Court Holds Prolonged and Indefinite Solitary Confinement is Unconstitutional

Today the Court of Appeal of British Columbia upheld the trial judge’s order that ss. 31–33 and 37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 unjustifiably infringe s. 7 of the Charter which protects the rights to life, liberty and security of the person. Those provisions are of no force and effect because they authorize indefinite and prolonged administrative segregation in conditions that constitute solitary confinement, and authorize internal rather than external review of decisions to segregate inmates in solitary confinement. 

The Court also found that there had been discrimination against mentally ill and indigenous inmates, contrary to s. 15 of the Charter which protects equality. The Court made declarations that Corrections has, in its implementation of the administrative segregation provisions: breached its obligation under the Act to give meaningful consideration to the health care needs of mentally ill and/or disabled inmates before placing or confirming the placement of such inmates in segregation; and breached its obligation under the Act to ensure that inmates placed in administrative segregation are given a reasonable opportunity to retain and instruct counsel without delay and to do so in private.

The successful respondents were represented by Joseph Arvay, Q.C. and Alison M. Latimer.

To read the full judgment, click here.

Court Dismisses Canada’s Application for a Further Suspension of the Declaration that the Laws that Authorize Solitary Confinement Are Unconstitutional

On January 17, 2018, the trial judge held that ss. 31, 32, 33, and 37 of the Corrections and Conditional Release Act  violate ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. He declared the impugned sections to be unconstitutional, but suspended the declaration for a period of one year. On November 13 and 14, 2018, a panel of the BC Court of Appeal heard an appeal from that decision. At the conclusion of the hearing, the panel granted an extension of the suspension to June 17, 2019.

The extension was subject to a number of conditions, that were put in place to ensure that the government dealt with particular constitutional concerns during the period of suspension.

On May 17, 2019, Canada filed for a further extension of the suspension of the declaration of invalidity to November 30, 2019.

The panel dismissed the application. The panel took note of separate proceedings in Ontario where the Ontario Superior Court and Ontario Court of Appeal have declared ss. 31-37 of the Act to be of no force or effect. The panel further observed: “the material before us does not provide any assurance that Bill C-83 will be passed, nor does it provide details of any contingency plans Canada may have to deal with exigent circumstances if the bill does not pass. In our view it does not provide a basis for an extension of the suspension.”

Canada is at liberty to re-apply once it ascertains whether Bill C-83 will pass, and is able to provide concrete details of its plans for implementation of legislated reforms or for the implementation of a contingency plan.

The full judgment is available here.

Joseph Arvay and Alison Latimer act for the respondents who opposed this application.

Court Imposes More Conditions to Ensure Access to Counsel for Inmates in Solitary Confinement

On January 17, 2018, the trial judge held that ss. 31, 32, 33, and 37 of the Act violate ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. He declared the impugned sections to be unconstitutional, but suspended the declaration for a period of one year. On November 13 and 14, 2018, a panel of the BC Court of Appeal heard an appeal from that decision. At the conclusion of the hearing, the panel heard an application by Canada to extend the suspension of the declaration of invalidity until July 31, 2019.

The panel granted an extension of the suspension, but only to June 17, 2019. The extension was subject to a number of conditions, that were put in place to ensure that the government dealt with particular constitutional concerns during the period of suspension.

Following a letter from Canada reporting on its progress in complying with the conditions imposed by the panel, and at the request of the British Columbia Civil Liberties Association and the John Howard Society of Canada, the Court today imposed additional conditions to ensure the rights of inmates to access counsel were not impeded.

The full judgment is available here.

The British Columbia Civil Liberties Association and the John Howard Society of Canada are represented by Joseph J. Arvay, Q.C. and Alison M. Latimer.

Court Confirms “Specialist” Supervisory Role of the Safety Standards Appeal Board

In a recent decision dismissing a petition for judicial review, and upholding the Safety Standards Appeal Board’s decision to vary a monetary penalty imposed by a safety manager under the Safety Standards Act, the BC Supreme Court confirmed the specialized supervisory role of the Board.

 The Safety Standards Appeal Board hears appeals of decisions made by safety officers and safety managers under the Safety Standards Act, as well as appeals brought under the Homeowner Protection Act and the Building Act. 

Justice Gomery of the  BC Supreme Court held that the Board, as independent specialist tribunal, was entitled to substitute its own opinion as to the appropriate monetary penalty , and did not need to defer to the decisions of the safety manager.  The Court also noted that the Board was entitled to considerable deference by the Court in judicial reviews.

Mark G. Underhill and Kate R. Phipps of Arvay Finlay represented the Safety Standards Appeal Board.

Colville Tribes Win Appeal In Desautel Hunting Rights Case

Rodney Cawston, the Chairman of the Confederated Tribes of the Colville Reservation (CCT), announced another significant legal victory for the Tribes in the ongoing Rick Desautel/Sinixt hunting rights case.  In the reasons for judgment released this morning, the Court of Appeal for British Columbia (B.C.) affirmed lower court rulings in the B.C. Supreme Court and Provincial Court, which held that Desautel, and by extension all sn̓ʕay̓ckstx (Sinixt/Arrow Lakes) people, including sn̓ʕay̓ckstx or Lakes members of the CCT, have the right to hunt in their traditional territory in Canada.

“We are very pleased that the courts of British Columbia have again held that the sn̓ʕay̓ckstx people are not ‘extinct’ in Canada and that Rick Desautel, as a sn̓ʕay̓ckstx  descendant, has the right to hunt in the traditional and historic territories of our people in British Columbia,” Chairman Cawston said today.

The sn̓ʕay̓ckstx or Lakes Tribe is one of twelve represented by the CCT.  For thousands of years the sn̓ʕay̓ckstx occupied a sizable territory in what is now British Columbia, and moved back and forth across what they view as an artificial boundary between the United States (U.S.) and Canada.  When the border was established in 1846, sn̓ʕay̓ckstx people on the “U.S. side” encountered increasing difficulties in exercising their rights north of the border, including the passage of a law in 1896 that made it illegal to hunt in their Canadian territory.  Ultimately, many sn̓ʕay̓ckstx were forced to settle south of the border, and were declared “extinct” in Canada in 1956. The Court of Appeal affirmed that the rights of the sn̓ʕay̓ckstx endure despite this displacement, stating:

“Imposing a requirement that Indigenous peoples may only hold Aboriginal rights in Canada if they occupy the same geographical area in which their ancestors exercised those rights, ignores the Aboriginal perspective, the realities of colonization and does little towards achieving the ultimate goal of reconciliation.  In this case, such a requirement would extinguish Mr. Desautel’s right to hunt in the traditional territory of his ancestors even though the rights of his community were never voluntarily surrendered, abandoned or extinguished….”

Rick Desautel today said that he is “very gratified to see our indigenous traditions, spirituality, and laws upheld once again, and I will continue my work to strengthen our relationships to the land and with the people of British Columbia.”

 Mark Underhill, lead counsel for Desautel, added this:  “Once again, the Courts have resoundingly rejected the argument that Aboriginal identity can be erased by the imposition of laws, government policy, or an international border. This is an important victory for all indigenous peoples on both sides of the border.”

 The next step in the legal process, if the government of British Columbia decides to take this matter further, is an application for leave (permission) to appeal to the Supreme Court of Canada in Ottawa. 

 “If the government chooses to pursue a further appeal, we will step up to defend it, and will do whatever it takes to ensure that the rights of our ancestors are preserved for future generations,” Chairman Cawston said, “but we sincerely hope that the government will instead consider the long overdue process of reconciliation with the sn̓ʕay̓ckstx, as the Canadian Constitution demands, rather than continuing to fight us in court.”

Read the decision here.

SCC Grants Leave to Intervene in R. v. Williams

The Supreme Court of Canada has granted leave to intervene to the Independent Criminal Defence Advocacy Society in appeal from this decision: R. v. Ahmad, 2018 ONCA 534.

The issues in the appeal are important matters of public law that concern the doctrine of entrapment and whether common law protections sufficiently protect the individual’s right to be left alone in a digital or virtual location, against the need for the investigation of crime.

The position of the Independent Criminal Defence Advocacy Society is that exceptions to the common law protections should not be expanded to include digital and/or virtual locations. In the alternative, that if those exceptions should be so expanded, a more robust set of considerations should inform the court’s analysis of whether the individual’s interest in being left alone should yield to society’s interest in protection from crime.

Read about the work of the Independent Criminal Defence Advocacy Society here.

The Independent Criminal Defence Advocacy Society is represented by Alison M. Latimer and Gregory DelBigio, Q.C.

Court Allows Claim by Former Representative for Children and Youth to Proceed

Chief Justice Hinkson of the Supreme Court of British Columbia dismissed two applications brought by the Legislation Assembly of British Columbia and the provincial government seeking to strike a claim made by the province’s former Representative for Children and Youth, Mary Ellen Turpel-Lafond. Ms. Turpel-Lafond alleges that the Assembly and the government breached an agreement to provide her with certain entitlements, including an enhanced pension, in consideration for her work as the Representative for Children and Youth. The Assembly and the government applied to have Ms. Turpel-Lafond’s case dismissed, primarily on the basis that the allegations are covered by parliamentary privilege and so the court has no jurisdiction to consider them.

In dismissing the two applications, the Chief Justice found that the scope of parliamentary privilege “does not preclude the enforcement of the plaintiff’s contractual rights to the compensation she was entitled to receive for her role once appointed [as Representative for Children and Youth]”, and that “inquiring into and ensuring that the contracts the Legislative Assembly chooses to enter into are not within parliamentary privilege”.

Joseph J. Arvay, Q.C., and Arden Beddoes represented the plaintiff, Ms. Turpel-Lafond.

The decision can be found here.

Court confirms importance of indigenous perspectives in teacher complaint process

The Commissioner for Teacher Regulation regulates and oversees the disciplinary process for teachers in British Columbia. Under the Teachers Act, following a full investigation from a complaint against a teacher, the Commissioner can decide to either take no further action, enter into a consent resolution agreement with the teacher, or issue a citation. Rarely is a citation issued and most complaints are either dismissed or a consent resolution agreement is entered into.

In a case decided earlier this month, the BC Supreme Court found that complainants have a legal right to an investigation, and therefore, decisions by the Commissioner to either dismiss a complaint or enter into a consent resolution agreement with a teacher can be judicially reviewed by the courts, and complainants have standing to challenge such decisions.

In the specific facts of this case, the Court also found that the investigation proceeded in a procedurally unfair manner given the failure to interview the complainant or any other members of the family of a child who was punished at a First Nations school. Given the form of punishment used and the cultural context of the school, the Court found that it was especially important to show consideration of the perspective of Indigenous communities.

This case is important in not only ensuring accountability and transparency in the disciplinary process for teachers, but also in ensuring that Indigenous voices are heard in the disciplinary process.

David Wu, along with Robin Dean, acted as counsel for the complainant.

Arvay Finlay Lawyers Recognized in Best Lawyers in Canada

Three Arvay Finlay lawyers were recently recognized in the 2019 edition of Best Lawyers in Canada, the oldest peer-review publication in the legal profession.

Alison M. Latimer and Cathie Boies Parker, Q.C. were both recognized in the area of corporate and commercial litigation. Mark Underhill was recognized in the areas of Aboriginal law, Administrative and Public law, and Environmental law.   Mark was also recognized as “Lawyer of the Year” in Environmental law in British Columbia, having received the most votes of his peers in the category.

Government Must Take Steps to Address Charter Concerns of Inmates in Solitary

In 2018, Justice Leask issued a declaration that the sections of the Corrections and Conditional Release Act that authorize the placement and maintenance of inmates in solitary confinement are unconstitutional. He suspended the declaration for one year to allow Parliament to enact replacement legislation.  The Attorney General appealed and applied for an extension of the suspension to July 31, 2019, to allow Parliament more time to enact new legislation. 

Today the BC Court of Appeal ruled that “government must take steps to deal with constitutional concerns” raised in the lawsuit. Inordinate delays justified the Court’s intervention given the Attorney General does not seriously dispute that current practices of solitary confinement do not conform to constitutional requirements.

Therefore, while the Court granted a shorter extension than that sought by the Attorney General, it did so only on specific conditions. Those conditions aim to reduce or eliminate violations of inmates’ constitutional rights pending the enactment of new legislation.

The Attorney General is required to report to the Court on its progress in respect of certain conditions prior to February 28, 2019. The Court reserved the power to impose additional conditions on the continuation of the suspension of the declaration. Those conditions concern, among other things, the health of inmates in solitary confinement, the treatment of indigenous inmates in solitary confinement, time out of cell of those held in solitary confinement, access to counsel, and procedural safeguards for those in solitary confinement.

The decision is available here.

Joseph J. Arvay, Q.C., O.C. and Alison M. Latimer act for the British Columbia Civil Liberties Association and the John Howard Society.

Landmark Treaty Case: Court finds Treaty provides right to revenue sharing

The Ontario Superior court  has ruled that the Robinson Huron Treaty of 1850 provides treaty beneficiaries with a constitutionally protected right to share in the Crown revenues from the Treaty territory. This is an unprecedented ruling on an historic treaty.

 Justice Patricia Hennessy heard evidence from elders, experts and Chiefs. She held that the Treaty was not meant to be a one time transaction, but rather established a mutually beneficial and respectful ongoing relationship for the sharing of land and resources in the Territory. The Court held that the parties intended the sharing of net revenues to take place in a manner consistent with the Anishinabek principles of respect, responsibility, reciprocity and renewal. 

 The Court held that the Crown is obliged to increase the annuities payable under the Treaty when it can do so without incurring loss. The $4 annuity has not been increased for over a hundred years. Damages quantification will take place in a future phase of the trial.

 Joseph J Arvay QC and Catherine Boies Parker QC represent the plaintiffs. 

The decision can be read here: Restoule v. Canada

Stay Upheld in Police Manufactured Crime

Today the Court of Appeal upheld the order of Justice Bruce staying proceedings in respect of terrorism related charges against Mr. Nuttall and Ms. Korody.

Mr. Nuttall and Ms. Korody were charged with four terrorism offences arising from a plot to place pressure cooker bombs outside the Parliament Buildings in Victoria on Canada Day in 2013. The trial judge found they had been entrapped.

The Court of Appeal agreed and held that “the police went far beyond investigating a crime. They pushed and pushed and pushed the two defendants to come up with a workable plan. The police did everything necessary to facilitate the plan. I can find no fault with the trial judge’s conclusion that the police manufactured the crime that was committed and were the primary actors in its commission.” As a result, the Court found the “overall conduct of this investigation was a travesty of justice.”

The full decision of the Court of Appeal is available here.

Alison Latimer acted as counsel for Mr. Nuttall with Marilyn Sandford, Q.C. and Alix Tolliday. Scott Wright acted as counsel for Ms. Korody.

Professional misconduct found in College of Applied Biology’s first disciplinary hearing

Following a week-long hearing in June of 2018, a disciplinary panel has found that Ted Lea, a registered professional biologist (RPBio), committed professional misconduct. Ted Lea was a vocal and staunch critic of the District of Saanich’s Environmental Development Permit Area (EDPA), which has since been repealed.

The College of Applied Biology is the self-governing body charged with regulating the conduct of RPBios. It issued a citation alleging Ted Lea was in a conflict of interest, made negative personal comments about a fellow RPBio and staff person at Saanich, and did not undertake proper due diligence in his work and reports regarding exempting properties from the EDPA.

In reasons released on December 5, 2018, the disciplinary panel, which was composed of two RPBios and a member of the public, found all three charges to be substantiated, and that Ted Lea had breached multiple provisions of the College’s Code of Ethics.

The sanction phase of the disciplinary process has yet to commence.

Mark Underhill was counsel for the College of Applied Biology.

A copy of the decision can be found here. College of Applied Biology v Ted Lea

SCC Grants Leave to Intervene in R. v. Rafilovich

The Supreme Court of Canada has today granted leave to intervene to the British Columbia Civil Liberties Association (BCCLA) in an appeal from this decision: R. v. Ravilovich, 2017 ONCA 634.

The issues in this appeal are important matters of public law that concern whether the Criminal Code, properly interpreted, leaves sentencing judges with discretion to refuse to order a fine in lieu of forfeiture of seized funds previously paid to counsel by virtue of a court order. The BCCLA will argue that an accused person who requires counsel, and who is otherwise unable to afford counsel, should not be required to choose between being self-represented on the one hand, and potentially being subject to a sentence, in addition to what is fit and appropriate having regard to the charges and the circumstances of the person, for having applied for and received a court order permitting fees to be released under judicial supervision.

The BCCLA is represented by Alison M. Latimer and Gregory DelBigio, Q.C.

SCC Grants Leave to Intervene in Nevsun v Araya

The Supreme Court of Canada has today granted leave to intervene to EarthRights International (ERI) and the Global Justice Clinic at New York University School of Law (GJC) (jointly), in an appeal from this decision Araya v. Nevsun Resources Ltd., 2017 BCCA 401 .

This appeal raises important matters of public law. The ability of individuals to obtain an effective remedy in Canada when harmed by the participation of a Canadian corporation in gross violations of universally recognized human rights implicates Canada’s international obligations.

Also intervening in the appeal are the International Human Rights Program, University of Toronto Faculty of Law; Amnesty International Canada and the International Commission of Jurists (jointly); MiningWatch Canada; and the Mining Association of Canada.

ERI and GJC are represented by Alison Latimer and Tamara Morgenthau.

Joseph Arvay Receives Honorary Doctor of Laws from UVic

Arvay Finlay LLP proudly announces that Joseph J. Arvay was honoured yesterday by the University of Victoria with an Honorary Doctor of Laws.   The University said the following of our friend and partner:

Joseph Arvay’s advocacy—often on behalf of deeply disadvantaged members of society—has shaped the meaning and impact of the Canadian Charter of Rights and Freedoms. Arvay was lead counsel representing, pro bono, Gloria Taylor in the case of Carter v. Canada, which led to the landmark 2015 Supreme Court ruling that allows physician-assisted suicide in Canada. He led the legal team that represented Insite, the medically supervised injecting facility in Vancouver’s Downtown Eastside, when it won a unanimous Supreme Court of Canada decision allowing it to remain open after years of federal government opposition. Arvay’s other notable cases include his work as counsel in the case that struck down laws preventing same-sex marriage, and he represented an organization of sex trade workers in their successful attempt to overturn some of the criminal laws relating to prostitution.His most recent accomplishment was in having the BC Supreme Court strike down Canada’s laws allowing solitary confinement in federal prisons where he again acted pro bono.In a career that has been defined by his personal integrity, skill and humanity, Arvay has been consistently cited by Canadian Lawyer Magazineas one of the most influential members of the profession for his commitment to civil rights and social justice. He has been an architect of change in Canadian society.

Court of Appeal Confirms Jurisdiction of Environmental Appeal Board

In a unanimous decision, the BC Court of Appeal has confirmed the jurisdiction of the Province and the Environmental Appeal Board in matters relating to the regulation of water rights in BC.  In addition, the Court, after noting that the Board's expertise entitled it to substantial deference from the courts,  upheld the Board's underlying decision related to the return of a stream's course to its original state, and found the Board's process to be fair and reasonable.  

Robin J. Gage, represented the Environmental Appeal Board in both the Court of Appeal and the BC Supreme Court.

The decisions can be found here:

Lindelauf v. BC, 2018 BCCA 183  

Lindelauf v. BC, 2017 BCSC 1479

Lindelauf v. BC, 2017 BCSC 626

Arvay Finlay to represent BC in Pipeline Dispute

The Province of BC has announced that it has retained Joseph J. Arvay, QC to represent the Province in a reference case to the BC Court of Appeal on the question of the extent of the Province's jurisdiction over the Trans-Mountain Pipeline expansion project.   

http://www.cbc.ca/news/canada/british-columbia/trans-mountain-kinder-morgan-court-joseph-arvay-1.4573634

First Civil Resolution Tribunal Appeal Dismissed

Reasons for judgment were recently released for the first appeal of British Columbia’s newly created Civil Resolution Tribunal ("CRT").

The underlying dispute involved move-in/move-out fees that a strata corporation in Vancouver charged its occupants. A tenant living in the strata challenged the fees levied against his roommates on the basis that they were unreasonable in circumstances where no furniture was required to be moved, and that in any event, it was significantly unfair for the strata to wait two and a half years to levy the fees, and then cancel his roommate’s fob access without notice in order to obtain payment.

The tenant was successful at the CRT. The tribunal member found that the bylaw was unreasonable given that the actual expense to the strata from moves without furniture was closer to $25 but the strata charged a flat fee of $100. The tribunal member further found that the conduct of the strata was significantly unfair given that the strata induced the payment of the fees out of duress.

The strata appealed the CRT decision on three grounds. First, the strata argued that the CRT erred in law in failing to address the tenant’s standing. Second, the strata argued that the CRT erred in law in applying a subjective rather than objective test to determine the reasonableness of the bylaw. And third, the strata erred in law in applying a subjective rather than an objective test to determine whether the strata’s conduct was significantly unfair, and in any event, made an ultra vires order due to a drafting error in the legislation.

Mr. Justice Pearlman dismissed the CRT’s appeal on all three grounds, and exercised his discretion to remedy the drafting error in the legislation (which has, since the appeal hearing, been amended by statute). He also further discussed at length the standard of review to apply to CRT decisions, which will be of precedential value to future CRT appeals.

The reasons for judgment are available here.

David W. Wu acted for the successful tenant in defending the appeal. Arvay Finlay LLP has considerable experience litigating statutory appeals and judicial reviews from tribunal decisions.

Court Rules Solitary Confinement Laws are Unconstitutional

This week the BC Supreme Court struck down the federal laws that govern solitary confinement. The declaration of constitutional invalidity will be suspended for 12 months.

The laws are unconstitutional because solitary confinement can be imposed without strict time limits, inmates in solitary confinement are not entitled to a review conducted by an independent external decision-maker, and the laws fail to provide that inmates may be represented by counsel at segregation review board hearings. The laws further unjustifiably infringe the Charter because they discriminate against mentally ill and/or disabled inmates and Aboriginal inmates.

Joseph Arvay, O.C., Q.C., Alison M. Latimer and Caily DiPuma act for the plaintiffs in this landmark case.

To read the full judgment, click here