Main Estimates 2020–21

Litigation

General Note on Litigation

  1. En Banc
  2. Meng
  3. Diab
  4. Assoun
  5. Chouhan
  6. Medical Assistance in Dying (MAID)-related litigation
  7. Reference re: Greenhouse Gas Pollution Pricing Act
  8. Litigation – non Justice lead

1. En Banc

On July 16, 2020, the Federal Court issued a decision in which it found that institutional failings, by both the Canadian Security Intelligence Service (CSIS) and the Department of Justice, led to a breach of CSIS’ duty of candour to the Court in failing to proactively identify and disclose all relevant facts in support of warrant applications. The Court has recommended a comprehensive external review of the policies and practices of the Department of Justice and CSIS in this area. This review is being undertaken by the National Security and Intelligence Review Agency.

Canada is appealing the Federal Court’s decision on narrow but important legal grounds concerning solicitor-client privilege and the government’s ability to provide and obtain legal advice in the future.

2. IN THE MATTER OF the Extradition Act, SC 1999, c. 18, as amended AND IN THE MATTER OF the Attorney General of Canada on behalf of the United States of America and Wanzhou MENG

Meng Wanzhou is a Chinese national sought by the US authorities for extradition. She was provisionally arrested in Vancouver on December 1, 2018 and is contesting her extradition to the US.

Ms. Meng has also filed a civil claim against the Crown as well as the CBSA and RCMP officers involved in her arrest. She claims that her Charter rights were breached when she was detained, searched and interrogated in order to obtain evidence and information before arresting her, instead of arresting her immediately, as required by the provisional arrest warrant.

3. Hassan Diab

Dr. Hassan Diab was arrested in Canada in November 2008 at the request of France. French authorities alleged that Dr. Diab was a suspect in the explosion of a bomb at a synagogue in Paris that killed four people and injured more than 40 in 1980. Dr. Diab was extradited six years after his arrest, following a complicated extradition proceeding. After spending three years in French custody, Dr. Diab was freed by the investigating magistrates. He returned to Canada in 2018. In January 2020, Dr. Diab commenced a lawsuit against the Government of Canada, former Minister of Justice the Honourable Robert Nicholson, and a number of Department of Justice officials, arising out of his extradition.

4. R v Glen Assoun

In 1999, Glen Assoun was convicted of murdering Brenda Way. After exhausting the appeal process, Mr. Assoun applied for a ministerial review of his conviction under section 696.1 of the Criminal Code. Following an investigation and report by Justice Canada’s Criminal Conviction Review Group, on February 28, 2019 the federal Minister of Justice found that there was a reasonable basis to conclude that there had likely been a miscarriage of justice his conviction. In 2019, Assoun set out his intention to sue various parties for his alleged wrongful conviction and incarceration, including Canada (the RCMP), the Nova Scotia Public Prosecution Service, and the Halifax Regional Police.

5. R v Chouhan

On October 7, 2020, the Supreme Court of Canada ruled from the bench in the case of R. v. Chouhan on the constitutionality of the jury selection reforms and on their temporal application. Reasons will follow. The Court upheld the constitutionality of the elimination of peremptory challenges in the jury selection process. The Court also found that this change was “purely procedural” and therefore applied to all matters before the courts at the time the amendments came into force on September 19, 2019.

Counsel for the Attorney General of Canada intervened in support of the constitutionality of the jury selection reforms, but took the position that the elimination of peremptory challenges affects substantive rights (in this case the right to trial by jury), and should therefore apply prospectively from the charge date.

6. Medical Assistance in Dying (MAID)-related litigation

On February 24, 2020, the Government of Canada introduced amendments to the Criminal Code’s provisions related to Medical Assistance in Dying (MAID) in response to the Superior Court of Québec’s September 2019 Truchon decision, and to address issues on which there is emerging societal consensus.

On June 11, 2020, the AGC filed a motion for extension until December 18, 2020 of the coming into force of the Truchon decision, which was granted by the Court on June 29, 2020. The court allowed individual exemptions for persons in Quebec whose death is not reasonably foreseeable, but who would otherwise meet all other eligibility criteria for MAID, enabling them to apply to the Superior Court of Québec for leave during the period of suspension. This second extension was necessary as the COVID-19 pandemic disruptions to the parliamentary process unfortunately rendered it impossible to meet the previous deadline of July 11, 2020.

Following the prorogation of the 1st session of the 43rd Parliament in August 2020 and the opening of the 2nd session on September 23, 2020, former Bill C-7 was reintroduced as Bill C-7 on October 5, 2020. Other litigation relating to MAID legislation includes Foley v. AGC, Katzenback v. AGC; and Lamb and BCCLA v. AGC (see annex). The hearing date for the AGC’s and the Saskatchewan Health Authority’s applications to strike the plaintiffs’ claim in Katzenback is October 29, 2020.

7. Reference re: Greenhouse Gas Pollution Pricing Act (SK, ON and Alta)

In June 2018, the Greenhouse Gas Pollution Pricing Act became law, ensuring that it would no longer be free to pollute in any Canadian province or territory. The purpose of carbon pollution pricing is to encourage the behavioural changes and business innovation needed to reduce greenhouse gas emissions, which contribute to climate change.

The Provinces of Saskatchewan, Ontario, and Alberta each asked their Courts of Appeal to consider whether Parliament has the constitutional authority to pass the Act.The Supreme Court of Canada is now considering the appeals from those decisions and will decide whether Parliament has the constitutional authority to pass the Act. Canada’s position is that Parliament has the constitutional authority to pass the Act for the peace, order and good government of Canada, under section 91 of the Constitution Act, 1867.

8. Litigation – non Justice lead

If asked about litigation led by other Ministers, I would defer to my colleagues

BACKGROUND:

This year that Attorney General of Canada was engaged in over 36,000 litigation files, representing a slight increase over past years.

The Directive on Civil Litigation Involving Indigenous Peoples

The Attorney General of Canada continues to implement The Directive on Civil Litigation Involving Indigenous Peoples, which is coming up on its two-year anniversary. The Directive and the Principles highlight that the way that we conduct litigation with Indigenous peoples matters from the perspective of reconciliation.

Wrongful Convictions and an Independent Criminal Case Review Commission

Currently, individuals who have exhausted their rights of appeal but believe they have been wrongfully convicted can apply to the federal Minister of Justice to have their convictions reviewed. The process is set out in the Criminal Code and administered by the Criminal Conviction Review Group within the Department of Justice. The Minister of Justice has made several high-profile decisions over the years, including most recently in the case of Glen Assoun. More are expected in the near future. Several countries have independent commissions to address wrongful convictions that are arm’s length from government and political considerations. Stakeholders have urged that Canada follow suit, and in December 2019, the Minister of Justice’s Mandate Letter directed him to create “an independent Criminal Case Review Commission to make it easier and faster for potentially wrongfully convicted people to have their applications review”. Work is underway to move forward on this commitment.

Annex: Other matters

  1. First Nations Child and Family Caring Society of Canada (FNCFCS) and Assembly of First Nations and Attorney General of Canada (AFN)
  2. Fontaine et al. v Canada (Chief Adjudicator’s RFD re: Disposition of IAP Non-Claim Records)
  3. Diane BigEagle v HMTQ
  4. Doe v Islamic Republic of Iran; Arsalani v Islamic Republic of Iran
  5. Blair and O’Brien v Attorney General of Canada // Portapique Shooting
  6. MAID litigation

Annex:
Advice to the Minister – Main Estimates 2020-21
General Note on Litigation

A. First Nations Child and Family Caring Society of Canada (FNCFCS) and Assembly of First Nations and Attorney General of Canada (AFN)

Lead Minister: ISC

Highlights: comparability of federal government funding of on-reserve services with provincial government funding of off-reserve services

In January 2016 the Tribunal found that the federal government is discriminating in its funding of child welfare services to First Nations children and families on-reserve and has issued further decisions on remedies since then. Since the initial finding of discrimination, the Tribunal has issued additional orders clarifying their finding and identifying the systemic issue of inadequate funding in the above mentioned items.

On the class actions, on September 3, 2020, counsel for the parties appeared before the Federal Court to provide a report on the progress of discussions. In order to obtain a quick resolution, parties have agreed to commence mediation as soon as possible upon appointment of a mutually acceptable mediator. Consenting to certification marks a step forward in negotiating a settlement to compensate those harmed by underfunding of child and family services on reserve.

The commitment to resolution is also in line with the much needed system-wide transformation of Indigenous child and family services that is currently underway. Discussions will continue in the spirit of collaboration in order to achieve a fair, equitable and comprehensive resolution to compensation – a resolution that will prioritize the safety and well-being of First Nations children.

B. Fontaine et al. v Canada (Chief Adjudicator’s RFD re: Disposition of IAP Non-Claim Records)

Lead Minister: CIRNAC

Highlights: Application re: donation of “non-claim records” to the NCTR

Hearing: October 29, 2020

On January 20, 2020, the Ontario Superior Court of Justice released its decision in respect of a Request for Direction (“RFD”) brought by the Chief Adjudicator of the Indian Residential Schools Settlement Agreement (“IRSSA”). The RFD sought court approval of the “Chief Adjudicator’s Proposal for Disposition of Non-Claim Records,” which included a donation of records to the National Centre for Truth and Reconciliation (“NCTR”). The Indian Residential Schools Adjudication Secretariat (the “Secretariat”) holds records dating back to its establishment in 2003 and continues to generate and maintain records. Its holdings include Independent Assessment Process (“IAP”) Documents and various other records that pertain to the operations, management, and oversight of the Alternative Dispute Resolution and IAP processes. The proposed donation involved what the Chief Adjudicator called “Non-Claim Records” held by the Secretariat.

The court dismissed the RFD, but granted a variety of other relief, which included compelling Canada to make a donation of records to the NCTR. The NCTR appeals, and requests that more non-claim records be generated and delivered to it. Canada requests the dismissal of the NCTR’s appeal and argues the NCTR holds not general rights, entitlements or privity to support its claim. The NCTR may seek access to materials archived at Library and Archives Canada in the future, but it has no claim to them under the IRSAA.

C. Diane BigEagle v HMTQ

Lead Minister: Public Safety

Highlights: Class action re missing and murdered Indigenous women and two-spirited individuals

This is a proposed class action relating to missing and murdered Indigenous women and two-spirited individuals. The proposed class is extremely broad and includes family members of victims, individuals who were in a relationship with victims, individuals from the same reserves as victims, and individuals entitled to make claims under provincial fatal accidents legislation. “Victims” are defined as women or two spirited individuals who were murdered (and whose murder was reported to the RCMP but remains unresolved) or who have been missing for more than 30 days and whose disappearance has been reported to the RCMP. The claim alleges systemic negligence by the RCMP and breaches of sections 7 and 15 of the Charter with respect to investigations of crimes committed against missing and murdered Indigenous women and girls. The claim seeks damages, including Charter damages, in the amount of $500 million, and punitive damages in the amount of $100 million.

Canada opposed certification in a hearing in September 2020, the decision is under reserve.

D. Doe v Islamic Republic of Iran; Arsalani v Islamic Republic of Iran

Lead Ministers: Public Safety; Justice; Foreign Affairs (various aspects)

These are two proposed class actions seeking damages on behalf of the families of victims of Iran’s downing of UIA Flight 752. The first (Doe) is brought against Iran only, pursuant to the Justice for Victims of Terrorism Act. The second (Arsalani) seeks damages in negligence against Iran and Ukrainian Airlines International. The Attorney General of Canada is not a party to the action. A certification hearing is scheduled for February 1-2, 2021. Prior to that date, a carriage motion will determine which of the two proposed class actions will proceed on behalf of the class. That hearing will have taken place on October 27, 2020.

E. Blair and O’Brien v Attorney General of Canada // Portapique Shooting

Lead Minister: Public Safety

Highlights: Nova Scotia Shooting

On April 18 and 19, 2020, a gunman in possession of multiple illegal firearms, a replica RCMP vehicle and a partial RCMP uniform shot and killed 22 individuals in northern Nova Scotia, centred around the community of Portapique. The shooter was ultimately located, and killed by the RCMP in that encounter.

Relatives of those killed in the shooting filed a proposed class action lawsuit against the RCMP in June. On October 22, 2020, the Governments of Canada and Nova Scotia established a joint public inquiry in response to this tragedy. The mandate of the Commissioners is set out in two Orders in Council.

F. Medical Assistance in Dying (MAID)-related litigation

Lead Minister: Justice

  1. Lamb and BCCLA v AGC (British Columbia Supreme Court)
    BCCLA claims that s. 241.2 (2) of the Criminal Code, as amended by Bill C-14 (medical assistance in dying) infringes ss. 7 and 15 of the Charter. The challenge is to the criteria that a person seeking MAID must have an incurable illness, be in an advanced state of irreversible decline in capability, and that their natural death has become reasonably foreseeable. Ms. Lamb has Spinal Muscular Atrophy, a progressive degenerative disease that causes weakness and wasting of the voluntary muscles. The Plaintiffs seek a declaration of invalidity with respect to the provision. In the event that the invalidity is suspended, they seek a constitutional exemption for Ms. Lamb during the suspension period. In the alternative, they seek a declaration of constitutional exemption exercisable by application for authorization by the superior court of the jurisdiction. The trial was initially set for November 2019 but was adjourned sine die upon Ms. Lamb learning that she was eligible for MAID.
  2. Truchon and Gladu v AGC and AG Quebec (Quebec Superior Court)
    A declaratory action was filed challenging the constitutionality of s. 241.2(2)(d) of the Criminal Code, as well as the equivalent Quebec provision, s. 26(1)(3º) of the Act Respecting End-of-Life Care, which requires that a person’s death must be reasonably foreseeable in order to benefit from MAID. The plaintiffs both suffered from serious and incurable handicaps, and have both applied for MAID, but were refused for the sole reason that, despite suffering from serious conditions, their death was not reasonably foreseeable. The plaintiffs therefore argued that the provisions violated their ss. 7 and 15 Charter rights. They further argued that the term “reasonable foreseeability of death” is vague and imprecise, subject to various interpretations across the country. On September 11, 2019, the Quebec Superior Court held that s. 242.1(2)(d) of the Criminal Code (the reasonably foreseeable death criteria) is contrary to s. 7 and 15 of the Charter and the breach is not justified by s. 1 of the Charter. Section 26 al.1 (3) of the Quebec law (the end-of-life criteria) was also declared invalid. The declaration of unconstitutionality was initially suspended for 6 months (later extended to December 18, 2020). The Court also granted Truchon and Gladu a constitutional exemption notwithstanding an appeal.
  3. 4v Victoria Hospital London Health Sciences Centre, South West Local Health Integration Network, Centre for Independent Living, Minister of Health and Long-term Care, AG Ontario, AGC [Foley] (Ontario Superior Court)
    This claim alleges that there is inadequate long-term health funding for persons with chronic ailments and that the medical assistance in dying legislative provisions are unconstitutional as they fail to require medical practitioners to take alternative steps prior to providing MAID. He claims a right to “assisted life” rather than having the option of MAID. Mr. Foley claims that his Charter ss. 7, 12, and 15 rights have been infringed. All of the defendants (including the AGC) brought motions to strike the Claim in September 2018, but subsequently agreed to withdraw their motions and suspend timelines in the action to allow Mr. Foley an opportunity to be assessed for eligibility for funding for in-home medical care. This was an agreement brokered through case management in an effort to provide Mr. Foley with a means of getting out of hospital. The parties consented to an Order, dated January 23, 2019, reflecting their agreement. Mr. Foley was assessed and found to eligible for in-home funding, but has refused to cooperate with the discharge process. Accordingly, the Defendants brought back their motions to strike on September 30, 2019. In response, the Plaintiff brought a motion to enforce the consent Order, which he argues to be a settlement preventing the Defendants from reviving the motions to strike. In response, the Defendants argued that the consent Order does not prevent the Defendants from reviving their motions, a fact reflected in correspondence between counsel when the order was being negotiated. Mr. Foley’s motion was heard before Justice Lederer on March 4, 2020 and dismissed on March 16, 2020. Mr. Foley’s lawyer, indicated that his client intends to seek leave to appeal to the Divisional Court. While a Notice of Motion on the Crown was served, no other steps were taken to move the appeal forward. Mr. Foley’s counsel has also mentioned the possibility of amending his claim to reflect the anticipated post-Truchon amendments to the MAID regime. The Defendants have not yet taken steps toward resuming their motions to strike.
  4. Katzenback v Attorney General of Canada et al (Saskatchewan Court of Queen’s Bench)
    October 29, 2020: Hearing date for the AGC’s and the Saskatchewan Health Authority’s applications to strike the plaintiffs’ claim.
    The plaintiffs commenced an action against the Saskatchewan Health Authority, the Government of Saskatchewan and the AGC seeking damages and various declarations relating to alleged improper health care provided to Norma Katzenback. In addition to complaints regarding advice and care from hospital staff, the plaintiffs allege: (1) that the medical assistance in dying (“MAID”) provisions are unconstitutional and violate the plaintiffs’ Charter rights; (2) that through improper health care, the defendants violated the plaintiffs’ Charter rights by “pushing assisted dying through refusal of assistance to maintain life.”; (3) that the MAID provisions lack sufficient safeguards for vulnerable people, particularly those with disabilities; and (4) that MAID provisions do not require health professionals to take steps to relieve intolerable suffering, or assist those who do not want a medically assisted death. There are no specific allegations directed against any employee, servant or agent of the AGC. The Saskatchewan Health Authority is also bringing an application to strike and the applications are being coordinated to be heard on the same date.
  5. Nova Scotia matter
    There have been several media reports about a case in Nova Scotia where a woman is trying to stop her husband from proceeding with a medically assisted death. This was argued before the Nova Scotia Court of Appeal at the end of September. In August, the Nova Scotia Supreme Court refused her request for a temporary injunction to prevent her husband from seeking MAID. The AGC is not a party to these proceedings.

General Note on Litigation Costs

The federal government continues to support open, transparent and accountable government by sharing total legal costs where it is possible to do so while supporting the proper functioning of our legal system.

BACKGROUND:

Specific Requests for Legal Costs

In the last year the federal Crown has waived solicitor-client privilege to the extent of disclosing the total legal costs associated with certain files or groups of files in response to a number of Parliamentary Questions seeking legal costs information and we continue to respond to these requests.

Total Legal Costs include Notional Amounts and Actual Costs

Department of Justice lawyers, notaries and paralegals are salaried public servants and therefore no legal fees are incurred for their services. A “notional amount” can, however, be provided to account for the legal services they provide. The notional amount is calculated by multiplying the total hours recorded in the responsive files for the relevant period by the applicable approved internal legal services hourly rates. Actual costs are composed of file related legal disbursements paid by the Department and then cost-recovered from the client-departments or agencies, as well as the costs of legal agents who may be retained by the Minister of Justice to provide litigation services in certain cases.