate chief medical officer of health. "Influenza is a serious, acute respiratory illness that can cause lost time at work or school, a slow recovery, and in some cases, even hospitalization.”
Flu symptoms include fever and chills, coughing, headaches, muscle aches, a runny nose, a sore throat and exhaustion.
Manitoba Health is also still encouraging anyone who hasn't yet got the shot to get vaccinated heading into the second half of the flu season, which typically spans from November to April. The province has also seen a significant spike in reported flu cases, hospital wait times and reported flu-related deaths.
“The more that are vaccinated, the faster the virus comes to an end,” said Dr. Joel Kettner, Manitoba's chief public health officer.
Even people who have already gone through a bout of flu-like symptoms shouldn't be lulled into thinking they are now immune, officials said.
The elderly, pregnant women, young children and people with pre-existing health conditions such as diabetes, heart, lung and kidney disease are especially encouraged to get vaccinated.
Officials say vaccination remains the best protection, but Canadians should also be regularly washing their hands, covering their coughs and staying home when ill.
Southern Ontario has been hard hit by the flu in recent weeks.
Toronto-area emergency rooms are already coping with patient loads as much as 40% higher than normal, prompting the province's health minister to urge residents to get the flu shot.
Final tallies for this year's flu shots won't be available until spring, but so far anecdotal evidence suggests attendance at free vaccine clinics is down to about 20-24%, said David Jensen, spokesman for the Ontario health ministry. Usual uptake in Ontario is 30-35%.
Many health officials say the lagging response to this season's vaccine is likely partially related to the frenzy around the swine flu, which prompted a massive H1N1 vaccine program in the fall of 2009.
“I'm not surprised that people feel a little bit cynical,” said Ontario's former chief medical officer Dr. Richard Schabas. “There were some people who oversold the H1N1 vaccine. When you cry wolf, the danger is the next time you cry wolf people aren't going to listen."
While some people may have "vaccine fatigue," others mistakenly think the H1N1 shot is still protecting them for this flu season, said Dr. Jessica
Hopkins, associate medical officer of health in Ontario's Niagara region.
This year's vaccine inoculates against H3N2, which will put most infected people out of commission for 5-10 days, and two other strains. Older people don't have an immunity to this year's flu strain, as they did with H1N1.
The Public Health Agency of Canada estimates an average of 20,000 people are hospitalized and 2,000 to 8,000 die as a result of flu-related complications annually.
But the actual impact of this year's season could be much more significant, said Dr. Anil Chopra, medical director of emergency medicine at University Health Network.
ER staff are dealing with overcrowded conditions, struggling to get patients timely treatment and beds if needed, Chopra said.
A low-level of flu activity was recorded in the fall but it has begun to spike over the past couple weeks — hitting earlier and spiking by up to 40% compared to previous years, according to health officials.
"This is no time to be complacent," said Dr. David Williams, Ontario’s associate chief medical officer of health. "Influenza is a serious, acute respiratory illness that can cause lost time at work or school, a slow recovery, and in some cases, even hospitalization.”
Flu symptoms include fever and chills, coughing, headaches, muscle aches, a runny nose, a sore throat and exhaustion.
Manitoba Health is also still encouraging anyone who hasn't yet got the shot to get vaccinated heading into the second half of the flu season, which typically spans from November to April. The province has also seen a significant spike in reported flu cases, hospital wait times and reported flu-related deaths.
“The more that are vaccinated, the faster the virus comes to an end,” said Dr. Joel Kettner, Manitoba's chief public health officer.
Even people who have already gone through a bout of flu-like symptoms shouldn't be lulled into thinking they are now immune, officials said.
The elderly, pregnant women, young children and people with pre-existing health conditions such as diabetes, heart, lung and kidney disease are especially encouraged to get vaccinated.
Officials say vaccination remains the best protection, but Canadians should also be regularly washing their hands, covering their coughs and staying home when ill.
Friday, January 14, 2011
Alberta’s Information and Privacy commissioner publicly castigated the government of Premier Ed Stelmach
EDMONTON — Alberta’s Information and Privacy commissioner publicly castigated the government of Premier Ed Stelmach Thursday for failing to keep an election promise to foster accountable and transparent government.
Frank Work issued the rebuke in the opening message to his most recent annual report, which was distributed to MLAs on Thursday afternoon.
“People who want our votes . . . espouse accountability and transparency. The first of Premier Stelmach’s five priorities when he ran for election in 2006 was to govern with integrity and transparency,” Mr. Work said in the two-page message.
“I cannot let this occasion pass without commenting on what I see as a lack of leadership at the provincial level with respect to access to information,” he said. “ . . . What I do not see, for the most part, is leadership at the political level in terms of getting information out, being proactive and fostering a culture of openness.”
Mr. Work suggested government employees responsible for releasing information are routinely grilled by deputy ministers who take a long time to sign off on access requests.
In particular, he said, the government delays releasing information requested by journalists.
“If [civil servants] perceive that access to information is frowned upon or that the unwritten rule is to be extra cautious, we will act accordingly,” he said. “It is a matter of leadership. It is a matter of those who promise transparency delivering on the promise and it is as simple as sending the instruction down the ranks. It is the difference between a culture of secrecy and a culture of openness. If you are going to promise transparency then embrace it.”
Read more: http://www.nationalpost.com/news/canada/Stelmach+rebuked+over+Alberta+government+secrecy/4105392/story.html#ixzz1Az1so2IE
Frank Work issued the rebuke in the opening message to his most recent annual report, which was distributed to MLAs on Thursday afternoon.
“People who want our votes . . . espouse accountability and transparency. The first of Premier Stelmach’s five priorities when he ran for election in 2006 was to govern with integrity and transparency,” Mr. Work said in the two-page message.
“I cannot let this occasion pass without commenting on what I see as a lack of leadership at the provincial level with respect to access to information,” he said. “ . . . What I do not see, for the most part, is leadership at the political level in terms of getting information out, being proactive and fostering a culture of openness.”
Mr. Work suggested government employees responsible for releasing information are routinely grilled by deputy ministers who take a long time to sign off on access requests.
In particular, he said, the government delays releasing information requested by journalists.
“If [civil servants] perceive that access to information is frowned upon or that the unwritten rule is to be extra cautious, we will act accordingly,” he said. “It is a matter of leadership. It is a matter of those who promise transparency delivering on the promise and it is as simple as sending the instruction down the ranks. It is the difference between a culture of secrecy and a culture of openness. If you are going to promise transparency then embrace it.”
Read more: http://www.nationalpost.com/news/canada/Stelmach+rebuked+over+Alberta+government+secrecy/4105392/story.html#ixzz1Az1so2IE
Thursday, January 13, 2011
Supreme Court of Canada has a busy calendar in 2011.
• Ross Barros v. Her Majesty the Queen: The private investigator from Alberta is appealing his obstruction of justice and extortion charges for trying to identify an informant outside of court who helped police lay drug and gun charges against Barros’s client. To be heard on Jan. 25.
• Bernard Gerardus, Maria Berendsen et. al v. Her Majesty the Queen in Right of Ontario: A farming family is taking the Ontario government to court for dumping waste asphalt on an area that, 20 years later, the family claims contaminated drinking water for their cows, and for which the provincial government claims it is not responsible. To be heard on Jan. 28.
• Robert Katigbak v. Her Majesty the Queen: Mr. Katigbak was convicted on child pornography charges, but he claims he kept over 650 photos and videos of child pornography — some depicting actual abuse — on the basis of “artistic merit” because they were background information for an art gallery exhibit. To be heard on Feb. 21.
• Richard C. Breeden, et al. v. Conrad Black: The case raises the issue of jurisdiction when it comes to Internet defamation. Lord Black claims he was libelled online and his reputation was subsequently damaged in Ontario, which is where he has brought forward his lawsuit. To be heard on March 22.
• Gilles Doré v. Pierre Bernard and Barreau du Quebec: Mr. Doré was disbarred for 21 days after he wrote a strongly-worded letter to a case judge — which effectively translates into Dore calling him arrogant, hateful, mean and an “odious being” — but said it was a personal, not professional, opinion. How does the code of ethics limit what a lawyer can do? To be heard Jan. 26.
Read more: http://www.nationalpost.com/news/Social+costs+smoking+busy+Supreme+Court+calendar/4087748/story.html#ixzz1AtEJdXt2
• Bernard Gerardus, Maria Berendsen et. al v. Her Majesty the Queen in Right of Ontario: A farming family is taking the Ontario government to court for dumping waste asphalt on an area that, 20 years later, the family claims contaminated drinking water for their cows, and for which the provincial government claims it is not responsible. To be heard on Jan. 28.
• Robert Katigbak v. Her Majesty the Queen: Mr. Katigbak was convicted on child pornography charges, but he claims he kept over 650 photos and videos of child pornography — some depicting actual abuse — on the basis of “artistic merit” because they were background information for an art gallery exhibit. To be heard on Feb. 21.
• Richard C. Breeden, et al. v. Conrad Black: The case raises the issue of jurisdiction when it comes to Internet defamation. Lord Black claims he was libelled online and his reputation was subsequently damaged in Ontario, which is where he has brought forward his lawsuit. To be heard on March 22.
• Gilles Doré v. Pierre Bernard and Barreau du Quebec: Mr. Doré was disbarred for 21 days after he wrote a strongly-worded letter to a case judge — which effectively translates into Dore calling him arrogant, hateful, mean and an “odious being” — but said it was a personal, not professional, opinion. How does the code of ethics limit what a lawyer can do? To be heard Jan. 26.
Read more: http://www.nationalpost.com/news/Social+costs+smoking+busy+Supreme+Court+calendar/4087748/story.html#ixzz1AtEJdXt2
Tuesday, January 11, 2011
RCMP slash its air marshals program providing security on airplanes ! : This is NOT GOOD
The RCMP is expecting international criticism in the wake of its decision to dramatically slash its air marshals program providing security on airplanes and it has already been warned by pilots that the move will jeopardize the safety of passengers from radical terrorists, Postmedia News has learned.
The program, established in 2002 after the 9/11 attacks, involves specially trained covert Mounties who blend in with regular passengers on selected domestic and international flights.
Known as "inflight security officers," they carry semi-automatic handguns, are trained for fighting in closed quarters, and are seen as the last line of defence against suicidal hijackers or bombers.
The plainclothes air marshals are part of the Canadian Air Carrier Protective Program, and news leaked out through the RCMP's union last October that the program was about to be hit with a 25% budget cut in the wake of a "strategic review" by the government's Treasury Board.
Documents obtained by Postmedia News through the Access to Information Act reveal internal memos describing how the cuts will occur, how the Mounties are briefing Public Safety Minister Vic Toews, and how the police and cabinet ministers are receiving some dire warnings about the consequences of the cutbacks.
The Mounties' briefing note to Toews explains that the air marshals program is seen as a "world leader" of its type and that it has been successful through a "combination of operation, intelligence and analysis activities."
"International partners were made aware of the funding reduction to the Canadian Air Carrier Protective Program," Toews was advised. "The RCMP anticipates a negative response from American and international partners."
In late October, RCMP Commissioner William Elliott received a strongly worded letter from the Air Line Pilots Association (International), urging him to halt the cuts to the air marshals program. The pilots wrote that since its inception, the program has proven to be one of Canada's most effective deterrents in countering the threat posed by "radical terrorists."
They added that the cuts are "difficult to comprehend" because global intelligence reports continue to indicate that aviation remains a primary target for terrorists.
"Because terrorists are intelligent, adaptive adversaries who are known to repeat their success and to be persistent in correcting their failures, the decision is even more puzzling," says the letter, also sent to Toews and Transport Minister Chuck Strahl.
"It is our opinion that the decision to make these CACPP staffing reductions is not only highly inadvisable, but is, in fact, a serious mistake that significantly jeopardizes the security and safety of airline travellers in particular and public safety in general, not only in Canada, but in other countries as well."
According to the documents obtained by Postmedia News, Greg Browning, the RCMP officer in charge of the program, informed fellow staff of the change through an e-mail last September that acknowledged the cuts would have an effect on the "morale" of those within the program, which was being cut by $12.1 million as of April 1, 2011.
Read more: http://www.canada.com/news/RCMP+expects+criticism+marshal+cuts/4091982/story.html#ixzz1Al2Fm8IO
The program, established in 2002 after the 9/11 attacks, involves specially trained covert Mounties who blend in with regular passengers on selected domestic and international flights.
Known as "inflight security officers," they carry semi-automatic handguns, are trained for fighting in closed quarters, and are seen as the last line of defence against suicidal hijackers or bombers.
The plainclothes air marshals are part of the Canadian Air Carrier Protective Program, and news leaked out through the RCMP's union last October that the program was about to be hit with a 25% budget cut in the wake of a "strategic review" by the government's Treasury Board.
Documents obtained by Postmedia News through the Access to Information Act reveal internal memos describing how the cuts will occur, how the Mounties are briefing Public Safety Minister Vic Toews, and how the police and cabinet ministers are receiving some dire warnings about the consequences of the cutbacks.
The Mounties' briefing note to Toews explains that the air marshals program is seen as a "world leader" of its type and that it has been successful through a "combination of operation, intelligence and analysis activities."
"International partners were made aware of the funding reduction to the Canadian Air Carrier Protective Program," Toews was advised. "The RCMP anticipates a negative response from American and international partners."
In late October, RCMP Commissioner William Elliott received a strongly worded letter from the Air Line Pilots Association (International), urging him to halt the cuts to the air marshals program. The pilots wrote that since its inception, the program has proven to be one of Canada's most effective deterrents in countering the threat posed by "radical terrorists."
They added that the cuts are "difficult to comprehend" because global intelligence reports continue to indicate that aviation remains a primary target for terrorists.
"Because terrorists are intelligent, adaptive adversaries who are known to repeat their success and to be persistent in correcting their failures, the decision is even more puzzling," says the letter, also sent to Toews and Transport Minister Chuck Strahl.
"It is our opinion that the decision to make these CACPP staffing reductions is not only highly inadvisable, but is, in fact, a serious mistake that significantly jeopardizes the security and safety of airline travellers in particular and public safety in general, not only in Canada, but in other countries as well."
According to the documents obtained by Postmedia News, Greg Browning, the RCMP officer in charge of the program, informed fellow staff of the change through an e-mail last September that acknowledged the cuts would have an effect on the "morale" of those within the program, which was being cut by $12.1 million as of April 1, 2011.
Read more: http://www.canada.com/news/RCMP+expects+criticism+marshal+cuts/4091982/story.html#ixzz1Al2Fm8IO
Marriage Commissioners Reference, 2011 SKCA 3 : The Court of Appeal for Saskatchewan has released its decision in the “Marriage Commissioners Reference”.
Case commentaries provided by the Saskatchewan Courts]
January 10, 2011
Marriage Commissioners Reference, 2011 SKCA 3
The Court of Appeal for Saskatchewan has released its decision in the “Marriage Commissioners Reference”. The case concerns the constitutional validity of possible legislative amendments that would allow marriage commissioners to refuse to perform same-sex marriage ceremonies.
In 2005, Parliament enacted a law redefining marriage to include same-sex unions. This led some marriage commissioners in Saskatchewan to refuse to solemnize such marriages on religious grounds. As a result, there were various proceedings under The Saskatchewan Human Rights Code and a civil action in the Court of Queen’s Bench. Against this background, the provincial government requested the Court of Appeal’s opinion on the constitutional validity of two possible amendments to The Marriage Act, 1995. Both would allow a commissioner to decline to solemnize a marriage if performing the ceremony would be contrary to his or her religious beliefs. In its reasons for decision, the Court said either option, if enacted, would be unconstitutional because it would violate the equality rights of gay and lesbian individuals and would not be a reasonable and justifiable breach of those rights.
The reasoning of the Court is grounded in section 15(1) of the Charter. This provision prohibits discrimination based on various characteristics including sexual orientation. The Court ruled that a law empowering marriage commissioners to deny their services to gay and lesbian individuals would clearly violate section 15(1) as it would treat them differently than other people and would do so in a discriminatory fashion based on their sexual orientation.
The key issue in the case, according to the Court, was whether this violation of rights could be justified as being reasonable within the special meaning of that term as it is used in section 1 of the Charter. In this regard, the Court held that accommodating the religious beliefs of marriage commissioners could not justify discrimination against gay and lesbian couples. The Court emphasized that marriage commissioners act as government officials, not private individuals, when they perform marriage ceremonies. It also pointed out that the obligation to solemnize same-sex marriages does not affect or interfere with the core elements of a commissioner’s religious freedom: the freedom to hold beliefs and the freedom to worship. In addition, the Court underlined that allowing marriage commissioners to withhold their services because of personal religious convictions would undercut the fundamental principle that government services must be provided to all members of the public on an impartial and non-discriminatory basis.
For further information contact Lian Schwann, Q.C., Registrar of the Court of Appeal at (306) 787-5382.
January 10, 2011
Marriage Commissioners Reference, 2011 SKCA 3
The Court of Appeal for Saskatchewan has released its decision in the “Marriage Commissioners Reference”. The case concerns the constitutional validity of possible legislative amendments that would allow marriage commissioners to refuse to perform same-sex marriage ceremonies.
In 2005, Parliament enacted a law redefining marriage to include same-sex unions. This led some marriage commissioners in Saskatchewan to refuse to solemnize such marriages on religious grounds. As a result, there were various proceedings under The Saskatchewan Human Rights Code and a civil action in the Court of Queen’s Bench. Against this background, the provincial government requested the Court of Appeal’s opinion on the constitutional validity of two possible amendments to The Marriage Act, 1995. Both would allow a commissioner to decline to solemnize a marriage if performing the ceremony would be contrary to his or her religious beliefs. In its reasons for decision, the Court said either option, if enacted, would be unconstitutional because it would violate the equality rights of gay and lesbian individuals and would not be a reasonable and justifiable breach of those rights.
The reasoning of the Court is grounded in section 15(1) of the Charter. This provision prohibits discrimination based on various characteristics including sexual orientation. The Court ruled that a law empowering marriage commissioners to deny their services to gay and lesbian individuals would clearly violate section 15(1) as it would treat them differently than other people and would do so in a discriminatory fashion based on their sexual orientation.
The key issue in the case, according to the Court, was whether this violation of rights could be justified as being reasonable within the special meaning of that term as it is used in section 1 of the Charter. In this regard, the Court held that accommodating the religious beliefs of marriage commissioners could not justify discrimination against gay and lesbian couples. The Court emphasized that marriage commissioners act as government officials, not private individuals, when they perform marriage ceremonies. It also pointed out that the obligation to solemnize same-sex marriages does not affect or interfere with the core elements of a commissioner’s religious freedom: the freedom to hold beliefs and the freedom to worship. In addition, the Court underlined that allowing marriage commissioners to withhold their services because of personal religious convictions would undercut the fundamental principle that government services must be provided to all members of the public on an impartial and non-discriminatory basis.
For further information contact Lian Schwann, Q.C., Registrar of the Court of Appeal at (306) 787-5382.
Monday, January 10, 2011
Good News!! LGBT Canada! : Marriage officials can't refuse gays: Sask. court.
Saskatchewan's highest court has ruled that marriage commissioners who are public servants cannot refuse to marry same-sex couples.
The decision by the Saskatchewan Court of Appeal rejects two proposals from the provincial government that would allow some or all marriage commissioners to refuse to perform a service involving gay or lesbian partners if it offended their religious beliefs.
The government proposed that marriage commissioners who were employed before the law changed in 2004 could refuse to perform the services. It also proposed a second option where all marriage commissioners could refuse.
But the court noted that marriage commissioners are appointed by the government to perform non-religious ceremonies and are the only option for some same-sex couples seeking to tie the knot.
Lawyers appointed to argue that the proposals were constitutional said that if anyone was refused a marriage service, it would be easy to find another commissioner who would perform the same service. The court of appeal said the proposals were "contrary to fundamental principles of equality in a democratic society" and rejected both options.
"Both of the possible amendments offend the Canadian Charter of Rights and Freedoms. Either of them, if enacted, would violate the equality rights of gay and lesbian individuals," Justice Robert Richards said in the ruling, supported by justices John Klebuc, Ralph Ottenbreit, Gene Ann Smith and William Vancise.
Implications cited
Richards also expressed concern that if marriage commissioners were allowed to opt out of services, they might also do so because they object to interfaith marriages or interracial marriages.
The case has its roots in a 2004 Supreme Court of Canada decision affirming the validity of same-sex marriages.
That decision and subsequent legal changes led some marriage commissioners in Saskatchewan to refuse to solemnize same-sex marriages, saying it was a violation of their personal religious beliefs.
One of those commissioners, Orville Nichols, had a human rights complaint filed against him by a same-sex couple. A tribunal under the Saskatchewan Human Rights Commission upheld the complaint.
Among those praising Monday's decision was the Saskatchewan Federation of Labour, one of the interveners in the case.
"This is a very important decision," Donna Smith, a member of the SFL's solidarity and pride committee, said in a release. "An important precedent has now been set that will help to deter discrimination against same-sex couples that wish to marry."
Read more: http://www.cbc.ca/canada/saskatchewan/story/2011/01/10/sk-marriage-commissioners-1101.html#socialcomments#ixzz1Af5spYKG
The decision by the Saskatchewan Court of Appeal rejects two proposals from the provincial government that would allow some or all marriage commissioners to refuse to perform a service involving gay or lesbian partners if it offended their religious beliefs.
The government proposed that marriage commissioners who were employed before the law changed in 2004 could refuse to perform the services. It also proposed a second option where all marriage commissioners could refuse.
But the court noted that marriage commissioners are appointed by the government to perform non-religious ceremonies and are the only option for some same-sex couples seeking to tie the knot.
Lawyers appointed to argue that the proposals were constitutional said that if anyone was refused a marriage service, it would be easy to find another commissioner who would perform the same service. The court of appeal said the proposals were "contrary to fundamental principles of equality in a democratic society" and rejected both options.
"Both of the possible amendments offend the Canadian Charter of Rights and Freedoms. Either of them, if enacted, would violate the equality rights of gay and lesbian individuals," Justice Robert Richards said in the ruling, supported by justices John Klebuc, Ralph Ottenbreit, Gene Ann Smith and William Vancise.
Implications cited
Richards also expressed concern that if marriage commissioners were allowed to opt out of services, they might also do so because they object to interfaith marriages or interracial marriages.
The case has its roots in a 2004 Supreme Court of Canada decision affirming the validity of same-sex marriages.
That decision and subsequent legal changes led some marriage commissioners in Saskatchewan to refuse to solemnize same-sex marriages, saying it was a violation of their personal religious beliefs.
One of those commissioners, Orville Nichols, had a human rights complaint filed against him by a same-sex couple. A tribunal under the Saskatchewan Human Rights Commission upheld the complaint.
Among those praising Monday's decision was the Saskatchewan Federation of Labour, one of the interveners in the case.
"This is a very important decision," Donna Smith, a member of the SFL's solidarity and pride committee, said in a release. "An important precedent has now been set that will help to deter discrimination against same-sex couples that wish to marry."
Read more: http://www.cbc.ca/canada/saskatchewan/story/2011/01/10/sk-marriage-commissioners-1101.html#socialcomments#ixzz1Af5spYKG
The Saskatchewan Court of Appeal is to release its opinion Monday on the thorny issue of what to do when a marriage commissioner says “I don’t” to gay couples seeking wedding .
REGINA — The Saskatchewan Court of Appeal is to release its opinion Monday on the thorny issue of what to do when a marriage commissioner says “I don’t” to gay couples seeking wedding services.
Five judges of the province’s top court have been mulling over the constitutional question since May. Two days were spent hearing legal arguments examining the religious rights of marriage commissioners and the equality rights of same-sex couples.
“The case is significant on the very issue itself,” noted John Whyte, a constitutional expert and former provincial deputy justice minister, in a recent interview. “The case also opens the door — a much wider door — on the question of accommodation of religious needs.”
He suspects that if the court allows for accommodation of the marriage commissioners’ religious views, the decision will likely try to narrow the application to that specific situation.
“But it has some impact on the general question of accommodation of religious belief in public servants and public service generally. That’s what’s at stake here in a conceptual way, and so the case has that significance,” Whyte added.
The court was asked to wade into the contentious legal territory by the provincial government, seeking advice on two versions of a proposed law.
It’s the first time in 20 years the province has used the Constitutional Questions Act to seek an opinion from the Saskatchewan Court of Appeal, the last being in 1990 on electoral boundaries.
Whyte explained that reference cases are advisory, so the province isn’t technically legally bound to follow the court’s advice. But he noted that from a more practical standpoint, such advice is often followed.
“I would be very surprised if the government didn’t just go along with the court’s decision,” Whyte said.
The government asked the court to consider two draft bills: One allowing all marriage commissioners to refuse to perform civil marriage ceremonies that are contrary to their religious beliefs, and another that would grant the exemption only to those commissioners who held office when gay marriage was legalized in November 2004.
The Saskatchewan Party government is on record supporting a law that would accommodate marriage commissioners’ religious beliefs. However, Justice Minister Don Morgan told reporters in May, prior to the hearing, that if the court found both draft bills unconstitutional, the government would tell marriage commissioners they are obliged to perform same-sex marriages. There are some 300 marriage commissioners in Saskatchewan.
The government appointed Regina lawyer Mike Megaw to argue in favour of the draft laws and Saskatoon lawyer Reynold Robertson to argue against their constitutionality. In addition, 10 lawyers representing 18 groups and individuals — including the Saskatchewan Human Rights Commission, churches, unions, gay rights activists, and three marriage commissioners — were granted intervener status, so they too could give their position.
With the issue considered by five judges, a split by the court is possible.
If the court finds the proposed laws constitutional, Whyte suspects the judges will offer some suggestions about accommodating the marriage commissioners’ religious beliefs while still preventing insult to gay couples.
The issue came to the fore in 2008 when a Saskatchewan Human Rights Tribunal found longtime Regina marriage commissioner Orville Nichols violated the province’s human rights code by refusing to marry a gay couple.
Several other provinces are wrestling with the same issue. Although the Saskatchewan court’s decision could have some “persuasive impact,” it wouldn’t have any legal effect in the other provinces, Whyte said.
Read more: http://www.leaderpost.com/life/Sask+Appeal+Court+reveal+opinion+refusing+couples/4083419/story.html#ixzz1Abb3vQdu
Five judges of the province’s top court have been mulling over the constitutional question since May. Two days were spent hearing legal arguments examining the religious rights of marriage commissioners and the equality rights of same-sex couples.
“The case is significant on the very issue itself,” noted John Whyte, a constitutional expert and former provincial deputy justice minister, in a recent interview. “The case also opens the door — a much wider door — on the question of accommodation of religious needs.”
He suspects that if the court allows for accommodation of the marriage commissioners’ religious views, the decision will likely try to narrow the application to that specific situation.
“But it has some impact on the general question of accommodation of religious belief in public servants and public service generally. That’s what’s at stake here in a conceptual way, and so the case has that significance,” Whyte added.
The court was asked to wade into the contentious legal territory by the provincial government, seeking advice on two versions of a proposed law.
It’s the first time in 20 years the province has used the Constitutional Questions Act to seek an opinion from the Saskatchewan Court of Appeal, the last being in 1990 on electoral boundaries.
Whyte explained that reference cases are advisory, so the province isn’t technically legally bound to follow the court’s advice. But he noted that from a more practical standpoint, such advice is often followed.
“I would be very surprised if the government didn’t just go along with the court’s decision,” Whyte said.
The government asked the court to consider two draft bills: One allowing all marriage commissioners to refuse to perform civil marriage ceremonies that are contrary to their religious beliefs, and another that would grant the exemption only to those commissioners who held office when gay marriage was legalized in November 2004.
The Saskatchewan Party government is on record supporting a law that would accommodate marriage commissioners’ religious beliefs. However, Justice Minister Don Morgan told reporters in May, prior to the hearing, that if the court found both draft bills unconstitutional, the government would tell marriage commissioners they are obliged to perform same-sex marriages. There are some 300 marriage commissioners in Saskatchewan.
The government appointed Regina lawyer Mike Megaw to argue in favour of the draft laws and Saskatoon lawyer Reynold Robertson to argue against their constitutionality. In addition, 10 lawyers representing 18 groups and individuals — including the Saskatchewan Human Rights Commission, churches, unions, gay rights activists, and three marriage commissioners — were granted intervener status, so they too could give their position.
With the issue considered by five judges, a split by the court is possible.
If the court finds the proposed laws constitutional, Whyte suspects the judges will offer some suggestions about accommodating the marriage commissioners’ religious beliefs while still preventing insult to gay couples.
The issue came to the fore in 2008 when a Saskatchewan Human Rights Tribunal found longtime Regina marriage commissioner Orville Nichols violated the province’s human rights code by refusing to marry a gay couple.
Several other provinces are wrestling with the same issue. Although the Saskatchewan court’s decision could have some “persuasive impact,” it wouldn’t have any legal effect in the other provinces, Whyte said.
Read more: http://www.leaderpost.com/life/Sask+Appeal+Court+reveal+opinion+refusing+couples/4083419/story.html#ixzz1Abb3vQdu
Sunday, January 9, 2011
Internet usage costs to rise in Canada.!
Surfing and downloading from the internet is about to get more expensive for many Canadians as internet companies Shaw and Primus have announced plans to impose new fees and caps on internet usage.
Over the past year, the CRTC, Canada's communication regulator, let Bell and Rogers start charging extra for customers who download a lot of data. The growing demand for live-streaming and online movies gobbles up huge chunks of bandwidth on the World Wide Web.
Primus and Shaw have said they will begin passing on higher fees to their customers beginning Feb. 1. Primus, for example, rents bandwidth on Bell's networks and said Bell is inflating the costs for everyone, including them.
"It's an economic disincentive for internet use," said Matt Stein, vice-president of network services for Primus. "It's not meant to recover costs. In fact these charges that Bell has levied are many, many, many times what it costs to actually deliver it."
Hugh Thompson, who runs the website Digital Home, said he's been hearing growing consumer complaints.
He said more people say they are receiving bills of $5 to $10 a month in penalties — with some complaining their penalties are running as high as $100 — all for their use of iTunes, YouTube and Netflix.
"Their bandwidth has skyrocketed from maybe a gigabyte or two a month to some cases of 200 to 300 gigabytes per month," said Thompson.
"So now that people are using so much bandwidth, the companies are crying foul. They're saying: 'We can't make money off this. We need to charge more.'"
Currently, only a small percentage of users download enough data to hit these new caps. But many fear these fees will soon apply to everyone as the internet becomes more video based.
Read more: http://www.cbc.ca/consumer/story/2011/01/07/internet-expensive-surfing-canadians.html#ixzz1AVx0AscI
Over the past year, the CRTC, Canada's communication regulator, let Bell and Rogers start charging extra for customers who download a lot of data. The growing demand for live-streaming and online movies gobbles up huge chunks of bandwidth on the World Wide Web.
Primus and Shaw have said they will begin passing on higher fees to their customers beginning Feb. 1. Primus, for example, rents bandwidth on Bell's networks and said Bell is inflating the costs for everyone, including them.
"It's an economic disincentive for internet use," said Matt Stein, vice-president of network services for Primus. "It's not meant to recover costs. In fact these charges that Bell has levied are many, many, many times what it costs to actually deliver it."
Hugh Thompson, who runs the website Digital Home, said he's been hearing growing consumer complaints.
He said more people say they are receiving bills of $5 to $10 a month in penalties — with some complaining their penalties are running as high as $100 — all for their use of iTunes, YouTube and Netflix.
"Their bandwidth has skyrocketed from maybe a gigabyte or two a month to some cases of 200 to 300 gigabytes per month," said Thompson.
"So now that people are using so much bandwidth, the companies are crying foul. They're saying: 'We can't make money off this. We need to charge more.'"
Currently, only a small percentage of users download enough data to hit these new caps. But many fear these fees will soon apply to everyone as the internet becomes more video based.
Read more: http://www.cbc.ca/consumer/story/2011/01/07/internet-expensive-surfing-canadians.html#ixzz1AVx0AscI
Saturday, January 8, 2011
Ignatieff’s absence .
Back in the summer, when the long-form census was burning, RCMP senior staff were rebelling, Omar Khadr was languishing, and the head of CSIS was alleging Manchurian candidates were everywhere, a prominent Conservative sighed that some days it felt as though the government was reduced to reacting to events rather than controlling them.
.Those days are fading. This first week of January proved the Conservatives are firmly on top of the political agenda. Under the circumstances, it’s just as well there was no sign of Michael Ignatieff.
Consider this bit of evidence: The Tories may or may not truly believe they can take seats in the Greater Toronto Area from the Liberals in the next election. But the national media believe it, and that’s more important. Pundits universally agreed that Tuesday’s petite cabinet shuffle, elevating Peter Kent to Environment Minister and putting Julian Fantino in the seniors portfolio, proved that the Conservatives are on the warpath in the 905.
This reasoning, which could wildly inflate the Tories’ real prospects in the region, nonetheless puts the Liberals on the defensive by making them look vulnerable. The Grits aren’t really dominant anywhere in the country other than Toronto and environs. If those walls fall, then what’s left?
The Liberals indignantly reply that those walls won’t fall, that it’s the Conservatives who should be worried about swing seats the Liberals will be taking from them in Southern Ontario. But right now, the argument doesn’t sound convincing. It isn’t so much a question of polls; it’s more intangible than that. In August the Liberals had a bounce in their step. These days, it’s the Conservatives who whistle as they walk.
Mr. Ignatieff is on holidays, and no one should blame him for taking some time off. He’ll be back out on the road next week, his handlers say. It wasn’t necessary he be around; his shadow cabinet is stacked with talent.
But finance critic Scott Brison will get little ink when he rails against Tory fiscal waste and incompetence Friday morning. The Conservatives have entrenched the idea in voters’ minds that they successfully managed the recession and have the deficit under control. The Liberals will not defeat the Conservatives on the question of who best will manage the economy, no matter what Mr. Brison says.
To win, the Liberals have to move voters’ minds off the economy, the way they succeeded a year ago this month in making people angry at the government for proroguing Parliament. That was another time – from prorogation through detainee documents to the Helena Guergis affair – when the Conservatives reacted more than acted.
Right now, though, they own the story. It’s just as well that Michael Ignatieff is not around. There’s not much he could say.
.Those days are fading. This first week of January proved the Conservatives are firmly on top of the political agenda. Under the circumstances, it’s just as well there was no sign of Michael Ignatieff.
Consider this bit of evidence: The Tories may or may not truly believe they can take seats in the Greater Toronto Area from the Liberals in the next election. But the national media believe it, and that’s more important. Pundits universally agreed that Tuesday’s petite cabinet shuffle, elevating Peter Kent to Environment Minister and putting Julian Fantino in the seniors portfolio, proved that the Conservatives are on the warpath in the 905.
This reasoning, which could wildly inflate the Tories’ real prospects in the region, nonetheless puts the Liberals on the defensive by making them look vulnerable. The Grits aren’t really dominant anywhere in the country other than Toronto and environs. If those walls fall, then what’s left?
The Liberals indignantly reply that those walls won’t fall, that it’s the Conservatives who should be worried about swing seats the Liberals will be taking from them in Southern Ontario. But right now, the argument doesn’t sound convincing. It isn’t so much a question of polls; it’s more intangible than that. In August the Liberals had a bounce in their step. These days, it’s the Conservatives who whistle as they walk.
Mr. Ignatieff is on holidays, and no one should blame him for taking some time off. He’ll be back out on the road next week, his handlers say. It wasn’t necessary he be around; his shadow cabinet is stacked with talent.
But finance critic Scott Brison will get little ink when he rails against Tory fiscal waste and incompetence Friday morning. The Conservatives have entrenched the idea in voters’ minds that they successfully managed the recession and have the deficit under control. The Liberals will not defeat the Conservatives on the question of who best will manage the economy, no matter what Mr. Brison says.
To win, the Liberals have to move voters’ minds off the economy, the way they succeeded a year ago this month in making people angry at the government for proroguing Parliament. That was another time – from prorogation through detainee documents to the Helena Guergis affair – when the Conservatives reacted more than acted.
Right now, though, they own the story. It’s just as well that Michael Ignatieff is not around. There’s not much he could say.
Friday, January 7, 2011
A provincial court judge has rebuked Calgary police in her finding that a man was not guilty of driving while disqualified. : Daniel 'uncomfortable' about officer's credibility, rules search unlawful
A provincial court judge has rebuked Calgary police in her finding that a man was not guilty of driving while disqualified.
Judge Cheryl Daniel ruled that officers harassed the accused during an investigation, then gave testimony at trial that wasn't credible.
Daniel found Fuk Kiun Chin not guilty of driving while under suspension.
His trial heard how Chin had a testy relationship with a police sergeant who was checking up on Chin's son over a curfew.
The officer testified that he knew Chin was not supposed to be driving so he staked out the man's car, pulled him over and charged him.
Chin testified he wasn't in his car when he was stopped by the officer, but was walking to a bus stop to go to work.
Daniel said Chin's testimony had a "ring of truth" but she was "uncomfortable" about the credibility of the officer.
She also found a search of Chin's car, which turned up nothing illegal, was unlawful.
Read more: http://www.cbc.ca/canada/calgary/story/2011/01/06/calgary-police-judge-rebuke-.html#ixzz1AK9zaDFk
Judge Cheryl Daniel ruled that officers harassed the accused during an investigation, then gave testimony at trial that wasn't credible.
Daniel found Fuk Kiun Chin not guilty of driving while under suspension.
His trial heard how Chin had a testy relationship with a police sergeant who was checking up on Chin's son over a curfew.
The officer testified that he knew Chin was not supposed to be driving so he staked out the man's car, pulled him over and charged him.
Chin testified he wasn't in his car when he was stopped by the officer, but was walking to a bus stop to go to work.
Daniel said Chin's testimony had a "ring of truth" but she was "uncomfortable" about the credibility of the officer.
She also found a search of Chin's car, which turned up nothing illegal, was unlawful.
Read more: http://www.cbc.ca/canada/calgary/story/2011/01/06/calgary-police-judge-rebuke-.html#ixzz1AK9zaDFk
Thursday, January 6, 2011
The former Harper spin doctor Kory Teneycke who helped advance the Conservative brand is back at the helm of the right-leaning Sun TV News startup.
Kory Teneycke is expected to resume working at the 24-hour news channel next week, The Globe and Mail has learned.
The odd turn of events comes 3 1/2 months after Mr. Teneycke made a high-profile and abrupt exit from the Quebecor project, telling a news conference last September that increasingly bitter public acrimony over his role had made him a liability to the TV venture. At the time, it was petitioning federal regulators for a broadcasting licence.
Mr. Teneycke’s return will likely give Sun TV News the sharp edge and taste for controversy that was intended when he helped to conceive the idea for the network.
The combative one-time spokesman for Stephen Harper built a reputation as a take-no-prisoners political operative and lobbyist even before he reached the Prime Minister’s Office. He was a key player in the successful Conservative attack on former Liberal Leader Stéphane Dion’s carbon tax plan, and as a lobbyist for renewable fuels helped coax the Tories to spend billions of dollars on ethanol and biodiesel subsidies.
The populist Sun TV News undertaking – which critics have labelled Fox News North – is expected to begin broadcasting as early as March and feature a variety of personalities, from right-wing author Ezra Levant to Liberal spin doctor and columnist Warren Kinsella.
Mr. Levant, who says he will host a show on Sun TV News in the 5 p.m. ET slot, said he was delighted to hear Mr. Teneycke is returning.
“He’s the spiritual leader, so to speak. He’s the one who has the grand plan and created this thing from a spark. He’s our Roger Ailes,” Mr. Levant said, referring to the Republican political operative who founded Fox News.
In the months leading up to his departure from Sun TV News last September, Mr. Teneycke had deliberately courted controversy to publicize his new venture. These actions, he acknowledged upon leaving, had “contributed to the debasing of [the] debate” over Sun TV News.
Mr. Teneycke’s formula for generating buzz about the venture included a no-holds-barred approach to rivals and naysayers. He publicly derided other news outlets as the “lame-stream media” and lashed out at Sun TV News critics, calling veteran TV journalist Don Newman “the Helen Thomas of Canada.” That was a reference to the disgraced White House reporter who recently resigned after saying Israelis should “get the hell out of Palestine” and “go home” to places such as Germany.
Mr. Teneycke's resignation last September came one day after Toronto lawyer Clayton Ruby asked the RCMP and Ottawa police to investigate tampering with an online petition against Sun TV News organized by global activist group Avaaz.org.
In the Avaaz incident, the organization had alleged that fraudsters added the names of Canadian journalists without their consent to the petition – as well as the names of fictitious characters such as Sesame Street's Snuffleupagus.
Mr. Teneycke became embroiled in the matter when he used his Twitter account Sept. 3 to announce he'd been in contact with a prankster who'd admitted to tampering with the petition. “Source e-mailed me to say they registered Boba Fett, D. Shroot, etc. Petition lacks basic controls,” he wrote. Avaaz said the data collected on the alleged fraudsters suggests they were based in Ottawa and using a Rogers Internet connection.
Contacted Wednesday, the Ottawa police could not immediately say whether they had investigated the complaint.
The federal broadcast regulator approved Quebecor Inc.’s Sun TV News licence application last November. Sun TV is now set to launch in mid-March. The launch was originally set for Jan. 1, but technical delays including later-than-expected equipment deliveries have slowed things down somewhat.
The company has been building the network’s main studio, in downtown Toronto close to the Toronto Sun offices, which will also house a second studio. Others will be built in Ottawa, Calgary, and likely Edmonton.
Sun TV had originally requested a license that would oblige cable and satellite companies to carry it on their services. That was rejected; and Sun TV tried again, asking for a standard license with the exception that distributors would have to offer it to customers on at least one of their packages, in the first three years. In early October, the company said it would withdraw that request, and ask for a standard Category 2 licence
Wednesday, January 5, 2011
“What has happened to you guys? I thought you were the human rights good guys.”
“What has happened to you guys? I thought you were the human rights good guys.”
That is what my military escort at Guantanamo Bay said one day in August while I was there to observe Omar Khadr's military commission trial. He was well aware that Khadr had long been the only Westerner left in the prison camps and that the Canadian government had no interest, to put it mildly, in giving him a hand.
Those were the words of a U.S. soldier on active duty at Guantanamo Bay — not a human-rights activist or opposition politician. And they are words that invite reflection, at year's end, about Canada's human rights standing on the world stage. What has happened to us? Are we still the human rights good guys?
The year 2010 held great promise for Canada, with tremendous opportunities to shine on the world stage, including the chance to highlight important human rights issues. The world was watching Canada stage the Olympics and Paralympics; host the G8 and G20 summits; and, of course, promote our candidacy for a seat on the UN Security Council.
But it went awry in so many ways. Hosting the G8 and G20 summits did leave behind a new initiative to tackle a critical human rights concern, maternal and newborn health. But the financial support from other governments is uncertain. And the initiative was strained by the government's refusal to ensure that a solid sexual and reproductive rights framework, including some attention to access to abortion services, was at its heart.
At the end of the day, what transpired within the official summits was overshadowed by the staggering assault on freedom of expression that played out on the streets of Toronto. It still seems impossible to imagine that more than 1,100 people were arrested over the weekend, the overwhelming majority of whom were involved in peaceful acts of protest or were just passing by.
What is needed in the aftermath is a comprehensive joint provincial/federal public inquiry that will examine how policing the demonstrations could have gone so terribly wrong. So far, however, neither government shows any appetite for doing so.
Canada's ill-fated Security Council bid, with a withdrawal from the process to avoid certain defeat, still smarts. Many Canadians hung their heads in shame when they realized past supporters had deserted us, and it became clear that Portugal was going to leave Canada in the dust. It is the first time in UN history that we have run for a seat and lost — by no means a proud moment.
Of course there are many explanations for the result, some of which are wrapped up in the often deceptive and complex world of back-scratching that mars many UN votes. But there is no denying that a significant piece of the outcome stems from our tarnished global reputation impacted by failure to respect human rights.
There is Omar Khadr. Our defiant refusal to come to the aid of a child soldier, who has made credible (fully corroborated in at least one instance) allegations of torture and ill-treatment and who has been ensnared in Guantanamo injustice for eight years, has certainly been noted. It has left open just where Canada stands on key human rights issues that we long championed, including protecting child soldiers and standing firm against torture.
There is Africa. Our nearly wholesale shift of humanitarian, diplomatic and political attention away from Africa has sent a distressing message. Canada, which has long played a key role in addressing serious human rights concerns in Africa — apartheid-era South Africa, military rule in Nigeria, catastrophe in Sudan — has now virtually become a non-player in most corners of the continent. It is a continent that needs more, not fewer, human rights champions.
There is Israel. The government proudly proclaims that Canada is a staunch friend of Israel and will not apologize for being so. Apologies are not necessary. Being a friend of Israel is a fine thing. But with friendship must come honesty about human rights. Canada has refused to criticize the Israeli government — be it at the UN or in one-on-one dealings — about the vast array of grave human rights violations that are the daily reality for Palestinians in the region; it does no favours for Palestinian victims of those violations, the hopes of lasting peace in the Middle East, and Canada's standing and reputation.
And what transpires globally has been matched domestically. Over the past year, a stunning number of Canadian organizations have lost government funding for important humanitarian programming because those organizations strive to strengthen protection of Palestinian rights. In the end, Canada's reputation as an honest broker about a contentious and long-standing human rights tragedy lies in tatters.
There is the death penalty. In 2007, 2008 and again this year, an important resolution came before the UN General Assembly seeking a global moratorium on executions. Canada votes for it. But Canada refuses to demonstrate leadership by joining the more than 80 other countries that have put their names to the resolution and co-sponsored it. We are the only firmly abolitionist country to refuse to do so. We are the only country with a track record of co-sponsoring earlier UN death penalty resolutions that refuses to do so now. That is beyond a failure to demonstrate leadership, it is a retreat from leadership.
And then there are Indigenous peoples. Part of what went sour for Canada during the Security Council vote can be traced back to our appalling behaviour in 2006 and 2007, when the UN finally adopted a Declaration on the Rights of Indigenous Peoples, which had been in the works for more than 20 years. We not only voted against it, we aggressively (and fortunately unsuccessfully) pressed other countries to oppose it. And when it was passed by an overwhelming majority we claimed it did not apply to us because we had voted against it. That was an unacceptable view of the status of UN decisions that we would never accept from other countries.
Finally this year — after four years of bullying and defiance — Canada changed its mind. It wasn't announced until November, after the Security Council vote. And it could have been such a good news moment. Only it was clear there was nothing proud or genuine about the change of heart. In fact, the decision was announced to no fanfare, with a posting to government websites on a Friday afternoon (a well-established trick for burying a news story).
So, the soldier's view from Guantanamo may well have hit the mark. It is time to ask what has happened to Canada, the human rights good guys. And it is time to turn it around.
Globally, we end the year with grave worry about simmering human rights crises in places like Haiti and Ivory Coast. However, we also end the year with a bit of a boost from the uplifting news of Aung San Suu Kyi's release from imprisonment in Myanmar and the awarding of the Nobel Peace Prize to Chinese prisoner of conscience Liu Xiaobo.
Struggles go on. Victories are possible. Human rights good guys are in short supply. Canada needs to get back in that game.
That is what my military escort at Guantanamo Bay said one day in August while I was there to observe Omar Khadr's military commission trial. He was well aware that Khadr had long been the only Westerner left in the prison camps and that the Canadian government had no interest, to put it mildly, in giving him a hand.
Those were the words of a U.S. soldier on active duty at Guantanamo Bay — not a human-rights activist or opposition politician. And they are words that invite reflection, at year's end, about Canada's human rights standing on the world stage. What has happened to us? Are we still the human rights good guys?
The year 2010 held great promise for Canada, with tremendous opportunities to shine on the world stage, including the chance to highlight important human rights issues. The world was watching Canada stage the Olympics and Paralympics; host the G8 and G20 summits; and, of course, promote our candidacy for a seat on the UN Security Council.
But it went awry in so many ways. Hosting the G8 and G20 summits did leave behind a new initiative to tackle a critical human rights concern, maternal and newborn health. But the financial support from other governments is uncertain. And the initiative was strained by the government's refusal to ensure that a solid sexual and reproductive rights framework, including some attention to access to abortion services, was at its heart.
At the end of the day, what transpired within the official summits was overshadowed by the staggering assault on freedom of expression that played out on the streets of Toronto. It still seems impossible to imagine that more than 1,100 people were arrested over the weekend, the overwhelming majority of whom were involved in peaceful acts of protest or were just passing by.
What is needed in the aftermath is a comprehensive joint provincial/federal public inquiry that will examine how policing the demonstrations could have gone so terribly wrong. So far, however, neither government shows any appetite for doing so.
Canada's ill-fated Security Council bid, with a withdrawal from the process to avoid certain defeat, still smarts. Many Canadians hung their heads in shame when they realized past supporters had deserted us, and it became clear that Portugal was going to leave Canada in the dust. It is the first time in UN history that we have run for a seat and lost — by no means a proud moment.
Of course there are many explanations for the result, some of which are wrapped up in the often deceptive and complex world of back-scratching that mars many UN votes. But there is no denying that a significant piece of the outcome stems from our tarnished global reputation impacted by failure to respect human rights.
There is Omar Khadr. Our defiant refusal to come to the aid of a child soldier, who has made credible (fully corroborated in at least one instance) allegations of torture and ill-treatment and who has been ensnared in Guantanamo injustice for eight years, has certainly been noted. It has left open just where Canada stands on key human rights issues that we long championed, including protecting child soldiers and standing firm against torture.
There is Africa. Our nearly wholesale shift of humanitarian, diplomatic and political attention away from Africa has sent a distressing message. Canada, which has long played a key role in addressing serious human rights concerns in Africa — apartheid-era South Africa, military rule in Nigeria, catastrophe in Sudan — has now virtually become a non-player in most corners of the continent. It is a continent that needs more, not fewer, human rights champions.
There is Israel. The government proudly proclaims that Canada is a staunch friend of Israel and will not apologize for being so. Apologies are not necessary. Being a friend of Israel is a fine thing. But with friendship must come honesty about human rights. Canada has refused to criticize the Israeli government — be it at the UN or in one-on-one dealings — about the vast array of grave human rights violations that are the daily reality for Palestinians in the region; it does no favours for Palestinian victims of those violations, the hopes of lasting peace in the Middle East, and Canada's standing and reputation.
And what transpires globally has been matched domestically. Over the past year, a stunning number of Canadian organizations have lost government funding for important humanitarian programming because those organizations strive to strengthen protection of Palestinian rights. In the end, Canada's reputation as an honest broker about a contentious and long-standing human rights tragedy lies in tatters.
There is the death penalty. In 2007, 2008 and again this year, an important resolution came before the UN General Assembly seeking a global moratorium on executions. Canada votes for it. But Canada refuses to demonstrate leadership by joining the more than 80 other countries that have put their names to the resolution and co-sponsored it. We are the only firmly abolitionist country to refuse to do so. We are the only country with a track record of co-sponsoring earlier UN death penalty resolutions that refuses to do so now. That is beyond a failure to demonstrate leadership, it is a retreat from leadership.
And then there are Indigenous peoples. Part of what went sour for Canada during the Security Council vote can be traced back to our appalling behaviour in 2006 and 2007, when the UN finally adopted a Declaration on the Rights of Indigenous Peoples, which had been in the works for more than 20 years. We not only voted against it, we aggressively (and fortunately unsuccessfully) pressed other countries to oppose it. And when it was passed by an overwhelming majority we claimed it did not apply to us because we had voted against it. That was an unacceptable view of the status of UN decisions that we would never accept from other countries.
Finally this year — after four years of bullying and defiance — Canada changed its mind. It wasn't announced until November, after the Security Council vote. And it could have been such a good news moment. Only it was clear there was nothing proud or genuine about the change of heart. In fact, the decision was announced to no fanfare, with a posting to government websites on a Friday afternoon (a well-established trick for burying a news story).
So, the soldier's view from Guantanamo may well have hit the mark. It is time to ask what has happened to Canada, the human rights good guys. And it is time to turn it around.
Globally, we end the year with grave worry about simmering human rights crises in places like Haiti and Ivory Coast. However, we also end the year with a bit of a boost from the uplifting news of Aung San Suu Kyi's release from imprisonment in Myanmar and the awarding of the Nobel Peace Prize to Chinese prisoner of conscience Liu Xiaobo.
Struggles go on. Victories are possible. Human rights good guys are in short supply. Canada needs to get back in that game.
Tuesday, January 4, 2011
Microsoft warns of Word attacks : RTF-based exploits making the rounds, apply Nov. patch pronto, says MMPC
- Hackers are exploiting a vulnerability in Microsoft Word to plant malware on Windows PCs, Microsoft said Tuesday.
The bug in Microsoft Word 2002, 2003, 2007 and 2010 was patched Nov. 9 as part of Microsoft's monthly security update.
Word 2008 and 2011 for the Mac have also been patched, but Microsoft has not yet issued a fix for the same flaw in the older Word 2004. The circulating attacks affect only Windows versions of the suite, however.
According to the Microsoft Malware Protection Center (MMPC), the group that investigates attack code and issues signature updates for the company's antivirus software, the first in-the-wild exploits were detected last week.
When Microsoft shipped the Word patch last month, it rated the bug as "1" on its exploitability index, meaning it believed a working attack would pop up within 30 days.
The attack uses a malicious RTF (Rich Text Format) file to generate a stack overflow in Word on Windows, said MMPC researcher Rodel Finones. Following a successful exploit, the attack code downloads and runs a Trojan horse on the compromised computer.
Finones said that the code "reliably exploits this [Word] vulnerability."
Last month, Microsoft rated the RTF vulnerability as "critical" in Word 2007 and 2010, but as "important" in all other affected versions.
At the time, outside researchers had put their bets on the bug as a hacker choice because users running Office 2007 or 2010 could be attacked if all they did was preview a specially-crafted RTF document in the Outlook e-mail client.
"Once a [malformed] message hits the Outlook preview pane, remote code can be executed. You should patch this right away," Jason Miller, the data and security team manager for Shavlik Technologies, said on the day Microsoft released the patch.
Finones urged users who have not yet installed the November patch to do so as soon as possible.
More information about the vulnerability can be found in the MS10-087 security bulletin.
The MS10-087 update can be downloaded and installed using Microsoft Update and Windows Server Update Services (WSUS).
The bug in Microsoft Word 2002, 2003, 2007 and 2010 was patched Nov. 9 as part of Microsoft's monthly security update.
Word 2008 and 2011 for the Mac have also been patched, but Microsoft has not yet issued a fix for the same flaw in the older Word 2004. The circulating attacks affect only Windows versions of the suite, however.
According to the Microsoft Malware Protection Center (MMPC), the group that investigates attack code and issues signature updates for the company's antivirus software, the first in-the-wild exploits were detected last week.
When Microsoft shipped the Word patch last month, it rated the bug as "1" on its exploitability index, meaning it believed a working attack would pop up within 30 days.
The attack uses a malicious RTF (Rich Text Format) file to generate a stack overflow in Word on Windows, said MMPC researcher Rodel Finones. Following a successful exploit, the attack code downloads and runs a Trojan horse on the compromised computer.
Finones said that the code "reliably exploits this [Word] vulnerability."
Last month, Microsoft rated the RTF vulnerability as "critical" in Word 2007 and 2010, but as "important" in all other affected versions.
At the time, outside researchers had put their bets on the bug as a hacker choice because users running Office 2007 or 2010 could be attacked if all they did was preview a specially-crafted RTF document in the Outlook e-mail client.
"Once a [malformed] message hits the Outlook preview pane, remote code can be executed. You should patch this right away," Jason Miller, the data and security team manager for Shavlik Technologies, said on the day Microsoft released the patch.
Finones urged users who have not yet installed the November patch to do so as soon as possible.
More information about the vulnerability can be found in the MS10-087 security bulletin.
The MS10-087 update can be downloaded and installed using Microsoft Update and Windows Server Update Services (WSUS).
Monday, January 3, 2011
Swedish actor Per Oscarsson, a household name in his country who appeared in two films based on Stieg Larsson's Millennium trilogy, has died along with his wife.
Swedish actor Per Oscarsson, a household name in his country who appeared in two films based on Stieg Larsson's Millennium trilogy, has died along with his wife.
Police in the town of Skara, in southwest Sweden, say the couple likely perished when their house burned down.
They believe the 83-year-old actor and his wife, Kia Ostling, were at home when a fire engulfed their home Thursday night or Friday morning.
"Relatives have told us that the couple was staying in the house over New Year's," police officer Carina Anderson told the TT news agency. "They haven't heard that they had any plans to travel."
Police spokesman Jan Strommegard said Sunday that remains were found at the scene but have not been verified. The cause of the fire is unknown.
Bo Lustig of the Skara emergency services said the house had already burned down when they arrived. Only the chimney still stands. Lustig said a relative living nearby made the discovery late Friday morning.
The house is in an isolated area just outside of Skara, 33 kilometres southwest of Stockholm.
Oscarsson, who began his career in the 1940s, appeared in theatre, films, TV series and children's specials in Sweden.
He won a best actor award at the Cannes film festival in 1966 for his role as a starving writer in the movie Hunger.
His most recent role was Holger Palmgren, guardian and lawyer to Lisbeth Salander, the heroine of Larson's blockbuster crime trilogy. Oscarsson appears in The Girl Who Played With Fire, the second of the Swedish films based on Larson's books, and The Girl Who Kicked the Hornet's Nest.
American critic Roger Ebert hailed Oscarsson's performance in the role and described him as "a great Swedish actor … who incredibly never worked with [Ingmar] Bergman."
Read more: http://www.cbc.ca/arts/film/story/2011/01/02/oscarsson-obit.html#ixzz19wjm2HCv
Police in the town of Skara, in southwest Sweden, say the couple likely perished when their house burned down.
They believe the 83-year-old actor and his wife, Kia Ostling, were at home when a fire engulfed their home Thursday night or Friday morning.
"Relatives have told us that the couple was staying in the house over New Year's," police officer Carina Anderson told the TT news agency. "They haven't heard that they had any plans to travel."
Police spokesman Jan Strommegard said Sunday that remains were found at the scene but have not been verified. The cause of the fire is unknown.
Bo Lustig of the Skara emergency services said the house had already burned down when they arrived. Only the chimney still stands. Lustig said a relative living nearby made the discovery late Friday morning.
The house is in an isolated area just outside of Skara, 33 kilometres southwest of Stockholm.
Oscarsson, who began his career in the 1940s, appeared in theatre, films, TV series and children's specials in Sweden.
He won a best actor award at the Cannes film festival in 1966 for his role as a starving writer in the movie Hunger.
His most recent role was Holger Palmgren, guardian and lawyer to Lisbeth Salander, the heroine of Larson's blockbuster crime trilogy. Oscarsson appears in The Girl Who Played With Fire, the second of the Swedish films based on Larson's books, and The Girl Who Kicked the Hornet's Nest.
American critic Roger Ebert hailed Oscarsson's performance in the role and described him as "a great Swedish actor … who incredibly never worked with [Ingmar] Bergman."
Read more: http://www.cbc.ca/arts/film/story/2011/01/02/oscarsson-obit.html#ixzz19wjm2HCv
Sunday, January 2, 2011
In a farewell speech to senior medical leaders this month, ousted health super-board boss Stephen Duckett accused politicians of being short-sighted and the provincial government of stoking ER woes by neglecting investment in seniors care.
In a farewell speech to senior medical leaders this month, ousted health super-board boss Stephen Duckett accused politicians of being short-sighted and the provincial government of stoking ER woes by neglecting investment in seniors care.
Duckett has not spoken publicly about his Nov. 24 departure from the helm of Alberta Health Services, a government-created organization responsible for delivering medical care. However, in his speech, delivered in Edmonton to top-level AHS officials 12 days after his dismissal, Duckett was sharply critical of the province, former health regions and the media.
He noted Alberta spends more money per capita on health than other provinces, but gets less.
Duckett also condemned how that money has been spent, saying Alberta has overemphasized investment on acute care at the expense of ailing seniors.
"Is it any wonder that our acute facilities had to become de facto seniors housing, contributing to the systemic problems that have created the problems in emergency care?" Duckett stated in a copy of his Dec. 6 speech, obtained by the Herald.
The troubled state of Alberta health care -- particularly strained emergency wards and seniors waiting in hospitals for nursing-home beds -- dominated political and public debate in the province this fall.
Frustrated physicians warned in October of a "potential catastrophic collapse" in many emergency wards due to severe overcrowding and the looming winter flu season.
Weeks later, Edmonton MLA Raj Sherman -- an ER physician who was the Tory government's junior health minister -- was punted from Conservative caucus after he assailed the premier and Alberta Health Services over their handling of medical care.
Some critics contend Duckett isn't blameless for the province's health struggles.
"This is someone who was leading the health system," said Wildrose Alliance MLA Heather Forsyth.
"If he thought there was something wrong with the system . . . he had the opportunity to speak out on behalf of Calgarians and seniors and other health-care professionals."
A health economist from Australia hired in spring 2009 to lead the newly amalgamated health entity, Duckett came under intense fire over a controversial cookie exchange with the media last month.
After a daylong meeting organized to draft solutions to hospital overcrowding and lengthy waits for treatment, Duckett refused to answer questions from reporters, telling them repeatedly, "I'm eating my cookie."
Video of the exchange went viral on the Internet. Premier Ed Stelmach characterized Duckett's comments as "offensive."
In his Dec. 6 speech, the ousted health executive conceded his cookie remarks were a mistake. However, he claimed the Alberta government had, for the past few months, advised him "to be less accessible" to the media.
Zwozdesky, though, told the Herald he never asked Duckett to avoid answering questions from the media, nor is he aware of others in government doing so.
"The only thing that we talked about right from the beginning was getting closer on the same page and being consistent in our messaging," the health minister said.
"And that's why I frequently called him."
Zwozdesky wasn't aware Duckett delivered a farewell speech to AHS officials.
The health minister said he disagrees with the critique that the Alberta government was shortchanging seniors care.
"The investments in seniors' accommodations and providing various new forms of choice for seniors has really been a success story," Zwozdesky said.
"There's still more to go, obviously, but what's out there now and the fact that we're providing 1,000 additional spaces per year over the next five, six, seven years, is very positive news for seniors."
Duckett offered some praise of the government in his farewell address.
He noted the province has placed AHS on a secure, long-term financial footing with its five-year funding commitment.
However, Duckett also said he felt misled about Alberta's financial state when he was recruited to lead the largest medical organization in Canada.
In the face of a global recession, he was asked to trim $1 billion from Alberta Health Services' budget upon arriving in spring 2009.
"The media created a Stephen Duckett I didn't recognize, portraying me as a one-dimensional budget cutter, a portrayal that still continues," Duckett asserted in his speech.
Duckett also contended the media painted a rosy picture of the province's nine former health regions, which he accused of restricting transparency. In his address, he alleged some of the now-defunct health entities manipulated waiting lists.
"Unfortunately for me, these strategies were not consistent with either my values or those of AHS."
The ousted health executive declined Thursday to comment further on his speech when reached by e-mail on holidays in Australia.
In his goodbye remarks, Duckett argued that "politicians only see the short term, and often fail to connect the dots" -- lumping them in with the media, which he blames heavily for his rough ride in Alberta.
NDP Leader Brian Mason said Duckett's assessment of the state of seniors care in Alberta echoes concerns that his party have repeatedly raised.
While Mason was one of several political leaders who called for his dismissal, he believes Duckett was given a difficult task in running a mammoth, newly created health body.
Still, Bruce West of the Alberta Continuing Care Association believes AHS bears some responsibility for inadequate seniors-care planning.
He contends the continuing-care policy of the organization and province too heavily favours assisted-living spaces over long-term-care beds, which are more expensive to create but offer greater medical aid.
"Continuing care has been perennially underfunded in relation to acute care," West said.
"We're seeing the results of that right now, for sure, with crowded emergency rooms and people backing up beds in acute care facilities.
Read more: http://www.calgaryherald.com/health/Stephen+Duckett+blamed+Tories+crisis+health/4042193/story.html#ixzz19r5ewW44
Duckett has not spoken publicly about his Nov. 24 departure from the helm of Alberta Health Services, a government-created organization responsible for delivering medical care. However, in his speech, delivered in Edmonton to top-level AHS officials 12 days after his dismissal, Duckett was sharply critical of the province, former health regions and the media.
He noted Alberta spends more money per capita on health than other provinces, but gets less.
Duckett also condemned how that money has been spent, saying Alberta has overemphasized investment on acute care at the expense of ailing seniors.
"Is it any wonder that our acute facilities had to become de facto seniors housing, contributing to the systemic problems that have created the problems in emergency care?" Duckett stated in a copy of his Dec. 6 speech, obtained by the Herald.
The troubled state of Alberta health care -- particularly strained emergency wards and seniors waiting in hospitals for nursing-home beds -- dominated political and public debate in the province this fall.
Frustrated physicians warned in October of a "potential catastrophic collapse" in many emergency wards due to severe overcrowding and the looming winter flu season.
Weeks later, Edmonton MLA Raj Sherman -- an ER physician who was the Tory government's junior health minister -- was punted from Conservative caucus after he assailed the premier and Alberta Health Services over their handling of medical care.
Some critics contend Duckett isn't blameless for the province's health struggles.
"This is someone who was leading the health system," said Wildrose Alliance MLA Heather Forsyth.
"If he thought there was something wrong with the system . . . he had the opportunity to speak out on behalf of Calgarians and seniors and other health-care professionals."
A health economist from Australia hired in spring 2009 to lead the newly amalgamated health entity, Duckett came under intense fire over a controversial cookie exchange with the media last month.
After a daylong meeting organized to draft solutions to hospital overcrowding and lengthy waits for treatment, Duckett refused to answer questions from reporters, telling them repeatedly, "I'm eating my cookie."
Video of the exchange went viral on the Internet. Premier Ed Stelmach characterized Duckett's comments as "offensive."
In his Dec. 6 speech, the ousted health executive conceded his cookie remarks were a mistake. However, he claimed the Alberta government had, for the past few months, advised him "to be less accessible" to the media.
Zwozdesky, though, told the Herald he never asked Duckett to avoid answering questions from the media, nor is he aware of others in government doing so.
"The only thing that we talked about right from the beginning was getting closer on the same page and being consistent in our messaging," the health minister said.
"And that's why I frequently called him."
Zwozdesky wasn't aware Duckett delivered a farewell speech to AHS officials.
The health minister said he disagrees with the critique that the Alberta government was shortchanging seniors care.
"The investments in seniors' accommodations and providing various new forms of choice for seniors has really been a success story," Zwozdesky said.
"There's still more to go, obviously, but what's out there now and the fact that we're providing 1,000 additional spaces per year over the next five, six, seven years, is very positive news for seniors."
Duckett offered some praise of the government in his farewell address.
He noted the province has placed AHS on a secure, long-term financial footing with its five-year funding commitment.
However, Duckett also said he felt misled about Alberta's financial state when he was recruited to lead the largest medical organization in Canada.
In the face of a global recession, he was asked to trim $1 billion from Alberta Health Services' budget upon arriving in spring 2009.
"The media created a Stephen Duckett I didn't recognize, portraying me as a one-dimensional budget cutter, a portrayal that still continues," Duckett asserted in his speech.
Duckett also contended the media painted a rosy picture of the province's nine former health regions, which he accused of restricting transparency. In his address, he alleged some of the now-defunct health entities manipulated waiting lists.
"Unfortunately for me, these strategies were not consistent with either my values or those of AHS."
The ousted health executive declined Thursday to comment further on his speech when reached by e-mail on holidays in Australia.
In his goodbye remarks, Duckett argued that "politicians only see the short term, and often fail to connect the dots" -- lumping them in with the media, which he blames heavily for his rough ride in Alberta.
NDP Leader Brian Mason said Duckett's assessment of the state of seniors care in Alberta echoes concerns that his party have repeatedly raised.
While Mason was one of several political leaders who called for his dismissal, he believes Duckett was given a difficult task in running a mammoth, newly created health body.
Still, Bruce West of the Alberta Continuing Care Association believes AHS bears some responsibility for inadequate seniors-care planning.
He contends the continuing-care policy of the organization and province too heavily favours assisted-living spaces over long-term-care beds, which are more expensive to create but offer greater medical aid.
"Continuing care has been perennially underfunded in relation to acute care," West said.
"We're seeing the results of that right now, for sure, with crowded emergency rooms and people backing up beds in acute care facilities.
Read more: http://www.calgaryherald.com/health/Stephen+Duckett+blamed+Tories+crisis+health/4042193/story.html#ixzz19r5ewW44
Saturday, January 1, 2011
YEAR IN REVIEW: Omar Khadr: “Canadian officials who go to other countries are going to be bound by the Charter insofar as to when they’re interacting with Canadian citizens abroad,” said Whitling, whose litigation practice focuses, in part, on international human rights law at the Edmonton firm, Parlee McLaws LLP.
While a pivotal chapter of Omar Khadr’s sad saga concluded this year, the story about the youngest and the only Canadian (and Westerner) among the 176 detainees at Guantanamo Bay is far from over.
In late October, he accepted a deal to avoid a questionable military trial and lengthy prison term upon conviction, and pleaded guilty to five charges under the 2009 U.S. Military Commissions Act, including “murder by an alien unprivileged combatant” and “providing material assistance to terrorism” — offences created after his capture by American forces in Afghanistan.
In exchange, 24-year-old, Toronto-born Khadr received an eight-year sentence. He will spend one more year in Guantanamo Bay after which he can request (and likely obtain) repatriation to Canada under the plea deal.
Under the terms of Canada’s International Transfer of Offenders Act, Khadr is expected to serve the rest of his time in a provincial correctional facility for adults — since he was a youth at the time his offence was committed — and be eligible for parole after one year and eight months, or the summer of 2012, according to one of his Canadian lawyers.
But while Khadr may by then be a free man, Nate Whitling suggests that some of the jurisprudence from his client’s legal battles in the Federal Court, Federal Court of Appeal and Supreme Court of Canada (SCC) could constrain officials of the Department of Foreign Affairs and International Trade (DFAIT) and Canadian Security Intelligence Service (CSIS) agents in the future.
“Canadian officials who go to other countries are going to be bound by the Charter insofar as to when they’re interacting with Canadian citizens abroad,” said Whitling, whose litigation practice focuses, in part, on international human rights law at the Edmonton firm, Parlee McLaws LLP.
But as he added, the SCC’s decision in Canada (Justice) v. Khadr, [2008] S.C.J. No. 28, emphasized that the life, liberty and security guarantees under s. 7 of the Charter applied to the interrogations of Khadr at the Guantanamo Bay naval base in Cuba by DFAIT and CSIS officials, because the process violated Canada’s obligations under international law.
The court referred to other decisions, such as one from its American counterpart in Rasul v. Bush, 542 U.S. 466 (2004), in which the U.S. Supreme Court held that detainees at Guantanamo had illegally been denied access to habeas corpus, and that the procedures under which they were to be prosecuted violated the Geneva Convention. In Khadr (2008), the SCC also referred to its earlier decision in R. v. Hape, [2007] S.C.J. No. 26, in which the court unanimously ruled that the deference required to the principle of comity, which implies acceptance of foreign laws and procedures when Canadian foreign officials are operating abroad, “ends where clear violations of international law and fundamental human rights begin.”
In the SCC’s second decision on Khadr’s situation in the Guantanamo Bay prison, Canada (Prime Minister) v. Khadr, [2010] S.C.J. No. 3, the court agreed with previous rulings by the Federal Court and the Federal Court of Appeal that Khadr was entitled to a remedy under s. 24 (1) of the Charter, since his constitutional rights were violated when a DFAIT official interviewed him in 2004, knowing that Khadr had been subjected by U.S. authorities to a sleep-deprivation technique. Known as the “frequent-flyer program,” it involved physically moving Khadr every three hours over a three-week period to make him less resistant to interrogation. However, the remedy Khadr sought — that the federal government be ordered to request his repatriation — was denied, “in view of the constitutional responsibility of the executive to make decisions on matters of foreign affairs.”
The government has yet to provide Khadr with any remedy. It could come in the form of challenging the validity of the plea bargain agreement reached between Canada and the U.S. once he is back on Canadian soil, according to constitutional law scholar Errol Mendes.
“His lawyers could say that he should be released immediately since the plea deal was in itself a violation of his rights. The Supreme Court of Canada has already said that the complicity of Canadian officials in his interrogation amounted to a violation of his constitutional rights,” said Mendes, a professor of law at the University of Ottawa’s common law section and the editor-in-chief of The National Journal of Constitutional Law. “Or Khadr could spend whatever time he has left to fulfill the plea agreement, but sue the hell out of the government for millions of dollars.”
Still, in an upcoming article on Khadr (2010) to appear in the Supreme Court Law Review, University of Toronto law professor Audrey Macklin wrote that “Khadr has been dumped in the mother of all legal grey holes, the place of right without remedy. And a legal grey hole is really little more than a black hole decorated with judicial wallpaper.”
In an interview, she explained that while not holding Canadian citizenship “can hurt,” being a Canadian citizen “doesn’t help when somebody is considered a pariah by the government.
“The government’s position is that it does not owe Canadian citizens any duty to assist them in any way when their fundamental rights are being violated abroad. The government claims absolute and unfettered discretion to pick and choose which Canadians to protect.”
Regardless of one’s views of Omar Khadr, this assertion of unaccountable discretion should worry all Canadians who travel outside the country. And so far, the SCC has been unwilling to contradict the government’s position, said Macklin.
Nathalie Des Rosiers, the Canadian Civil Liberties Association (CCLA)’s general counsel, said in an interview that the federal government needs to provide clarity on the criteria it applies to determine whether it will assist a Canadian in distress outside the country, since in recent years the message has been mixed.
Two years ago, a federal government-chartered jet whisked Canadian Brenda Martin away from a Mexican prison back to Canada where she was briefly remanded into custody before being released on parole for time served. Yet Maher Arar endured torture as a suspected terrorist in a tiny Syrian cell before a federal government commission exonerated him of any terrorist ties; a Federal Court last year had to order the government to issue a passport to Abousfian Abdelrazik, who was stuck in Sudan for six years; and in 2009 Suaad Haji Mohamud was stranded for three months and spent eight days in jail in Kenya, where she was charged with identity fraud — on Canada’s recommendation — after Kenyan immigration officials claimed her facial features didn’t match her Canadian passport (DNA testing later verified her identity). All three people hold Canadian citizenship.
“It looks bad if the government is helping white Canadians, but doesn’t help racialized Canadians,” said Des Rosiers, who is on leave as a professor in the University of Ottawa’s civil law section. “Maybe there are good reasons, but they should be more apparent to the public.
“Mendes believes Prime Minister Stephen Harper’s government made the decision that Khadr “wasn’t worth fighting for,” although he remains subject to a “potentially unlawful detention” under international law.
“The government is making distinctions between different types of Canadian citizens, and some have more rights than others. If it feels someone is not worthy to have the full protection of Canada, it won’t lift a finger. In fact, it will actually encourage a foreign state to let you basically rot in whatever condition you find yourself,” said Mendes. “Which is why I agree with the opposition that a Canadian is a Canadian is a Canadian. If we start making a distinction, we’re going down a very slippery slope.”
To help avoid that from happening, Des Rosiers is in favour of the creation of a new federal “ombudsman” who would represent all Canadians in need of assistance when outside the country.
But Ottawa lawyer and international and terrorist intelligence analyst David Harris offers a cautionary note about interpreting Charter rights in light of current national security concerns.
“We understandably have a greater focus on the individual, and I think that must continue…But I am a little concerned that we have gradually and inexorably been leading ourselves in directions that are incompatible with public safety,” said Harris, a former chief of strategic planning at CSIS prior to the Khadr case.
Harris acknowledged that while “platoons of exceptionally well-intentioned and well-educated lawyers are properly and vigorously advocating the interests of their clients in national security matters, I don’t see a great deal of public discourse in, and virtually any legal attention to, the sorts of backdrops, realities and threats I’ve seen on the ground. I think that reflects shortcomings in the profession and the community at large, and it interferes with our ability to seek a true balance in a delicate balance problem.”
In late October, he accepted a deal to avoid a questionable military trial and lengthy prison term upon conviction, and pleaded guilty to five charges under the 2009 U.S. Military Commissions Act, including “murder by an alien unprivileged combatant” and “providing material assistance to terrorism” — offences created after his capture by American forces in Afghanistan.
In exchange, 24-year-old, Toronto-born Khadr received an eight-year sentence. He will spend one more year in Guantanamo Bay after which he can request (and likely obtain) repatriation to Canada under the plea deal.
Under the terms of Canada’s International Transfer of Offenders Act, Khadr is expected to serve the rest of his time in a provincial correctional facility for adults — since he was a youth at the time his offence was committed — and be eligible for parole after one year and eight months, or the summer of 2012, according to one of his Canadian lawyers.
But while Khadr may by then be a free man, Nate Whitling suggests that some of the jurisprudence from his client’s legal battles in the Federal Court, Federal Court of Appeal and Supreme Court of Canada (SCC) could constrain officials of the Department of Foreign Affairs and International Trade (DFAIT) and Canadian Security Intelligence Service (CSIS) agents in the future.
“Canadian officials who go to other countries are going to be bound by the Charter insofar as to when they’re interacting with Canadian citizens abroad,” said Whitling, whose litigation practice focuses, in part, on international human rights law at the Edmonton firm, Parlee McLaws LLP.
But as he added, the SCC’s decision in Canada (Justice) v. Khadr, [2008] S.C.J. No. 28, emphasized that the life, liberty and security guarantees under s. 7 of the Charter applied to the interrogations of Khadr at the Guantanamo Bay naval base in Cuba by DFAIT and CSIS officials, because the process violated Canada’s obligations under international law.
The court referred to other decisions, such as one from its American counterpart in Rasul v. Bush, 542 U.S. 466 (2004), in which the U.S. Supreme Court held that detainees at Guantanamo had illegally been denied access to habeas corpus, and that the procedures under which they were to be prosecuted violated the Geneva Convention. In Khadr (2008), the SCC also referred to its earlier decision in R. v. Hape, [2007] S.C.J. No. 26, in which the court unanimously ruled that the deference required to the principle of comity, which implies acceptance of foreign laws and procedures when Canadian foreign officials are operating abroad, “ends where clear violations of international law and fundamental human rights begin.”
In the SCC’s second decision on Khadr’s situation in the Guantanamo Bay prison, Canada (Prime Minister) v. Khadr, [2010] S.C.J. No. 3, the court agreed with previous rulings by the Federal Court and the Federal Court of Appeal that Khadr was entitled to a remedy under s. 24 (1) of the Charter, since his constitutional rights were violated when a DFAIT official interviewed him in 2004, knowing that Khadr had been subjected by U.S. authorities to a sleep-deprivation technique. Known as the “frequent-flyer program,” it involved physically moving Khadr every three hours over a three-week period to make him less resistant to interrogation. However, the remedy Khadr sought — that the federal government be ordered to request his repatriation — was denied, “in view of the constitutional responsibility of the executive to make decisions on matters of foreign affairs.”
The government has yet to provide Khadr with any remedy. It could come in the form of challenging the validity of the plea bargain agreement reached between Canada and the U.S. once he is back on Canadian soil, according to constitutional law scholar Errol Mendes.
“His lawyers could say that he should be released immediately since the plea deal was in itself a violation of his rights. The Supreme Court of Canada has already said that the complicity of Canadian officials in his interrogation amounted to a violation of his constitutional rights,” said Mendes, a professor of law at the University of Ottawa’s common law section and the editor-in-chief of The National Journal of Constitutional Law. “Or Khadr could spend whatever time he has left to fulfill the plea agreement, but sue the hell out of the government for millions of dollars.”
Still, in an upcoming article on Khadr (2010) to appear in the Supreme Court Law Review, University of Toronto law professor Audrey Macklin wrote that “Khadr has been dumped in the mother of all legal grey holes, the place of right without remedy. And a legal grey hole is really little more than a black hole decorated with judicial wallpaper.”
In an interview, she explained that while not holding Canadian citizenship “can hurt,” being a Canadian citizen “doesn’t help when somebody is considered a pariah by the government.
“The government’s position is that it does not owe Canadian citizens any duty to assist them in any way when their fundamental rights are being violated abroad. The government claims absolute and unfettered discretion to pick and choose which Canadians to protect.”
Regardless of one’s views of Omar Khadr, this assertion of unaccountable discretion should worry all Canadians who travel outside the country. And so far, the SCC has been unwilling to contradict the government’s position, said Macklin.
Nathalie Des Rosiers, the Canadian Civil Liberties Association (CCLA)’s general counsel, said in an interview that the federal government needs to provide clarity on the criteria it applies to determine whether it will assist a Canadian in distress outside the country, since in recent years the message has been mixed.
Two years ago, a federal government-chartered jet whisked Canadian Brenda Martin away from a Mexican prison back to Canada where she was briefly remanded into custody before being released on parole for time served. Yet Maher Arar endured torture as a suspected terrorist in a tiny Syrian cell before a federal government commission exonerated him of any terrorist ties; a Federal Court last year had to order the government to issue a passport to Abousfian Abdelrazik, who was stuck in Sudan for six years; and in 2009 Suaad Haji Mohamud was stranded for three months and spent eight days in jail in Kenya, where she was charged with identity fraud — on Canada’s recommendation — after Kenyan immigration officials claimed her facial features didn’t match her Canadian passport (DNA testing later verified her identity). All three people hold Canadian citizenship.
“It looks bad if the government is helping white Canadians, but doesn’t help racialized Canadians,” said Des Rosiers, who is on leave as a professor in the University of Ottawa’s civil law section. “Maybe there are good reasons, but they should be more apparent to the public.
“Mendes believes Prime Minister Stephen Harper’s government made the decision that Khadr “wasn’t worth fighting for,” although he remains subject to a “potentially unlawful detention” under international law.
“The government is making distinctions between different types of Canadian citizens, and some have more rights than others. If it feels someone is not worthy to have the full protection of Canada, it won’t lift a finger. In fact, it will actually encourage a foreign state to let you basically rot in whatever condition you find yourself,” said Mendes. “Which is why I agree with the opposition that a Canadian is a Canadian is a Canadian. If we start making a distinction, we’re going down a very slippery slope.”
To help avoid that from happening, Des Rosiers is in favour of the creation of a new federal “ombudsman” who would represent all Canadians in need of assistance when outside the country.
But Ottawa lawyer and international and terrorist intelligence analyst David Harris offers a cautionary note about interpreting Charter rights in light of current national security concerns.
“We understandably have a greater focus on the individual, and I think that must continue…But I am a little concerned that we have gradually and inexorably been leading ourselves in directions that are incompatible with public safety,” said Harris, a former chief of strategic planning at CSIS prior to the Khadr case.
Harris acknowledged that while “platoons of exceptionally well-intentioned and well-educated lawyers are properly and vigorously advocating the interests of their clients in national security matters, I don’t see a great deal of public discourse in, and virtually any legal attention to, the sorts of backdrops, realities and threats I’ve seen on the ground. I think that reflects shortcomings in the profession and the community at large, and it interferes with our ability to seek a true balance in a delicate balance problem.”
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