Supplementary Estimates C 2020–21 And Main Estimates 2021–22

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Litigation

General Note on Litigation:

1. Meng
2. Diab
3. Medical Assistance in Dying (MAID)-related litigation
4. Reference re: Greenhouse Gas Pollution Pricing Act
5. Firearms-related litigation
6. Nicholas Marcus Thompson et al v HMQ; Deinaba Diallo v HMQ
7. Colvin/Duesing/Bignell matters
8. Litigation – non Justice lead

1. 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.

• Question: Does the Minister agree that he has the authority to end these proceedings now and bring the two Michaels home?
  • Answer: Securing the release of Mr. Kovrig and Mr. Spavor remains a top priority for the Government of Canada. We are deeply concerned for the pain and emotional toll that this ordeal has had on them, and on their loved ones. We continue to call for their immediate release.
    With respect to the extradition process in Canada, I can tell you that extradition in Canada is conducted in conformity with the Extradition Act, our extradition treaties and the Canadian Charter of Rights and Freedoms. Our extradition process ensures that individual rights are protected and that those sought for extradition are afforded due process before the courts, while honouring our international treaty obligations.
    As Ms. Meng’s case remains before the courts, and as I would have a direct role in the surrender phase of the extradition process if a judge determines that the test for extradition is met, it would not be appropriate for me to comment further on this matter.
• Question: What can you tell us about the hearings into Ms. Meng’s abuse of process application?
  • Answer: As this matter is presently before the Court, I will not be commenting on anything related to hearings taking place in the British Columbia Supreme Court.

2. 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 who discharged him from the French proceedings at the conclusion of the French preliminary inquiry process. 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. On January 27, 2021, the French Chambre de l’instruction of the Court of Appeal overturned Dr. Diab’s discharge and committed him for trial. Dr. Diab has filed an appeal from this decision in the French Supreme Court (Cour de Cassation). No date has yet been scheduled for the hearing of the appeal.

• Question: Is this government defending the treatment of Dr. Diab and the conduct of Department of Justice lawyers?
  • Answer: Our Government recognized that there was a legitimate interest in better understanding the process that led to Dr. Diab’s extradition. We requested an external third-party review of the proceedings that resulted in Dr. Diab’s extradition, including the conduct of the Justice Canada’s International Assistance Group counsel advancing the case. The review concluded that none of the criticisms levelled against Department of Justice officials had any merit, and that they acted in a manner that was both ethical and consistent with both the law and departmental practices and policies. It was led by a former Deputy Attorney General of Ontario, Mr. Murray Segal, who was provided with the tools, access and discretion necessary to conduct a thorough review of the case. Mr. Segal’s final report was released in May 2019. He stated expressly that, in conducting his work, he was provided with the full cooperation of the Department of Justice, and given full access to departmental files, court transcripts and correspondence.
    As this matter is before the Courts, it would not be appropriate for me to comment further on the specific case.
• Question: Dr. Diab’s ordeal, and Mr. Segal’s report, raise serious concerns about the Canadian extradition process.
  • Answer: Mr. Segal’s report describes a well-functioning extradition system. Mr. Segal’s recommendations were an opportunity to learn from a complex extradition case so we can do better to serve Canadians and work more effectively with our extradition partners. His report identified improvements that we can make to the process moving forward. The Government welcomed his recommendations, which are a valuable tool for the Department of Justice going forward. Many of the recommendations have been, or are being, implemented
• Question: The French Court of Appeal ruling ordered Dr. Diab to stand trial, potentially in absentia, years after a lower court cleared his name. Will you intervene with your French counterparts on Dr. Diab’s behalf, and commit to not extraditing Dr. Diab?
  • Answer: Dr. Diab has filed an appeal from the recent decision of the French appeals chamber which has committed him for trial. If his appeal is unsuccessful, then a trial will be scheduled. If we receive an extradition request from France, it will be considered in accordance with the requirements of our extradition treaty with France and the Extradition Act.

3. 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. Following the prorogation of Parliament in August 2020 and the opening on September 23, 2020, former Bill C-7 was reintroduced as Bill C-7 on October 5, 2020.

The coming into force of the Truchon decision was initially suspended for a period of six months. However, extensions to the suspension became necessary, in particular as a result of the COVID-19 pandemic disruptions to the parliamentary process which unfortunately made it impossible to meet the previous deadlines. The court has extended the suspension until March 26, 2021.

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.

• Question: Does the proposed legislation address the issues in Truchon?
  • Answer: The proposed changes were informed by the January and February 2020 consultations, and are the result of careful consideration of the past four years’ of experience with MAID in Canada. The Government of Canada remains committed to protecting vulnerable individuals and the equality rights of all Canadians, while supporting the autonomy of eligible persons to seek medical assistance in dying.
• Question: Why were so many extensions needed to amend the legislation?
  • Answer: The COVID-19 pandemic has led to unprecedented challenges, including the disruption of the Parliamentary session.

4. 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.

• Question: When will the Supreme Court release its decision?
  • Answer: The Court gives notice each Monday of the decisions it plans to release that week. The Court has not yet given notice, but could do so at any time.
• Question: If the Supreme Court upholds the constitutionality of the Act, how does Canada plan to deal with the provinces that opposed it?
  • Answer: We will continue to work with provinces and territories to further reduce the greenhouse gas emissions that cause climate change.
    Canada’s climate plan gives provinces and territories the flexibility to develop their own carbon pollution pricing systems provided they are aligned with clear criteria that all systems must meet to ensure they are sufficiently stringent.
    The federal government is engaging provinces, territories and National Indigenous representatives on our proposals to increase the carbon price and strengthen the federal criteria post-2022.
    For more details I defer to my colleague Minister Wilkinson.
• Question: If the Supreme Court finds the Act to be unconstitutional, when will the federal carbon pricing system come to an end?
  • Answer: If the Supreme Court finds the Act to be unconstitutional, the Government of Canada will review the Supreme Court’s decision carefully to determine how to proceed in an orderly manner that fully respects the decision.
• Question: If the Supreme Court finds the Act to be unconstitutional, what will happen to the proceeds of carbon pricing that have already been collected?
  • Answer: The Government of Canada will review the Supreme Court’s decision carefully and will consider the options available in light of the decision.
    So far, the majority of carbon pricing proceeds under the Act have been distributed back to Canadians through the Climate Action Incentive. This means that most households in the provinces where the Act operates receive more back under the Climate Action Incentive than they pay as a result of the Act.^{Footnote 1}
• Question: How will Canada meet its emissions reduction commitments if the Supreme Court finds the Act to be unconstitutional?
  • Answer: The Government of Canada recognizes that we need to take increased action to meet our climate goals, and that carbon pricing helps us do this affordably and flexibly.
    If the Supreme Court finds the Act to be unconstitutional, we will respect the Court’s decision, and will review it carefully to determine what further action can be taken at the federal level to effectively combat the escalating climate crisis.
• Question: If the Supreme Court finds the Act to be unconstitutional, what will happen to existing provincial/territorial pricing systems?
  • Answer: The constitutionality of the Act does not have direct implications for provinces and territories that have implemented their own pricing systems.
• Question: If the Supreme Court upholds portions of the Act, but finds other portions to be unconstitutional, how will you proceed?
  • Answer: The Government of Canada will review the decision carefully to determine what further action can be taken at the federal level to effectively combat the escalating climate crisis, while respecting the decision of the Supreme Court.

5. Firearms-related litigation

On May 1, 2020, the Governor-in-Council decided to prohibit nine types of firearms and their variants, and firearms with certain technical characteristics, by Regulation under s.117.15 of the Criminal Code.

Six applications were filed challenging the Order-in-Council and Regulation. On February 9, 2021, in three of those matters, the Federal Court dismissed a motion for interlocutory injunction. The applicants had sought a stay of the operation of the Regulations as well as the accompanying amnesty order that allowed firearms owners to retain newly prohibited firearms for two years while the government implemented a buy-back program.

6. Nicholas Marcus Thompson et al v HMQ; Deinaba Diallo v HMQ

These two proposed class actions are brought on behalf of Black public servants. The plaintiffs seek to represent all current and former employees of more than 100 federal departments and agencies, including the Canadian Armed Forces, the RCMP and Crown corporations. The proposed class is very broadand the allegations target systemic racism, discrimination, and employment equity in relation to the hiring and promotion of Black public servants since 1970.

The Thompson Statement of Claim was issued by the Federal Court on December 2, 2020. The Diallo claim was issued by the B.C. Supreme Court on December 3, 2020.

• Question: Will the Government of Canada be entering into a settlement agreement with Black public servants?
  • Answer: This matter involves serious allegations brought on behalf of Black public servants from across government. As public servants come forward and courageously share their lived experiences, the urgency of addressing systemic barriers in our institutions and from our culture has become more evident. Despite progress, racism is still a lived reality for racialized groups. We have to make sure that the public service is not only representative of the population it serves, but that it offers an opportunity for all employees to reach their full potential. The Government of Canada recognizes that leadership across the public service must be more diverse and that while much work still remains, efforts are being made across the public service that are creating a foundation for change. This complex proposed class action is in its early stages. It would be premature to comment on the prospect of settlement at this point.
• Question: What is the Department of Justice doing to fight racism within the Department?
  • Answer: The Department of Justice takes these issues very seriously. This is a critical time to take deliberate action to address systemic racism and make the Public Service more inclusive, and this has been reinforced by the Clerk’s Call to Action. The Department recently established an Ombuds, as well as an Anti-Discrimination Secretariat. In addition, the Department is using an anti-racism framework to examine how our policies and programs are developed, implemented and assessed in order to identify and eliminate sources of system racism that impact Canadians.

7. Colvin/Duesing/Bignell matters

On February 14, 2021, the Government of Canada issued Order in Council (2021-0075) setting out enhanced testing and quarantine measures to limit the spread of COVID-19 and its more infectious variants. These measures include a requirement that, unless exempted, all air travellers entering Canada will be required to: (1) take a COVID-19 molecular test upon arrival; and (2) spend up to three-days in mandatory quarantine at a listed hotel at the traveller’s own expense to await the test results. Travellers continue to be required to complete a mandatory 14-day quarantine.

Three distinct judicial review applications have been filed challenging the validity of the Order in Council and the measures it imposes.

• Question: Will the measures remain in force while the litigation is ongoing?
  • Answer: The new measures introduced by the Government of Canada are important to help limit the spread of COVID-19 and its variants in Canada. These important measures will remain in effect while the challenges to these measures are examined by the courts.

8. Litigation – non Justice lead

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

• The Honourable Marc Miller, Minister Indigenous Services [First Nations Child and Family Caring Society of Canada (FNCFCS) and Assembly of First Nations and Attorney General of Canada (AFN) – see Annex at A]
• The Honourable Carolyn Bennett, Minister of Crown-Indigenous Relations [Fontaine et al v Canada (Chief Adjudicator’s RFD re: Disposition of IAP Non-Claim Records); Restoule/Whitesand – see Annex at B and C]
• The Honourable Bill Blair, Minister of Minister of Public Safety and Emergency Preparedness [Diane BigEagle v HMTQ; Blair and O’Brien v Attorney General of Canada // Portapique Shooting – see Annex at D, E, F]

Background:

As of January 31, 2021, the Attorney General of Canada had been engaged in over 28,000 litigation files for 2020-2021, and was on pace to be a slight decrease 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. Restoule/Whitesand
3. Diane BigEagle v HMTQ
4. Blair and O’Brien v Attorney General of Canada // Portapique Shooting
5. Debbie Baptiste, Jace Troy Boushie, William Boyblue Boushie v Attorney General of Canada

Annex: Advice to the Minister – Main Estimates 2021-22 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. 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. Restoule/Whitesand

Lead Minister: CIRNAC

Highlights: Treaty annuity

The Whitesand action was commenced in 2001 by the Whitesand and Red Rock First Nations, signatories to the Robinson-Superior Treaty. The Restoule claim was brought in 2014 as a representative action on behalf of 21 First Nation signatories to the Robinson-Huron Treaty. Both claims are brought against Canada and Ontario for declarations on the interpretation of the Treaty annuity provisions, and an accounting of a proportionate share of resource revenues generated in the Treaty territories.

The actions were consolidated and divided into 3 stages:

• Stage 1 was a trial on treaty interpretation, heard over several weeks from September 2017 to June 2018, with a decision rendered in favour of the plaintiffs on December 21, 2018. It is under appeal by Ontario.
• Stage 2 was the hearing of motions in October 2019 on Ontario’s limitations and Crown immunity defences, with a decision rendered in favour of the plaintiffs on June 26, 2020. It is under appeal by Ontario.
• Stage 3 is a trial on compensation owed to the First Nations scheduled to be heard over three to six months commencing in September 2021

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 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. 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.

E.Debbie Baptiste, Jace Troy Boushie, William Boyblue Boushie v Attorney General of Canada

Lead Minister: Public Safety

Highlights: Action brought by the family of Colten Boushie

The plaintiffs in this action are family members of Colten Boushie, who was shot and killed on the Gerald Stanley farm in 2016. The RCMP attended the plaintiffs’ residence to advise of Colten’s death and to search for a person who had fled the scene of the shooting. A family member of the plaintiffs subsequently registered a complaint with the Civilian Review and Complaints Commission (CRCC), and the CRCC also instituted a public interest investigation into the RCMP response to the circumstances surrounding Colten Boushie’s death. The plaintiffs subsequently filed a statement of claim asserting the RCMP unlawfully searched their home, violated their sections 8 and 15 Charter rights, and committed misfeasance in public office. The plaintiffs further assert the RCMP treated them disrespectfully and discriminated against them because they are Indigenous.

The CRCC’s reports are set to be released soon as per the CRCC service standards. Canada will review its response to this litigation in light of the CRCC’s findings.

General Note on Litigation Costs

Context: 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.

• The Attorney General of Canada has responsibility for all civil litigation for or against the Crown, any department, or Crown agent corporations.
• There has been a decrease in the number of litigation files that Justice lawyers and paralegals have worked on in 2020/2021. As of January 31, 2021, that number was approximately 28,000.
• In most of these cases, the Crown did not initiate the proceedings but rather acted as a defendant or respondent.
• The specifics of the legal costs on litigation files are protected by solicitor-client privilege and in some cases litigation privilege, which are critical for the proper functioning of our legal system.
• However, as part of our commitment to open and transparent government, our government has, when possible to do so, responded to requests about costs and waived solicitor-client privilege to the extent of disclosing the total legal costs associated with certain files or groups of files.
• Litigation files are typically handled in house, by Department of Justice officials, who are salaried public servants. The government does not, in those cases, incur expenses for external legal fees.
• To account for the legal services provided by Department lawyers and paralegals, the Department can establish a notional amount. 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.
• Question: Have the litigation costs increased in the last few years?
  • Answer: Overall, the level of effort on litigation files is increasing. Litigation costs for 2020-21 are slightly lower than initially forecast. This is the result of the COVID-19 pandemic and the corresponding reduced operations of decision-making bodies, which directly affects the provision of legal services within the government.
• Question: Where does the increase come from? Is it limited to one area?
  • Answer: The increase comes from a variety of client departments and agency files. It has been more pronounced in some areas, including in support of tax, Indigenous and Immigration matters.

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.

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