Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity.

Nova Scotia v MacIntyre  , Supreme Court of Canada, quoting Jeremy Bentham

The “open courts” principle is as old as the common law. The House of Lords in 1913 said open courts “turn, not on convenience, but on necessity . . . Justice is not a cloistered virtue”.

This column describes a Federal Court case decided in 2017 called A.T. v Globe 24h.com. This decision dealt with several issues but we will consider only removing the applicant’s name from the case.

Facts and Decision

Globe24H.com was a Romanian website that downloaded about 245 Canadian judicial and administrative tribunal decisions by mechanical and manual means from the de-indexed Canadian Legal Information Institute (CanLII) database of judicial decisions in 2013. It posted these public documents online with the stated purpose to “make law accessible for free on the Internet”, essentially indexing them to appear in a general search. The site was free to use and contained non-personalized advertising. As soon as CanLII detected this re-publication, it blocked the downloading.

Globe24h.com indicated that it would remove the names or the cases for free upon request within 180 days, but expedited removals incurred a fee. The processing fee of €19 per document could buy removal within a few days. The site owner said this was a mere administrative fee to verify and execute the requests. The site erratically and frequently altered its fees and removal time estimates. It went from promising free removal to denying complete removal even with fee payment.

Fig. 2: A Canadian judicial decision re-published on Globe24h.com

A.T. said a two-year-old Alberta Labour Relations case he brought was re-published on Globe24h.com. He told the Federal Court he believed his name on that administrative decision affected his employment prospects and “in at least one instance . . . a prospective employer chose not to make him an offer (para 20).” He also said “he and his family have received verbal threats for pursuing the complaint [against Globe24h.com] (para 25).” None of A.T.’s evidence was tested because Globe24h.com did not defend itself in the case, or file an appeal. One assumes similar evidence was given unchallenged to the federal Privacy Commissioner prior to it making a recommendation that A.T.’s privacy was breached.

The Federal Court issued a declaratory order of contravention against Globe24h.com, and other remedial orders as well as damages of $5000 and costs of $300. It withheld A.T.’s name in the judicial decision, ostensibly to protect him. But who does that protect?

Critique

The public has an interest in knowing who is using the publicly accessible courts and administrative tribunals, how often, and the outcomes and reasons given in those cases. While A.T. said Globe24h had violated his privacy, it turns out that A.T. had himself used the legal system in Canada against others. A search of public records in September 2017 shows that, in the approximately 11 years prior, he had launched dozens of legal actions in the Provincial Court of Alberta and in the Alberta Court of Queen’s Bench, where he frequently obtained waiver of  filing fees.

The same hyper-litigious pattern was found in claims and appeals to quasi-judicial administrative tribunals. In 2014, A.T. was personally responsible for four of the ten claims filed that year with the Alberta Occupational Health and Safety Council. He was successful in none of them. He then applied to the Alberta Privacy Commissioner and successfully obtained an order to both replace his name with initials on these decisions and have them de-indexed so they would never be detectable by a general online search.

The public has an interest in knowing who is using the publicly accessible courts and administrative tribunals, how often, and the outcomes and reasons given in those cases. An Order was pronounced against A.T. and his mother (file number 1701-10524) on August 28, 2017 requiring them to obtain permission before bringing any more human rights complaints or suing the Alberta Human Rights Commission. Ironically, A.T. agreed in that Order to use “their full name and not by using initials, a pseudonym, an alternative name structure, or any other name which he or she might have used or uses.”

A.T. was ordered to refrain from personal contact with certain tribunal personnel. He walked into the Court of Queen’s Bench and obtained an  adjournment sine die without notifying the parties on the other side. Without having been to law school, he was recorded as a “Student-at-Law” with the court clerk. The reasons of the Occupational Health and Safety Council noted A.T.’s lack of credibility. The Chief of Commission and Tribunals at the Alberta Human Rights Commission took the highly unusual step of noting in File No. N2012/01/0264 at para 25:

I find that A.T. has little credibility in these human rights proceedings. A.T. has filed 5 requests for reviews with this office on dismissals by the Director in a fairly short time frame (and a 6^th one where he is the representative). These complaints allege discrimination against various parties in different circumstances but yet are remarkably similar in terms of the facts  and what is alleged. While A.T. has attempted to fashion the Complaint to make it look like a classic credibility contest, I find it simply unbelievable that A.T., a white individual whom many witnesses say speaks with unaccented English, would suffer such overt discrimination from so many different circumstances in such a short period of time. The information strongly supports that A.T. has a penchant for human rights litigation and is filing human rights complaints for improper purposes.

Why would we want to veil these cases?

A.T. has consumed many hundreds of thousands of dollars of public resources in his vexatious litigation. This does not count the private pecuniary and emotional costs, and loss of time and respect for the administration of justice. His loss of privacy by being identified with the cases he voluntarily chooses to bring is over-ridden by the need to detect such abuse of legal process. Personal identification is the only instrument of accountability and offers a disincentive to this abuse of process.

Introduction

 A perennial criticism of the Canadian judiciary is its excessive activism. Many think that the courts have helped fashion Canada into a nanny state and the Supreme Court of Canada is the most interventionist of the nanny courts.

The recent case of Highwood Congregation of Jehovah’s Witnesses v Wall deals with whether a court should intervene to settle a grievance between a religious body and its member. This time, the Supreme Court stayed on the sidelines.

Facts

Secular courts have no jurisdiction in the internal operations of religious organizations. Judicial review is only available to challenge public decision-makers acting under legislation.Randy Wall was a member of the Jehovah’s Witnesses for 34 years.  He was shattered that the church had expelled his 15-year-old daughter, and that she was evicted from the family home. He admitted to being drunk twice while under this family stress, and during one of those times he verbally abused his wife. He was also “disfellowshipped” as a result of these behaviours. As in the case of his daughter, the church ordered his family and Witness members to shun him. He feared this would have a serious negative impact on his social life and livelihood as a realtor.

Wall’s appeals through three church levels were all unsuccessful. His expulsion was upheld.

Private Activities and Disputes

Consider, for example, if one forms a singing club in the neighbourhood. Disagreements about the list of songs or their order of performance at the upcoming Christmas show are not legal matters and should not be determined by a judge. Likewise, a child should not be able to sue a parent to ensure her favourite foods are packed every day in her school lunch. Private actors are not subject to judicial review. This is especially true in matters of religion. If people voluntarily join religious groups and agree to beliefs and principles by which they will be governed, it is not open to one of the members to run off to court to get a change in the rules.

This “jurisdiction” is the challenge that faced Wall as he tried to obtain a legal remedy overturning the church’s decision. He could argue that the process used by the church was unfair or that the church denied him his property and civil rights. However, the church would say it was a private, religious organization and the courts had no business in its affairs any more than a court could tell Scout troops where to meet. Secular courts have no jurisdiction in the internal operations of religious organizations. Judicial review is only available to challenge public decision-makers acting under legislation.

The “justiciability” of this dispute was also in doubt. Applicants to court must have a legal interest. There is no Charter of Rights claim or contract between the Jehovah Witnesses and Mr.Wall. The church was merely a voluntary association, not even a legal entity. Should not the church and its members have the legal right to disassociate from Wall?

Judicial Outcome

Having exhausted all recourse in the church internally, Wall went to court, but the Supreme Court of Canada unanimously dismissed his application for judicial review of his expulsion. The Court said judicial review is reserved for public bodies (not churches) to ensure they act within the law. Courts can quash illegal decisions as a check on state decision-making. The church is a private actor with no statutory authority.

Further, the Court concluded there is no underlying free-standing right to natural justice in private associations and in private matters. There was no contract between Wall and the church. Mere membership in a congregation does not establish a legally enforceable contract. His loss of church clientele from expulsion was not a breach of Wall’s legal entitlements or property rights.

What about justiciability – whether Wall’s claim presents an issue fit to be determined by the courts? The Supreme Court said that depends on each case:

“the court should ask whether it has the institutional capacity and legitimacy to adjudicate the matter…The present issue is of a religious nature that pertains to fairness and process of the church’s suspension of Wall. Historically, courts lack legitimacy and capacity to determine such issues.”

Conclusion

 The Supreme Court of Canada left Wall with no remedy but it left the rest of us considerable wiggle room on justiciability. Ultimately, these are fact-driven cases captive to human instincts and sensibilities.

“Location is not the litmus test for determining the expectation of privacy.”

• R v Patrick, 2009 SCC 17, para 6

Introduction

In Canada, our home is our castle, at least in legal terms.  We enjoy the greatest constitutional protection of privacy in our homes.  What happens when our private personal information from our homes is set outside as trash?  We expect it will go straight to the waste disposal system.  Are we entitled to privacy for our garbaged personal information?  In 2009, the Supreme Court of Canada answered this question in R v Patrick.

Facts

In 2003 Russell Patrick was in his late twenties, a university graduate in physics and a former champion swimmer. He had represented Canada at the 1994 Commonwealth Games and held the Canadian men’s 100-metre breaststroke record from 1995 until 2001. Patrick was also successful in the narcotics industry, at the top of a sophisticated criminal organization targeting young people. He operated an ecstasy lab in his house.

Picking through abandoned garbage is a common police practice in criminal investigations. Six times in December 2003, without a warrant, Calgary police went to the lane behind Patrick’s house in the early morning, reached into the airspace across the fence line into Patrick’s garbage cans, pulled out the garbage bags, and seized many items that they found inside,  including receipts for the purchase of chemicals, torn-up chemical recipes and instructions, gloves, used duct tape and packaging for a scale.  They put the bags back in the cans.  The police officers did not step foot onto his property.

…garbage collectors do not promise to keep the trash confidential.These garbaged items were used to obtain a warrant to search his house and garage, which in turn yielded further evidence.  Patrick was charged for unlawfully producing, possessing and trafficking in an illegal drug.

 Unreasonable Search and Seizure?

Section 8 of the Canadian Charter of Rights and Freedoms guarantees freedom from unreasonable search and seizure by government agents. At his 2005 trial, Patrick argued that by taking his garbage bags from his property, the police had breached this right. He argued that all evidence obtained from his garbage should be inadmissible in any trial against him.

Supreme Court of Canada Analysis

The Supreme Court unanimously found no Charter violation.  Section 8 protection is limited to a reasonable expectation of privacy. Did Patrick have a reasonable expectation of privacy in his discarded garbage bags and their contents?

The subject matter of the search here was not merely ‘garbage’.  It was information of the householder’s activities and lifestyle.  The Court said “people generally have a privacy interest in the concealed contents of an opaque and sealed ‘bag of information.’”

In assessing the reasonableness of a claimed privacy interest, the Court looks at the totality of the circumstances. Did Patrick have an objectively reasonable expectation of privacy in his abandoned garbage? The garbage bags were placed at Patrick’s property line, accessible to anyone passing by. The Court said the police reaching through Patrick’s airspace to retrieve them was “relatively peripheral.”  This was not a “perimeter search” since police did not walk onto private property.  They were entitled to be in the public alley behind Patrick’s home.

Did Patrick have a reasonable expectation of privacy in his discarded garbage and their contents? The Court concluded Patrick abandoned his original privacy interest in the contents of the garbage bags as soon as he placed the bags out for collection.  He retained control over the garbage until he placed it within reach of his lot line.  Once he placed the bags at the lot line, Patrick had sufficiently abandoned his interest and control to eliminate any objectively reasonable privacy interest.”At that point, he had “done everything required of him to commit his rubbish to the municipal collection system.” The bags were unprotected in an open container, and easily accessible by anyone walking by. The bags were not yet collected by the garbage collectors.  Even if they had been collected, garbage collectors do not promise to keep the trash confidential.  it would be unreasonable for a homeowner to expect ongoing confidentiality in their trash. An independent observer would not think an expectation of privacy was reasonable in the circumstances.

Patrick had abandoned the garbage bags, so there was no existing privacy interest when the police retrieved them. The Court said the police technique was objectively reasonable. Patrick’s surrender of his lifestyle and biographical information in his trash tipped the balance in favour of the legitimate demands of law enforcement. Patrick was sentenced to four years imprisonment for trafficking ecstasy and fined $48,000.

The Law Post-Patrick

After Patrick, the Supreme Court continues to emphasize that expectations of privacy will be assessed by the totality of the circumstances. Yet, the numerous considerations are cumbersome and subjective.  Last year, the Court restated and slightly simplified the inquiry whether one’s expectation of privacy is objectively reasonable in R v Marakah, a case involving cell phone text messages.

A homeowner who has no remaining interest in physical possession of property cannot claim a strong interest in its privacy, specifically the information embedded in one’s garbage. Canadians should think about this before discarding personal and private information in their trash. The police may be reading it.

Introduction

 Vancouver, British Columbia consistently ranks as one of the most livable cities in the world. However, its Downtown Eastside (DTES) community of approximately 18,000 crammed into a few square blocks of social housing units, derelict buildings and temporary shelters – all in the shadow of an affluent downtown – is a glaring exception to livability.

Some 260 different agencies in the DTES offer programs and services. One such agency is the Portland Hotel Society (PHS) which manages social housing units for the provincial government. PHS also manages Insite, North America’s first legal supervised injection site for illegal drugs.

Insite was established in 2003 as an experimental pilot project by health authorities to contain the spread of HIV and Hepatitis C, which had been an epidemic in the DTES throughout the 1990’s. Insite became the flagship component of a comprehensive harm reduction strategy to tackle addictions.

Harm reduction is controversial. It provides clean needles to reduce harm from illegal drug use. Harm reduction strives to engage with drug addicts, keep them alive, offer treatment options when they confront their addiction and reduce the spread of disease. The federal government exempted Insite from the application of the Controlled Drugs and Substances Act. Staff and users of Insite were not subject to trafficking and possession laws.

By 2008, the Conservative government, elected on a law and order mandate, no longer supported harm reduction. When the exemption came up for renewal, the federal government decided not to continue with the experiment.

The Supreme Court of Canada clearly preferred the injection site once it had been launched as an experiment.A court battle ensued between PHS, the provincial government and social advocates on one side and the federal government on the other side. It ended in 2011 at the Supreme Court of Canada in Canada v PHS Community Services Society. Could the federal government shut down the supervised drug injection, a health care facility, on constitutional grounds?

Federal or Provincial Authority?

The federal government has constitutional authority to create crimes around dangerous drugs, but the province also claimed authority over delivery of health care services. Under the doctrine of Inter-jurisdictional Immunity, the federal government was held to be immune from provincial health laws which interfered with the ability of the federal government to enact and enforce drug crimes.

Charter of Rights and Freedoms

 PHS argued that drug addicts had a Charter right to the safe injection site, namely under the section 7 “right to life, liberty and security of the person” which can be denied only “in accordance with the principles of fundamental justice.”

PHS said that drug trafficking and possession laws block access to medical treatment. Clients are forced to break the law in order to receive the medical services of Insite. This violates the Charter, section 7.

Harm reduction strives to engage with drug addicts, keep them alive, offer treatment options when they confront their addiction and reduce the spread of disease. The Supreme Court of Canada, after a convoluted analysis, determined the application of federal drug laws at Insite to be a violation of “life, liberty and security of the person.”  However, the Controlled Drugs and Substances Act which prohibits the possession of illegal drugs, also allows the Minister of Health to exempt application of those laws if an exemption is necessary for medical or scientific purposes.

The courts should not lightly interfere with Ministerial discretion. Judges should show deference to Ministerial discretion where there is greater expertise and appreciation for the impact of such decisions within the broader context area of their governance responsibilities.

In practice, however, Ministerial discretion is not entirely immune from judicial review and as with any government decision, it must be made in accordance with law and, in particular, section 7 of the Charter. The Supreme Court said the Minister of Health denial of the exemption was contrary to the principles of fundamental justice. The Court concluded the Minister really did not have any discretion at all.

In a highly unusual and controversial stroke, the Supreme Court of Canada ordered the Minister of Health to renew the exemption. It is not clear what principles bind the Court but restraint is not foremost among them.

Conclusion

In the end, the Supreme Court of Canada did not rule on the constitutionally of harm reduction programs, trafficking and possession laws, or supervised drug injection sites. The Court ruled the Minister of Health violated section 7 of the Charter, by failing to renew the Insite Controlled Drugs and Substances Act exemption. Evidence at the time showed that Insite was saving lives and its operations did not have a negative impact on public safety. The facility was doing more good than harm.

Each exemption is temporary. The Minister can exercise her discretion again by balancing public health and public safety – until the Court disagrees.

Critics argue that the PHS decision comprised less a legal solution than a second-guessing of executive government policy making. The Supreme Court of Canada clearly preferred the injection site once it had been launched as an experiment. The decision demonstrates how difficult it can be for governments to enact policy and implement policy changes in the face of the Charter.

Policies for the treatment of addictions are among the major challenges of our day. The current federal government has extended these exemptions across many Canadian cities. Time will tell whether the policy of accommodating addictions will ultimately reduce them and their harm.

This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice.  Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.

We conclude that Mr. Khadr has established that Canada violated his rights under s 7 of the Charter.

Canada v Khadr, [2010] 1 SCR 44, para 25-26

 Introduction

 The last Famous Cases column described the first Supreme Court of Canada decision involving Omar Khadr.  In that 2008 case, the Court decided the US operations in Guantanamo Bay violated Canada’s international human rights obligations.  Khadr could assert rights under the Charter of Rights and Freedoms from a foreign country.

The Khadr cases are exceptions to the customary international law principle that the Charter does not have extra-territorial application.  While Khadr was born in Canada, he had remarkably minimal connection to the country.  His family appeared to have rejected the Canadian way of life and took him to Afghanistan to fight for the Taliban.  There the 15 year old child allegedly killed one American soldier and blinded another.  His life was saved and he was detained at Guantanamo Bay by the United States in July 2002.  The next years, including in 2004 when they knew he had been sleep deprived, Canadian officials interviewed Khadr in custody for intelligence gathering and not criminal investigation.  The Court characterized this as “active participation” by Canada in human rights violations.

As was the norm in such situations, the Canadians shared the information with the Americans.  A few years later, facing US charges for his actions, Khadr requested the interview records.

Khadr was not in Canadian custody or defending against Canadian charges, and he had been personally present at these interviews.  His 2003 and 2004 disclosures to Canadian officials were unlikely to provide any unique and miraculous defence to the US charges, although they may have assisted in the prosecution.  None of this gave the Court pause.  Distinguishing one of its decisions from a year earlier and condemning American actions, the Court summarily determined that Khadr was entitled to Charter protection and his right to liberty was denied because he had not received videos and transcripts of his interrogations by Canadian officials.  The Court said the statements taken by the Canadian officials contributed to Khadr’s detention.  In 2008, the Court ordered disclosure of interview transcripts, and disclosure was made.  Successive federal governments sought “[assurances] of good treatment of Mr. Khadr”.

Another Charter Breach?

Khadr also demanded that the Canadian government seek his repatriation.  When the government refused to do so, Khadr returned to court claiming this decision also violated his right to liberty under the Charter, s 7.

The Supreme Court of Canada, in an uncharacteristically short and quick decision (similar to Khadr 2008) covering a large number of discrete issues, found that the questioning of Khadr years earlier and sharing of statements with the US continued to violate his Charter right to liberty and security of the person.  Canadian actions did not accord with principles of fundamental justice because Khadr was young, did not have access to a lawyer, had been sleep deprived and Canada shared his statements with the United States.

The legal remedy sought by Khadr was a court order to the Canadian government to request his repatriation.  The Supreme Court of Canada declared the ongoing Charter breach but did not make this order.  The Court left it up to the federal government to respond.  The government did request Khadr’s repatriation.  Khadr returned to Canada in 2012.

Analysis

The Supreme Court of Canada reasoning in its 2010 decision is light.  It does not appear to add much to its 2008 decision.  We cannot know, for example, if there was one right violated (liberty) or more than one (security of the person) by Canada.  The 2010 decision only seems to say that the violation was continuing as long as Khadr remained in American custody at Guantanamo Bay.  This continuity declaration was the only remedy that derived from Khadr 2010.

Both decisions concluded that the Government of Canada had violated section 7 of the Charter by virtue of the 2003 and 2004 interviews.  Indeed, it is arguable that the Government of Canada won the 2010 decision because the ordered repatriation request was struck down.  The Court admitted Khadr’s “claim is based upon the same underlying series of events at Guantanamo Bay (the interviews and evidence-sharing of 2003 and 2004) that we considered in Khadr 2008”.  There was really nothing new.  Both 2008 and 2010 cases were decided under the same facts.  Both decisions concluded that the Government of Canada had violated section 7 of the Charter by virtue of the 2003 and 2004 interviews.  Nevertheless, the Court framed it as an exclusive win for Khadr and awarded him the court costs of victory.

The Khadr cases are exceptions to the customary international law principle that the Charter does not have extra-territorial application.  Canadians are bound by the laws of the countries to which they travel.  If they commit crimes in other countries, they cannot demand that Canadian laws and rights protect them.

The Canadian officials’ interviews in February and September 2003, and again in March 2004 were the springboard to what have been characterized by the Court as serious Charter breaches.  At the 2004 interview, Khadr refused to answer questions and the Canadian officials withdrew.

It is important to remember that Khadr was not in custody in Canada, had admitted to killing an American, was early designated an “enemy combatant”, was charged by the United States with war crimes and held for trial before a military commission of a country he chose to engage in combat.  Despite the Supreme Court’s casting this as “active participation” by Canada, the woe visited upon Khadr was overwhelmingly due to his own actions and the actions of the United States.

All of this was done far away from Canada, outside of Canadian power and jeopardy, beyond Canadian law and under international norms applicable to unconventional warfare conducted by non-state enemy combatants.  Yet, the Court said Canada actively participated in the illegal American regime.  If Canada had ignored Khadr, as it does tens of thousands of Canadians overseas at any time, it would have copped less legal liability.

Conclusion

The Supreme Court said “the appropriate remedy is to declare that, on the record before the Court, Canada infringed Mr. Khadr’s s 7 rights, and to leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter” (para 39).  The Court made no further order in 2010 and, after declaring the breach, left the matter in the hands of the government:

The prudent course at this point . . . is for this Court . . . to grant [Khadr] a declaration advising the government of its opinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter.  (para 47)

After eight years in US custody, Khadr pleaded guilty to murder in 2010 under a plea agreement, which he later repudiated.  He was repatriated to Canada in 2012 and released in May 2015.

Canadian actions did not accord with principles of fundamental justice because Khadr was young, did not have access to a lawyer, had been sleep deprived and Canada shared his statements with the United States.

Khadr 2010 merely confirmed Khadr 2008’s declaration of the Charter breach by Canada.  In tandem with another Supreme Court of Canada decision coincidentally just seven months later, the door to a claim for monetary compensation by Khadr was left open.  In 2013, Khadr sued the Government of Canada for $20 million.

In July 2017, a new Canadian government agreed to grant him a formal apology and $10.5 million compensation for violating his Charter rights, although precisely what right(s) were violated was not clarified.  In defence of this controversial payment at the time, the Prime Minister inexplicably confirmed the government settled as it might otherwise have been liable for up to $40 million.  To date, no Canadian court has ordered compensation for Charter violations at anything close to $10.5 million.  Overall, one expects that the entire Khadr matter – unleashed by a Canadian kid throwing grenades for the Taliban at our allies in a faraway land – has cost Canadian and American taxpayers several factors of the settlement amount.

Meanwhile, the families of Khadr’s two American victims obtained a US$134 million default judgment against Khadr in 2015.  It remains unpaid in full.

“That when a government violates a Canadian, any Canadian’s fundamental rights, and allows them to be tortured, there are consequences and we all must pay  . . .  the question is what the Government of Canada did or didn’t do and that as a deterrent, as taking responsibility, and that as actually avoiding what could have been a $40-million payout at the end of the day was why we made that decision [to pay Omar Khadr $10.5 million].”

PM Justin Trudeau, response at public meeting, January 9, 2018

 Introduction

 In early July 2017, the Government of Canada announced a settlement payment of $10.5 million and apology to accused murderer and terrorist Omar Khadr.  In Parliament, the Prime Minister defended the payment and apology on the basis “that a Canadian government violated a Canadian’s fundamental rights.”

Many Canadians wondered what rights of Khadr were violated that would warrant a $10.5 (or $40) million pay day.

There are actually several Khadr judicial decisions from the Supreme Court of Canada.  This article describes the first decision where the question was a threshold one: whether Khadr actually enjoyed rights under the Charter of Rights and Freedoms.  The next article will refer to the follow-up judicial decision.

Facts

The specific international obligation in issue here was the 1949 Geneva Convention.  It allows prisoners to challenge their detention (habeas corpus).  Prisoners at Guantanamo Bay were not permitted to do this, which corrupted the entire process.

The whole Khadr story is long and detailed.  Only the basic context is necessary here.  Canadian-born Khadr was accused of killing an American soldier in Afghanistan.  He was captured and imprisoned at Guantanamo Bay by the United States in July 2002.  The next year, Canadian intelligence officials interviewed Khadr in custody about the charges and shared the information with the Americans.  In themselves, the interviews and sharing probably amounted to nothing.

After Khadr was formally charged by the Americans in late 2005, he asked the Canadian government for its videotape and other records of these interviews.  The principle is called disclosure and is based on the 1991 case called Stinchcombe, which has been recently discussed in this LawNow column.  Canada refused to give Khadr disclosure.  This was not disclosure of evidence that could catch Khadr by surprise or complicate (or assist) his defence.  It was a request for the physical record of evidence of which he was well aware.

Unusual Case

Now, this was a highly atypical case.  Khadr’s connection to Canada was tenuous.  He and his family had spent much time outside of Canada.  He was a child fighting against the American coalition.  He had killed an American which he admitted to, and then later denied.  He was in American custody in sovereign foreign territory, charged with serious American crimes and he was being processed by American authorities.  His loyalties to Canada were unknown.  Canada had obligations under international law to co-operate with international coalition partners in terrorism investigations.

The Stinchcombe duty of disclosure applied to prosecutions under Canadian law.  No one knew how it could apply in a case such as this one.  Khadr had been present at the interviews so it could not be said that he did not know what he was asked and answered.  Still, he was young at the time.  A record of what he told the Canadian interviewers was hardly thought to be the most critically precious evidence with which to defend himself against the American crimes.  Indeed, the unusual disclosure request to receive the record of his own questioning might be considered a technical ploy.

The reach of the Charter of Rights was not clearly established in Canadian law at this point.  Normally, one had to be on Canadian territory to assert Charter rights, and Canadian authorities operating outside of Canada were thought not to be bound by the Charter.  In the 2007 case of Hape, the Supreme Court of Canada held that Canadian agents investigating money laundering in the Carribean were not bound by the Charter.  This was consistent with both the American position and international law that prevents countries from enforcing their domestic laws extraterritorially.  Another principle of “comity” calls on Canadian officials to follow the laws and procedures of the foreign country in which they are operating.

The trial judge agreed with the Crown that disclosure was not required in this case.

The Supreme Court of Canada Decision

In an uncharacteristically terse decision, the Supreme Court concluded that Khadr was entitled to Charter protection, and his right to “life, liberty and security of the person” was denied because he had not received videos and transcripts of his interrogations by Canadian officials.  There was no analysis how the failure to disclose had any impact on Khadr’s liberty.

There are actually several Khadr judicial decisions from the Supreme Court of Canada.  The Court said this case was an exception to Hape because, well, Canada should have known better than to trust the Americans at Guantanamo Bay.  Canada should have known that the Americans were acting “contrary to Canada’s international obligations”, which preserve a higher, more noble platform “of international law and fundamental human rights” [para 18].

The specific international obligation in issue here was the 1949 Geneva Convention.  It allows prisoners to challenge their detention (habeas corpus).  Prisoners at Guantanamo Bay were not permitted to do this, which corrupted the entire process.

To put it another way, “if Canada was participating in a process that was violative of Canada’s binding obligations under international law, the Charter applies to the extent of that participation” [para 19].  When Canada passed the transcripts and video footage to the US, it violated its international human rights obligations.  As a consequence, the Charter applied to protect Khadr and he had been improperly denied this nominal disclosure under his section 7 right to liberty.

If Canada had not interviewed Khadr in the first place, there would have been no records to disclose, no participation in an international law-flawed process, no application of the Charter of Rights to Khadr, and no Charter breach in his case.

Conclusion

Many Canadians wondered what rights of Khadr were violated that would warrant a $10.5 (or $40) million pay day.

As it did in 2001 when it refused the extradition of Canadians accused of multiple murders on American soil unless Canadian and international sensibilities against the death penalty were first indulged, the Supreme Court of Canada has claimed moral superiority.  It has again whacked American law and its legal system under American territorial jurisdiction.

The case for Stinchcombe disclosure of the interview records to Khadr here is arguably feeble in several ways.  The consequences of this nominal breach would ordinarily be in the order of negligible to nominal to minimal.  It is not a loss of anything in the order of $10.5 million.

The door, however, was thrown open by the Supreme Court of Canada.  From Ottawa, Khadr was granted Charter protection to his cell in Guantanamo Bay.

Surely he can identify and assert some other Charter claim?

A person commits an assault when . . .  without the consent of another person, he applies force intentionally to that other person, directly or indirectly . . .

Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

 Criminal Code, sections 265(1) and 43

Introduction

 The freedom and choice of parents to discipline their children in the manner they choose, free from interference by the state, raises the question of where the line ought to be drawn between acceptable physical discipline and criminal assault.  In a family (non-criminal) law context, spanking may also be viewed as child abuse.  Social science research is inconclusive, showing both positive and negative impacts of corporal (physical) punishment.

About half the countries of Europe have made all forms of corporal punishment illegal in schools only.  The other half make it illegal in both schools and homes.  About half of the American states have illegalized corporal punishment in schools.  The other half do not regulate it but allow parents to rule it out at school.  Some 67% of Americans approve of spanking.

In Canada, there is no legal distinction between corporal punishment in the home and at school, although – along with the rest of the developed world – the practice in both places appears to be in decline.  It would be difficult to find a strap in any modern Canadian school, much less one that has been recently pressed into service.

When is it the crime of assault, and when is it acceptable parenting?  This article sets out the current law of spanking in Canada.

Section 43 of the Criminal Code

Parents, and guardians and teachers who stand in the role of parents, may “correct” children with “force” that “is reasonable under the circumstances.”  This prevents a criminal charge of assault and, if such a charge is laid, it provides a defence.

Early Cases Interpreting the Provision

The child must be under the care of the corrector, so a bystander adult in a shopping mall cannot use this section to justify smacking another’s badly behaving child.  Likewise, one child correcting another child in the playground.  A babysitter in care of the child will be able to use this defence: R v Murphy.

Degrading, inhuman or harmful force will never be excused.  Using objects or blows and slaps to the head are unreasonable. A mentally disabled adult in a residential institution is neither a “child” nor a “pupil”.  In the 1984 case of Nixon v R, a counsellor who used physical force on “a mentally retarded adult” under his supervision received no benefit of section 43.  Similarly in the same year in Ogg-Moss v R, another counsellor could not claim he was “standing in the place of a parent” or a “schoolteacher” to correct a “child” or “pupil”.  It probably did not help his case that he hit a severely handicapped twenty-one year old patient several times on the forehead with a large metal spoon after he had spilled his milk.

The force must be used for the purpose of correction.  If the child is too young or is disabled to understand, this offers no defence to the assault.

The customs and standards of one’s original culture must give way to what is acceptable in contemporary Canadian culture.  Other foreign cultures may abide more force than Canada will accept: R v Baptiste (Ontario, 1980).  Nor can religious beliefs be invoked to justify unreasonable force: R v Poulin (NL, 2002).

The Canadian Foundation Case

The Supreme Court of Canada considered the reasonable force defence in 2004 in Canadian Foundation for Children, Youth and the Law v Canada.  The Foundation sought a declaration that section 43 be held invalid under the Charter of Rights, sections 7 (loss of right to security of the person not according with principles of fundamental justice), 12 (freedom from cruel and unusual punishment) and 15 (equality regardless of age).  A 6 to 3 majority of the Court upheld section 43 on all Charter grounds and further clarified the parameters of “force … reasonable under the circumstances.”

(a.) Section 7 Loss of Right to Security of the Person not According With Principles of Fundamental Justice
  (i) Principle of Fundamental Justice?

In 2004, the Supreme Court of Canada approved of spanking, properly restrained, under the Charter of Rights.  It must be for educative or corrective purposes and the child must be able to benefit from it.  The child cannot suffer from a disability and must be between the age of two and twelve.  The Foundation argued that children must enjoy independent procedural rights under the Charter to due process in the representation of their interests.  The majority disagreed: the law does not provide procedural rights for alleged victims of an offence. Even if it did, children’s interests are represented at trial by the Crown prosecutor who will discharge this duty properly.

(ii) Best Interest of the Child?

A principle of fundamental justice must be a “legal principle, that is vital or fundamental to our societal notion of justice and be capable of being identified and applied in situations in a manner that yields predictable results.”  The best interest of the child is not a principle of fundamental justice because society does not always raise the best interests of the child over all other concerns in the administration of justice and “reasonable people may well disagree about the results that this application will yield.”

(iii) Is Section 43 too vague or overbroad?

The category of person who is entitled to the section 43 defence is not be too vague.   Since the force must be “by way of correction” and must be “reasonable under the circumstances”, the section was also not too broad.

For spanking to be corrective, it must be capable of educating the child and the child must be capable of benefiting from it.  Children under two years of age and those suffering mental disability cannot benefit from spanking since they have not sufficiently developed cognitively to understand the purpose of spanking.

Reasonable corrective force is a standard long recognised in criminal jurisprudence.  What is “reasonable in the circumstances” can be determined from international treaty obligations, judicial interpretation from an objective standpoint and expert evidence.  Evidence shows that corporal punishment of teenagers induces aggressive behaviour so the defence will not be available in relation to children over 12 years of age.  The section is not too broad.

(b.) Section 12 Cruel and Unusual Treatment or Punishment

Section 43 only allows for corrective force that is reasonable.  Therefore, it can never rise to the level of being “cruel and unusual”.  Any spanking “so excessive to outrage standards of decency” would not attract section 43 protection.

(c.) Section 15 Equality

Section 15(1) of the Charter ensures “equality before and under the law” and the “right to equal protection . . . without discrimination . . . based on age”.  The Foundation said “section 43 would permit conduct against children that would otherwise be criminal in the case of adult victims” and therefore the section “decriminalization discriminates against children”.  Although children are vulnerable and their physical integrity is profound, the majority of the Court  found section 43 was Parliament’s attempt to balance a safe environment for all children and a child’s dependence on “parents and teachers for guidance and discipline, to protect and promote their healthy development within society.” The section is “firmly grounded in the actual needs and circumstances of children”.

Conclusion

Spanking, the intentional striking of a child, is technically an assault.  To decriminalize and regulate this physical form of child discipline, more than 125 years ago Parliament enacted section 43 of the Criminal Code where it is captioned “Protection of Persons in Authority”.

In 2004, the Supreme Court of Canada approved of spanking, properly restrained, under the Charter of Rights.  It must be for educative or corrective purposes and the child must be able to benefit from it.  The child cannot suffer from a disability and must be between the age of two and twelve.  The spanking may only be of a insignificant and temporary nature.  What is “reasonable under the circumstances” will be a subjective consideration in light of all the circumstances in the case, including according to societal standards, experts and treaties.  Degrading, inhuman or harmful force will never be excused.  Using objects or blows and slaps to the head are unreasonable.  The corrector’s frustration, temper or abusive personality will also undermine the correction and remove the defence.

Despite Canadian Foundation, spanking continues to be highly controversial.  The 6 to 3 majority almost a generation later might be reversed under a largely re-constituted Supreme Court.  A new court challenge might yield a new result.

There have been many legislative attempts to have section 43 repealed or amended, with at least 17 private member’s bills being tabled in Parliament since 1994, the latest one last year.  None have yet succeeded.

The federal government announced it intends to enforce all of the recommendations of the Truth and Reconciliation Commission.  One of these recommendations is to repeal section 43: “the Commission believes that corporal punishment is a relic of a discredited past . . . and has no place in Canadian schools or homes.”

The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.

R v. Stinchcombe (1991) at para 12

Introduction

The last Famous Cases column narrated the story around the 1991 decision of the Supreme Court of Canada in R. v. Stinchcombe.  In this article, we set out some of the main content of the Stinchcombe Crown duty of disclosure principles.  Readers who interact with the criminal or regulatory process will be interested to learn about their constitutional right to Crown disclosure.

Purpose of Crown Disclosure

Prior to 1991, Crown disclosure was made on an ad hoc voluntary basis.  Stinchcombe is a landmark Supreme Court of Canada ruling that mandated it in every criminal prosecution, forcing police and prosecutors to share all information with the accused person, not just the evidence the Crown will use in court.  Crown disclosure facilitates the accused’s right to know the case to meet and to be able to make full answer and defence to any offence charged.  It is the principle of fair play.  The right to disclosure is one of the most important rights guaranteed to an accused in the criminal process. Disclosure facilitates agreement on facts in issue and, where appropriate, early guilty pleas.  It arises from the common law, the Charter (section 7) and is codified in the Criminal Code.

Accused persons have no equivalent disclosure obligation.  They can maintain a purely secretive and adversarial role with regard to their defence.

Not an Absolute Right

Most constitutional rights are not absolute.  Likewise, the right to Crown disclosure is neither absolute nor unlimited.  For disclosure rights, “Crown” only means the “prosecuting Crown” and not all other Crown entities including police.

Stinchcombe disclosure only applies to material relating to the accused’s case that is in the possession or control of the Crown.  Police records from an unrelated file that is not in possession of the prosecuting Crown is not subject to disclosure.  Information in the possession of third parties such as boards, social agencies, government departments, rape crisis centres, women’s shelters, doctors’ offices, mental health and counselling services or foreign law enforcement agencies is not in the possession of the Crown.

An accused person does not have to pay for one copy of basic disclosure materials.

If the accused believes all required disclosure has not been made, one may apply for review by the trial judge.

Timing of Disclosure

The Crown should advise a self-represented accused of the right to disclosure.  The right to disclosure arises once it is requested.  In practice today the Crown discloses automatically as soon as reasonably practicable even without a formal request.  Initial disclosure should be provided to allow the accused to make an informed decision about election and plea.

The purpose of criminal prosecutions is not to score the most convictions, but to present all relevant evidence and obtain justice.  The prosecutor’s objective is not to win, but to perform a public duty with dignity and fairness.

The Crown is often unable to make complete disclosure at the initial stage of the disclosure process.  Premature disclosure may result in harm to an individual or public interest and can be delayed to protect the integrity of an ongoing investigation or where necessary to protect the safety of certain witnesses.

The Crown’s disclosure obligation is a continuing one and attaches to information that comes to the attention of or into the possession of Crown counsel throughout the process.  It even continues after conviction, including after appeals have been decided or the time of appeal has elapsed.  On the other hand, great deference is shown to the Crown’s manner and timing of disclosure.

General Principles of Stinchcombe Disclosure

The Crown must preserve and disclose to the defence all information under its control – whether inculpatory or exculpatory – which may assist the accused in some way.  Admissibility of the information as evidence is not a consideration.  Crown information is subject only to relevance and privilege.

The prosecutor has broad discretion to determine relevance.  Information which is not useful is irrelevant.

Withholding for privilege includes the protection of informants, cabinet confidences, national security, international relations and national defence information.  Information that is protected by solicitor-client privilege or may reveal confidential police investigative techniques is not shared.  The Crown’s own internal notes, memoranda, correspondence, opinions or other materials generated to prepare the case for trial are not subject to disclosure.

Type of Information Disclosed

The Crown must preserve and disclose to the defence all information under its control … which may assist the accused in some way.  Generally disclosure includes some of the following as available: the charging document, particulars of the offence, audio/video and transcribed witnesses statements, statements of the accused, any expert witness reports, documents, exhibits, search warrants, private communication intercept authorizations, similar fact evidence, identification evidence, and witness and accused criminal records.  Defence lawyers can obtain records of sexual assault victims.

The disclosure documents may be in either paper format such photocopies, electronic format such as CD-ROM, or a web-based format.  Where disclosure is in one of the two official languages, it does not need to be translated.  The Crown must organize the disclosure so it can be meaningfully searched and used.  This is essential where a great volume of material is disclosed.

Conclusion

The purpose of criminal prosecutions is not to score the most convictions, but to present all relevant evidence and obtain justice.  The prosecutor’s objective is not to win, but to perform a public duty with dignity and fairness.

Accused persons have no equivalent disclosure obligation. Prior to 1991, Crown disclosure was made on an ad hoc voluntary basis.  Stinchcombe is a landmark Supreme Court of Canada ruling that mandated it in every criminal prosecution, forcing police and prosecutors to share all information with the accused person, not just the evidence the Crown will use in court.  Stinchcombe has changed criminal prosecutions more dramatically than any other decision.  Now we have Stinchcombe principles (of disclosure) and the Stinchcombe application (to stay the charges).

These disclosure rights have added many millions of dollars to the cost of prosecuting cases.  Much more work must be done by the Crown at the beginning.  Delays in getting cases tried and the length of trials has increased.  Deciding what is relevant is not always easy.  A simple omission, as in the actual Stinchcombe case, can lead to the withdrawal or staying of charges or overturned convictions.

Most constitutional rights are not absolute.On the other hand, Stinchombe enables the accused to better prepare one’s defence.  Early and full disclosure facilitate plea negotiations, and reduces the number of full criminal trials and wrongful convictions.  Fairness does not depend upon the goodwill of the particular prosecutor, evidence is no longer withheld, and surprise is eliminated.  Disclosure made the prosecutors better prepared.  It also bolstered the photocopy industry.

Ironically, – and this is often the reality in judicial decision-making – the facts in Bill Stinchcombe’s case were exceptionally weak to support such a sweeping constitutional principle.  The potentially favourable evidence the secretary originally gave was likely Stinchcombe himself ‘refreshing her memory’ at the courtroom doors.  Stinchcombe may have contributed to the evidentiary confusion.  He easily could have called her to testify at his trial.  There was no prejudice.  For him and the Supreme Court of Canada to suggest he was facing a miscarriage of justice was an overstatement which led to this exceedingly onerous judicially-fashioned disclosure obligation.  The evidence that led to this historic legal development would have most likely made no difference at all in the real Stinchcombe case.

The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.

R. v. Stinchcombe (1991) at para 12

Introduction

Rarely does a single prosecution so fundamentally alter legal practice in Canada as the Stinchcombe case.  This criminal law decision from a unanimous Supreme Court of Canada does not involve the merits of guilt or innocence or the severity of sentencing.  It deals only with the uncompromising legal duty of the Crown prosecutor to share all the evidence it has collected with the accused prior to the criminal trial.  If the Crown does not do so, the charge may be stayed or a conviction overturned.  This has resulted in delays, a massive expansion of prosecutorial resources and undoubtedly some people guilty of crimes walking free.  This article tells the story of the landmark Stinchcombe case.

Facts

William (Bill) Stinchcombe, a Calgary lawyer, had utterly entangled legal representation and business venturing with his clients in the 1980s.  He got into trouble when he could not repay money his clients had lent or invested with him.  He was suspended as a lawyer by the Law Society of Alberta in September 1987.  He was also charged with criminal breach of trust, theft and fraud for embezzling $1.6 million from a client.

Stinchcombe lost most of the civil lawsuits against him and appears to have left them unpaid when he quit Canada and moved to Australia shortly after 2001. His former secretary gave evidence at the preliminary inquiry for the Crown that tended to support Stinchcombe. When she later she gave statements to the police that contradicted and retracted her earlier evidence, the Crown decided not to use her statements in its case.  It informed Stinchcombe about the statements but refused to share them. The secretary did not want to speak any more to Stinchcombe or his lawyer, although they could have called her as a witness.  The trial went ahead in February 1989 without the secretary’s evidence.

Stinchcombe was convicted and sentenced to nine years in prison.  He spent almost one week in jail before seven friends helped raise the $150,000 bail to get him out.

Appeal to the Supreme Court of Canada

 The Supreme Court of Canada concluded that, in criminal cases, the Crown has a constitutional duty to disclose to the defence all evidence in its possession and control that could be relevant to the case.  This duty does not depend upon whether the Crown will call that evidence at trial, whether the Crown thinks a witness is not worthy of credit, or whether the evidence helps or hurts the Crown’s case.

This disclosure duty derives from the right of an accused to make full answer and defence which has been entrenched in Section 7 of the Charter of Rights and Freedoms.  At the time, a few wrongful convictions (such as the conviction of Donald Marshall) were circulating in the news and a full right of disclosure of evidence from the Crown was seen as an effective move to prevent these.

The Court quashed the conviction, and ordered Crown disclosure of all the secretary’s evidence prior to a new trial.  As it would turn out, this was the first of many fantastical excursions for Stinchcombe in the legal world he thought he knew.

Subsequent Trials and Other Legal Proceedings

Crown disclosure was a problem at the second trial because the tape and statement were missing.  A brain tumor claimed the policeman who held them.  His widow could not find the evidence.  Eventually, the Crown produced a photocopy of the witness statement and transcript of the tape. Stinchcombe, savouring his momentum and perhaps sensing vulnerability of the Crown, insisted on receiving the physical tape recording to check whether the transcripts were accurate.

The Supreme Court of Canada concluded that, in criminal cases, the Crown has a constitutional duty to disclose to the defence all evidence in its possession and control that could be relevant to the case. But the tape was gone, so the trial judge stayed the charges.  This case also went to the Supreme Court of Canada which said in 1995: “the Crown produced a copy of the statement and a transcript of the tape and explained the absence of the originals.  That explanation did not reveal any misconduct on the part of the Crown.  In our opinion, the Crown had fulfilled its obligation to produce.  The Crown can only produce what is in its possession or control.  There is no absolute right to have originals produced.”  Then the tape was found and given to Stinchcombe.

At about the same time, Stinchcombe was also defending himself against two clients in civil cases.  One client was the complainant in the $1.6 million criminal fraud case.  It is not clear how much Stinchcombe had to account to this client who was also his business partner after the 1993 lawsuit.  The other client in 1994 won a $400,000 claim and full indemnity costs.  In both cases, the judges expressed serious concerns about Stinchcombe’s credibility.

Meanwhile, when Stinchcombe was preparing for the third criminal trial, a Crown memo surfaced which vaguely implied the criminal complainant (Stinchcombe’s client) might have lied about something.  Further investigations produced nothing, but the new Crown prosecutor decided to tap out.  He thought disclosure of that seven year old memo was coming too late even though it had just come to his attention, it was only legally required to be disclosed four years earlier, and Stinchcombe was not being tried in the interim.  On March 22, 1996, the Crown called no evidence and Stinchcombe was acquitted of the criminal charges.

All of this time, Stinchcombe was not able to practice law.  According to one report, “he was forced to survive by working as a labourer, store clerk, armourer (i.e., someone who maintains firearms and supervises their use on movie sets), tutor, and tax preparer. He also worked as a horse trainer . . . He even spent nearly a year making donuts at Tim Hortons.”

Delay also came to Stinchcombe’s rescue in his fight against the Law Society.  The Alberta Court of Appeal stayed all professional sanctions against him in 2002 on the grounds of delay and prejudice to his defense.  He was reinstated as a lawyer in Alberta but he did not practice.

Stinchcombe moved to Australia.  Then in 2003 he sued the Law Society of Alberta for $16 million.  He said the Law Society’s drawn out disciplinary proceedings prevented him from earning a living as a lawyer.  Few steps were taken to advance that lawsuit.  In late 2008, the Law Society moved for, and was granted by the Court of Queen’s Bench, an order that Stinchcombe furnish security for costs in the amount of $630,000 as a pre-condition to continuing that lawsuit.  This order to post costs appears to have brought this lawsuit to an end.

What Happened to Stinchcombe?

Very few people get their cases heard and decided by the Supreme Court of Canada.  Stinchcombe joins Morgentaler and Keegstra as an even smaller club of people who had their cases heard at that court more than once.

Meanwhile, when Stinchcombe was preparing for the third criminal trial, a Crown memo surfaced which vaguely implied the criminal complainant (Stinchcombe’s client) might have lied about something. Stinchcombe lost most of the civil lawsuits against him and appears to have left them unpaid when he quit Canada and moved to Australia shortly after 2001.  Prosecutorial delay was invoked to toss out all criminal (seven years) and professional disciplinary charges (fourteen years) that had been brought against him.  These charges were never decided on their merits.  The tidal waves of litigation and suppressive legal process – much of it initiated by Stinchcombe – served to overwhelm and crush the allegations originally presented.

In the end, although Stinchcombe escaped criminal and regulatory conviction, any victory or termination of hostilities he did experience came at a high personal cost.  He lost his income, friends, lifestyle, reputation, family and his estate.  Now 73, he is listed as “Managing Law Clerk” in a small law firm that bears his name in Australia.

 Note:  the highlights of this significant Crown duty of disclosure which began with Stinchcombe will be the subject of the next Famous Cases column.

[I did] “haying, raking, swathing, moving, driving trucks and tractors and teams, quietening horses, taking cattle back and forth to the reserve, dehorning, vaccinating, branding, anything that was to be done.  I worked outside with him, just as a man would…”

Irene Murdoch’s evidence

Introduction

Murdoch v. Murdoch is a 1973 Supreme Court of Canada decision from Alberta [http://canlii.ca/t/1xv6k].  It shows law as a blunt instrument when adapting to social change.  The case involved the application of old property law principles to emerging matrimonial property realities.

In Canada, marriage was traditional up to the late 1970s.  The spouses were male and female, divorce was rare by modern standards and property was mostly held in the husband’s name.  In the 1970s this started to change as divorce increased after divorce laws were liberalized and people lived together and separated without formal marriage.  Women found they had a tenuous claim to share in the property they had  acquired and contributed to during the cohabitation.

Women argued that under standard trust law, they had acquired a beneficial interest in matrimonial property to which they indirectly contributed.

Facts

Irene and Alex Murdoch married in 1943 and worked for four years on Alberta ranches as a hired couple.  Multiple properties of increasing value were bought and sold in succession by Alex, culminating in a substantial ranch at Black Diamond, Alberta.  Throughout the marriage Irene worked on the property alongside her husband.  She operated the ranch during her husband’s substantial absences while he was tending other businesses.

Irene’s story was the socio-economic reality of many Canadian farm wives – indeed most married women in Canada at that time.  Women could identify with Irene.  When the marriage ended in 1968, Irene claimed a half interest in the ranch and other assets, the titles of which were in her husband’s name.  This amounted to about $95,000.  She said she was an equal in the ranching business during their 25 years of marriage.

At the Supreme Court of Canada

There had been a few decisions where, in exceptional circumstances of labour and sacrifice, wives could be entitled to a proprietary interest merely from marriage and cohabitation, and without financial contribution.  The legal principle was resulting or constructive trust.

Four of the five male judges concluded that Irene’s work did not exceed that which is expected of a typical ranch wife.  A trust would be found if she had contributed money or if there was a common intention at the time of property acquisition to hold equal shares in trust.  Irene could prove neither of these things.  Therefore, she was granted no beneficial interest in the property and she was ordered to pay some of her husband’s legal bills.

The dissenting judge saw Irene’s work contributions as “extraordinary.”  He said the pooled wages earned early in the marriage should be counted as sufficient financial contribution to the property acquisition.  A denial of her interest would be an inequitable and unjust enrichment of her husband.

Impact on Canadian Matrimonial Property Law

The Murdoch decision stoked a significant increase in public and political support for matrimonial property law reform.  Irene’s story was the socio-economic reality of many Canadian farm wives – indeed most married women in Canada at that time.  Women could identify with Irene.  Women’s groups pushed for reform of matrimonial property regimes.  The case represented a watershed event in the Canadian women’s movement.

Women’s groups rallied behind Irene and set up a trust fund in 1974 to “thank [Murdoch] from all women because her courage and tenacity have brought the unjustness of our laws on matrimonial property out into the open… The political response was to create commissions with the mandate to examine existing matrimonial property law and to propose reforms.  All Canadian provinces and territories enacted new legislation within six years of the Murdoch decision.  An example was Ontario’s Family Law Reform Act of 1978.

Gone was the separation of property principle where each spouse owned only that in which they could establish a proprietary interest through rigid rules of property and trust law, and where the wife received nothing upon separation if her name was not on the title.  The new legislative regime mandated a presumption of equal sharing of property acquired during marriage or cohabitation, regardless of the financial or labour contribution to its acquisition.  Indeed, there was more legally required sharing after marriage breakdown than during marriage itself.

What Happened to Irene Murdoch?

After the decision, Irene found work as a cleaning lady.  Her divorce was final in 1975.  Her lump sum financial settlement for maintenance was $65,000.

Women’s groups rallied behind Irene and set up a trust fund in 1974 to “thank [Murdoch] from all women because her courage and tenacity have brought the unjustness of our laws on matrimonial property out into the open… [and to be] a public gesture, a token of disapproval of the way the Supreme Court of Canada interpreted the law” (from a November 1975 speech).  The Murdoch fund mobilized grassroots interest in Irene Murdoch’s case and provided a means for ordinary women to demonstrate their support.  The trust fund was endorsed by the newly established Alberta Human Rights Commission, which sent a letter to the Supreme Court of Canada seeking a revision.  The story was taken up by the press and the Advisory Council on the Status of Women, both of which provided additional endorsement.

Irene re-emerged in May 1983 to author a letter to the editor of Chatelaine.  Now remarried, she replied to an article in which she had been featured: “since my divorce, what I have said over and over again is that . . . I have a new life now and I want to forget the old.”

By the mid-1980s, Irene was clearly wary of the media and sought to return to her private life.  A reluctant heroine who shunned the spotlight, she drifted away from the women’s organizations that had helped her.

Irene Murdoch’s case will always be seen as a rallying focus for matrimonial property law reform.  It served as the impetus for the quest for legal equality between spouses.