Litigation Year In Review 2016

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Foreword by the Attorney General of Canada

As Minister of Justice and Attorney General of Canada, I serve a dual role. My role as Minister of Justice, including my responsibility for legislation and policy that falls within the Justice portfolio, tends to be more visible to Canadians. In my role as Attorney General of Canada, one of my main responsibilities is the oversight of litigation involving the Government of Canada.

In my mandate letter, I was tasked by the Prime Minister to review the Government of Canada's litigation strategy. I was mandated to make decisions to end appeals or positions inconsistent with the Government's commitments, the Charter of Rights and Freedoms, or Canadian values. This has been a major focus of my work as Attorney General.

In August 2016, the Prime Minister announced the creation of a Cabinet Committee on Litigation Management. This Committee has enabled Canada's litigation strategy to be better informed by a whole-of-government approach. My discussions with colleagues have assisted in our efforts to obtain a contextual understanding of how departments and stakeholders – as well as ordinary Canadians – would be affected by litigation outcomes. Consideration of the legal and public policy implications beyond the particular case before the court is always at the forefront of my legal analysis as Attorney General.

Minister Jody Wilson-Raybould

This Litigation Year in Review 2016 is intended to provide Canadians with some highlights of the progress we made this past year in several important areas of litigation. In reviewing and rethinking the Government's litigation strategy over the course of 2016, I focused on three main themes: respecting the Charter of Rights and Freedoms, recognizing the rights of Indigenous peoples, and making decisions consistent with Canadian values.

We have made great strides over the past year as a Government, and I would like to thank the Prime Minister for putting his trust in me to fulfill the duties of the Attorney General of Canada. Many of the important litigation positions highlighted in this year's litigation review were taken on the recommendation and instruction of the minister with policy responsibility for the matter before the courts. For all of their efforts in promoting a principled litigation strategy, I thank my ministerial colleagues.

As we celebrate the 35th anniversary of the Charter of Rights and Freedoms in 2017, I look forward to continued progress and success.

The Honourable Jody Wilson-Raybould, P.C., Q.C., M.P.
Minister of Justice and Attorney General of Canada

Introduction

The Attorney General is responsible for advancing the public interest through her oversight and conduct of litigation involving the federal government, as well as through the constitutional and legal advice she provides to the Government.

In her mandate letter, the Attorney General was tasked by the Prime Minister to review the Government's litigation strategy, including by making early decisions to end appeals or positions that are not consistent with the Government's commitments, the Charter of Rights and Freedoms or Canadian values.

In 2016, in fulfillment of this mandate commitment, the Attorney General carried out her litigation responsibilities with a view to Respecting the Charter of Rights and Freedoms, Recognizing the Rights of Canada's Indigenous Peoples, and Making Decisions Consistent with Canadian Values. The important litigation positions highlighted below were taken in collaboration with the Minister with policy responsibility for the matter before the courts.

Respecting the Charter of Rights and Freedoms

The Attorney General is responsible for upholding and ensuring compliance with the Charter of Rights and Freedoms, which forms part of Canada's constitution. In several important cases, the Attorney General resolved or discontinued Charter litigation in order to recognize and safeguard the rights and freedoms of Canadians. In other cases, she successfully obtained an adjournment in order to allow the Government time to take legislative action.

The following examples highlight progress made in 2016 in three prominent areas: Citizenship, immigration and refugee litigation; criminal litigation; and workers' rights litigation.

Citizenship, immigration and refugee litigation

Criminal litigation

Workers' rights litigation

Recognizing the rights of Indigenous Peoples

The Government is committed to a renewed nation-to-nation relationship with Indigenous peoples based on recognition of rights, respect, co-operation, and partnership. This commitment has led to a shift in the way that Canada litigates cases involving Aboriginal rights and title. Respectful litigation, targeted court interventions and reconciliation efforts are three ways the Government's mandate helped to shape the conduct of Indigenous litigation in 2016.

Respectful litigation

The Attorney General, in collaboration with her ministerial colleagues, has directed that litigation with Indigenous peoples be conducted respectfully, in light of the important relationship between the Crown and Indigenous peoples. One example of the change in approach is efforts to make admissions wherever possible, including both admissions of fact and admissions relevant to the establishment of Aboriginal rights and title. This results in a narrowing of the issues in dispute, and signals Canada's respect for and recognition of Aboriginal rights. Further, in several cases, Canada has made the decision not to appeal or seek judicial review, reflecting an acknowledgement of Canada's responsibility to redress past wrongs.

Excerpt from Canada's pleadings in Haida Nation on the issue of Aboriginal rights

  1. Canada admits that the Haida have an Aboriginal right to fish for food, social and ceremonial purposes in the waters near Haida Gwaii though the area where they possess that right to fish are to be determined;
  2. Canada admits that the Haida have an Aboriginal right to harvest cedar for cultural and domestic purposes though the areas where they possess that right to harvest cedar are to be determined; and
  3. Canada admits that the Haida engaged in incidental trade of dried halibut and dried clams with other Indigenous people at or shortly after the time of contact with Europeans, but Canada puts the plaintiffs to the proof of whether the trade of dried halibut and dried clams was integral to the distinctive pre-contact Aboriginal society of the Haida and whether such trade was beyond incidental levels. Canada says further that any trade beyond incidental levels would have conflicted with Haida laws.

Excerpt from Canada's pleadings in Haida Nation on the issue of Aboriginal title

  1. Canada admits that at the time of the assertion of sovereignty, the Haida exclusively occupied each of the parcels of land which were later set aside as reserves for the Old Massett Village Council and the Skidegate Band Council (the “Haida Reserves”). Canada further admits that the Haida have continuously occupied or maintained a substantial connection to the Haida Reserves since the date of the assertion of sovereignty. A list of the Haida Reserves is attached as Schedule “A” to the Claim.
  2. Canada further admits that at the date of the assertion of sovereignty some or all of the land now known as Gwaii Haanas National Park Reserve of Canada as defined in schedule 2 of the Canada National Parks Act, S.C. 2000, c. 32 (“Gwaii Haanas National Park Reserve”) was exclusively occupied by the Haida. Canada further admits that the Haida continuously occupied or maintained a substantial connection to some or all of the lands within Gwaii Haanas National Park Reserve since the date of the assertion of Crown sovereignty. Canada puts the plaintiffs to the proof of which part(s) of Gwaii Haanas National Park Reserve were exclusively occupied by the Haida at the assertion of Crown sovereignty.

To further the Government's commitment to a renewed nation-to-nation relationship, the Attorney General's respectful approach to Indigenous litigation and pleadings has been implemented on a national basis.

Targeted court interventions

On occasion, and where the public interest supports it, the Attorney General of Canada may intervene in a court case in order to provide a distinct legal or constitutional perspective that may not be addressed by the parties to the dispute. This role is most commonly exercised before the Supreme Court. In 2016, the Attorney General sought leave to intervene in two important Indigenous cases.

Canada's positions in relation to the questions in issue are:

  1. Protections for religious freedom under s. 2(a) and Aboriginal rights under s. 35 are distinct and each is separately relevant to assessing the Ktunaxa's claims.
  2. A purposive and contextual interpretation of s. 2(a), which allows for protection against interference with religious beliefs and the vitality of religious communities, should be adopted so as to include Indigenous spiritual beliefs. Competing interests relevant to the statutory objectives are balanced in the proportionality analysis.
  3. Aboriginal rights with a spiritual or religious foundation are protected by s. 35.
  4. Sections 2(a) and 35 are distinct, but complementary, coherently working together to promote fundamental constitutional values.

Reconciliation efforts

The Attorney General recognizes that litigation is, by its nature, an adversarial process, and cannot be the primary forum for broad reconciliation and renewal of the Crown- Indigenous relationship. She has instructed her litigators to work closely with their departmental clients to explore avenues for reconciliation both within the litigation process and in out-of-court forums. As a result, Canada is now engaged in good-faith settlement negotiations in relation to some of its most complex and long-standing litigation with Indigenous peoples.

Excerpt from Canada's pleadings in Ignace and Gottfriedson v Attorney General of Canada et al

  1. The Attorney General must respond to this Claim in accordance with the rules of practice applicable to pleadings in a matter of this nature and consistent with her duties and functions in the conduct of litigation for or against the Crown in right of Canada. As set out in the ministerial mandate letters, the Government of Canada will pursue reconciliation and is committed to a renewed nation-to-nation relationship with Indigenous Peoples based on recognition of rights, respect, co-operation and partnership. The Attorney General and the Government of Canada must work in other contexts beyond pleadings to achieve the fulfilment of those commitments.

Making Decisions Consistent with Canadian Values

In the first year of its mandate, the Government settled or discontinued a number of important cases where it determined that the continued pursuit of litigation was not consistent with Canadian values.

Discontinuance of litigation

Settlement

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